Alleging gender bias in Syariah courts without scientific empirical research is just as counterproductive as saying there is no gender bias in those courts, said Universiti Kebangsaan Malaysia law professor Dr Noor Aziah Mohd Awal.

Groups alleging gender discrimination by the Syariah courts in the handling of divorce cases should conduct studies to verify the accuracy and extent of the problem rather than making generalisations and finger-pointing, she added when met at her office in Bangi yesterday.

She urged groups to cooperate with the religious authorities to determine the realities of the problems, and address the root causes and solutions.

"It seems to have been blown way out or proportion. There may be discrimination in specific terms reached at in individual cases, but that (the extent of that problem) has yet to be determined by empirical research.

"You would have to sit through many divorce hearings, and note the details. But nobody has yet done that," she noted.

No discrimination

Noor Aziah said the rate of successful divorce applications by men and women as well as the speed at which they were settled were the same, and in this regard there did not seem to be discrimination against women.

"As far as we are concerned, it makes no difference whether it is a man or a woman who is applying to the courts for a divorce, and this goes for the speed of the divorce proceedings as well as the ultimate decisions by the judges," she added.

Noor Aziah was among the speakers at a forum, organised last week by the Human Rights Commission of Malaysia (Suhakam), who spoke of allegations of delays in divorce settlements and gender discrimination in the Syariah courts.

In her paper, which was presented at the forum entitled The Right to an Expeditious and Fair Trail, Noor Aziah pointed out that in Negeri Sembilan, Selangor and Kuala Lumpur, 80 percent of divorce cases were settled within 12 months of being filed in a Syariah court.

However, she conceded that as men more often absconded from their responsibilities in comparison to women who make up the majority of plaintiffs turning to the Syariah family courts, the 'success' rates and speed could not be compared without qualifications.

"Divorce has been placed in the hands of men, whereas women have to apply for it. That is hukum (religious law). What can we do about it?" she said.

In this regard, she added people have to realise that when a divorce pronouncement has been made outside of a divorce court, it changes the status of a husband and wife in the eyes of the religion whether it is recognised by the courts or not.

Noor Aziah also noted that divorce was comparatively easier for men but only in those cases where both parties were in agreement and everything else was in order.

Should the burden of proof be cumbersome and meticulous in the Syariah courts, women making up the bulk of plaintiffs may see the odds stacked against them as women and not realise that the system stacks those odds against all plaintiffs, said Noor Aziah.

In fact, she added, in cases where the wife disagreed with an application for divorce, the proceedings more often than not take as long for the husbands as they are for women.

Alternative mechanisms

Many critics of the Syariah courts also fail to recognise that Syariah enactments provide for, or strongly suggest, alternative mechanisms to seek legal redress and not merely by suing husbands.

Abandoned women, for example, often do not realise that they can also sue their brothers-in-law and fathers-in-law for maintenance according to Syariah enactments in the Federal Territory.

Furthermore, much of the delay suffered by women when applying for divorce could be prevented if they were better informed of how the Syariah court system works, and given more legal counsel and legal aid instead of approaching divorce in a 'do-it-yourself' manner.

In this regard, non-governmental organisations could play a vital role in providing literacy programmes for women and other forms of support for the larger group of women in society, said Noor Aziah.

As further impetus for conducting empirical research to determine the reality and extent of gender bias in Syariah courts, the academic recounted findings of an earlier study of Syariah criminal courts she had conducted that contradicted allegations of discrimination against women.

"In Islamic criminal matters, our research actually show that more men are being arrested and sent for counseling and fined more heavily than women. In this regard, the Syariah courts seem to discriminate against men," said Noor Aziah.

In an article recently submitted to the Malayan Law Journal, Noor Aziah said a careful scrutiny of divorce cases had to be made to determine the reality and extent of gender discrimination in the Syariah courts as opposed to dissatisfaction with the system.

"Deprivation of rights must be proved in the former, while the latter, it is mere personal experiences when dealing with syariah court or after losing a legal battle and the inability to understand why he or she lost the case and what the real decision was.

"Very often the frustration lead them to say that they were discriminated." she stated said in her article entitled 'Discrimination of Women in the Syariah Court: Perceptions or Reality?'