Sitting in judgement is something only men can do—or at least that is how legal systems in several Muslim countries have worked until recent legal and social changes. The pace of this change seems to be gathering, such that countries which had previously completely excluded women from an active role in the legal process are now opening their doors, albeit slowly, to women as lawyers and judges.

These changes illustrate some of the challenges women’s rights activists face and the strategies they have used to have their voices heard when religion is presented as the dominant basis of public policy. The question is, though, how far is having women judges and lawyers a sufficient guarantee of access to justice for women, especially in family law cases?

For the first time in Malaysia, two women, Rafidah Abdul Razak, 39, and Surayah Ramlee, 31, have recently been appointed as judges to Syariah Courts. But they are still having to wait for a decision on what cases they will be permitted to hear. Syariah Appeals Court judge Datuk Md Yusup Che Teh told a news conference this was because there were certain cases that they could not preside over, such as divorce and wali hakim cases (where a woman seeks the court’s permission to marry without her father’s permission). Md Yusup said the demarcation of duties for the women judges was not gender discrimination but was based on Islamic rulings that could not be disputed.

Ironically, religious justifications are being used to almost opposite effect in Saudi Arabia. There, in February a new law was reported as planned to allow women lawyers to argue cases in court for the first time—but at this stage limited to family-related cases, including divorce and child custody.

Meanwhile in Egypt in March, the Supreme Constitutional Court overruled objections from conservative members of the judiciary and a large majority of the General Assembly, and instead backed the appointment of women as judges in the State Council (administrative courts) This followed on from reforms in 2004 which ensured that women were included in the court personnel dealing with family law cases. Two years earlier, Abu Dhabi appointed its first female federal judge, while Bahrain now has three female judges. Even in Afghanistan, a country that can hardly be accused of being lax in the area of religious adherence, the Family Court in Kabul is headed by a female judge, Rahima Razai, who is assisted by two senior female judges and one male judge.

The issue of women judges is such a live one currently in the Middle East that it was the focus of the Arab Council for Judicial and Legal Studies (ACJLS) e-forum last year.

These are significant victories for women’s rights. But women judges, including with jurisdiction over Muslim family laws, have been around much longer in several Muslim-majority countries. In 1994, five women were appointed to Pakistan’s High Courts (although the number has since stagnated), which include jurisdiction for superior court appeals in family law cases, and Sudan, despite years of Islamisation, has long allowed women in the judiciary. According to Tunisian lawyer activist Sana Ben Achour speaking at the launch of Musawah in February 2009, today in the Maghreb countries of Tunisia, Algeria, and Morocco, there have been an increasing number of female judges and magistrates – 470 female judges out of 1698 in Tunisia (28 per cent); 547 out of 2324 in Algeria (23.5 per cent); and 391 female judges throughout Morocco.

The obstacles that women face in trying to gain significant representation within the legal system are illustrative of the broader obstacles they face in getting women’s voices heard in public policy in Muslim contexts. Here, entrenched male power is quick to switch its justifications for discrimination according to convenience.

One Musawah participant from Afghanistan, who chooses to remain anonymous, noted the conundrum that when NGOs argue that other Muslim countries take a more egalitarian approach in family laws, the conservative judiciary dismisses those as “secular laws”. But in response to progressive examples from religious texts, they say the NGOs are correct about the texts but that this is not the right time for change. Nothing in Pakistan’s laws says women cannot be Federal Shariat Court judges or Supreme Court judges, but it’s just never quite happened despite the country having many highly experienced and respected superior court lawyers who would qualify.

The justifications that have been used to support women’s inclusion in the judiciary and legal profession illustrate the range of approaches being accessed by rights activists in Muslim contexts.

In Egypt, the focus was on constitutional guarantees of equality, international human rights treaty obligations, and support from Islamic scholars. As the Egyptian Centre for Women’s Rights pointed out, Article 40 of the Constitution states "All citizens are equal before the law. They have equal public rights and duties without discrimination between them due to race, ethnic origin, language, religion or creed." Moreover, Egypt has ratified the UN Covenant on Civil and Political Rights and CEDAW, which prohibit non-discrimination on the basis of gender. And to top it all, Dr. Ali Gomaa, the Mufti of Egypt had approved the appointment of women as judges or president.

In Malaysia, where the struggle has been to have women included in the religious courts since they have long adjudicated over ordinary courts, local women’s rights group Sisters in Islam has focused on examining religious texts, as well as taking inspiration from positive developments in other Muslim countries.

The exclusion of women from the judiciary is undoubtedly a sign of discrimination that is not justified in terms of local law, international human rights standards, Islamic principles - and the reality that women are evidently capable of sitting in judgement. But how far is their inclusion in the judiciary a sufficient guarantee of access to justice for women?

In Muslim contexts, including Egypt and Malaysia, where women have been included as part of formal legal processes relating to family laws, the results have been mixed. In Egypt, following the 2004 reform, judges hearing a family case must be assisted by two social and psychological experts, one of whom must be a woman. Research by Dr Mulki Al-Sharmani has found the effectiveness of the experts in contributing to greater equality and justice in family law processes is patchy. Indeed, the study found examples of women experts arguing for restricting women’s rights in divorce. The study’s recommendations are strictly gender neutral, indicating that Dr Al-Sharmani, who is otherwise well-known for her strong stand in favour of women’s rights, does not see the gender of such legal officers as an ultimately determining factor in improving women’s equality in the family.

Sana Ben Achour of Tunisia takes a similar perspective. While she is clearly supportive of the process of expanding women’s representation in the judiciary, she highlights the achievements of what she calls the ‘feminization of the judiciary’. Across the Maghreb, there have been an increasing number of decisions that are emancipatory for women and feature principles of equality and non-discrimination, no matter what the gender of the adjudicator. Judges have been using positive law, constitutional provisions on freedom of conscience, freedom of worship, equality in rights and duties of citizens before the law, and international conventions to expand women’s rights, including in the area of Muslim family law. In Tunisia this was illustrated by a decision ensuring that the non-Muslim wife of a Muslim had full inheritance rights even though under traditional interpretations of Muslim laws she would have been excluded from the inheritance.

As retired Justice Majida Razvi, one of Pakistan’s first female High Court judges noted while participating in the Musawah launch, “Judges always have the discretionary power to ensure that justice is done by issuing judgements that are fair. They can use this space while remaining within the parameters provided by the laws.” In other words, there is plenty of scope for the ‘feminization of the judiciary’, whether through female or male judges.

Key to this process are the application of existing local provisions and international obligations regarding equality, and a recognition by the judiciary of the opportunities for interpreting laws and religious principles in ways that make equality possible. One way women’s organisations can support this process is through transnational networking that can expose how, as in the case of debate about Malaysian and Saudi women’s inclusion in the legal system, religion and respect for tradition are being mobilised simultaneously to exclude them from covering family matters and to limit them to this sphere.

This article is part of the debate Religion Gender Politics - prospects for equality and pluralism. To read other articles in the debate click here