You are here

Home » Resources » Women leading change in the Muslim world: Islamic jurisprudence, human rights norms and CEDAW

Women leading change in the Muslim world: Islamic jurisprudence, human rights norms and CEDAW

Publication Date: 
May, 2011
Source: 
Ferdous Ara Begum

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.

Interpretation of the Islamic Jurispridence in the Spirit of the International Human Rights Norms and the Convention on the Eliminatino of All Forms of Discrimination Against Women, by Ferdous Ara Begum - Former Member of the UN CEDAW COMMITTEE 

Presented at the Rabat Round Table Discussion on Women Leading Change in the Muslim World. Rabat, Morocco - May 16-17 2011. 

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 ofSharia  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.

7. Women's Rebellion: Towards a New Understanding of Domestic Violence in Islamic Law: Andra Nahal Behrouz.

8. Towards deeper understanding of Al- Quran: Md. Ferdous Khan.

9. Usulul Fikh : Shah Abdul Hanan.

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.

 

 

Country: