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RELIGION-MALAYSIA: Debate Rages on ‘E-divorce’

Mustafa Ali

KUALA LUMPUR, Aug 5 2003 (IPS) - A strange mixture of ‘shariah’ laws and mobile phone technology, which recently ended an 18-month marriage, has sparked a fierce debate in Malaysia on how Islamic law should be enforced in marriage affairs.

A strange mixture of ‘shariah’ laws and mobile phone technology, which recently ended an 18-month marriage, has sparked a fierce debate in Malaysia on how Islamic law should be enforced in marriage affairs.

Last month, Shamsuddin Latif sent a short message from his mobile phone to his wife Azida Fazlina Abdul Latif. Said the message: “If you do not leave your parents’ house, you will be divorced.”

What Shamsuddin did is known as ‘triple talaq’, a way to divorce one’s wife that is allowed by Islamic law or ‘shariah’. Under Islamic laws, men who wish to divorce their wife may seek to do it by proclaiming the word ‘talaq’ (divorce) three times.

In the old days when communication technology did not exist, husbands announced triple ‘talaq’ face-to-face with their wife. But the arrival of popular mobile phone technology and its short message service (SMS) has given divorce-seeking men the method of ‘e-divorce’ – a newer, faster way of dealing with and escaping such difficult moments with their spouses.

In the case of Azida, Shamsuddin proceeded to divorce her at the East Gombak shariah lower court in Kuala Lumpur. On Jul. 24, the court ruled that Shamsuddin’s ‘talaq’ was acceptable, and that the stage of three-month separation provided for under Islamic law would be counted from the day he sent the mobile-phone message.

It did not take long before debate began among Malaysian Muslims, who make up majority of this country’s 23 million people.

Groups, led by women activists, launched a strong attack on the court verdict and raised the issue of how divorce should be fairly undertaken under Islam.

Even Prime Minister Mahathir Mohamad, praised here as the father of Malaysia’s modern high-technology hub, had something to say about it. “Nowadays we can even divorce our wives by sending messages,” Mahathir told a telecommunications gathering in Kuala Lumpur. “I am not so keen on that but they say it is perfectly legal, perfectly Islamic.”

”(But) I think that if people want to divorce their wives, they should resort to a much more personal approach than that,” he added.

Mahathir later raised the issue at a meeting of the Cabinet, which took a decision on this novel marriage of religion and tradition with technology. ”The Cabinet decided that while it may be correct from other angles, it is not the way to get divorce,” he was quoted as saying by the national news agency Bernama.

But the Cabinet decision may not do much, despite its good intentions. After all, the family affairs of Malaysian Muslims fall under the Islamic laws enforced by Islamic courts – and these courts are independent from administrative power, so that have a say on what is legally acceptable or not.

There are two kinds of divorce under Islamic law available to a husband. A conventional divorce occurs when husband formally applies for a divorce from his wife in court in front of a judge. The less conventional one is that where the husband proclaims the word ‘talaq’ three times – this could be used under certain conditions.

But proclaiming a divorce by typing out a short message on the mobile phone is unacceptable and unjust, activists say. “Distant, cowardly, undignified and rude” is how Ivy Josiah, director of non-government Women’s Aid Organisation, described it in an interview.

The issue has since grown beyond technology and its uses to a debate about how ‘shariah’ law treats relationships between men and women. Some question what they call the root of the problem – the lack of fairness in the way women are treated under the laws by shariah judges who are predominantly male.

But to Women and Family Development Minister Shahrizat, the problem is just one of legal interpretation by the shariah judges.

“Judges interpret the law before them. Why is it that whenever we interpret Islamic laws with regards to women, it is always against them?” said the minister. “But I must say that this case is not a reflection of all the other good and sensible decisions made in the spirit of ‘shariah’ laws.”

In an attempt to clarify the confusion, former chief ‘shariah’ judge for the federal territory Syeikh Azmi issued a press statement saying that the National Fatwa Council and other Muslim scholars had agreed to accept pronouncement of ‘talaq’ via SMS.

But sending SMS cannot be the end of the matter, he said. Husband and wife still have to present themselves in the shariah court and follow the usual procedure. It was still up to the ‘shariah’ court to decide whether to finally approve their divorce.

If divorce is approved, the court would announce ‘idah’ or a three-month grace period before the divorce becomes complete.

Going by this logic, what went wrong in the Shamsuddin case was not the fact that he used SMS to proclaim ‘talaq’ – but that the judge granted him the three-month period starting from the day ‘talaq’ was proclaimed through SMS, thereby basing his approval of the divorce solely on the mobile-phone message.

“That was the mistake in terms of both procedure and ‘shariah’ principle,” Syeikh Azam said.” ‘Idah’ can only begin upon approval by the court, not the date of the SMS received”.

But this technical mistake is only a small part of the bigger problem of gender discrimination, said Silam Hassan of the non-government group Wanita Ikram. ”We know that when (Muslim) women seek divorce, they have to do through stringent procedures, counselling, and are required to fulfill all kinds of requirements,” she pointed out.

“Whenever something is in a man’s favour, it is allowed. But when women seek justice or fairness, it is not made easier,” added Mariam Abdul of the Association of Women Workers of Malaysia or Perwanis.

For all the furore ‘e-divorce’ has caused, Malaysia is not the first country where SMS ‘talaq’ has been accepted. Media reports say the first case of an SMS divorce took place in the United Arab Emirates.

But Islamic authorities in neighbouring Singapore – where using SMS is an everyday habit – have declared ‘talaq’ by SMS unacceptable due to “elements of doubt” over the sender’s identity and sincerity.

Mahathir, meantime, gave male divorce-seekers this piece of advice: ”We hope of course that instead of sending messages, you should look at the beautiful wife that you are going to divorce. Maybe she would cry a bit and you would change your mind.”

 
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RELIGION-MALAYSIA: Debate Rages on ‘E-divorce’

Mustafa Ali

KUALA LUMPUR, Aug 5 2003 (IPS) - A strange mixture of ‘shariah’ laws and mobile phone technology, which recently ended an 18-month marriage, has sparked a fierce debate in Malaysia on how Islamic law should be enforced in marriage affairs.
(more…)

 
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