DISCUSSION OF BOOK ON FIKIH ON GUARDIANSHIP: RE-READING THE RIGHTS OF GUARDIANSHIP FOR PROTECTION OF WOMEN

Qiwamah and Wilayah Column:

[Over the next several months, this Qiwamah and Wilayah Column will appear in the Rumah Kita Bersama website. As well as reporting on the Roadshow for outreach on the book conducted in several cities, this column will try to reach a broader range of readers. Therefore, this column is presented in both Indonesian and English. This column is published four times, in cooperation with the Oslo Coalition]

 

Jakarta, 25 June 2019

Unchaining Fiqh from the Manacle of Asymmetric Relations in Gender’s Construction

JAKARTA. On Tuesday, 25 June 2019, Rumah Kita Bersama launched the book Fikih on Guardianship: Re-Reading the Rights of Guardianship for Protection of Women from Forced Marriage and Child Marriage. This book is the outcome of a study on classical and modern texts on the concepts of wilayah and qiwamah together with various religious figures, sociologists, anthropologists, legal experts, and activists conducted over several months.

This event took place in the hall of Griya Gus Dur at the Wahid Foundation, Menteng, Central Jakarta. The event was attended by sixty participants from various institutions: NGO activists, representatives of the government such as from the Ministry of Religious Affairs, Supreme Court, Ministry of Law and Human Rights, Ministry for Women’s Empowerment, Commission for Prevention of Violence against Women (Komnas Perempuan), Commission for Protection of Children (Komnas Perlindungan Anak), university lecturers and students, and the media. Also in attendance were three representatives of the Oslo Coalition, Norwegian Centre for Human Rights: Dr. Lena Larsen (the Director of the Oslo Coalition, one out of six thematic areas at the Norwegian Center Department), Prof. Dr. Nelly Van Doorn, and Kathrine Raadim (the Director of International Department at Norwegian Centre for Human Rights, University of Oslo).

To discuss the book, Rumah Kita Bersama invited four resource persons: Dr (CH) KH. Husein Muhammad (head of Pesantren Dar at-Tauhid, Cirebon and former commissioner of Komnas Perempuan), Nursyahbani Katjasungkana SH (women’s activist from LBH Apik Jakarta), Drs. Mohammad Noor SH, MH, (Judicial Judge of the Legal Bureau and concurrently Public Relations officer of the Indonesian Supreme Court), and Ulil Abshar Abdalla MA (young intellectual from Nahdlatul Ulama). The event was led by Lies Marcoes-Natsir MA from Rumah Kita Bersama.

In her introduction, Lies Marcoes noted that normatively, Islam places the values of equality of men and women as a principal value, but in terms of fikih law – where the law regarding social relationships within the family is constructed – the relations between males and females are placed asymmetrically.  In the concepts of fikih, the relations between these two genders are linked in ways that are slanted or imbalanced. Nevertheless, this asymmetrical construct is (often) considered to be certain, fixed, and immutable, or qath’i. In reality, these asymmetrical relations are not always accepted, even by the fuqaha themselves. This can be seen from their interpretations, which very obviously seek to achieve a fairer balance in the relationship. In the book, many figures are presented, including some from the Middle East such as Rif’at Thohtowi, Qasim Amin and Muhammad Abduh. From within Indonesia, the book presents the ideas of Kiai Salah Mahfud with his social fikih, as well as breakthroughs by religious court judges in the Supreme court as exemplified by figures such as Prof. Hasybi Asydidiqie, Prof. Hazairin, and Andi Syamsu Alam SH. They offer new ideas, in terms of both methodology and interpretation, on family law and on how these methods can be applied in court hearings.

Many people assume that Islamic law is whatever is set out in the fikih. In fact, according to Ulil Abshar Abdalla, Islamic law is not just what is stated in the (books of) fikih, though fikih is one part of the big picture.

Meanwhile, Nursyahbani Katjasungkana stated that the concept of guardianship in Islamic law differs from the concept of guardianship in both the Civil Code and the Marriage Law. In both those laws, women are allowed to serve as guardians; something that is very different from the concepts of qiwamah and wilayah found in the book. Nursyahbani also noted that this asymmetry occurs not only in fikih, but also in the Laws on Islamic family law, such as in the Marriage Law, which states that the man is the head of the household and the woman is a housewife. This indicates that the Marriage Law does not refer to international law or conventions such as CEDAW.

Another problem, as noted by Kiai Husein Muhammad, is that to date men have been at the center of the lawmakers, and they enjoy luxury in many aspects, including in the issues of wilayah and qiwamah. This process of granting luxury to men, according to Kiai Husein Muhammad, is not solely a form of delegation of rights based on gender due to descent or to relations that arise from the occurrence of a legal event, such as marriage, but is instead related mainly to the man’s responsibility and obligation to protect the rights of the children or the wife. In other words, this is a gender construct relating to the obligations and responsibilities of men, and not simply about rights.

Unfortunately, this kind of reading that emphasizes the aspect of obligations, rather than rights, is not very popular in the community. The fikih that we currently use, Kiai Husein Muhammad explained, is a product of medieval Arabic culture, which granted greater leeway to men based on their situation and condition. Methodologically, there are certain principles that should be upheld throughout the ages: the humanitarian ideals of Islam, the ideals that place males and females on an equal standing as humans. Since the death of the Prophet Muhammad, nearly all religious teachings are interpretations. And interpretations are closely linked to time and space, so the interpretations of religious texts, even (interpretations) of the hadith of the Prophet, are products of culture, while in fact they (should) constantly refer to the ideals of Islam.

To achieve a reading of religious texts that is fair to both women and men, a new methodology is needed – a method that is willing to read the changing reality in society. Women nowadays are better educated and more self-reliant. Consequently, a method for reading texts is needed that is friendlier and more sensitive toward women. In this way, the texts will be able to read the special needs of women, which have to date been covered up by the misogynistic power of the texts.

Such efforts are often accused of being a Western agenda that promotes immorality. Lena Larsen said that this egalitarian approach that is undertaken in rereading the concepts of qiwamah and wilayah does not promote immorality. Rather, these efforts are simply to protect the family, especially children and wives, who are vulnerable to unjust treatment.

The efforts to perform reconstruction or deconstruction of texts are not easy. Over many centuries, the existing theological ideas and interpretations have become sacralized. Thus, a significant investment of time and thinking is needed in this regard. But this does not mean it is impossible.

One of the initiatives that has been undertaken by Rumah Kita Bersama is the publication of the book Fikih on Guardianship: Re-reading the Rights of Guardianship for Protection of Women from Forced Marriage and Child Marriage. Muhammad Noor says that this book produced by Rumah Kita Bersama is important. In his opinion, this book can be used as a reference by judges and those who provide direct support to the community in handling cases of family law, especially child marriage and forced marriage. (Aida, Lies)

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