Some Notable Features of the ‘New’ Islamic Family Law
In a comparative legal analysis of twelve countries regarding the implementation of Islamic norms, Otto speaks of ‘a gradual trend towards liberalisation’.[808] In Malaysia, we also notice this trend to a certain degree.
Islamic family law underwent significant changes since the 1980s[809] Women’s rights activists welcomed many of these changes as progressive4[810] and, “Islamic family law in Malaysia was [even] considered one of the most progressive compared to other Muslim-majority countries”[811] These changes were carried out by way of a top-down codification of Islamic law in which a partial, more formal introduction of the classicalfiqh took place.Most member states opted for a legislative model that was elaborated under the auspices of the federal government. Surprisingly, the latter was more inspired by the Islamic reforms in other countries such as Pakistan and India, and by other schools of law, such as the Hanafi and Maliki school, which are not widely followed in Malaysia. The legal actors who were at the origins of this model came from a Malaysian elite with a common law education. The changes were thus introduced top-down. This model was characterised by the inclination to opt for progressive legal rules inspired by other schools, or for Islamic statutes introduced by other countries - legitimised by the use of the Islamic legal methods ijtihad (free interpretation or pragmatic interpretation of Islamic texts), takhayyur (free selection between rules and opinions of different Islamic schools of law) and talfiq (the combining of points of view of different schools of law and lawyers in a single legal rule). The will to modernise Islamic courts and rules of procedure and of evidence was very strong, as was initially the clear aversion to extrajudicial repudiations, unequal divorce rights, polygamy[812] and arbitrariness in thejudicial procedure.[813] As documented so accurately and meticulously by Horowitz, these reforms were an interesting example of hybridising and transposition.
Certainly, many of the reforms were moving in a similar direction as their secular equivalents. Sometimes they were formulated in exactly the same manner: in fact the Islamic law statutes were often based on existing secular statutes in the same field and they were only modified if Islamic doctrine explicitly differed. This process of change has produced paradoxical and hybrid results: it turned out to be both more Islamic and more common law at the same time.However, regressive reforms took place since 1994, caused by the influence of conservative Islamist views and by the growing political success of the Islamic opposition party in Malaysia, which has booked considerable electoral successes in some states since the 90s.[814] Women Muslim organisations in Malaysia such as Sisters in Islam have strongly criticised these legislative amendments.[815] [816] [817] [818] [819] We hereby observe a tendency to reintroduce, introduce, or emphasise more orthodox, conservative, and patriarchal interpretations of Islamic legal sources.52 4.2