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Giving Thanks for the Blessing of Reason: Reconstructing the Meaning of Wilayah (Guardianship) to Prevent the Practice of Child Marriage

Report on Discussion of the Book Fikih on Guardianship: Re-reading the Right of Guardianship for Protection of Women from Child Marriage and Forced Marriage

In Bekasi, on 20 October 2019, Rumah KitaB, in cooperation with Yayasan Perguruan Islam el-Nur el-Kasysyaf (YAPINK) and Institut Agama Islam Shalahuddin Al-Ayyubi (INISA), conducted a discussion of the book Fikih on Guardianship: Re-reading the Right of Guardianship for Protection of Women from Child Marriage and Forced Marriage. This event was attended by 194 participants (44 men and 150 women), comprising the Board of Pesantren Caretakers of YAPINK, the leadership of INISA, lecturers, teachers, and students, and invited Ulil Abshar Abdalla (PBNU), KH. Ali Anwar (YAPINK Board of Pesantren Caretakers), and Ahmad Hilmi, (member of the book writing team) as the resource persons. The discussion took place at the Lecture Hall of YAPINK’s Faculty of Culture, and acting as the moderator was Jamaluddin Muhammad (Researcher from Rumah KitaB).

Before the event started, KH. Khalid Dawam (Chairman of the YAPINK Board of Pesantren Caretakers) provided welcoming remarks conveying his appreciation for the intellectual work that has been done by persons who are willing and courageous enough to explore matters that are often considered final, such as fikih. This intellectual work to respond to what is happening in society, according to KH. Khalid Dawam, is not intended to ignore, negate, or disrespect the fuqaha who have set forth their thinking in the studies on fikih as presented in various books, but is instead a form of intellectual responsibility to address problems in society.

Al-Qur’an and the hadith are indeed one, but clearly their interpretations are not singular, KH. Khalid Dawam stated. Hence, he continued, it is still possible to discuss matters that are of a furuiyyah[1] nature.

If to date the community has believed that akil baligh [maturity] is one indication that a person is allowed to marry, now we must reexamine what exactly akil baligh is, and what its consequences are – particularly if biological maturity is used as a basis for allowing child marriage. This is because there are certain individuals who use this basis to commit actions that are not beneficial for all, thereby often giving rise to negative views about Islam. Observing this, KH. Khalid Dawam said, quoting the noted Egyptian Muslim intellectual, Muhammad Abduh: “Al Islamu mahjubun bil muslimin” (the glory of Islam is concealed by (the actions of certain) Muslims themselves).

The book Fikih on Guardianship prepared by the team from Rumah KitaB, according to KH. Khalid Dawam, is part of an expression of gratitude for our being given common sense, by using it as well as possible so that rigidity of thinking does not occur.

Ulil Abshar Abdalla stated that the book that is being discussed came about as a response to the widespread practice of child marriage in Indonesia. Following on from this, Ahmad Hilmi mentioned that Indonesia is among the countries with a high rate of child marriage.

This problem of child marriage has become so serious not solely because of legal issues, but also because it is intertwined with religious and cultural perspectives. Hence, according to Ulil, the book makes a significant contribution to resolving the problem of child marriage.

For example, the religious arguments that have up to now been used as a justification to allow child marriage are reconstructed in the study (in this book) and given a new meaning that is friendlier to females, particularly those who are likely to become victims of child marriage. As an example, the concept of ijbar in fikih differs from the concept of ikrah (coercion). Ijbar is the realm of protection by the father (guardian) to his daughter in order to protect her from all possibilities by choosing a proper partner for her. And clearly, a requirement for ijbar is the willingness of the daughter who is to be married. The power and authority to protect the rights and dignity of a child that are held by a guardian in ijbar cannot simply be reduced to the idea of coercion (ikrah).

[1] Furuiyyah literally means branch. But in this context, it can mean multidimensional.

 

Book Roadshow: Fikih on Guardianship

Pondok Pesantren Kebon Jambu,

Babakan Ciwaringin, Cirebon, West Java

Friday, 6 September 2019

Achmat Hilmi, Lies Marcoes

 

With support from the Oslo Coalition, Rumah Kita Bersama held a “Book Roadshow” activity for the book Fikih on Guardianship on Friday, 6 September 2019,  at the Sang Dwi Cahya Mulia Women’s Mosque, Pondok Pesantren Kebun Jambu (regarding the Women’s Mosque, see the report by Lies Marcoes). This pesantren is headed by Nyai Masriyah Amva, a very influential woman ulama in Babakan Village, Ciwaringin District, Cirebon Regency.

This activity was designed as outreach to publicize the book “Fikih on Guardianship” – Rumah Kita Bersama’s latest book, which was compiled based on the routine discussions of Dirasah Kutub Rumah KitaB on the concepts of Qiwamah and Walayah. These discussions produced a knowledge product that reconstructed the religious understanding on the concepts of the power relations between men and women, between husbands and wives (Qiwamah), and between fathers and daughters (walayah), in the domestic context and in public space, by presenting various methodologies for reading texts conceived by previous generations of scholars at both national and international levels.

This activity was attended by Prof. Dr. Amina Wadud, an Islamic feminist who has conceived the paradigm of Tauhid as an effort toward equality between men and women. Amina is currently in Indonesia as part of her sabbatical to write several knowledge projects relating to the issues of feminism and Islam. Also present were Buya Dr. (HC) KH. Husein Muhammad (ulama from Cirebon), and Ibu Nyai Masriyah Amva.

The event was attended by, among others, postgraduate students from Universitas Pendidikan Indonesia (UPI) Bandung, students from IAIN Nurjati Cirebon, ISIF Fahmina, Mahasantri (university level santri) from Ma’had Ali Al-Hikam As-Salafiyyah (MHS), Mahasantri from Ma’had Ali Ponpes Kebon Jambu, teachers from within Pondok Pesantren Babakan Ciwaringin, Cirebon, as well as male and female santri from pondok pesantren Kebon Jambu and from various other pesantren in Babakan Village. More than 200 participants were present.

In her welcoming remarks Nyai Masriyah Amva emphasized the importance of openness and tolerance. According to ibu Nyai, it is very important for the santri to attend this event to enrich their knowledge about the discourse on a tolerant Islam. This activity, according to ibu Nyai, is a response to the needs of the santri, who are currently facing the challenge of an increase in intolerant religious views in Indonesia which can potentially damage the relations between religious communities and reinforce discriminatory religious views toward women both in the private context and in public space.

Ibu Lies, in her remarks, expressed her thanks to Ibu Nyai Masriyah Amva and Buya KH Husein Muhammad. Ibu Lies has been teaching the concepts of gender justice for over thirty years, in various pesantren. Now, the concept of gender justice is growing in the world of the pesantren, in line with the perspective and character prevailing in the pesantren. In this way, the concept of gender justice can develop. In Indonesia, the concept of gender justice has been able to develop thanks to the existence of the pesantren. With their traditions, outlook, and knowledge, pesantren can apply the concepts of gender justice so as to bring about new models of knowledge products on gender justice based on the pesantren tradition and perspective. Thus, the pesantren have been proven able to develop religious inclusiveness in the social space of the pesantren community. But to counteract the rise in intolerant religious views in West Java, this Fikih on Guardianship Roadbook activity is being held at Ponpes Kebon Jambu, Cirebon, to strengthen the santris’ knowledge on the concepts of power relations with gender justice.

Prof. Dr. Amina Wadud explained about the concept of the mosque and the patterns of discrimination against women with a religious basis. According to Amina, mosques are part of the historic struggle for gender equality in Islam. Yet in the historical record, mosques have never provided the same, equal space for men and women; women are often placed in smaller prayer halls with a different social status from a mosque. Within an actual mosque, women are placed behind the men; they are treated as secondary visitors. This situation does not come from the teachings of God, but rather from men’s attitudes which are discriminatory toward women. God has never made an issue of the positions in worship of men and women, whether in the back, in the front, by the side or in the middle. Women can worship anywhere, in any part of the mosque, because God is present everywhere and has never stipulated a particular location for women to worship in a mosque. It is the men who determined that women’s place is in the back, at the side, and that the men are in front. These rules were made by humans and conflict with the concept of equal rights in worship which is taught by God.

Buya Husein, as the second speaker, explained the importance of reconstructing the understanding relating to Qiwamah and Walayah, because the religious interpretations currently available still see the power relations between men and women in a discriminatory and subordinating way. In his explanation, Buya Husein helped the participants to map the distance between religion as a spiritual locus with universal concepts of teaching, and religion as a product of culture in a particular region. As a universal teaching, religion embraces the concept of equality between men and women, because the highest power is with God alone, and other than God, all are equal except in their devoutness, not superior from their inherent status as males. This is different from the religious perspective produced as a product of a patriarchal culture, which states that men’s superior position relative to women is inherent. This view clearly contradicts the universal concept of religion. Any religious product that deviates, from justice toward injustice, from love to dislike, requires a reinterpretation of its religious perspective, as it conflicts with the general concepts of religion.

Roland Gunawan, as a representative of the writers of the book “Fikih on Guardianship,” explained that the emergence of the book was preceded by a lengthy series of eight discussions to seek and explore religious arguments as a basis and foundation for reconstructing religious views with gender justice in the concepts of Qiwamah and walayah.

Following the series of lectures, the activity continued with a discussion session. Three santri asked questions. Three questions of an abstract nature were raised by two male santri from Ma’had Aly Al-Hikam Al-Salafiyah and Ma’had Ali Kebun Jambu. The fourth question, based on the experience of women, was raised by a female santri from Ponpes Kebun Jambu. But the most interesting was certainly the question asked by the female santri, since its basis was the experience of women who suffer discrimination in public space, in connection with forced marriage.

The response from the participants was tremendous, as proven by the dozens of santri who enthusiastically used the discussion session to present their comments and questions. []

 

Summary of Books on Fikih on Guardianship: Rereading the Right of Guardianship for Protection of Women from Forced Marriage and Child Marriage

Exposers of the Dark Current:

Exploring the Works of Muslim Intellectuals in Realizing Justice for Women

by Nur Hayati Aida

 

The world we live in now is one in which society still considers one sex as superior to the other. Nearly all arrangements in society are constructed from a male perspective, so it is not surprising that what is produced is a set of rules that tend to be detrimental to women and put them in second place. One factor that reinforces the imbalance in the relations between males and females is (the interpretation of) religion. Whether we realize it or not, interpretation of religion (and its texts) contributes to the perpetuation of practices of injustice toward females.

Yet in the midst of this patriarchal mainstream, certain persons have emerged who chose to fight the tide by building a methodology that reinterprets the misogynistic religious texts that have long been deliberately used to legitimize gender-based discrimination.

In the early 19th century, an intellectual who was also a scholar at al-Azhar named Rifa’at al-Thahthawi published a book that analyzed the gender relations between males and females in Islam. This book, entitled al-Mursyid al-Amin li al-Banât wa al-Banîn, addressed the unequal relations between men and women in Egypt at that time. With his deep understanding of religion, Rifa’at al-Thahthawi traced the elements in the classical treasury of Islam that were more friendly toward women. He also actively campaigned for the importance of education. Education and social interaction are the doors for the advancement of women. Without education, the ideal of progress for women would be a dream that is never realized.

With his intellectual capability, Rifa’at al-Thahthawi also built a methodology for interpreting religious texts using a feminist perspective through three basic principles: al-hurriyah (freedom), al-musâwah (equality), and al-hub (love). If these three foundations are used properly in the reading of every text, the interpretation can never lead to oppression of one sex by the other.

A few years later, Muhammad Abduh became prominent. One of Abduh’s intellectual works that can still be enjoyed today is Tafsir al-Manâr. Although ultimately this commentary was completed by his student, Rasyid Ridha, the basis and direction of al-Manar were constructed by Abduh. al-Manâr is a work that addressed the social problems existing at the time the book was written. According to Abduh, the interpretations prevailing at that time were unable to accommodate the problems experienced in the context of modern society. What Abduh did was an effort to engage the Qur’an in continuous dialogue with the current age.

Abduh fervently opposed polygamy because of its great potential to destroy the family, and also because it violates the sharia which function as the protector of positive benefits. This argument was based on the Qur’an, specifically al-Rum:21.

In the middle of the 19th century, there emerged in Egypt a thinker and activist named Qasim Amin. Qasim Amin wrote a book entitled Tahrîr al-Mar’ah. This book created a great controversy, leading to various responses, both positive and negative. In the book, Qasim Amin wrote about women and their private rights in connection with the family in Egypt. The topics that received the most public attention were polygamy and divorce.

At the same time, Qasim Amin also harshly criticized the fikih scholars who took the position that talak could be imposed without witnesses and even if done as a joke. Qasim Amin placed divorce on the same level as marriage. Like marriage, divorce is an action of sharia that leads to the loss of certain rights and the emergence of other rights, such as sustenance and inheritance. Therefore, divorce also requires witnesses.

As well as in Egypt, an intellectual also emerged in Tunisia who was greatly concerned with humanitarian issues, and especially women, at the end of the 19th century. This was Thahir al-Haddad, who constructed a concept of Islamic ethics using three instruments: al hurriyah (freedom), al-‘adâlah (justice), and al-musâwah (equality). These three instruments were used as the spirit in reading texts in the creation of sharia. Sharia grants freedom to individuals and the public based on a basic human right – the right to live free from domination by any type of person. According to Thahir al-Haddad, Islamic sharia must be a pioneer for change in society to emerge from backwardness toward progress. The greatest challenge faced by the community in the world of Islam is the excessive power of religious institutions in controlling family life.

Through his book Imra’atunâ fî al-Syarî’ah wa al-Mujtama’, Thahir al-Haddad voiced his social critique because Tunisian society placed women behind religious symbols created by the ulama based on religious knowledge as the center of truth.

Although his life ended in exile, Thahir al-Haddad’s concepts and ideas live on. Many years later, his name is used for schools in Tunisia and his photograph is displayed in government offices.

 

Indonesian Scholar/Thinkers who Spoke out for Justice for Women

 

Islam arose in a feudal social structure centered on the power of clans (bani), relying on patriarchy and physical force to conquer a harsh physical environment. Islam actively combined with the local culture through the Prophet Muhammad, and responded to the characteristic events and social traditions of the Middle East. The products of law, particularly the fikih, were constructed by the ulama of the early mazhabs based on the context of the region where they lived and studied, mainly in the Middle East. One context worthy of mention relates to the position of those who are weak or are made weak, such as women, children, widows and the poor.

Indonesia is obviously not the same as the Middle East. The two regions are different in terms of culture, geography, land, and social structure. If a nomadic society relies on trade, communities in Indonesia tend to settle in one place and be based on the traditions of an agrarian society. These differences have implications for changes in various religious practices. In the classical works of fikih, for example, istinja’ or cleansing one’s body after defecating is done using a stone. This practice of using stones for personal cleansing may make sense in a sandy desert region, but certainly does not apply to the context of Indonesia with its water-based culture.

These differences, as well as certain social issues specific to Indonesia, have forced Indonesian scholars and thinkers to reconstruct and reanalyze the interpretations of religion and the law of fikih. They have tried to provide a context to the rules of fikih which were taken from the locale where Islam first emerged, and particularly the more sensitive issues that are rarely addressed such as women, children, and minorities.

We can now mention the name of Husein Muhammad, a male ulama who has been most vocal in speaking out for the rights of women. His works and writings record how the (interpretations of) religion that have long been used as justifications to perpetuate discrimination can in fact be used as a means of resistance and a counter narrative to the negative views of women. Kiai Husein, with his mastery of the literature and the academic realm, has traced the classical texts of Islam, and proclaimed the news of ideas about the equality of humans, whatever their sex. Islam, according to Kiai Husein, is a religion that upholds the principle of equality. This is clearly illustrated in the confession of tauhid, belief in the oneness of God, as a confirmation that there is nothing and no one that deserves to be worshipped and elevated in rank by humans other than Allah. And humans, both males and females, have the same position and opportunity to engage in pious works. Men and women also have the same worth in the eyes of God. Those who are more favored before God are those who are pious and devoted, whoever they are, male or female.

As well as Kiai Husein, there are several other figures from the world of the pesantren who, while not specifically known as feminist, speak out on issues of benefit in society which are based on development of the law of fikih. No doubt fresh in our minds are the ideas of social fikih as conveyed by KH. Dr. (HC) Sahal Mahfudz. Social fikih is a form of religious accountability to respond to the needs and problems of society. More than that, social fikih is also a form of concern from Kiai Sahal, as he is known, regarding the assumption that fikih is a kind of transcendent truth. The general public has a mistaken perception that all truth is contained in (the books of) fikih. To produce social fikih, Kiai Sahal uses two methods: qawlîy, using an approach of qawâid fiqhiyah, and manhajîy, the approach of maqâshid al syari’ah, whereby the text and the context are brought together.

Kiai Sahal places great attention on the many cases of child marriage. He is of the opinion that by marrying off a daughter who is still a child, the parents have violated their obligation as parents to provide a decent livelihood and education for their child.

In the realm of the Religious Courts, Dr. Andi Syamsu Alam can be considered a pioneer in institutional management. He is very active in building effective working methods and a modern judicial system, and also encourages judges to pursue further judicial education.

Dr. Andi’s concepts in verdicts on family law, which should serve as a reference for religious court judges, include rejecting dispensations for a lower age of marriage, and granting inheritance rights to adopted children. Unfortunately, the first of these concepts is often not used as material in the consideration of verdicts. According to Dr. Andi, this is because judges’ thinking is stagnated, in that judges still interpret the Marriage Law as accommodating child marriage. In fact, the Marriage Law, despite its many loopholes that need to be criticized, was in fact an initiative by certain progressive figures and ulama to raise the age of marriage and to protect women and children from discriminatory practices. The minimum age for marriage for females, which was set at 16 years when the Marriage Law was enacted in 1974, was the result of fierce negotiation with conservative groups.

Two figures who were involved in the preparation and formulation of the Marriage Law are Prof. Dr. Hazairin Harahap and Teungku HM. Hasbi Ash-Shiddiqiy. Teungku Hasbi is one of several persons who have offered the idea of Indonesian fikih. According to Teungku Hasbi, the ‘urf (local wisdom) of Indonesia should be used as the basis for creating a special fikih characteristic of Indonesia, considering the differences in culture, habits and social structure between Indonesia and Middle East, the region where Islam was first sent down and which was used as the basis for creating the laws of fikih. This idea has received many responses from various groups and individuals, some of whom say there is no need for an Indonesia fikih.

Teungku Hasbi’s interpretations include a prohibition on polygamy, because the requirements for allowing polygamy cannot possibly be fulfilled. Furthermore, the narrative constructed by verse 3 of al-Nisa’ is a prohibition, not a recommendation. Polygamy, according to Teungku Hasbi, is only allowed in emergency circumstances, and emergency doors must normally be kept shut.

Meanwhile, Prof. Dr. Hazairin Harahap was Indonesia’s first doctor in traditional law following independence. He served as Minister of the Interior in the cabinets of Ali Sastroamidjojo and Wongsonegoro. After retiring from the world of politics, he entered the world of education as a professor at the University of Indonesia.

Like Teungku Hasbi, Hazairin also strove for the concept of an Indonesian fikih by reconstructing ‘urf and istihsân in ushul fikih. He severely criticized the practice of marriage in childhood which bases its permissibility on the concept of biological maturity (baligh). Biological maturity cannot be used as a justification for marriage in childhood. A person must have achieved the level of baligh rusyd (maturity in thought and action) as a requirement for permissibility of marriage. In addition, his ideas relating to receptio a contrario also contributed to the creation of the Marriage Law.

The figures mentioned above are just a few of those who have chosen the lonely path toward realizing justice. They have chosen the path less taken: intellectual work, a kind of work that requires great discipline in exploring both text and context, as these two aspects are interrelated and constantly pulling on one another. A text does not appear in a vacuum; context cannot stand firm without the support of text. And it is these lonely works that can expose the dark current of patriarchalism that has for so long prevented thinking and acting to achieve justice for women. []

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)

(Fikih Perwalian) Guardianship Jurisprudence: Rereading Guardianship Rights for the Protection of Women from Forced Marriage and Child Marriage

Rumah Kita Bersama (Rumah KitaB) with the support of the Oslo Coalition initiated a 10-month text study with 8 rounds of discussion on wilâyah and qiwâmah. This initiative emerged after realizing that contemporary Islamic studies further strengthened the building of the concept of wilâyah and qiwâmah which gave rise to the asymmetry of relations between men and women. The results of this study were then poured into a book “Guardianship Jurisprudence: Rereading Guardianship Rights for Protection of Women from Forced Marriage and Child Marriage.” The study was carried out because almost all fiqh religious arguments related to the practice of child marriage centered on father’s rights (wilâyah), while those related to the protection function centered on men in their roles as husbands (qiwâmah).

In this study of wilâyah and qiwâmah the Rumah KitaB’s team based its arguments on the Qur’an, hadith, the works of the ulama using the methodology of reading the text maqâshid al-syarî’ah, ushul fiqh, and gender. With these three analytical tools, solid arguments are built to reject the interpretation that has been directed at strengthening the asymmetry of male and female relations which contributes a lot to the poor social, economic and political status of women.

This book seeks to bring Muslim understanding and contributions from the Islamic experience in Indonesia towards the purpose of the benefit of Shari’a in the matter of the rights of parents (fathers) or mujbir guardians in marriage and rectifying subjective understandings of gender bias that do not take into consideration the future interests of girls.

A number of innovations have been carried out by ulama, jurists and religious judges from Indonesia in overcoming asymmetry such as 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. Similar efforts were also made by modern scholars such as Rifa’at Rafi ‘Al-Thahthawi (Egypt), Thahir Al-Haddad (Tunis), Muhammad Abduh (Egypt), and Qasim Amin (Egypt). In essence, they are trying to contextualize social change with the text so that the text remains relevant in overcoming theismism of gender relations in the family.