UN Cedaw, the Muslim Code & Shari'a Courts

We are examining the interface between the United Nations Convention on the Elimination of Discrimination Against Women
(UN Cedaw) and the Code of Muslim Personal Laws ( Muslim Code). The Philippines has obligations to CEDAW. In turn, the Muslim Code was enacted in 1977 or before the gender equality provision was enshrined in the 1987 Constitution.

Of course, the proposals in this interface and examination which we have compiled in a Thematic Guide Book on CEDAW for Shari’a Court Courts are linked to a network of Muslim women and men partners, Shari’a court judges and lawyers, volunteer Shari’a court monitoring teams and various multisectoral stakeholders in the Autonomous Region in Muslim Mindanao (ARMM) and Muslim communities outside of the ARMM.

Even as we adhere to the notion that not everything done by Muslims are Islamic and that what is Islam is always being reinterpreted and debated, we believe that Quranic teachings are ultimately about justice and equality.

When norms and standards are legislated, these become sources of specific rights that are accessible, enforceable and demandable. Thus, man made legislations such as the Code of Muslim Personal Laws need to be revisited and interfaced with current standards, which have universal mandates such as the UN CEDAW. That a community of nations shares this standard is an indication that the promotion of equality between women and men cannot be compromised by making reference to an ever-changing culture or human made religious interpretations and practices. The UN CEDAW is now thirty years old and have been ratified by one hundred eighty-six (186) states, which is a great majority of all countries in the world. Gender equality and non-discrimination are now principles of international customary law.

Our center, the PILIPINA Legal Resources Center (PLRC) has been working in Muslim communities for more than two decades now or since 1987. Our first ever survey, “The Implications of the Code of Muslim Personal Laws (PD 1083) on the Muslim Women of Regions IX & XII “ was done in 1988 and published a year after. Then the next years were spent on (a) legal literacy work popularizing the Code of Muslim Personal Laws and promoting an alternative formulation in keeping with the gender equality provision of the Philippine Constitution; (b) monitoring the Shari’a courts through a Shari’a Court Watch project with judges, community stakeholders and policymakers. A resulting shape was the creation of a government search committee that appointed judges to the vacancies in the Shari’a courts. And as well, two more women judges have been appointed since then, increasing the total number of women judges in our courts and such is a showcase to the rest of the Muslim world which still believe that women cannot be judges.

So, after twenty-two (22) years, this current project with the Canadian International Development Agency (CIDA) allowed us to take note of both the constant things as well as the myriad things that have changed in the justice system structures in Muslim communities. In this sense, the framework of this CEDAW benchbook is informed by an extensive exposure (much like in a longitudinal study) to various structures and perceived changes in Muslim communities in the Philippines over a long period of time. As such, we were able to focus on particular themes, which to us have been the sites of gender inequality and discrimination.

We took note of customs and traditions legislated in the Muslim Code such as child marriage. The United Nations Convention on the Rights of the Child has defined a child as every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier. Our survey of various ages of marriage in twenty Muslim countries reveals that states do not, in fact, consider every one below 18 as a child. Cases in point are Muslim family laws and as our network Women Living Under Muslim Laws published, “courts in Bangladesh, Cameroon, and the Philippines which may grant permission for marriages involving spouses younger than 15 but not younger than 12, while courts in Algeria, Tunisia, Malaysia, Egypt, Sri Lanka, Sudan & Morocco grant permission for marriages involving spouses younger than marriageable age, but family laws are either silent regarding an absolute minimum age or specify a low absolute minimum age or specify a low absolute minimum age.”

One track of reform, which is not yet popular, is to work for the reform of the UN Child Rights Convention and argue that, in fact, not everyone below 18 is a child. Some psychologists call this phenomenon : evolving sexuality.

We are also very happy that there is an Islamic Official Ruling or Fatwa on Reproductive Health and Family Planning issued by the Assembly of Darul-Ifta of the Philippines in November 2003. This is a very relevant document now and a model of sorts since there is an indication that Malacanang is set to prioritize the Reproductive Health bill as urgent.


Gender Justice in the Shari’a Courts


The Sharia ( Muslim Law) is one of the constant themes in the ongoing peace talks, various peace agreements ( 1976 Tripoli Agreement & 1996 Jakarta Accord, etc) and other developments in Mindanao that are participated in by our government, the Organization of Islamic Countries, both the MNLF and MILF and Muslim communities.

The Philippines is one of few countries in the world that have women Shari’a judges as some parts of the Muslim world still think that women cannot be judges. The Code of Muslim Personal Laws (CMPL or Muslim Code) is a “man made law” by virtue of a Presidential Decree in 1977 by former President Marcos or before the gender equality provision was enshrined in our 1987 Constitution. One of the authors of the Muslim Code, Atty. Michael Mastura has maintained that test litigation is an alternative track to a legal reform project of revising the current CMPL. Aside from test litigation and legislation, the other track is dialogue and engagement with the judges of the Sharia courts because as can be seen from court decisions, the Sharia’a judges exercise wide discretion. But, any custom or ada (customary law) that violates women’s rights cannot be justified by any provision of the Code of Muslim Personal Law (CMPL), as this safeguard is written in the Muslim Code itself: “No ada which is contrary to the Constitution of the Philippines, this Code, Muslim law, public order, public policy or public interest shall be given any legal effect.”

A few months back, we interviewed various Sharia court judges as well as examined their ponencia or court decisions and these are some of the recent positive developments:

Ÿ Whereas before, decisions were made ordering women to go back to the conjugal home in cases of restitution of marital rights, now there is a realization that such kinds of orders violates a woman’s autonomy. It is now held by judges that such an order is only persuasive and not mandatory because as marriage is itself a contract, it is based on mutual agreement of the parties.
Ÿ In the past decade, one hardly reads of Shari’a court decisions describing cruelty or violence committed against women in the ponencia. Now, cruelty as a ground for termination of marriage is already described and no longer absent in written decisions.
Ÿ We are now able to read in actual court decisions, divorce by tafwid where the husband delegated to the wife the right to orally divorce him. (SCC C No. 2006-1074, Jolo, Sulu). Oral divorce is still in recent years traditionally the preserve of men.

One positive thing that sets the Philippine Muslim Code from other Muslim countries is the required registration of oral divorce. Also, the Philippine National Statistics Office ( NSO) requires a court decree as proof of divorce.
Yes, we have divorce in the Philippines in Muslim communities since time immemorial.

Both the community and courts have taken cognizance that the following are continuing practices:

Ÿ The four male witness rule in cases in sex related offenses but in the absence of witnesses an oath before the Qur’an ( yamin) is a sacred practice;
Ÿ The marriage of a Muslim woman with a non-Muslim male is still culturally not allowed;
Ÿ The consent in marriage of a minor is given through the marriage guardian (wali) and her consent is presumed as the marriage guardian is deemed to represent the best interests of the child.

The UN CEDAW COMMITTEE made comments about early marriage among Muslim women in the Philippines :

“The Committee expresses its concern about the precarious situation of rural and indigenous women, as well as the Muslim women in the autonomous region of Muslim Mindanao, who lack access to adequate health services, education, clean water and sanitation services and credit facilities. The Committee is also concerned about women’s limited access to justice in cases of violence, especially in the conflict zones, and the lack of sanctions against the perpetrators of such violence. The Committee is furthermore concerned that the practice of early marriage is persistent among Muslim women.”

In the comment above, the UN Cedaw Committee clearly recognizes that there is “a practice of early marriage persistent among Muslim women.” This is in consonance with Article 16 (2) of the CEDAW that states “The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.”

The comments concluded with a request from the UN CEDAW Committee to the Philippine government to address the concerns expressed in the concluding comments as well as a request to submit the eighth and ninth report that was due last September 2010.