WUNRN
INTERPRETATION
OF THE ISLAMIC JURISPRUDENCE IN THE
SPIRIT OF THE INTERNATIONAL HUMAN RIGHTS NORMS AND THE CONVENTION ON THE
ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN
FERDOUS
ARA BEGUM
Former
Member of the UN CEDAW COMMITTEE
Rabat
Round Table Discussion on
Women
Leading Change in the Muslim World
Ministry
of the Interior, Kingdom of Morocco and
Wellesley Centers for Women, Wellesley College
May, 16-17, 2011
RABAT,
MOROCCO
At the very outset I would like to thank Dr. Rangita De Silva and Dr
Zarrok Nazat for inviting me in this important roundtable discussion on the
Role of women in leading changes in the
Islamic World.
INTRODUCTION
The concept of nondiscrimination and equal rights for both men and
women in all spheres of their lives as enshrined in the CEDAW Convention (1979)
and all other Human Rights Frameworks generated a new realization and discourse
in the Islamic world. The Universal Declaration on human Rights (1948) states
in Article one that ‘all human beings are born free and equal in dignity and
rights’. By ratification of these International human rights frameworks States
parties are in obligation to domesticate these human rights standard in their
own legal system.
At present about 187 states parties have ratified the CEDAW convention
which is almost a universal ratification for the Convention. Except Iran, Sudan
and Somalia all other Muslim countries have ratified or acceded to the CEDAW
convention. Many of these Muslim countries
imposed reservations under Article 28 of the convention on certain core
Articles, such as Article 2, 16, 9 etc of the convention in the name of Islamic
Sharia law.
More or less 20 Muslim
States parties are maintaining reservations on the Convention (on Article 2 and
16) on the basis of Islamic Sharia laws. These are namely, Algeria , Bangladesh ,
Brunei , Egypt, Iraq, Jordon,
Kuwait, Libya , Malaysia, Maldives Mauritania , Morocco
, Niger ,Oman, Pakistan, Saudi
Arabia, Syria, Tunisia and UAE.
SCOPE OF THIS ARTICLE
In this
article we will examine the Islamic jurisprudence in the spirit of
International human rights norms and how reform process in different Islamic
countries could minimize differences in the area of women’s equal access to public
goods such as education, health , employment, rights to justice and political
participation as well as equal rights in
the family relations such as marriage, divorce, custody rights and inheritance to the property and most
importantly withdrawal of the reservations on the CEDAW Convention. In the
elaboration of this article we will also touch upon the issues like gender
stereotyping , violence against women, patriarchy, harmful traditional
practices, like FGM, honour killing,
dowry related crime etc also minimum age of marriage, consequence
of early marriage , polygamous union etc
which affect women in realization of
equality and non discrimination status. We would also examine how women’s human
rights, International human rights frameworks, i.e., CEDAW and Islamic
jurisprudence are not contradictory to each other.
DIVINE LAWS UNCHANGEABLE
IN CHARACTER
Implications of these reservations indicate that provisions of those
Articles are not binding upon those countries imposed reservations as it is not
compatible with Quranic law. It is often
argued that Muslim family law systems cannot be amended to allow equality
between men and women because these are divine laws and therefore unchangeable,
or that practices cannot be changed because they are part of the Islamic
tradition.
Many Muslim countries view that the CEDAW as culturally
biased towards the western nations and have consequently placed reservations on
the elements that they see as in fundamental contradiction with Islamic Sharia
laws based on Holy Quran and Sunna. Also most Muslims regard the advent of
Sharia laws as a significant force in the improvement of women's rights.
Women human rights activists and Islamic feminists’ consider this
notion as patriarchal interpretations of Islam based
on unequal family relations that aim to subordinate women. They argue that justice
is inherent to the philosophy of law in Islam, thus laws or legal amendments
introduced in the name of Sharia and
Islam should reflect the values of equality, justice, love, compassion and
mutual respect among all human beings. These are values and principles on which
Muslims agree and which Muslim jurists hold to be among the indisputable
objectives of the Sharia, and are also consistent with universal human
rights principles and values.
In the present paper we will try to examine the reconciliations of the
Quranic injunctions on women’s rights with the existing human rights frame
works i.e CEDAW.
ARTICLE 2, 9 AND 16 AND
OBJECT AND PURPOSE OF THE CONVENTION
Article no. 2 of the Convention Says that States parties should eliminate discrimination against women in all its forms through appropriate legislation and repeal all national penal provisions which are discriminatory to women. Article 16 governs family relations, such as equal rights & responsibilities for marriage & dissolution of marriage, custody rights etc. and article 9 represents equal citizenship rights.
The General recommendation 28 of the CEDAW convention clearly mentions
that those reservations on Article no 2 and 16 goes against the object &
purpose of the convention. Practical realization of the principles of equality
and nondiscrimination cannot be achieved keeping reservations on article no. 2
and 16.
ARTICLE 16 OF THE
CONVENTION AND MUSLIM FAMILY LAWS
It is important to note that
Islamic Nations imposed reservations mostly on the article 2 and 16 of the
CEDAW Convention. Article 16 is the most debated legal position in the Muslim
world which represents the following core themes of the family matters.
1.
Equal
Right to Marry and Choose a Spouse
2. Equal Rights and
Obligations of Spouses during the Marriage
3. Equal right for the
dissolution of Marriage
4. Equal rights for Custody
and Guardianship of Children
5.
Same
rights for the ownership and acquisition of the property
Here lies the real tension and challenge for the Islamic States to
realize women’s human rights as covered by the CEDAW Convention.
CEDAW CONVENTION AND STATE OBLIGATION
Ratification of the CEDAW Convention, which is one of the core
international human rights treaties of the UN treaty system, requires Member
States to undertake legal obligations to respect protect and fulfill human rights.
In other words States parties are committed to adopt international human rights
standard in their national legal system and incorporate those in the
constitution.
There are several Islamic
countries have ratified CEDAW without imposing any reservations on the
Convention, such as Afghanistan. Many States Parties in the recent times have
withdrawn reservations on the Convention, such as Morocco on Article 16,
Maldives on Article (7) and Bangladesh on Article 9 etc.
Many Islamic Nations such as Morocco, Tunisia, and Turkey complied
with the CEDAW principles and brought amendments accordingly in their national
legal system. As a signatory to the CEDAW Convention States parties are liable
to submit reports to the committee every 4 years and explain the situation of
women’s advancement in respect of their rights and legal protection for them in
the country in light with the convention.
WHAT IS THE CEDAW CONVENTION?
The United Nations adopted the Convention on the elimination of all
forms of discrimination against women (CEDAW) in 1979 which is the only legally
binding international instrument to prohibit all forms of discrimination
against women committed by public authorities or by any person or organization
in the full range of civil, political, economic, social & cultural areas,
covering both public & private life. The convention also targets culture
& tradition as the influential forces shaping gender roles. The purpose of
this treaty is to eliminate de facto and de jure discrimination
and inequality on the basis of sex.
The CEDAW convention aims at achieving uniform development for women all over the world using global normative standards that has been enshrined in the 16 substantive articles of CEDAW and its 28 general recommendations. The CEDAW convention’s profound impact on the legal and socio political development of States parties including Muslim States who are party to the Convention are visible in the strengthening of institutional provisions for the protection of women’s rights and efforts to bring existing legislation in to conformity with convention principles, improvement in the capacity of national institutions to guarantee equality between men & women. Furthermore, increasing use of the convention, and the committee’s general recommendations by the States parties provide an important roadmap in developing its short term and long term national plan for advancement of women.
CEDAW legally
binds all States Parties to fulfill, protect and respect women’s human rights –
this means that States are responsible not just for their own actions, but also
for eliminating discrimination that is being perpetrated by private individuals
and organizations. Gender inequalities must be addressed at all levels and in
all spheres, including the family, community, market and state.
IJTIHAD
SUPPORTS REFORM MEASURES IN THE ISLAMIC JURISPRUDENCE
Many Islamic countries, such
as, Morocco, Malaysia, Tunisia and
Turkey have initiated reform measures in the family code in the line with the CEDAW principles to eliminate discriminate against women using the wisdom
of ijtihad.
This is a creative interpretation of the
Quran based on independent and contextual reasoning in light of relevant
societal, historic and cultural rationality. Ijtihad is a flexible tool which has been used by the Islamic
scholars to mold and shape the traditional Islamic legal theory to fit the
needs of changing times .The Quran (Devine law), Sunnah (tradition of
the prophet), Ijma (consensus) and Qiyas (analogy) are
important sources of Islamic knowledge and the main basis of ijtihad, which provides a greater degree of
flexibility in contemporary interpretation of Islamic laws and practices. It is
considered that Ijtihad is the science of interpretation and rule making in the
area of Islamic jurisprudence.
In
recent times, even the judiciary has invoked ijtihad in its jurisprudence. For example, Justice Nasim Hasan Shah
of the Supreme Court of Pakistan has invoked ijtihad in one of his judgment.
The
Iranian Novel Laureate, Dr. Shirin Ebadi
too argues that, “In Islam, there exists a tradition of intellectual
interpretation and innovation known as
ijtihad, practiced by jurists and other clerics over the
centuries to debate the meaning of Quranic teachings as well as their
application to modern ideas and situations.”
WOMEN’S RIGHTS AND ISLAM
It is true that in a great majority of Muslim countries participation
of
Women in public and political life, even their ability to hold
high-ranking positions in a State apparatus can be justified and supported from
the point of view of Islamic law.
In Bangladesh both the Prime Minister and Opposition leaders are women
and holding this position for more than one and half a decade. It is important
to note that Bibi Aisha, wife of the Prophet Mohammed actively participated in
political and public life. She is one of the most renowned and credible
narrators of the Hadith.
Women’s equal access to education, health needs, political and economic
empowerment of women and protection of human rights of rural women and older
women are high priority issues in most Muslim countries. These are important indicators to fulfill the MDG,
Beijing and CEDAW implementation goals, also these standards are not
confrontational to Islamic
Jurisprudence as well.
For example, Bangladesh, Egypt, Afghanistan, Indonesia, Morocco and
many other Muslim countries have taken reform measures in the election law and
imposed Quota to improve political participation of women in local and national
level. As per Beijing PFA all of the signatory Muslim countries have developed
Action plan and policy measures for the advancement of women and gender
mainstreaming is the integral part of the national planning process.
From the examination of the CEDAW concluding observations it is very
clear that due to CEDAW monitoring process
most of the Muslim countries have taken adequate measures to achieve
parity in girls’ education at the primary and tertiary level. Combating trafficking
of women and girls for the exploitation of sex and violence against women
including domestic violence also are high priority issues in most of the Muslim
countries.
Many countries including Bangladesh enacted legal measures to end
violence against women. Women’s health, maternal health, reproductive rights of
women and girls are considered as important issues in the budget allocation of
the Muslim countries.
Respect to women and respect to mother are Quranic teaching, which are
very much visible in Quranic verses especially in the Sura Bakara and Sura
Nisa. This is also an important moral support for the protection of the human
rights of older women.
Quranic injunctions do not require a Muslim wife to share her
resources with her spouse or spend it on household expenses. Islam has accorded
women civil, political and property rights, including rights of inheritance.
She has been guaranteed complete control over what she earns and possesses. .
It is also important to note that a wife may seek a decree for dissolution of
her marriage on the grounds that her husband is incapable of, or will not
maintain her.
A Muslim husband is required to pay his wife a sum of money or other
property as dower as part of the marriage contract, therefore, in addition to
her share in inheritance, she also receives a further share as dower. She gets
her part of property from three different sources i.e., father, husband and
son, and thus increases her share to inheritance. Inheritance rights are
crucial for Muslim women because distribution and control of property and
assets significantly affect their ability to enjoy stable and fulfilling lives
and to exercise their rights. Practice of providing “Meher” to wife in the
Islamic marriage could be considered as a positive discrimination to women but
practice of “dowry’is considered as a crime.
But obviously these rationale and rules were not conceived from an
equitable point of view to maintain equality and non discrimination standard in
the family life.
The above discussed economic, civil and political rights of women in
Islamic countries are very much compatible to the international human rights
norms. But levels of the advancement of women and enjoyment of their rights in
terms of gender equality and nondiscrimination are not the same in all of
the Muslim countries, as these are
mostly depended on the socio economic situation, levels of poverty, political
commitments, religious bias and stereotyped attitude towards women.
INEQUALITIES AND GENDER
BASED DISCRIMINATIONS
However, most inequalities and contradictions in the Islamic
jurisprudence regarding women’s rights exist in family matters and related
traditions and practices such as marriage, dissolution of marriage, Custody and Guardianship rights,
inheritance to property etc. In most Muslim countries women face gender based
discrimination in the family code which is deeply embodied on the ideas of the
inferiority or the superiority of either sexes or on stereotyped roles for men
and women.
Discrimination against women can be manifested in the practice of
polygamy, superior rights of the male to terminate marriage, unequal rights in
marriage relations, husband considered as the natural guardian of children thus
unequal rights in the child custody and guardianship, female genital mutilation, honour killing,
lower age of marriage for women, early marriage, husband’s consent for using
contraceptives, travel or outside work, disciplining wife through beating, lack
of access to justice, traditional gender role
and stereotyped attitude towards women etc.
Patriarchal interpretation of the Islamic
Sharia laws along with traditional
practices and customs created an unequal situation where men get priority and superiority
in the family relations which consequently put women in the situation of
low self esteem and powerless. Women continue to suffer profound and pervasive
human rights violations, such as gender-based violence in the public and
private spheres. A glaring example of gender based violence is the case of gang
rape of Mukhter Mai in Pakistan and her inability to get remedial justice in
the court. Fatwa against women and consequential violence could be another
example in this direction.
Women continue to suffer profound and pervasive human rights
violations, such as gender-based violence in the public and private spheres.
In 1979, CEDAW Convention embodied with the concept and commitment of
nondiscrimination and gender equality created a new horizon for women which is
nullified with the imposition of reservations on the core articles of the
Convention.
FINANCIAL RESPONSIBILITIES
AND WAR WIDOWS IN THE CONFLICT ZONE
In the traditional Muslim society in line with traditional gender
role, men perform the responsibilities of family maintenance and women require
being obedient to their husbands in return for maintenance. But the present day
reality is different. Now in the modern day society, mostly both spouse work to
supplement family expenses and participate equally to create security and
comfort as well. In case of war widows
and single family households, in absence of any male member, women work to
support their households and supplement the cost of education and other
expenses for their children and family. Thus traditional values for male
oriented households and family responsibilities do not work anymore. The CEDAW
Committee has emphasized the importance of women being able to earn an income
as well as recognition of both financial and non-financial contributions to the
family.
REFORM INITIATIVES IN THE FAMILY LAWS
Muslim scholars ,women human rights activists and NGOs; are continuously working to achieve gender equality through a more dynamic interpretation of the
Holly Quran which permits consideration of the opinions
of individual jurists from different schools of thoughts . This could open a door for a new
egalitarian vision of women’s rights in conformity with the requirements of the
CEDAW at the same time respecting the Islamic heritage.
Besides, The CEDAW Committee has been increasingly addressing in its
concluding observations, during constructive dialogue and in its list of issues
and questions, as well as through follow up mechanism the discrimination faced
by women in various countries in a wide range of areas and call for withdrawal
of reservations from the convention and
full implementation of the convention principles in the domestic legal system.
Morocco, Tunisia, Turkey, Malaysia, Egypt and many other Muslim
countries initiated reform measures in the family code on some key issues such
as rising age of marriage to 18, restricting polygamy, providing greater
security at divorce, prohibiting child marriage etc. Government of Bangladesh brought an amendment
recently in the Citizenship act of 1951 and enacted law on domestic violence.
Also in 1961 brought an amendment in the Muslim family law restricting polygamy
and child custody and guardianship law.
Among the countries with the most liberal family codes is Tunisia,
which has had a relatively liberal family code for many years. Morocco enacted
a family code called the Mudawana in 2004 that has substantially expanded
women's rights.
The Mudawana raised the age of marriage to 18, restricted polygamy and
provided women strong protection at divorce including property management in
the event of a separation or divorce. Amendment also brought in the child
custody and inheritance.
The Moroccan reform has strengthened the argument that equal status
within marriage is compatible with Shari'a law. One of the strategies advocates
are using is a progressive
interpretation of Islamic principles is being used in the revision of Malaysian
Islamic Family Law of 1984 and in the Million Signature campaign in Iran for a
more egalitarian revision of the civil laws.
The 2002
reforms to the Turkish Civil Law raised the age of marriage to 17 and equalized
it to both women and men. Moreover, it created a joint system of property at
marriage and equalized women’s and men’s rights in the marriage in relation to
custody, property ownership, registration of marriage and births etc.
CONCLUSION
Muslim scholars ,women human rights activists and NGOs; are continuously working to achieve gender equality through a more dynamic interpretation of the
Holly Quran which permits consideration of the opinions
of individual jurists from different schools of thoughts . This could open a door for a new
egalitarian vision of women’s rights in conformity with the requirements of the
CEDAW at the same time respecting the Islamic heritage.
REFERENCES:
1. The CEDAW and family laws: In search of common ground, Musawah
Research project on CEDAW, October, 2010.
2. Conceptualizing Islamic Law,
CEDAWand Women’s Human Rights in Plural Legal Settings: A Comparative Analysis
of Application of CEDAW in Bangladesh, India and Pakistan: Shaheen
Sardar Ali.
3. Women , Islam and International Law,
within the context of CEDAW: Ekaterina Yahyaoui Krivenko.
4. Cairo Roundtable Readings on Family Law and Islamic Feminism.
5. Women Leading
Change: collection of essays on “Women’s
Leadership Network: Women’s Political, Public, and Economic Participation in
the Muslim World.”
6. Encyclopaedia of Quran.
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UNDERSTANDING OF DOMESTIC VIOLENCE IN ISLAMIC LAW: Andra Nahal Behrouz.
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10. Convention on the Elimination of All Forms of Discrimination
against Women and its Optional protocol.
11. International Covenant on Economic Social and
Cultural Rights.
12. International Covenant on Civil and
Political Rights.