REPORT OF BOOK ROADSHOW: “Fikih on Guardianship: Rereading the Right of Guardianship for Protection of Women from Forced Marriage and Child Marriage”

Thursday, 12 September 2019

13.00 – 16.00 Western Indonesia Time

Pondok Pesantren Cipasung, Tasikmalaya, West Java

AS part of the 2019 Book Roadshow, Yayasan Rumah Kita Bersama (Rumah KitaB) conducted a discussion and analysis of the book Fikih on Guardianship: Rereading the Right of Guardianship for Protection of Women from Forced Marriage and Child Marriage at Pondok Pesantren Cipasung, Tasikmalaya, West Java, on Thursday, 12 September 2019. The opening remarks were conveyed by Dr. Zaky Mubarak, M.Si., Director of Postgraduate Programs at Institut Agama Islam Cipasung, and Lies-Marcoes-Natsir, MA., Executive Director of Rumah KitaB. The event was attended by 149 participants, consisting of lecturers, teachers, and santri from Pondok Pesantren Cipasung, Tasikmalaya.

The discussion was kicked off by Dra. Hj. N. Ida Nurhalida, M.Pd. (PP Cipasung) who spoke extensively about the experience of Pondok Pesantren Cipasung in putting gender justice into practice. Next the participants, together with the resource persons, Prof. Dr. Amina Wadud (USA), Jamaluddin Mohammad (Rumah KitaB research team), and Ulil Abshar Abdalla, MA. (PBNU), discussed the various efforts of rereading which have produced an interpretation of gender relations that are more equal and fair as a thought product that socially has a broad influence in the daily lives of the Muslim community.

The event began with the reading of verse al-Isra`: 13 of the Qur’an, which states that for all persons, without differentiation by their sex, their actions have been determined, and on the day of Judgment will be shown to them in a book containing a record of all their deeds and actions while living in this world.

The Experience of Pondok Pesantren Cipasung

Dra. Hj. N. Ida Nurhalida, M.Pd., who is familiarly known as Ibu Nyai Ida, explained that ever since its founding by her grandfather, KH. Muhammad Ruhiyat, Pondok Pesantren Cipasung has applied what she refers to as gender justice.

According to her story, while leading and running the pesantren in 1931, KH. Muhammad Ruhiyat was assisted in his teaching not only by his son KH. Muhammad Ilyas Ruhiyat, but also by a female teacher, Ibu Hj. Suwa. KH. Muhammad Ruhiyat never assumed that women are lacking in expertise and would be unable to provide benefits to the pesantren. Ibu Hj. Suwa was given the broadest possible opportunity to teach the books “al-Jawhar al-Maknûn”, “Alfîyyah”, and other classic books to the male and female santri. This shows that KH. Muhammad Ruhiyat was truly a person imbued with gender justice.

According to Ibu Nyai Ida, this discussion and analysis of the book Fikih on Guardianship is not the first activity related to rereading of the fikih regarding women. Many years ago, in 1994, Pondok Pesantren Cipasung was host to a similar activity which began with the Fiqh al-Nisa` program of P3M together with Kiyai Masdar F. Mas’udi and his colleagues. This program received full support from her father, KH. Muhammad Ilyas Ruhiyat. This was the first time that Ibu Nyai Ida heard about the term “gender”.

After learning about and understanding the term “gender”, Ibu Nyai Ida then concluded that true equality is a core value whose presence is indisputable in the daily life of Pondok Pesantren Cipasung. Her own father, KH. Muhammad Ilyas Ruhiyat, deeply respected his wife and children. Males and females are given the same opportunities, with no discrimination or constraints. Everyone is given freedom to pursue their own interests, and even given the freedom to choose their own marriage partners, with no coercion.

Although her mother was only a primary school graduate, her father always involved her in consultation on all matters. Behind the success of her father, who was the Rais ‘Amm PBNU [Supreme Leader of the Central Board of Nahdlatul Ulama], was her mother, a modest person who always provided input and supported him in everything.

In later developments at Pondok Pesantren Cipasung, women were not only given the opportunity to teach or serve as guru ngaji, but also granted the mandate to lead formal educational institutions. For example, the Principals of the MI, MTs, MAN [primary, junior high, and senior high school level madrasah], senior high school, and even the Head of the STIE [economic college] within Pondok Pesantren Cipasung are all women. And based on observation, the women who lead these formal educational institutions are very successful.

Regarding child marriage, Ibu Nyai Ida told that one of her aunts was married at the age of nine. However, at first she was not allowed to live under the same roof as her husband; they were only allowed to live together after she reached the age of 15. She had many children, all of whom were successful.

In her day-to-day life, Ibu Nyai Ida recalled, this aunt seemed to be fine. But when encouraged to have a heart-to-heart conversation, she would tell about all the problems she experienced. She was very sad that she had not been able to pursue her schooling to a higher level, because she had to stop when she got married. She advised her children not to get married until after they finished university.

Ibu Nyai Ida heard many stories from relatives who married in childhood. They all said, “avoid getting married in childhood.” They even became involved in the campaign to prevent child marriage within the pesantren. It commonly happens that a girl santri is taken out of the pesantren by her parents in order to be married off. Quite often the pesantren has to negotiate with the parents to allow the girl the opportunity to finish her education at the pesantren, and then when she is old enough she is allowed to marry.

For Ibu Nyai Ida, child marriage is an emergency whose handling requires the involvement of many parties, including those from the educational world of the pesantren. It is true that there is no specific religious teaching that explicitly forbids child marriage. There are still differences of opinion among the ulama regarding this issue. Some deem that child marriage is acceptable and valid, while others feel it is not. Even if it is considered permissible, child marriage is not a good thing, because based on experience, it brings more problems that advantages.

In reading a text, according to Ibu Nyai Ida, it is essential to look at its background: why did this text appear, when, and in what context? This is what is called contextualization, which continually requires a balance between the text and the context so that the mission of Islam as rahmatan li al-‘âlamin, a blessing for all, males and females, can be carried out.

To further show concern for women, Pondok Pesantren Cipasung has established a WCC (Women’s Crisis Center) or PUSPITA (Pusat Perlindungan Wanita) which is part of Puan Amal Hayati. Many cases have been handled by PUSPITA. One of these was the case of a girl who was repeatedly raped by her own father. Ibu Nyai Ida related that every time the father wished to perpetrate this evil deed, he would order his wife out of the house, while the daughter was not allowed to go with her. He did this many times, with no resistance by the girl, until finally the crime was revealed and then reported to PUSPITA. The father was arrested and imprisoned; the girl was assisted by PUSPITA and enrolled in a beautician course, and eventually she married her teacher’s son. She now has a happy life with her husband.

In Ibu Nyai Ida’s view, what PUSPITA does is an effort to protect human lives and dignity, and this is part of religiousness. “Wherever we are, that is where we must carry out our religion. When we are at school or on the campus, that is where we engage in religious behavior, not just through our prayers or fasting,” she said.

Between Text and Context

The experience conveyed by Ibu Nyai Ida is truly extraordinary – departing not merely from theory, but from social reality which shows that women have what in the social sciences is referred to as agency or ahlîyyah: the ability to do something or to change something in society, and this has been soundly proven by the experience of Ibu Nyai Ida through the institutions of Pondok Pesantren Cipasung. This kind of experience is widespread in society: that women have capacity and agency, in many cases exceeding that of men.

Whether we realize it or not, the views that control us even now are views that were constructed by males. In the history of interpretation of the Qur`an, for example, almost all of the main players have been men; very rarely do we find tafsir written by women. In Indonesia, or even in the world, all writers of tafsir on the Qur`an are men.

Therefore, as conveyed by Ulil Abshar Abdalla, MA., the views on the role of women in society are often out of balance. The interpretations of the texts of the Qur`an and hadith regarding women, which were constructed and written by men, do not reflect the experience of women. As a consequence, there is a gap between text and reality. On the one hand is the realty that women are increasingly involved in society, while on the other hand the interpretations of the Qur`an and hadith – which are mostly written by men – still take a disdainful view of the roles of women.

This gap, according to Ulil Abshar Abdalla, has existed for a very long time, but recently it has come into question by Muslim intellectuals, including those in Indonesia. In the recent developments, as a country with a majority-Muslim population, Indonesia has taken great steps in granting a greater role to women. Sometimes these actions have been taken without first requesting approval from the ulama, and when the ulama are asked to grant approval, it may happen that not all of them agree. For example, nowadays there is a worldwide movement to give women adequate representation in social roles. As an example, the Indonesian law on political parties states that all parties are obliged to allocate 30% of legislative candidate positions to women.

Furthermore, in their organizational structure, political parties are also required to provide an adequate allocation to women. During the deliberation of the political parties law in the parliament, nobody made an issue of the 30% representation for female legislative candidates. There has never been any major dispute in Indonesia based on religious grounds regarding the greater role for women in political parties. Yet if we look at the experience of other countries with a majority Muslim population, this is still a matter of debate.

In the countries of the Arabian Gulf – Saudi Arabia, Kuwait, the United Arab Emirates and so on – whether women can be members of parliament is still a major issue. Do women have the ahlîyyah or agency to be members of parliament?

But in Indonesia, such questions have never been an issue. Yet the construction of the tafsir on this topic is still traditional, viewing women as creatures who must always be inside the home, never outside the home. This contrasts strongly with the reality in society, where many women are actively involved in political parties, as members of parliament, and as state officials.

Ulil Abshar Abdalla related that in the 1950s, a scholar from the United States named Daniel S. Lev conducted research on judicial institutions in various regions of Indonesia. In his research, he found a woman serving as a religious court judge. Obviously, this came as a great surprise, because in Indonesia, as a country with a majority Muslim population, it was possible for a woman to be given space to serve as a judge, something which would be unimaginable in other Muslim countries.

In the Qur`an there is a verse that reads “Al-rijâl qawwâmûn ‘alâ al-nisâ`,” [QS. al-Nisa`: 34]. According to Ulil Abshar Abdalla, the interpretation of this verse by the ulama tends to be rather uniform: that leadership is in the hands of men, while women are seen as mere followers. For example, Fakhruddin al-Razi, in his book “Mafâtîh al-Ghayb” (the last major Sunni tafsir, 13<sup>th</sup> century CE) states that the meaning of “al-rijâl qawwâmûn ‘alâ al-nisâ`” is that “men are given the right to act as leaders who control women”.

If we look closely, the basis of all the concepts about wilâyah and qiwâmah is “al-rijâl qawwâmûn ‘alâ al-nisâ`” (men are leaders for women). But in daily practice we often find that “al-nisâ` qawwâmâtun ‘alâ al-rijâl” (women are leaders for men). One obvious example is Ibu Nyai Ida, who currently serves as the Principal of MAN [senior high madrasah] II Cipasung. In this position, she has many men working under her.

Does Ibu Nyai Ida’s position as Principal of the MAN conflict with the Qur`an? So we are now faced with a situation in which there is a gap between “al-rijâl qawwâmûn ‘alâ al-nisâ`” as text and “al-nisâ` qawwâmâtun ‘alâ al-rijâl” as context or social reality. Hence, the challenge for Muslim scholars going forward is to build a construction of fikih that involves dialogue between the texts (al-Qur`an and hadith) and the context (social reality).

The Importance of Education for Equality

Ibu Nyai Ida noted that when she gives lectures at religious study groups (majelis taklim and pengajian), she always inserts material on the importance of education for both males and females. “In the majelis taklim, we tell them that if you want to have good offspring, their mothers have to be smart. If you have children, whether boys or girls, both must be given the same opportunity to study and get an education,” she said.

The importance of education for males and females was also conveyed by Prof. Dr. Amina Wadud. Quoting a hadith of the Prophet pbuh which states, “Seeking knowledge is an obligation for both male Muslims and female Muslims,” she said that the 1441-year history of Islam has shown the importance of education, because the very first verse that was revealed to the Prophet pbuh was “Iqra’” (Read!), which emphasizes the importance of reading. The existence of this command to read as a verse revealed to the Prophet pbuh added to the knowledge of the Muslim community at that time.

According to Prof. Dr. Amina Wadud, the Muslim community achieved its golden age at precisely the same time the people of Europe were stuck in the Dark Ages. But the Muslims failed to maintain this glory, because they were unable to preserve the spirit of the importance of education as taught by the Prophet pbuh.

It is important to note that the Arabic word “tarbiyah” (education), which comes from the root “rabbâ” (to educate, to care for), does not refer solely to a quantity, but instead relates to fostering and guidance to improve the quality of life and growth of boys and girls.

The quality of growth and development must be continuously improved through education so as to enable every person to have the opportunity to become a good servant of Allah. In Prof. Amina Wadud’s view, when Allah said He would create a khalifah on the face of the earth, this showed that every human has a responsibility to give their best in order to improve the quality of human life on earth.

“Truly, the history of the future has not yet been written,” said Prof. Amina Wadud. Therefore, every person, male or female, has the same opportunity to formulate great steps to achieve an even better future.

The Methodology Offered by the Book Fikih on Guardianship

According to Ulil Abshar Abdalla, the book Fikih on Guardianship is truly an effort to bridge the gap between text and context by proposing a tafsir based on maqâshid al-Islâm or maqâshid al-syarî’ah and the principle of benefit. One of the themes discussed in the book is child marriage. In fikih, there is a concept known as wali mujbir, a guardian who has the right to force his child to marry. In fact, this concept is still a matter of debate between the various mazhab (schools of thought); some mazhab allow a guardian to force his daughter to marry, others do not allow this, and so on.

To date, the popular understanding in society regarding wali mujbir is that a guardian or parent has the right to use his authority to force his daughter to marry. This happens in cases of child marriage in many regions of Indonesia. Research by Rumah KitaB has found that Indonesia is a country with a very high rate of child marriage.

Among the reasons why parents marry off their daughters at a very young age are economic factors, unwed pregnancy, the factor of traditional or social views that if a girl reaches a certain age but is not yet married, this brings tremendous shame to her parents, so they have the right to force her to marry even if she does not like her prospective husband, and many other factors. This concept of wali mujbir is then used – or misused – by parents to marry off their daughters without the girls’ permission.

As well as the issue of wali mujbir, which describes the relationships between parents and children in the context of the concept of wilâyah (guardianship), the book Fikih on Guardianship also discusses the relations between husbands and wives in the context of the concept of qiwâmah (leadership). Jamaluddin Mohammad noted that gender analysis is essential in looking at the concepts of wilâyah and qiwâmah. This is because the concepts of wilâyah and qiwâmah have become well established social institutions practiced since 1300 years ago, and have become part of the value system recognized and embraced by the Muslim community. Consequently, any efforts for renewal will certainly come under suspicion as attempting to alter the long-established nash or texts; people are trying to reinterpret something that is claimed to be indisputable.

Using gender analysis as a critical perspective, it will be found that the concepts of wilâyah and qiwâmah contain asymmetry or inequality in the general relations between males and females. This gender analysis is then reinforced using the approaches of maqâshid al-Islâm or maqâshid al-syarî’ah (hifzh al-dîn, hifzh al-‘aql, hifzh al-nafs, hifzh al-nasl, and hifzh al-mâl) in the framework of triangulation between text, context, and maqâshid al-Islâm. Here, the text and context are promoted to attain the great ideal of Islam, i.e. maqâshid al-Islâm.

The book Fikih on Guardianship mentions many efforts by thinkers and practitioners to show that the efforts for a rereading of the concept of wilâyah and qiwâmah are not something new in the study of Islam. Among the noted scholars who can be mentioned are Prof. Dr. Teungku H. Mohammad Hasbi Ash-Shiddiqiy, Prof. Dr. Mr. Hazairin Harahap, S.H., Dr. (HC). KH. Sahal Mahfudz, and Dr. H. Andi Syamsu Alam, S.H., M.H., as well as ulama from the Middle East such as Rifa’at Rafi’ al-Thahthawi, Thahir al-Haddad, Muhammad Abduh, and Qasim Amin. They are thinkers and practitioners who have tried to contextualize social changes with the original texts so that the texts remain relevant in overcoming the asymmetrical gender relations in the family.

Their ideas are truly extraordinary. Take for example Thahir al-Haddad, a thinker from Tunisia, who in his time proposed the idea that the registration of marriage is one element for the validity of a marriage. A marriage certificate is one of the foundations of a valid marriage. Furthermore, in his opinion talak, effecting divorce through repudiation, is the right of both men and women. So it is not only men who can perform talak but also women, and furthermore this can be done only through the courts. Simply uttering “thalaqtuki tsalâtsan” (“I divorce you” three times) does not automatically lead to divorce. But that is how it is seen in the classical books of fikih, and this is one of the things that today’s ulama are trying to change. []