Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (10 page)

While the regime felt some inclination to follow this path to consolidate its modern image, it also considered the assistance of
ulama
in major religious institutions such as al-Azhar University important to broaden its support and contain militant Islamist organizations such as the Muslim Brotherhood. Many influential
ulama
opposed substantial increases in women’s rights and individual autonomy in family life. As a result, policy elites abandoned plans to draft a modernist code of family law that would draw from Islamic legal traditions but apply to all citizens; they restricted themselves to transferring jurisdiction over personal law in 1955 from religious courts to state courts that drew their judges from both Islamic educational institutions and secular universities. They periodically made modest changes in Islamic law thereafter, but were reluctant to make far-reaching changes that major
ulama
and Islamist organizations did not consider to be grounded in Islamic traditions, especially once Islamist organizations resumed their growth in the 1970s. When there was considerable opposition to a law that enabled earlier wives to divorce their polygamous husbands, passed in 1979 through presidential decree after little public consultation, the Supreme Court struck down this law and parliament altered legislation accordingly. Subsequent reform initiatives were more cautious. They increased women’s rights to maintenance and divorce, obliged women to obey their husbands in fewer activities, and decreased the ability of men to secure their wives’ conjugal company; these measures promoted companionate marriage and women’s education and workforce participation. But they left much space for men to act against their wives’ interests, such as by requiring them to give up their jobs, repudiating them unilaterally, or concurrently marrying several women without the consent of their earlier wives.
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Similar concerns limited personal-law reform in Malaysia, Sri Lanka, and Jordan. The much greater vigor of electoral competition made broadening support a more compelling concern for the major parties of Malaysia (the United Malay National Organization) and Sri Lanka (the United National Party and the Sri Lanka Freedom Party). These parties gained support primarily by presenting themselves as effective representatives of their country’s ethnic majority, among whom preferences regarding family law varied. To maintain support among the ethnic majority that overlapped considerably with the religious majority in these countries (Malays being largely Muslim
and Sinhalese predominantly Buddhist), they had to contain challenges from Islamic and Buddhist religious institutions and movements. They did so by upholding moderate modernist understandings of religious norms and personal law, thereby allying themselves at times with religious parties and movements and limiting the appeal of these organizations at other times.
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Concerns to contain Islamist mobilization and to limit discontent among the substantial Palestinian population similarly limited the Jordanian monarchy’s reforms.
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The scope of personal-law reform was modest yet significant in Indonesia, much as in the countries just discussed. However, reform there was more extensive than in these countries in some respects, and more ambitious proposals were seriously considered at some points since the late 1980s. Different ideological tendencies and social visions were represented in the nationalist movement and the early postcolonial political elite—religious pluralists and proponents of an Islamic state, cultural indigenists who valued
adat
and supporters of the types of Islamic jurisprudence formed mainly in Arab contexts, and proponents of social equality as well as those who wished to maintain gender, age, and class hierarchies. In order to reconcile these diverse perspectives and contain the secessionist demands that emerged from certain “outer islands” other than Java, from particular Christian and animist groups, and from some Islamic modernist organizations, the early postcolonial political elite agreed on the doctrine of
Pancasila
(five principles), which included the recognition of a Supreme Deity rather than a specific religion. Moreover, religious pluralists such as Sukarno had greater influence, and deleted from an earlier draft of the constitution a phrase that obliged Muslims to live according to Islamic visions of justice and be governed by Islamic law. Nevertheless, Muslim marriage and divorce cases remained under the jurisdiction of the Islamic courts, which were centralized and professionalized along the lines of the civil courts, and were offered greater state resources. Besides, such courts were established in some of the outer islands for the first time after independence and gained jurisdiction over inheritance in these regions (while they governed only marriage and divorce elsewhere in the country between 1937 and 1983), whereas only minor changes were made in Islamic law throughout the country until the 1970s. These choices were made to contain the resentment of Islamic organizations about Islam not being given official primacy
and the omission of a constitutional commitment to maintain Islamic law, and to preclude the reemergence of an Islamist insurgency such as had engulfed parts of Java in the first postcolonial decade.

The authoritarian New Order regime that ruled Indonesia from 1966 to 1998 retained its predecessor’s secularist inclinations and resisted demands to give Islam greater constitutional significance. It initiated various important personal-law reforms, such as requiring Islamic court approval for male repudiation, authorizing the Supreme Court to supervise the Islamic courts and consider appeals of their verdicts, extending jurisdiction over the consequences of divorce to the Islamic courts, and offering litigants throughout the country the choice to have these courts consider their inheritance cases. Moreover, an official compilation of legal rulings that was meant to guide Islamic court decisions departed in many ways from the rules favored by the majority of
ulama
of the Shafi‘i
madhhab
that governs most Indonesian Muslims.

Even through this period of greater personal-law reform, concerns to maintain broad support, limit Islamic resistance, and gain the support of certain Islamic scholars and institutions for their development projects deterred authorities from implementing more ambitious proposals, such as to transfer jurisdiction over marriage to the civil courts, to change Islamic inheritance rules according to the bilateral practices predominant in the country, and to equalize on this basis the inheritance shares of men and women with a similar relationship to the deceased. At the same time, the concerns of secular nationalists deterred policy makers from giving the Islamic courts sole jurisdiction over inheritance cases. While legislators did not devote much attention to changing the laws of the religious minorities, the civil courts that considered family disputes among these groups generally did so with reference to the relevant
adat
; they accepted bilateral and matrilineal practices as well as other customs favorable to women (such as the joint ownership of marital property of which both spouses are entitled to shares when they get divorced or when their spouse dies), and sometimes applied such customs to groups among which they were not prevalent based on novel constructions of a “national
adat
,” which was said to be based on the “living law of society” and used to promote more egalitarian customs. After the transition to democracy in 1998, Islamist movements increased the scope of Islamic law and
ensured that Islamic law was interpreted more conservatively in some of their regions of strength, particularly in Aceh where
shari’a
was made an important basis of the entire legal system.
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Despite the recent conservative developments in certain regions, the changes in personal law in much of Indonesia since the 1970s promoted women’s rights, individual autonomy, and variety in kinship practices more than in most countries that had catchall regimes. They favored such ends more than the legal changes in Senegal, Libya, Egypt, Jordan, and Malaysia, where Islamic law also governs the majority of citizens.
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The changes in the personal laws of Indonesia’s Muslim majority were roughly comparable in character with the changes introduced in Hindu law in India since the 1970s. But the laws of the religious minorities were changed more extensively and earlier in Indonesia. Reforms were less extensive in Indonesia in various respects than in Tunisia and Turkey, whose experiences are discussed later. However, a proposal of the Ministry of Religious Affairs to equalize the inheritance shares of men and women with a similar relationship to the decedent, based on the understanding that this custom was prevalent among some ethnic groups and should be promoted among other groups, would have changed Islamic law more dramatically in Indonesia than was done in Tunisia. The Islamic laws recognized by all states give men twice the inheritance shares of women similarly related to the deceased based on the Qur’an, and only in Indonesia did policy makers consider the equalization of these shares.
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Thus, among the countries that saw modest reform, the most extensive changes were introduced or seriously debated in Indonesia.

Regimes were particularly associated with vanguard groups and willing to launch social reforms at the cost of alienating other groups in early republican Turkey and early postcolonial Tunisia. Turkey’s republican regime relied largely on the support of urban reformists and transplanted many Western social, constitutional, and legal precedents even though this caused considerable conflict. It banned various religious institutions (specifically, Sufi orders and the tombs of Muslim saints), closed religious courts and religious schools, and ended the recognition of Islam as a state religion, but simultaneously increased state control over mosques, their officials, and their practices. In 1926, it made the Swiss Civil Code rather than Islamic law relevant to family disputes. Women gained various rights in family life as a result—for
example, to inherit shares in family property equal to those of their brothers, and to get divorces on grounds identical to those available to men. Moreover, polygyny and male repudiation were banned, the age of consent to marriage was increased to fifteen for women and seventeen for men, Muslim women were allowed to marry non-Muslim men, fathers were no longer preferred to mothers as child custodians, and marriage registration was required, making it easier for women to gain the economic benefits of marriage. Even after overt resistance to the regime declined, many litigants avoided state courts in rural areas, seeking unofficial courts that resolved family disputes with reference to Islamic and customary norms. Moreover, certain features of prior Islamic law were retained, albeit without official acknowledgement. For instance, the man was deemed the head of the family, was made responsible for his wife in various respects including the management of her property, and was allowed to bar his wife’s workforce participation. (Various Western family law systems gave men similar authority over their wives until the early twentieth century.) Women could remarry only three hundred days after their earlier marriages ended while men faced no such restriction. Besides, judges were allowed to base matrimonial verdicts on custom and tradition on matters not covered by statute.
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The modernists led by Habib Bourguiba who assumed control over the Tunisian state right after independence were based mainly among the urban middle classes and unionized working classes. Much like Turkey’s early republican rulers, they narrowed their coalition by expelling their main opponents, the pan-Islamist faction of the ruling Neo-Destour Party led by Salah ben Youssef. They centralized power, limited the authority of lineages and religious elites, and introduced extensive family law reforms based on innovative interpretations of Islamic law. Tunisia saw the most extensive Islamic law reforms until the Moroccan monarchy adopted most of the Tunisian precedents and went further in certain respects in 2004.
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The Tunisian rulers prioritized the reforms sufficiently to adopt them soon after independence even though mobilization in their favor was weak, especially on the part of women’s organizations, and they aroused significant opposition. By way of contrast, the major reforms happened in Morocco nearly fifty years after independence, only once they were backed by effective civil society mobilization; reforms were passed in Indonesia at different
points after more ambitious proposals were abandoned because they faced resistance.

The different sources of the Turkish and Tunisian reforms especially influenced the inheritance provisions. While the changes in Tunisia retained the 2:1 Qur’anic ratio in the inheritance shares of men and women who had a similar relationship to the deceased, the secularized Turkish family law was not bound by this constraint and equalized these shares. However, women’s likely shares in family property were increased in other ways in Tunisia: by limiting testamentary rights to a third of one’s property, prohibiting the donation of one’s property to
waqf
(public trusts, many of which are run by religious institutions)—thereby also limiting the resources of religious institutions—increasing a wife’s share in the absence of male agnates, and giving the claims of daughters and sons’ daughters priority over those of male agnates. Many of the other Tunisian reforms were similar to those in Turkey. For instance, religious courts were discontinued, polygamy was criminalized, the divorce and custody rights of men and women were equalized, the registration of marriages and divorces was required, and adoption was allowed in both countries. The husband’s authority over his wife was limited less in Tunisia than in Turkey until spousal authority was equalized in both countries over the past decade. But women gained more rights in certain respects in Tunisia than in Turkey—for example, mutual-consent divorce was made available in Tunisia alone, and the minimum age of marriage was made the same for men and women in Tunisia; it remained higher for men in Turkey until 2002. The similarities in the reforms in the two countries show that Tunisian policy makers interpreted Islamic legal traditions in tune with much the same modernist goals that their Turkish counterparts derived from secularist reasoning. The Tunisian regime contained conservative resistance and the operation of unofficial courts much sooner than the Turkish republic did, giving official law fuller and quicker influence over the resolution of family disputes.
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