Interpretation of revelation was free of gender restrictions. A woman’s legal opinion (fatwa) was just as valid and morally binding as the legal opinion of a man. Thus a woman could legitimately be a mufti, a legal expert whose task it was to communicate legal rules to non-specialists including, at times, judges and other holders of political power. There was complete agreement among Sunni jurists that women could be mufti. It was as a result of the law’s acceptance of women as mufti, moreover, that al-Tabari was led to argue that a woman could be a judge in all areas of the law.
There are also a number of historical instances about the exercise of jurisdiction of qadhi by women without any objection by the ulama’ of that age. The oldest example is of the mother of Muqtadar Billah who presided at the High Court of Appeal.
There are also a number of historical instances about the exercise of jurisdiction of qadhi by women without any objection by the ulama’ of that age. The oldest example is of the mother of Muqtadar Billah who presided at the High Court of Appeal.
5. Appointment of Women Judges in Modern Times
The Pakistan CaseIn Ansar Burney v. Federation of Pakistan, a case decided by the Federal Shariat Court of Pakistan, a petition was filed to challenge the appointment of women as magistrates. The grounds opposing their appointment were:
1. They discharge their functions as judges without observing purdah, which is a clear violation of the injunctions of Islam.
2. During the period of the Holy Prophet and his rightful companions, the duties of judgeship were never entrusted to females since it appears to be a violation of the injunctions in Islam.
3. According to Muslim law, the evidence of a woman is half that of a man and her share in inheritance is equal to half that of her brother. The judgment of two women can only be equivalent to that of a male.
4. Women do not fulfil the qualifications of a judge according to established principles of Muslim jurisprudence.
1. They discharge their functions as judges without observing purdah, which is a clear violation of the injunctions of Islam.
2. During the period of the Holy Prophet and his rightful companions, the duties of judgeship were never entrusted to females since it appears to be a violation of the injunctions in Islam.
3. According to Muslim law, the evidence of a woman is half that of a man and her share in inheritance is equal to half that of her brother. The judgment of two women can only be equivalent to that of a male.
4. Women do not fulfil the qualifications of a judge according to established principles of Muslim jurisprudence.
The Court dismissed the petition on the following grounds:
1. There is no law or custom or usage having the force of law for or against the seclusion of women. The court is not called upon to go into the question of whether Islam allows complete seclusion or partial seclusion or whether a woman shall appear in public, veiled or unveiled.
2. The argument of counsel for the petitioner that since the evidence of a woman is half that of a man and her share in inheritance is half that of her brother, there should be at least two female judges to decide a case is impossible to accept. If such a concept is given effect to, it will follow that no male judge sitting alone can decide a civil or criminal case. According to fiqh, in cases other than that of zina in which four eye-witnesses are required to prove the offence, at least two male witnesses must prove disputes of property or criminal cases in hudud and qisas. If the argument of counsel is taken to its logical conclusion, it should follow that the number of judges to decide a particular case should correspond to the number of witnesses required to prove it.
3. The share of inheritance to a male is in proportion to his responsibilities and not due to any superiority over the female.
4. Similarly, it is not a ground for excluding women from appointment as judges that the Holy Prophet or his four successive Caliphs did not appoint any woman as such since the rule is that what is not prohibited in the Qur’an and Sunnah is permitted, and the burden of proof about anything prohibited is on the person who claims it to be so.
5. It is not denied that there is no specific and direct injunction in the Qur’an and Sunnah of the Holy Prophet concerning the matter. There are only the conflicting opinions of the jurists. (The court then dealt extensively with these opinions and historic examples of women in Muslim history.)
6. There are certain injunctions in the Qur’an which, like other injunctions on good conduct, discharge of duties, reward and punishment, are common to both men and women. These are injunctions regarding the duty of all Muslims to be just and do justice (Surah an-Nisa’ 4;58, Surah al-Ma’idah 5:42, Surah al-Hadid 57:25).
7. The words “adl’ or “qist” in these sura are used in a much wider sense and each Muslim, whether male or female, is bound to be just and equitable in his dealings with his spouse, parents, children, neighbours, relatives, friends, fellow Muslims and all others. The concept of justice in deciding disputes between the parties or in dealing with criminal cases is only a part of adl or qist. The verses Surah 4:58 and 5:42 clearly envisage determination of disputes or litigation. There is no distinction in this connection between man and woman.
8. In view of this and in the absence of any prohibition in the Qur’an or hadith about the judgeship of woman or any restriction limiting the function of deciding disputes to men only, the generality of these verses cannot be cut down.
9. From whatever angle, there appears to be no merit in the objection raised by the petitioner against the appointment of women to judicial offices.
2. The argument of counsel for the petitioner that since the evidence of a woman is half that of a man and her share in inheritance is half that of her brother, there should be at least two female judges to decide a case is impossible to accept. If such a concept is given effect to, it will follow that no male judge sitting alone can decide a civil or criminal case. According to fiqh, in cases other than that of zina in which four eye-witnesses are required to prove the offence, at least two male witnesses must prove disputes of property or criminal cases in hudud and qisas. If the argument of counsel is taken to its logical conclusion, it should follow that the number of judges to decide a particular case should correspond to the number of witnesses required to prove it.
3. The share of inheritance to a male is in proportion to his responsibilities and not due to any superiority over the female.
4. Similarly, it is not a ground for excluding women from appointment as judges that the Holy Prophet or his four successive Caliphs did not appoint any woman as such since the rule is that what is not prohibited in the Qur’an and Sunnah is permitted, and the burden of proof about anything prohibited is on the person who claims it to be so.
5. It is not denied that there is no specific and direct injunction in the Qur’an and Sunnah of the Holy Prophet concerning the matter. There are only the conflicting opinions of the jurists. (The court then dealt extensively with these opinions and historic examples of women in Muslim history.)
6. There are certain injunctions in the Qur’an which, like other injunctions on good conduct, discharge of duties, reward and punishment, are common to both men and women. These are injunctions regarding the duty of all Muslims to be just and do justice (Surah an-Nisa’ 4;58, Surah al-Ma’idah 5:42, Surah al-Hadid 57:25).
7. The words “adl’ or “qist” in these sura are used in a much wider sense and each Muslim, whether male or female, is bound to be just and equitable in his dealings with his spouse, parents, children, neighbours, relatives, friends, fellow Muslims and all others. The concept of justice in deciding disputes between the parties or in dealing with criminal cases is only a part of adl or qist. The verses Surah 4:58 and 5:42 clearly envisage determination of disputes or litigation. There is no distinction in this connection between man and woman.
8. In view of this and in the absence of any prohibition in the Qur’an or hadith about the judgeship of woman or any restriction limiting the function of deciding disputes to men only, the generality of these verses cannot be cut down.
9. From whatever angle, there appears to be no merit in the objection raised by the petitioner against the appointment of women to judicial offices.
The Indonesian Experience
Indonesia in the 1990s has approximately 100 women judges (known as Ibu Hakim in the Syariah Court or Peradilan Agama). Their appointment came with the enforcement of the Marriage Law of 1974 (no. 1 of 1974).
Under the existing majority juristic interpretation, the qualifications of a judge are as follows: Muslim, major, a free person, mature, is just and has integrity, able to use his sense of hearing and sight, a mujtahid, and male.
The appointments of women as judges in Indonesia are reasoned and justified as follows:
1. The hadith related by Abu Bakra is stated in the negative—“that a nation can never prosper …” is not a direct prohibition. This hadith is interpreted as not prohibiting the appointment of women as leaders or as judges.
2. That the appointments are on matters other than hudud and qisas (that is, accepting the Hanafi approach).
3. That both men and women are enjoined to do good and prevent evil in Surah al-Imran 3:104:
and that there might grow out of you a community (of people) who invite unto all that is good, and enjoin the doing of what is right and forbid the doing of what is wrong …
4. That it is inconceivable that all women are incapacitated morally and intellectually. The Prophet (saw) himself acknowledged the intelligence of Aishah (ra), his wife. The Prophet (saw) stated that half of knowledge is in her hands. Surah al-Imran 3:190 & 191 states that “those who reflect” are those who “remember Allah when they (men and women) stand, and when they (men and women) sit, and when they (men an women) lie down to sleep”. Thus the Qur’an has not discriminated men and women in “those who reflect (or think)”.
5. That the interaction of women and men in public does not necessarily bring about a corruption of morality (fitnah). One of the necessary qualifications of a judge is integrity. If the appearance of a woman litigant does not bring about a corruption of morals of the male judge, it would follow that the appearance of male litigants will not bring about the corruption of the female judge. Surah an-Nahl 16:97 states:
As for anyone—be it man or woman—who does righteous deeds, and is a believer withal … We shall grant unto these their reward in accordance with the best that they ever did.
6. The fact that the rightly guided Caliphs did not have women appointees as judges does not mean that there exists a prohibition. There is no clear nass in the Qur’an and Sunnah to prohibit such appointments. The duty of arbitration and settling disputes is a matter enjoined by the Qur’an and Sunnah. The Qur’an has left the decision on appointing the arbiters or judges to humans who can fulfil the requirement of the task of judging.
A Comparison between Pakistan and Indonesia
It might appear that while the Pakistan decision allows women judges to hear all cases under the Syariah, the Indonesian argument suggests a limitation to family cases. It should, however, be observed that the Indonesian appointees (male and female) in the Syariah Court in Indonesia are only for family cases under the Marriage Law of 1974. The argument that the appointments are on matters other than hudud and qisas is thus a reflection of the actual situation arising in Indonesia.
It is interesting to note that both the Pakistan decision and the Indonesian argument cite Surah al-Taubah 9:71:
The Believers, men and women, are protectors of one another.
Revealed in 8 Hijrah towards the end of the Prophet’s life, this verse sums up the Islamic way of life within a relationship of women and men as each other’s protectors and friends. It sums up the spirit of equality and mutuality of men and women.
Under the existing majority juristic interpretation, the qualifications of a judge are as follows: Muslim, major, a free person, mature, is just and has integrity, able to use his sense of hearing and sight, a mujtahid, and male.
The appointments of women as judges in Indonesia are reasoned and justified as follows:
1. The hadith related by Abu Bakra is stated in the negative—“that a nation can never prosper …” is not a direct prohibition. This hadith is interpreted as not prohibiting the appointment of women as leaders or as judges.
2. That the appointments are on matters other than hudud and qisas (that is, accepting the Hanafi approach).
3. That both men and women are enjoined to do good and prevent evil in Surah al-Imran 3:104:
and that there might grow out of you a community (of people) who invite unto all that is good, and enjoin the doing of what is right and forbid the doing of what is wrong …
4. That it is inconceivable that all women are incapacitated morally and intellectually. The Prophet (saw) himself acknowledged the intelligence of Aishah (ra), his wife. The Prophet (saw) stated that half of knowledge is in her hands. Surah al-Imran 3:190 & 191 states that “those who reflect” are those who “remember Allah when they (men and women) stand, and when they (men and women) sit, and when they (men an women) lie down to sleep”. Thus the Qur’an has not discriminated men and women in “those who reflect (or think)”.
5. That the interaction of women and men in public does not necessarily bring about a corruption of morality (fitnah). One of the necessary qualifications of a judge is integrity. If the appearance of a woman litigant does not bring about a corruption of morals of the male judge, it would follow that the appearance of male litigants will not bring about the corruption of the female judge. Surah an-Nahl 16:97 states:
As for anyone—be it man or woman—who does righteous deeds, and is a believer withal … We shall grant unto these their reward in accordance with the best that they ever did.
6. The fact that the rightly guided Caliphs did not have women appointees as judges does not mean that there exists a prohibition. There is no clear nass in the Qur’an and Sunnah to prohibit such appointments. The duty of arbitration and settling disputes is a matter enjoined by the Qur’an and Sunnah. The Qur’an has left the decision on appointing the arbiters or judges to humans who can fulfil the requirement of the task of judging.
A Comparison between Pakistan and Indonesia
It might appear that while the Pakistan decision allows women judges to hear all cases under the Syariah, the Indonesian argument suggests a limitation to family cases. It should, however, be observed that the Indonesian appointees (male and female) in the Syariah Court in Indonesia are only for family cases under the Marriage Law of 1974. The argument that the appointments are on matters other than hudud and qisas is thus a reflection of the actual situation arising in Indonesia.
It is interesting to note that both the Pakistan decision and the Indonesian argument cite Surah al-Taubah 9:71:
The Believers, men and women, are protectors of one another.
Revealed in 8 Hijrah towards the end of the Prophet’s life, this verse sums up the Islamic way of life within a relationship of women and men as each other’s protectors and friends. It sums up the spirit of equality and mutuality of men and women.
Conclusion
There is no prohibition in the Qur’an against the appointment of women to the office of judgeship. The well-known principle that lawfulness is inherent in everything unless there be reason for its prohibition should therefore determine the question. Juristic opinion is not the whole of Islam. Juristic opinion is an interpretation of the textual sources of the Qur’an and Sunnah as understood in a particular historical context.Once it can be understood that (juristic opinion or historical Syariah is a construction by founding jurists), it should become possible to think about reconstructing certain aspects of (historical) Syariah, provided that such reconstruction is based on the same fundamental (revealed) sources of Islam and is fully consistent with its essential moral and religious precepts.
With regard to the appointment of women judges, the following approaches may be taken against the jumhur opinion that women cannot be appointed to a judicial office:
1. By adopting the Hanafi opinion that women can be appointed as judges in family law cases. In any case, in Malaysia, as in Indonesia, the Syariah Courts deal mainly with family law cases.
2. By adopting the opinion of al-Tabari and Ibn Hazm that women can be appointed as judges in all cases as long as the woman appointed fulfils the requirements for the position. This was a very radical view in those medieval times, but should be acceptable and logical in these modern times.
3. By rethinking the paradigm, involving a transformation or reconstruction of the position of men and women in society generally, their participation in public life as well as the qualifications for appointment to judicial office in the Syariah Courts.
The sad situation of women in many contemporary Muslim societies, which contradicts the teachings of Islam, is a concrete fact that cannot be denied. Surah ar-Rad 13:11 reminds us:
Allah does not change the situation of a people until they change it themselves.
This is a recurring theme in the Qur’an, as can be seen also from Surah al-Anfal 8:53.
Muslims should be reminded that the subordination of women based on the view that women are inferior to men was not an Islamic viewpoint, but a reflection of the prevailing opinions in various medieval societies and cultures, originating in various pre-Islamic civilisations, including the highly feudalised societies of the Byzantine and Persian empires as well as the Greek and Roman civilisations.
The Jewish and Christian influences have also led many Muslims to believe in the Biblical version that God created woman from man’s rib, and woman is therefore, in her origin, derivative and secondary. From the teachings of the Qur’an, it is the Muslims who should have led the rest of the world in an enlightened reconstruction of the status of men and women in their relations towards each other and their participation in society within the ethical and Islamic way of life.
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