I meant to post this last month when the Philippine Supreme Court issue its ruling on contraceptives, but better late than never. Here’s an article in Foreign Policy about the case and its importance.
Category Archives: gender
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May 9, 2014 · 22:24AIDS and Gender Discrimination in Kenya
I just wanted to let readers know that an article I published with the Georgetown Journal of Gender and the Law is finally out. In the article, my clinic partner and I discuss international and domestic legal arguments against criminalizing HIV/AIDS transmission. While most governments rightly want to prevent the further spread of the disease, criminalization is both ineffective and can discourage victims from seeking help at public health clinics. The article focuses on Kenya, but many countries in Asia have similar laws (in an earlier draft we cited a case from Singapore). I’d be interested in hearing whether anybody has come across similar problems with Southeast Asian HIV policies.
A woman’s touch for Islamic law
First of all, I apologize for not posting the past few weeks. I’ve been a bit sick and decided to take it easy.
When catching up on the news, I saw an interesting development in Malaysia. The government recently appointed two female judges to the Shariah court system – the first women ever on the Islamic bench. Sisters in Islam, a feminist NGO group, had long advocated such a move in order to reduce the alleged bias against women on the courts. However, as I discussed in my recent review of the book Islamic Modern, the reality of gender dynamics in the courts might be a bit more complex. Nonetheless, a greater gender balance on the bench is inevitably a positive development for the Shariah courts.
Book Review: The Judge Judy of Islamic Law
Since 9/11, Islamic law has gained an unfair reputation for being medieval and repressive. Certainly, there are occasional high-profile cases that seem disturbing according to modern notions of human rights (stoning in Iran for instance). Yet, many non-Muslims lack a firm grasp of how Islamic Courts actually operate on a regular basis. In Islamic Modern: Religious Courts and Cultural Politics in Malaysia, Professor Michael Peletz, who conducted fieldwork in Malaysia during the 1980s, provides synopses and transcripts of several cases in the Islamic Court in Rembau. He argues that, far from being repressive, Islamic Courts in fact tend to resemble arbitration and family counseling.
As a record of the types of cases in the docket of the Islamic Court of Rembau, Islamic Modern is invaluable. The book – and Peletz’s commentary – really conveys a sense of how Islamic courts operate on a daily basis. Almost all of the cases dealt with actions for divorce – from the husband who wants a second wife to the wife who abandons her lazy husband. Surprisingly, females were more likely to initiate litigation than males. Indeed, I was surprised how often the Kadi (judge) permitted the wife’s petition for divorce and how often he stressed the husband’s responsibility in marriage. Furthermore, by treating marriage as a contractual obligation between individuals, Peletz argues that Islamic Courts are modernizing Malay identity slowly eroding customary familial and kin linkages (hence the title “Islamic Modern”).
Beyond the actually cases, I found Islamic Modern unfortunately lacking. First, the cases Peletz summarizes deal almost exclusively with divorce. I understand that marital actions probably do comprise a large portion of the docket of most Islamic Courts (as statistics on pages 156-59 suggest). However, it would have been useful to learn more about how Islamic Courts handle other areas of the law – especially because several Malaysian apostasy cases, such as “Lina Joy,” have received so much international attention. In fact, Peletz spends much of the last third of the book discussing gender and homosexuality in Malaysia. This is an important discussion, but seems only tangentially related to the courts.
At the end of the day, Peletz, an anthropologist by training, focuses more on the individual cases and concepts of human culture (he uses the word “symbol” quite a bit). As such, Islamic Modern excels when discussing gender relations, but almost ignores the courts as political institutions. After reading the book, I learned very little about the jurisdiction of these courts, their relationship to the secular courts, or even the tenure of Kadi judges – all of which seem to be hot issues in the field of Shari’ah law in Malaysia. I do hope Peletz’s future research explores these issues in a bit more depth. In the meantime, if you have any interest in Islamic law, I highly suggest reading at least the discussion of the cases in Islamic Modern.
Gender Bender in Indonesia
In all the months I’ve been blogging on Rule by Hukum, this is perhaps the worst violation of justice that I’ve seen. An Indonesian, Alterina Hofan, has Klinefelter’s Syndrome, which results in an extra X chromosome and a more feminine physical appearence. Indeed, when he was born, he was registered as a female. However, he had always identified himself as a man. Later in life, he underwent surgery to remove some of his more feminine features and changed his identity papers.
When Mr. Hofan married a woman in 2008, his mother in law filed a case against him, alleging he had falsified his identity documents. Mr. Hofan was arrested and initially placed in the male’s ward of the prison. However, after police DNA tests, he was placed in the female ward. Upon yet further reflection, the prison staff decided he was male and could not be held amongst other female prisoners. Therefore, Mr. Hofan remains in a private jail cell in the female section of the prison.
Fortunately, the case has received a lot of publicity. According to The Jakarta Post, Josep Adi Prasetyo of the National Commision on Human Rights (Komnas HAM) denounced the decision, saying Mr. Hofan “has the right to say he is a man.” Siti Hidayati Amal, an Indonesian sociologist, says the case shows that “there is still an apparent lack of awareness among the authorities, especially the police, on how to handle this specific issue.”
I’ve occasionally said on this blog that bad facts make bad law (or the inverse). Mr. Hofan’s case could well be one in which good facts make good law. While the case hasn’t yet (and might not) gone to court, if it does reach, say the Mahkamah Konstitusi, it could lead to a decision in favor of at least limited LGTB rights. How so? Mr. Hofan’s plight is extremely sympathetic. He did not choose to be transgendered, but rather suffered from a genetic disease. He has been consistent in staking his identity as a man. The government’s handling of Mr. Hofan seems inept at best, and verging on callous. Perhaps most importantly, given that this is nominally a marriage fraud case, Mr. Hofan’s wife has stated that she does not care about her husband’s gender past. She has told the media, “All I want is for my husband to be freed as soon as possible.” These aren’t the type of facts that would arouse the ire of most people, even religious fundamentalists opposed to LGBT rights. I won’t be so bold as to predict the outcome of any litigation, but it seems to me that Article 28I of the Constitution would provide several grounds for releasing Mr. Hofan.
Hopefully Mr. Hofan will receive justice sooner rather than later, but if his case does go through litigation, it could lead to profound developments in Indonesian LGBT law.
Dominic J. Nardi, Jr. 