Women's Rights and Gender Equality Issues in Islamic Law in Indonesia: the Need to Re-read Women's Status in the Islamic Religious Texts

Artikel ini adalah untuk membahas status perempuan dalam teks-teks agama Islam, terutama ayat-ayat Quran dan Hadis teks yang dianggap "misoginis." Ada kebutuhan mendesak untuk membaca kembali teks-teks agama Islam karena mereka digunakan oleh ulama klasik untuk menghasilkan fikih mereka. Fikih klasik tadi, bersama-sama dengan teks, diadopsi oleh umat Islam kontemporer di luar konteks dan, kadang-kadang, telah digunakan untuk mengabadikan ketidaksetaraan gender dalam kehidupan sosial. Contoh kasusnya antara lain adalah kritik, dan bahkan penolakan, terhadap reformasi hukum keluarga yang diusulkan oleh negara. Artikel ini berpendapat bahwa nilai-nilai universal yang terkandung dalam teks-teks agama Islam yang mempromosikan keadilan dan, dengan demikian, menghormati hak-hak perempuan serta bertujuan untuk mencapai kesetaraan di antara diferensiasi gender dalam kehidupan sosial perlu disosialisasikan. Pemahaman sensitif gender ini terhadap teks-teks agama Islam disosialisasikan untuk lebih meningkatkan kesadaran masyarakat terhadap hak-hak womens dan isu-isu kesetaraan gender dalam Islam.

"discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. 5 Therefore, article 2 and 5 of CEDAW oblige the states which have ratified it to adjust its regulation so as to be compatible with CEDAW contents. This includes eliminating discriminative practices of its apparatus and institutions, repealing Further, article 15 (1) CEDAW asserts ³States [sic] Parties shall accord to women equality with men before the law.´ According to article 16, these state parties are recommended to take ³all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women ´ For example: article 16 (1a) concerns ³The same right to enter into marriage ´ article 16 (1b) concerns ³The same right freely to choose a spouse and to enter into marriage only with their free and full consent ´ article 16 (1c) concerns ³The same rights and responsibilities during marriage and at its dissolution ´ section 16 (1g) concerns ³The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation ´ According to International law, International treaties which have been ratified must be implemented (pacta sunt servanda). 7 No single country in the world is exempted from this obligation. If the existing regulations in a country are in conflict with the ratification of International treaties, these regulations should be amended. 8 Based on this stipulation, the government of Indonesia must amend its regulations which still perpetuate discrimination against women, including in the sphere of marriage law. 9 However, the elimination of discrimination against women and the JXDUDQWHH RI ZRPHQ ¶V ULJKWs through amending the existing regulations, or enacting new ones, sit uneasily in Indonesia. This is because these problems do not necessarily relate to the obligation to fulfill the CEDAW requirement in Indonesia laws itself. Yet, it is also closely tied to cultural practices and religious belief which are GHHSO\ HQWUHQFKHG LQWR SHRSOH ¶V VWDQFH WRZDUG WKHVH LVVXHV As matter of fact, the CLD KHI was strongly rejected by `ulama and some Islamic 6 See ibid, art. 2(a-g), art. 5(a This paper, therefore, will analyze the status of women in Islamic Religious Texts so as to assess the standpoint of Islam in relation to ZRPHQ ¶V rights and gender equality issues in Islamic law in Indonesia.

II. Islam and Women
One of the missions brought by Islam to mankind is to elevate the status of women and PDNH LW SDUDOOHO ZLWK PHQ ¶V VWDWXV 3ULRU WR WKH DGYHQW RI ,VODP WKHUH was a tradition in Jahilliyah Arabs to bury alive the daughters (female infanticide) because they were deemed as a burden or disgrace for the family. 10 When Islam came, this tradition was abolished, 11 and, further, women were acknowledged as individuals who have rights, including property rights and inheritances. 12 Before hand, as a consequence of patriarchal-agnatic system, women in Jahiliyyah Arabs did not have access to inheritances. Instead, they were properties which were inherited by males. Widowed females sometimes were forced to marry their stepson or theiU KXVEDQG ¶V EURWKHU because of her status as a part of an estate.
Again, Islam came to condemn and prohibit this levirate practice. 13 Therefore, it is believed that the Islamic doctrines give a high status to women.
However, the picture of women in Islamic history was not always as encouraging as in the Prophet era. There was a time when women were only portrayed as sexual entities along with the development of harem institutions in some Islamic kingdoms. 14 Nowadays, many have seen the increasing level of violence against women in many Muslim countries.

III. Women in Islamic Religious Texts
The 4XU ¶DQ comes with the mission of being *RG ¶V PHUF\ IRU the universe.
,W ZDV UHYHDOHG WR 0XKDPPDG DV $OODK ¶V PHVVHQJHU, whose core prophecy mission waV DOVR WR VSUHDG WKH *RG ¶V PHUF\ WR the universe. 18  Men are the protectors and maintainers of women, because Allah has made one of them to excel the other, and because they spend (to support them) from their means. Therefore the righteous women are devoutly obedient WR $OODK DQG WR WKHLU KXVEDQGV DQG JXDUG LQ WKH KXVEDQG ¶V DEVHQFH ZKDW Allah orders them to guard. As to those women on whose part you see illconduct, admonish them (first), (next), refuse to share their beds, (and last) beat them (lightly if it is useful); but if they return to obedience, seek not against them means (of annoyance him. This statement was made by the Prophet to respond information conveyed by a companion who saw a community perform sujud to its leader. 30 Having discussed the above Texts, it can be understood why Islam is accused as a religion which µoppresses ¶ women. This is because one can simply conclude from some of the aforementioned Islamic Religious Texts, that Islam legitimizes gender inequality. This is because it is inherent in the sources of Islamic doctrines (the 4XU ¶DQ and the Hadith). In addition, the marginalization and violence suffered by some Muslim women in Muslim countries further confirm this widespread opinion. However, it is unfair to hurriedly blame Islam for discriminating against women, based on some Texts which literally seem to provide for gender inequality. According to Asma Barla, a feminist Muslim, it is untenable to blame Islam for oppressing women because: [W]RPHQ ¶V VWDWXV DQG UROHV LQ 0XVOim societies, as well as patriarchal structures and gender relationships, are a function of multiple factors, most of which have nothing to do with religion. The history of Western civilization should tell us that there is nothing innately Islamic about misogyny, inequality, or patriarchy. And yet, all three often are justified by Muslim states and clerics in the name of Islam. 31 Here, Asma Barla, together with other feminist Muslims, argues that the problem does not lie in Islam itself, because the fundamental value of Islam in gender relationship LV µVWXEERUQO\ HJDOLWDULDQ ¶ 32 However, this fundamental value might be distorted depending on who reads the Religious Texts and how the product of this reading is treated in the Muslim communities (`ummah). As a matter of fact, the use of the tahlili (analysis) method is dominant in the history of 4XU ¶DQic comment. 37 This method is governed by interpreting the 4XU ¶DQic Verses chronologically and primarily using a textual approach (`umum al-lafzh) toward a Verse. 38 Contrary to its popularity among the prominent 4XU ¶DQic commentators in classical times, this method has recently been criticized since it will lead the mindset of interpreters to the middle-east traditional setting in commenting on women-related Verses. The middle-east tradition is andocentric (mature-male centered). As a result, it is unsurprising that this method tend to produce patriarchal biases when commenting on Verses about gender in Islam. There is an enormous consequence when such a notion (the closure of ijtihad gate) is considered absolute; Islamic law loses its élan vital in modern life.

IV. Re-reading Religious Texts with Sensitive Gender: A Necessity in Attaining Gender Equality
Instead of providing solution to newly arising problems experienced by the ummah (Muslim communities), Islamic law is accused RI EHLQJ µmisogynistic ¶ and of being contrary to the human rights. This is because the classical concept of Islamic law remains entrenched, since contemporary Islamic law scholars are reluctant to disagree with the Imam madhhab. They believe that being in one madhhab means complete obedience. In fact, the development of Islamic law after the four great Imam madhhab had demonstrated a vibrant intellectual process: ijtihadfatwaikhtilaf or LMPD ¶ ± munazara. Some of the pupils of Imam Mazhab still gave their personal opinion while acknowledging that they were the adherents of one madhhab. To argue the Imam madhhab ¶s remarks was common in their scholarly activities. In addition, the Imam madhhab never compelled others to follow their opinion, without exercising the methodology used before arriving at a conclusion. 54 Treating the doctrine of fiqh as absolute truth and, thus, unchangeable, has lead WRGD\ ¶V 0XVOLPV to confuse the fiqh with the Shariah. The Shariah is a living and growing body which guides mankind, so that Muslims can live their lives 52 Atho Mudzhar, ³,VODP,´ 154. 53  according to Islam in any given situation and time. 55 The ontological reality of the Shariah has given birth to the epistemology of law (usul al-fiqh). By means of usul al-fiqh, the Islamic jurisprudence is theorized and formularized, which is called the fiqh. Basically, the fiqh is a product of the interaction between the `ulama (Islamic scholars) and the social realities which surround them. 56 Unlike the Shariah, the fiqh constitutes legal formal stipulations which are local and temporal in nature. Given this differentiation, it now appears important to critically utilize the doctrines of fiqh in the kutub al-fiqh. This is because it is not sufficient to solve contemporary problems by simply applying the doctrine theorized and formularized about fourteen centuries ago, because of the difference contexts. 57

V. Conclusion
Sex differences are natural, and they usually give birth to gender differences in a society. 58 Gender differences, indeed, do not matter as long as they do not trigger gender inequalities. However, instead of being neutral, gender differences often allow injustice, especially to women. 59 Gender inequalities, which in turn create injustice, are manifested into marginalization, subordination, stereotyping, socialization the values of gender role, violence and double burden against women. 60 These manifestations have persisted in the individual mindset and VWDWH ¶V SROLFLHV. They are often justified by means of religious doctrines, which render the effort to promote gender equality difficult to realize.
Having re-read the Islamic religious texts, an effort to promote gender equality as well as pluralism and human rights in family law in Indonesia is badly needed. This is done to spread the more sensitive gender understandings towards