Critical Thoughts on Islam, Rights and Freedom by Salbaih Ahmad, Review by Yoginder Sikand

Analysis, posted 12.02.2010, from India, in:

On Islam and Gender Equality

By Yoginder Sikand

Salbiah Ahmad is a trained civil and shariah Malay woman lawyer. She practiced for several years in Singapore and taught briefly at the International Islamic University, Kuala Lumpur. Involved with human rights issues for over two decades, she writes for a range of Malaysian and international newspapers and websites.

Critical Thoughts on Islam, Rights and Freedom in Malaysia is a collection of Ahmad's essays published over the years on the Malaysian activist website www.malaysiakini.com . A major focus of the book is a critique of patriarchal interpretations of Islam and an articulation of what could be called a gender-sensitive Islamic theology ( kalam ) and jurisprudence ( fiqh ). In this way, Ahmad seeks to provide an Islamically-grounded argument for gender equality. This she does for broadly two reasons: as a strategy to develop consensus on women's rights, speaking in an ‘Islamic' language in order present gender justice as Islamically acceptable, even mandated, to believing Muslims; and as a reflection of her own personal religious consciousness and conviction as a Muslim woman. [1]

Ahmad believes that in a Muslim-majority country like Malaysia, working for gender justice from within an Islamic paradigm is indispensable, since public discourse is heavily conditioned by Islam, a phenomenon that gender activists can ignore at their own peril. To do so would render them irrelevant to most Muslims, and lay them open to the charge of being ‘irreligious' and of allegedly ‘undermining Islam'. There is thus an urgent need to enter the realm of Islamic discourse and seek to promote gender-justice using appropriate Islamic arguments. At the same time, Ahmad suggests, this strategy is not a substitute for secular human rights activism for gender justice. Rather than seeing the two approaches as necessarily mutually exclusive, she argues for a synergy through which they can work together in tandem for common goals, considering them to be options depending on the situation at hand.

Interestingly, Ahmad does not claim to be an ‘Islamic feminist' (‘Feminism is not my new religion', she says), but acknowledges that it has shaped her understanding of Muslim women's oppression, providing a lens through which to critique unequal, and what she regards as un-Quranic, power relations between Muslim men and women. She disagrees with Muslims who see feminism as an attempt to discredit Islam or who interpret it as standing for enmity between men and women and as a ‘Western conspiracy' to undermine Muslim society and culture. [2]

Ahmad arrogates to herself the right to ijtihad , unencumbered by the opinions of the classical ulema . Like the others, she approaches the Quran directly, bypassing the tradition of fiqh as well as the Hadith, because these two latter sources of kalam and fiqh contain numerous prescriptions and views that militate against her understanding of gender relations, some of which have been manufactured precisely in order to justify women's subordination. She does not regard the Quran as a closed text, whose interpretation has been frozen, settled once and for all, at some distant moment in the past. Rather, she sees it and the Sunnah as what she calls ‘works in movement', that, like all other texts, can be, and indeed, have been, interpreted in diverse ways. Rather than being a limitation, she suggests, this is actually a blessing in that in this way these fundamental sources of Islam are able to maintain their continuing relevance across space and time, providing guidance, in terms mainly of broad principles, that can suit changing socio-historical contexts. In this way, she is able to argue for her own interpretation of the sources that contradicts, in numerous ways, the dominant male Muslim discourse.

Ahmad argues that the basis of gender equality is contained in the Quran itself. The Quran, she says, treats men and women ‘in exactly the same way'. [3] The Prophet Muhammad expressed this principle by declaring, ‘Humans are equal as the teeth of a comb'. [4] This, and the upholding of ‘the inherent dignity and integrity of every human person', must be, Ahmad says, the ‘starting point' of Quranic exegesis or tafsir . [5] This exegesis must also be continuously informed by a contextually-sensitive of ‘public interest' or maslaha , which also includes gender-justice, which is one of the fundamental aims ( maqasid ) of the shariah .

In approaching the Quran, Ahmad suggests, one must also keep in mind that while the Quran represents the Absolute Truth to Muslims, it is impossible for human beings to gain a perfect, authoritative or absolute understanding of it. This is because the Divine revelation has to be interpreted by human beings, who, by their nature, are limited creatures and are influenced by their own social circumstances. Hence, it is inevitable that exegesis of the revelation can never be perfect. Since, traditionally, most Muslim exegetes have been men, heirs to a long-standing tradition of patriarchy, their understandings of the Quran and the Sunnah of the Prophet have not escaped the fact of their gender and their patriarchal biases. [6] This, Ahmad therefore argues, calls for a more gender-sensitive understanding of the Quran, in order not just to highlight women's concerns and perspectives but also to attempt to be more true to the intention of the Quran itself. [7] Hence, Ahmad suggests, the need for Muslim women to study the text themselves directly, without relying on the tradition of patriarchal exegesis, and through the lens of ‘ adl or justice and balance, a fundamental principle of the Quran, which also includes justice between the genders.

The ontological equality of men and women in the eyes of God is something that is explicitly mentioned in the Quran. At the same time, however, there are verses in the text that could be interpreted to argue for different rights, roles and responsibilities of men and women, some of which have been interpreted by most Muslim male exegetes as legitmising what Ahmad sees as women's subordination. Ahmad claims that interpretations of the Quran (and Sunnah) that unfairly privilege males over their wives are tantamount to a violation of tawhid , the oneness of God, the very basic principle of Islam, that requires submission to God alone. [8]

Ahmad's way to reconcile these verses with what she regards as the mandate of gender justice is by calling for a critical distinction between verses that relate to the huquq Allah or ‘rights of God' (that pertain to matters between the individual and God, principally worship or ‘ ibadat ), and those verses that relate to the ‘rights of persons' or huquq ul ‘ibad , which include social affairs and relations ( mu‘amilat ). She claims that while the former are unchangeable, the latter can change, particularly in order to uphold the Quranic mandate of justice. She evokes what she calls ‘a powerful idea in the juristic notion that all matters in relation to rights of man or humankind […] is (sic.) the subject matter of mu‘amalat (‘transactions') and thus negotiable'. [9] Curiously, she leaves unmentioned the source for this undoubtedly contestable claim, which not many traditional Muslim scholars would accept, for they would argue that any verse that is specifically mentioned in the Quran cannot be considered to be ‘negotiable'.

On the basis of her claim that Quranic verses that deal with mu‘ amilat can be changed or negotiated, if the changed context so demands in order to remain true to the Quranic principle of justice—a claim for which she does not adduce any substantial evidence from within the Quran itself—Ahmad argues for a change in certain rules regarding legal relating to women, claiming that traditional understandings of these verses have lost their relevance in today's context or that they do not properly reflect the intention of the Quran as she reads it.

One such contentious issue relates to women working out of their homes for a wage. The traditional fuqaha or Muslim jurisprudents allowed for this in only very extreme circumstances, but today in Malaysia Muslim women are to be found working in all sectors of the economy. Indeed, in many Malay families it is the wife that is the main bread-earner, and their families cannot manage with their income. Furthermore, Malay women are probably better educated, on the whole, than their men folk, as evidenced, for instance, by the fact that they outnumber Malay men in universities across the country. Given this, Ahmad argues, dominant notions of headship ( qawwam ) of the family need to be critiqued. Most male Muslim scholars rely on the following Quranic commandment to justify the claim that the family must remain under the authority of the husband:

Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means (Quran 4:34).

Ahmad engages in her own exegesis of this verse, departing considerably from the dominant male-centric interpretation. She argues that the verse does not stipulate that all males are guardians or are preferred to or superior to or are responsible for all women. It is true, she writes, that in some circumstances, some men are financially responsible for some women, as the verse indicates, but in other contexts, such as with the case of many Malaysian families today, some women may be financially responsible for some men and also for their children. This indicates, she says, that the rule that men are solely responsible for the maintenance of women is not valid universally. Engaging in a contextual reading of the verse, she argues that the notion of males as guardians over females, owing, in part to the latter being financially dependent on the former, was a product of the particular spatio-temporal context in which the Quran was revealed and which it directly addressed. Since the context has vastly changed today, she says, the notion need not be consider binding any longer. It is a cultural assumption, geared to a particular historical context, not a religious assumption that is valid for all contexts. [10] Further, she argues, the assumption of male supremacy underlying dominant interpretations of qawwam as reflected in, for instance, traditional fiqh as well as in shariah law as it is officially administered in Malaysia, fails to reflect what she regards as the Quran's intention that marriage should be characterized by companionship and compassion between the spouses, without any element of hierarchy. [11]

Ahmad engages in a similar contextual exegesis on the question of Muslim women's dress. Since the 1970s, as a result of the influence of various dakwah or Islamic movements, growing numbers of Malay women have taken to what is widely seen as ‘Islamic' dress, including the tudong or head-covering. Some even wear gloves and stockings and a few cover their entire face, too. Women not wearing what is regarded as ‘Islamic' dress are often looked down upon ‘Westernised' and as not truly ‘Islamic'. Interestingly, no such prejudices apply to Muslim men's dress. As in many other Muslim contexts, ‘Islamic dress' for women has become a symbol for Muslim community identity in Malaysia.

Ahmad critiques the notion of a single, prescribed ‘Islamic' dress, one that must be imposed on women even against their will. What Islam says about women's dress, she says, ‘is always mediated by humans and is mostly gendered.' Further, she writes, Muslim women should be allowed to choose what to wear on their own free will, for, she quotes the Quran as saying, ‘Let there be no compulsion in religion' (Quran 2:256). She claims that the purpose of the Quran in advising women to wear a cloak ( jilbab ) was not to conceal them, but, rather, ‘to render them visible, hence recognizable, as a way to protect women', and in order to distinguish them from slave-women, who were routinely subjected to sexual abuse in pre-Islamic times. [12] Ahmad argues that the notion that Muslim women alone must bear the responsibility of maintaining and publicly expressing Islamic identity by wearing ‘Islamic' dress is deeply problematic. This is something that must be shared by both males and females alike. She critiques those who insist that ‘Islamic' dress for women is essential in order to preserve their ‘modesty' for not applying the same standards with regard to the need for Muslim males, too, to preserve their ‘modesty' through appropriate sartorial codes. Further, while she does not appear to argue against the notion of ‘modest' dress, whether for women or men, Ahmad points out that the widely-held assumption that seventh century Arabian dress is alone what is ‘Islamic' is deeply problematic. [13]

Ahmad argues that numerous laws in effect in Malaysia (and other countries) today that negatively impact on Muslim women are a product of traditional fiqh , which was largely a male product. Critiquing the tendency to equate fiqh , or what can be called the historical shariah , with the Divine shariah , she suggests that fiqh , being a human construct, a product of human reflection or ijtihad on the Quran and the Sunnah, can err. If it violates the basic aim of the Quran, which is justice, it can, indeed must, be suitably modified. The fuqaha of the fiqh schools were products of their own age, and it was inevitable that their opinions were influenced by the cultural, social, economic and political conditions of their times, including the fact of deep-rooted patriarchy. Some of them even changed their opinions on particular matters in the face of changed circumstances, thus suggesting that fiqh is not something stagnant, but, rather, can change as a result of changed conditions and demands. [14] In order that fiqh respond creatively to the modern context, therefore, it is necessary to re-think fiqh in today's context, keeping in mind the vast transformations in gender relations, women's educational and economic status and the compelling need for gender justice and equity. [15]

Not unexpectedly, Ahmad is bitterly critical of political and religious authorities who defend the application of several traditional fiqh prescriptions in the matter of family laws in the name of the shariah that, in her view, circumscribe, and even negate, what she regards as the Quranic stress on gender justice and equality. In this regard, Ahmad berates these authorities for turning down proposals to include marital rape as a punishable crime, accept women as shariah court judges, remove gender-biased clauses in the hudud laws, remove the male monopoly on declaring divorce, amend laws that require wives to submit to their husband's sexual demands against their will and maintenance on being arbitrarily accused of being disobedient to their husbands, arguing that their stance represents a blind adherence to traditional fiqh , a human and historical product, in the name of upholding the Divine shariah . She notes with dismay that because of this unwarranted conflation between fiqh and shariah or Islam itself, any voicing of criticism of fiqh can easily be branded as ‘heresy', and even as ‘apostasy', a punishable crime in many Muslim-majority countries. [16] This thus is one of the biggest challenges facing the women's movement in Muslim countries, she suggests.

While she reluctantly notes certain positive legislation in this regard that has sought to improve Muslim women's legal status in several countries, she argues that the reform has not gone far enough. Once reason for this is because of methodological narrowness, with such reform being limited largely to borrowing from other Sunni jurisprudential schools in certain matters, which is hardly the ‘paradigm shift in the notion of rights' that she advocates. [17] What she asks for is something much wider, not just in terms of substantive law, but, more than that, in legal methodology that would produce what she regards as a contextually-relevant ‘gender-based fiqh' , a product of a gender-sensitive Quranic exegesis, guided by the underlying notions of equality and justice in the Quran as well as by feminist theory. [18]

Ahmad recognises that the gender-sensitive tafsir and fiqh that she calls for will not be easily accepted by traditionalist ulema as well as doctrinaire Islamists, who, finding these contrary to their understandings of the Islamic sources, may well consider them heretical. This is an issue related to the fundamental question of Islamic religious authority. Traditionalist ulema claim to have the sole authority to interpret Islam, but, Ahmad argues, Islam does not have any room for a priestly class that can monopolise religious interpretation and authority. Being human beings, the ulema , too, are liable to err and are not, in any way, infallible. Ahmad appears to controversially suggest that, contrary to what most traditional ulema would argue, every Muslim, male or female, has the right to interpret Islam based on a reasonably good understanding of its sources. ‘One succeeds on sound grounds, not on one's calling', she says in this regard. [19]
[1] Salbiah Ahmad, Critical Thoughts on Islam, Rights and Freedom in Malaysia , Strategic Information and Research Development Centre, Petaling Jaya, 2007,, p.240.

[2] Ibid., p.3.

[3] Ibid., p.3.

[4] Ibid., p.69.

[5] Ibid., p.58.

[6] Ibid., p.69.

[7] Ibid., p.4.

[8] Ibid., p.20.

[9] Ibid., p.4.

[10] Ibid., p.5.

[11] Ibid., p.21.

[12] Ibid., p.9.

[13] Ibid., p.54.

[14] Ahmad cites the case of Imam Shafi'i who varied his juristic opinions on some matters when he moved from Iraq to Egypt because of the differences ion the conditions and contexts of the two societies. If Imam Shafi'i could there by alter his fiqhi opinions, Ahmad says, ‘it is inconceivable that this reasoning becomes unavailable today on the basis of “settled juristic opinion”' (Ibid., p.250).

[15] Ibid., p.229.

[16] Ibid., p.249.

[17] Ibid., p.71.

[18] Ibid., p.71.

[19] Ibid., p.233. In this regard, Ahmad cites the case of a Muslim woman who rebuked the Caliph Umar for exhorting Muslim men to pay small dowries as mahr to their wives. The woman argued that the Caliph's opinion in this regard went against that of the Prophet. The Caliph admitted the woman was right.