Would there be more justice for women, and would law be more justly implemented, if the judiciary contained more women throughout the legal system, and especially in the higher courts?<\/p>\n
In the context of Civil Courts, this question has been succinctly answered by the Right Honourable Beverley McLachlin, the Chief Justice of Canada who said that the need to maintain public\u00a0confidence in the legitimacy and impartiality of the justice system was an unanswerable argument\u00a0<\/span>for having a judiciary in which men and women are equally represented.\u00a0<\/span>The learned Chief Justice is of the view that women on the bench are necessary for the credibility of\u00a0<\/span>the judicial system. S<\/span>he has also pointed out that the\u00a0<\/span>judgments which the courts are required to hear are increasingly difficult (including\u00a0<\/span>those involving issues important to women) and will tend to be better received and respected if they come\u00a0<\/span>from a bench with women on it.<\/span><\/p>\n From the public’s perception, the presence of women on\u00a0<\/span>the bench seems to make the legal system less alien and more relevant to the female half of the population<\/span>.On top of that, it would also be, to best serve available human resources due to the fact that women are half of the population and the number of women law graduates even surpass men law graduates. The presence of women on the bench can make a difference because women possess different experiences, concerns and interests that could bring new perspectives and reduce stereotypes.<\/span><\/p>\n Another research which is quite relevant to answer this question is “Women, Law, and Judicial Decision-Making: A Regional and Comparative Overview.”\u00a0<\/em>This research highlights why appointment of women as judges in some Muslim countries remain a controversial issue despite voluminous literature on the legality of the appointment of women as\u00a0Shari’ah\u00a0<\/em>judges by Muslim jurists both in classical and contemporary writings. There also exists a general perception that such appointments might not be in conformity with the Shari’ah.<\/p>\n Although there is no express prohibition in the\u00a0Qur’an<\/em>\u00a0and\u00a0Sunnah<\/em>, the opinions of Muslim jurists are divided. The classical Muslim jurists differ on whether a woman can be appointed as a judge. Basically, they can be divided into three groups, namely; (a) the majority opinion ruling that a woman cannot be appointed as a judge in any matter; (b) the Hanafis who view that a woman may be appointed as a\u00a0judge\u00a0in matters other than\u00a0hudud (crimes with fixed punishments)<\/em>\u00a0and\u00a0qisas (retribution)\u00a0<\/em>and (c) the opinions of Ibn Jarir al-Tabari and Zahiris who regard that a woman can be appointed as a judge in all matters.<\/p>\n The majority viewrepresents\u00a0the three\u00a0Sunni<\/em>\u00a0schools of law: the Malikis, the Shafi’is and the Hanbalis that a woman is not qualified to be a\u00a0judge<\/em>. They argued that a woman cannot be appointed as a judge based on the Qur’an and the hadith of the Prophet. The Hanbalis share the same opinion with the Shafi’is and rely upon the same authorities.<\/p>\n The Hanafi jurists, on the other hand, generally accept that a woman can be a\u00a0judge<\/em>\u00a0in matters other than\u00a0hudud<\/em>\u00a0and\u00a0qisas<\/em>.\u00a0\u00a0Al-Kasani and Ibn Nujaym discussed in general the conditions of becoming a judge of which gender is not a condition. Al-Kasani further asserts that the reason is based on the fact that if a woman can be a witness, she can also be a judge.<\/em><\/p>\n Nevertheless, al-Muusoli is of the view that although a woman can be appointed as a judge, it is reprehensible (makruh<\/em>) for her as it involves communication with men. In addition, al-Tumartashi, states that it is permissible for a woman to give judgment in cases other than\u00a0hudud<\/em>\u00a0and\u00a0qisas<\/em>\u00a0although the person who appoints her will be sinful. The third view is the view of Ibn Jarir al-Tabari which was followed by Ibn Rushd that a woman is absolutely accepted as a judgein all cases, other than to be the head of state. Ibn Qudamah also quoted al-Tabari’s view that if a woman can be appointed as Mufti she could also be appointed as a judge.<\/p>\n Contemporary Muslim scholars are also divided on this issue. Mohammad Hashim Kamali in “Freedom, Equality, and Justice: The Islamic perspective.” appears to agree with the view of the Hanafis and argues that the authorities on the\u00a0hadith<\/em>\u00a0relied upon by the majority of Muslim jurists who did not recognize appointment of women as\u00a0judges<\/em>\u00a0are inconclusive. It was in fact uttered in a particular context, when the Prophet was informed that the daughter of the Chosroe of Persia had taken charge of the affairs of that country. It is noted that the said\u00a0hadith<\/em>\u00a0“A nation whose affairs are led by a woman shall not succeed”, only speaks on prosperity or success and does not, as such, impose a prohibition.<\/p>\n He also highlights the view of Ibn Hazm who applied the\u00a0hadith<\/em>\u00a0on only \u2018the head of state’ and the view of some recent writers who view that power in a modern state is diffused between its various organs under a set of checks and balances which have become a familiar feature of constitutional law in almost all Muslim countries. And that the\u00a0hadith<\/em>\u00a0in issue actually envisaged one woman that wielded total power over government affairs, which is no longer the case in the present time. The author quotes Rashid Rida, Mahmud Shaltut and Muhammad Yusuf Musa, and some other arguments which support the view that woman can be appointed as a judge.<\/p>\n Other contemporary Muslim jurists include prominent scholar such as, Dr. Yusuf al-Qardawi, Mustafa al-Qaradawiy and Ahmad al-Shalabi also agree with the view that a woman can be appointed as a judge.<\/p>\n In the Malaysian context, Tan Sri Sheikh Ghazali Abdul Rahman, the former Director General and Chief Justice of Shari’ah Judiciary seems to prefer the view of the Hanafis as it is quite moderate and applicable to the contemporary period. Furthermore, the jurisdiction of present\u00a0Shariah judge<\/em>\u00a0in Malaysia is very limited. Dr. Siti Zalikhah Mohd Nor also agrees with the views of the Hanafis. She quoted several Muslim countries such as Sudan and Pakistan, which are followers of Hanafis that had appointed women as\u00a0judges.\u00a0She adopts the Hanafi view based on the current situation in Malaysia where the Shari’ah Courts hear exclusively personal law and\u00a0ta’zir<\/em>\u00a0(crimes with discretionary punishments) offences and not\u00a0hudud<\/em>\u00a0or\u00a0qisas<\/em>. As most of the Shariah Court clients are women, there is a need to appoint women judges. On the other hand, al-Maududi, Abdur Rahman I. Doi and Muhammad Abdur Rahman al-Bakr rejected the idea of appointing women as\u00a0judges. The opposing views seem to prevail in Malaysia because no woman has yet been appointed to serve as a judge in the country’s Shari’ah Courts although we have a prevailing fatwa issued in 2005. On the other hand, Malaysia’s neighbour, Indonesia, has for quite sometime appointed more than 100 qualified women as Shariah court judges. When will Malaysia starts doing so?<\/p>\n","protected":false},"excerpt":{"rendered":" Would there be more justice for women, and would law be more justly implemented, if the judiciary contained more women throughout the legal system, and especially in the higher courts? In the context of Civil Courts, this question has been succinctly answered by the Right Honourable Beverley McLachlin, the Chief Justice of Canada who said…<\/p>\n","protected":false},"author":48,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_analytify_skip_tracking":false,"_wpzoom_pinterest_image_url":"","_wpzoom_pinterest_hidden_image":"0","_wpzoom_pinterest_description":"","footnotes":""},"categories":[220],"tags":[],"class_list":["post-21745","post","type-post","status-publish","format-standard","hentry","category-the-star","category-220","description-off"],"_links":{"self":[{"href":"https:\/\/www.ikim.gov.my\/en\/wp-json\/wp\/v2\/posts\/21745","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.ikim.gov.my\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ikim.gov.my\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ikim.gov.my\/en\/wp-json\/wp\/v2\/users\/48"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ikim.gov.my\/en\/wp-json\/wp\/v2\/comments?post=21745"}],"version-history":[{"count":0,"href":"https:\/\/www.ikim.gov.my\/en\/wp-json\/wp\/v2\/posts\/21745\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.ikim.gov.my\/en\/wp-json\/wp\/v2\/media?parent=21745"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ikim.gov.my\/en\/wp-json\/wp\/v2\/categories?post=21745"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ikim.gov.my\/en\/wp-json\/wp\/v2\/tags?post=21745"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}