FACT CHECK: Netizens Claiming That The Syariah Court “Neglects Poorer Women” Sparks Legal Debate

By Lara Kramer  •  13 Jul 2022 in Features

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Recently, some Malaysian Muslim women have come forward with claims that the Syariah Court’s justice system is unfairly based on patriarchal beliefs and fails to defend women who cannot produce the exorbitant funds involved in the proceedings.

On the night of July 4, a Twitter user shared one such situation experienced by a friend of hers along with her own personal tale alleging that she had dealt with a similar issue during her attempted divorce proceeding.

The tweet was published in response to another user’s statement asserting that she sympathised with women reading through harrowing stories of others who were supposedly forced to fork out lots of money to support their requests for a divorce.

As a divorcee herself, the woman claimed that the Syariah court prioritised money over the wellbeing of women.

“If you think they are defending your rights, you are mistaken,” she said.

In response to that, the Twitter user attached a series of screenshots depicting her friend’s experience as well as her own.

“In Malaysia, if you’re a woman, you must be rich; because here even the Syariah Court will not help you. You need to pay to open up cases, to file for custody, and even to request for child support.

“If the father is not present at court, you’ll be asked to file a new case and pay again. And for men? Nothing of that sort. They don’t even need to pay alimony but when the mother tries to alter or lessen the time the father is allowed to see his child, it becomes a police matter and she can be detained,” said the first image.

She then clarified that it is a screenshot of her friend’s Facebook post portraying the alleged struggle faced by Malaysian Muslim women, explaining what went down during her attempted divorce.

According to her, the cost to upkeep an active divorce case with favourable results is readily exorbitant for women who choose to represent themselves, and this is even more unattainable if the woman chooses to appoint a lawyer.

She described the pricey rates as ridiculous, noting that while she was lucky to have been able to afford to file for custody and child support for her daughter during her divorce case in 2020, she was asked by the court to settle for a lower alimony at the request of her former partner.

She then stated that she decided to withdraw her case as she was baffled by the court’s actions, adding that it was only a tactic for lawyers to line their pockets and take advantage of less fortunate people.

She also mentioned that she was pleased with the awareness being spread regarding the issue by influential persons online as it could potentially restore the justice and order that she believed was lacking in the courtrooms.

Finally, in the last slide, she explained how she chose to leave it all up to God, explaining how she opted to stray from a path of revenge and fury as she did not have the right to punish him.

She also believes that her ex-husband’s wrongdoings towards her would grant her pahala, or a reward for her faith and kindness, and advised other Malaysians not to lower their standards and waste time with petty arguments.

Replying under the thread of the same tweet, the Twitter user stated that she does not believe that the Syariah Court will defend women’s rights as she supposedly witnessed firsthand how her friends fought diligently in vain to get what they deserved.

Netizens responding to the tweet seemed to be in unanimous agreement with her.

Some insisted that a good lawyer was necessary to win cases in the Syariah Court, while others exchanged their own woeful claims and mentioned how their experiences with the court had apparently altered the course of their lives.

One user also compared the women’s struggle with the easy process of men who possessed the right to issue talak, or sever ties from their wife, simply by uttering the words if they wish to end their marriage.

Netizens push for the truth- are all women really forced to face these tedious instances to achieve a lawful divorce?

These disquieting claims are quite concerning, and many have noted that this issue calls for a fact check to verify the legitimacy of the professed injustices.

Speaking with JUICE, a Syariah lawyer confirmed the following:

Shall an individual find themselves incapable of appointing a Syariah lawyer due to financial factors, they can apply for legal assistance from several bodies such as the Legal Aid Department or the Bar Council. Some Islamic Religious Councils also provide provisions for legal assistance in Syariah cases for the asnaf, or the less fortunate, such as the Federal Territory Islamic Religious Council.

These bodies have actually aided many people by providing legal services for free, however the applicant has to prove themselves truly incapable to allow these bodies to provide legal aid services.

In the case where the wife who wishes to file for divorce but the husband does not consent, it is not necessary to go through the fasakh process which takes a long time. They can instead file a divorce application under section 47 of the Islamic Family Law Act (within the Federal Territory).

If the husband does not consent to the divorce or if the Court considers that there is a reasonable possibility of a reconciliation between the parties, the Court shall, as soon as practicable, appoint a conciliation committee (jawatankuasa pendamai).

If the conciliation committee reveals to the Court that reconciliation is not possible, and is unable to persuade the parties to live together again as husband and wife, the Court shall advise the husband in question to pronounce a talak before the Court, and if the husband fails to appear before the Court to pronounce a talak, or if the husband refuses to pronounce a talak, then the Court shall refer the case to the Hakam or Judge.

The Judge may then obtain power to pronounce a talak on the husband’s behalf with the leave of the Court.

The process of appointing a conciliation committee and the Hakam is much faster compared to fasakh. In fact, the wife does not even need to hire the services of a Syariah lawyer to undertake this process.

According to the lawyer, the netizens’ comments regarding the way each case of Hadhanah, Nafkah, and Harta Sepencarian (child support, alimony and matrimonial property) must be filed separately are accurate, but the government or state government may be able to review the law to determine if there is a section that can be amended to allow these applications to be filed simultaneously.

Thus, these applications can be completed more quickly and costs can also be reduced to ease the burden of the people, especially single mothers.

The government is also advised not to be too strict in processing an application for legal aid, especially to single mothers where the financial allocation should be increased to enable more single mothers to benefit from obtaining legal aid.

While the law varies among separate states, the above is applicable to all Malaysian states, under Section 47 of The Family Law Act (Akta Undang-Undang Keluarga).