Critically which Islamic law assures human rights

 

Critically examine the extent to which Islamic law is compatible
with international human rights.

 

This essay critically examines the extent to which Islamic law is
compatible with international human rights. The essay will be composed of a
large number of legal sources of international and Islamic conventions,
academic and juridical writings, and case law. The conclusion comprises of the
points in which Islamic law assures human rights being compatible with
International Human Rights.

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Islamic law is an argued subject in the international human rights
for more than 30 years. There are differences which cannot be ignored,
especially in the fields of gender equality, freedom of religion, apostasy,
freedom of expression and blasphemy. One of the biggest reason is also that Islam
has become the only religion growing very fast every year, influencing people from
every country in the world (born Muslins, converted Muslims, Muslim refugees).
The majority of Muslim countries applies Sharia as a legal system, which are 31
countries in total.

Sharia law is a combination of sources1 which
is the Qur’an the Holy
book of Muslims, the Sunnah (sayings and conduct of the prophet Muhammad)  and  lastly Fiqh, the interpretation
people who studied Islam. Fiqh 2is
the “human understanding of the sharia, sharia expanded and developed
by interpretation (ijtihad) of the
Quran and Sunnah by Islamic jurists (ulama)2 and
implemented by the rulings (fatwa) of jurists
on questions presented to them”.

Nevertheless, Muslim countries do not have the same regulations in
their Sharia law. Every legal system differs from a country to another as the country
choose to follow a certain Islamic school of jurisprudence (Hanafi, Maliki,
Shafi’i, Hanbali, Jafari, Zadiyyah, Ibadiyyah, Zahiriyyah). The interpretation
of Sunnah, and after that the adoption of an Islamic school of thought
facilitated the adequate interpretation and application of the sources to suit
the different circumstances of human life.

Sharia law covers all aspects of human life. It is enshrined in
Cairo Declaration of Human Rights in Islam (1990): “All men are equal in terms of basic human dignity and basic
obligations and responsibilities, without any discrimination on the basis of
race, colour, language, belief, sex, religion, political affiliation, social
status or other considerations. The true religion is the guarantee for
enhancing such dignity along the path to human integrity.”

Regarding gender equality, International law declares and argues
that a big discrimination towards women is reflected in Sharia ‘a Law but also
in Islamic countries practice.

Majority of Islamic states, have ratified international human
rights treaties, enter reservations on the basis of Sharia, Islamic law, while
others do not.

Pakistan has ratified International Covenant on Civil and
Political Rights (1966), International Covenant on Economic, Social and
Cultural Rights (1966), Convention against Torture and other Cruel Inhuman or
Degrading Treatment or Punishment (1984), Convention on elimination on all
forms of Discrimination against Women (1979), Convention on the Rights of the Child
(1989).

Article 6 of the OIC Cairo Declaration states that: “(a)
Woman is equal to man in human dignity and has rights to enjoy as well as
duties to perform; she has her own civil entity and financial independence, and
the right to retain her name and lineage. (b) The husband is responsible for
the support and welfare of the family.

Articles 2 of Universal Declaration of Human Rights (1945), 2, 3
and 26 of International Covenant on Civil and Political Rights (1966) and numerous
articles of Convention on the Elimination of All Forms Discrimination Against
Women (1979), especially article 16, state that man and women are equal in all
walks of life, including in family matters and there shall be no discrimination
against them. Human Rights Committee in its comment on Article 3 of ICCPR said
that “equality during marriage implies that husband and wife should participate
equally in responsibility and authority within the family.” 3
And that “States parties should ensure that traditional, historical, religious
and cultural attitudes are not used to justify violations of women’s rights to
equality before law and equal enjoyment of all Covenant rights.4

Comparing the article 6 of OIC Cairo Declaration with the articles
enshrined in International Human Rights documents, women have rights as well responsibilities
in a family. In the Islamic document it is not written that women have
different rights or that they cannot exercise the same duties as the husband,
though women are protected by having financial independence which means that
they can work or not, they can share their wages within the family or not,
simply said, they can do everything they need with their funds. Instead the
husband is responsible to sustain financially the family, which does not
necessarily mean that the wife has to do household activities.

Therefore, Sharia gives woman all the rights meant to be for them
but sadly, the culture, tradition and history in Islamic countries which are
very less developed plays a major role in the violation of women’s rights. A
very fine example is the right to education. In the Islamic texts women are
commanded and it has been made compulsory to go out and seek knowledge of this
world and in the religion. This can be explicitly seen in the following hadith.

“”The
seeking of knowledge is obligatory for every Muslim.” – (Tirmidhi, Hadith 74)”.

Article 1 (a) Cairo Declaration on human Rights also states that
seeking knowledge is an obligation for every member of the society.

This very basic right has been violated and denied in many parts
of the Islamic world, women are forced and tricked into staying indoors, often
so merely housewives.
Another example is right to divorce. Women have been denied from the right to
divorce in many rural parts of the Islamic countries, women cannot divorce
their husbands in any circumstances.
The Constitution of Pakistan asserts the protection of women’s rights under
national legislation. While human rights concepts can be found from the
preamble onwards. Article 25 under the chapter of fundamental rights of
citizens highlights the principles of women’s equality in the Pakistani
constitution. Article 25 clearly guarantees equality before the law and
equal protection of the law stating that there shall be no discrimination on
the basis of sex. Furthermore, The Chapter on Principles of Policy –
Article 32 and 34 ensures full participation of women in all spheres of
national life.5

Benazir Bhutto was the first woman to head a democratic government6 in the Muslim
world. She was the Prime Minister of Pakistan from 1988 to 1990 and again from
1993 to 1996. Unfortunately, she was assassinated in 2007 as a consequence of
political assassination by Baitullah Mehsud, leader of Pakistan Taliban, which
is a terrorist group along the Afghan border in Pakistan.

Pakistan and India ensure the women right to divorce their
husbands who are either drunkard or is immoral, unwell or unable to lead a
normal married life.

“The
doctrine of the delegation of the power of divorce is based on an incident
mentioned in the Quran wherein the Prophet (peace be upon him) told his wives
that they were at liberty to live with him or to get separated from him as they
choose.
“7

Saudi Arabia in reserving to the Convention on the Elimination of
All Forms of Discrimination Against Women in 2000 warned:

“1. In case of contradiction between any term of the
Convention and the norms of Islamic law, the Kingdom is not under obligation to
observe the contradictory terms of the Convention.

2. The Kingdom does not consider itself bound by paragraph 2
of article 9 of the Convention and paragraph 1 of article 29 of the
Convention.”8

Freedom of religion

Regarding freedom of religion it can be found in Cairo Declaration
(1990) 2 articles which give indications about it. Firstly, it is stipulated in
article 10 that “Islam is the religion of unspoiled nature. It is prohibited to
exercise any form of pressure on man or to exploit his poverty or ignorance in
order to force him to change his religion to another religion or to atheism.”
Article 25 stipulates that “The Islamic Sharia is the only source of reference
for the explanation or clarification of any of the articles of this
Declaration”. Therefore, Islamic legal texts do not contain a right to freedom
of religion, do not confirm the equality before the law of all men regardless
of their religion, neither do not state that it is prohibited to change the
religion.

International human rights law does not allow any restriction on a
person’s religious beliefs9. The
articles which give an absolute right to freedom of religion, whether to keep
one’s religion or to change it, right to manifest one’s religion and the right
of a certain belief are explicitly stated in: Article 18 of UDHR and Article 18
of ICCPR.

The differences between Islamic law and International Human Rights
Law could be seen in their guiding principles where one, does not give details
or explain the right of religion and the other one details every part of this
right.

 

The fact that in Islamic countries, religion is compulsory has
raised lots of debates and commentary in every aspect of it, which is a result
of the interpretation of Qur’an. Nevertheless, a big number of Islamic jurist
agrees that in Islam, a Muslim person cannot change the religion without being
punished10.

Freedom of religion is taken by political means and as a criminal
offence in few Islamic states sometimes declaring it as apostasy. Changing
one’s religion has death punishment. The countries that impose this punishment
are Afghanistan, Iran, Malaysia, Maldives, Mauritania, Nigeria, Pakistan,
Qatar, Saudi Arabia, Somalia, Sudan, United Arab Emirates and Yemen. Only a
small number of cases showing the application of these capital punishment were
identified.

In Pakistan there is no specific law that criminalizes apostasy.
The legal Islamic System from Pakistan regarding changing the religion is the
proof for western states and the International Community. It is also important
to note that often Islamic Law is not derived from legal system but from
internal governance of the states.

Qur’an, one of Sharia’s sources, mentions that there is “no compulsion in religion”11
and the Prophet Mohammed following Qur’an teachings, declared freedom
for Muslims, Jews and pagans in the constitution of Medina in 620AD12.

The British Pakistani
Christian Association13 mentioned in one of its
article that changing one’s religion in Pakistan territory is that it is not impossible
but rather difficult and challenging simply because you do not have any legal
way of doing it. It is therefore understood that theoretically it is possible
to change one’s religion. The difficulty arises when it is enforced “in
the eyes of the state”. In any Muslim country, including Pakistan the image of
a Muslim is of a person who is prestigious, and it will not be wrong to use the
word perfect. Hence it is the legal system that hinders a Muslim to convert to any
religion or to leave the religion altogether. The national ID card issued to
the citizens permits non-Muslims to become Muslims and have their official
status changed to Islam. On the contrary, registered citizen who have Islam as
their religion don’t have the option to change to another religion.

Pakistan, a majority Muslim country, in which many believe that
leaving or merely not practicing the religion is a grave sin. The understanding
comes from the teachings of Islam which explicitly and repetitively declares
that one who does not worship God is at loss of this world and the
Hereafter.  Hence Pakistani society
regards Islam to be the utmost way of life guideline. A man practicing Islam to
the level best is considered an ideal human being, and a person who does the
opposite of that are people who are the wastes of lifetime and unworthy of
living the life. In some ruler parts of Pakistan leaving or changing religion is
the invitation to be killed or murdered. As the killers will presume that they
have done a great favour to the society by killing a non-Muslim. A lot of times
apostasy is used in Pakistan as a tool or an excuse for personal vendetta or
politically influencing killings.

 

Freedom of expression

The Qur’an supports the freedom of speech, and expression, whether
in public or private, when done in a decent way. A decent mode of express
oneself explained in the Islamic way, has the purpose to build up love,
tolerance, social harmony, and understanding among members of a society and in
order to ensure a peaceful coexistence, security and happiness on the Earth.14

Islam limits freedom of expression where it is blasphemous or
creates social disorder

Freedom of expression in the Cairo Declaration, Article 22,
stipulates that the right to express one’s opinion freely is contingent on the
statements being in conformity with Islam.

Detailing this article in Islam everyone can exercise the freedom
of expression, because it is one’s right from birth living in a society, as
long as their comments, words and expression does not insult and disturb the
honour and way of living of other people. Islam does not allow the spread of
the evil, disrespect and violence in a society. Islam tries to encourage
friendship, kindness, affection, peace, harmony and care for one another while
expressing one’s ideas, opinions and wishes.

Article 4 (a) No restrictions shall be placed on the rights and
freedoms recognized in the present Charter except where such is provided by law
and deemed necessary to protect the national security and economy, public
order, health or morals or the rights and freedoms of others.

Article 27 of Arab Charter on Human Rights “Adherents of every
religion have the right to practise their religious observances and to manifest
their views through expression, practice or teaching, without prejudice to the
rights of others. No restrictions shall be imposed on the exercise of freedom
of belief, thought and opinion except as provided by law.

 

Freedom of expression is mentioned in many articles of the
Universal Declaration of Human Rights (UDHR), the International Covenant on Civil
and Political Rights (ICCPR), the African Charter on Human and Peoples’ Rights
(ACHPR), the American Convention on Human Rights (ACHR), and the European
Convention on Human Rights (ECHR).

In International Law, freedom of expression is fundamental, nevertheless
this right is not absolute. Article 19 of the ICCPR allows for restrictions on
freedom of expression that are necessary to protect the rights or reputations
of others, national security, public order, public health, or public
morals. 

Pakistan has a blasphemy law which violates the right of freedom
of expression. A very prime example of this can be seen in the killing of
governor of Punjab, Salman Taseer. He was executed and murdered in cold blood
by his own security guard Mumtaz Qadri. Salman Taseer was killed for voicing
his opinion about the abuse of blasphemy law in Pakistani culture and for
defending a poor Christian woman Assia who was accused of blasphemy. This woman
approached Mr. Taseer in order to seek protection and to request pardon of punishment
from the President. Mr. Taseer went ahead and conducted a press conference in
which he called out the blasphemy law in Pakistan as a Black. He further went
on and called for modification in the law. This infuriated a vast majority of
Pakistan who considered themselves devotees of the last Prophet (pace be upon
him), Mr. Qadri(killer) was one of the devotees and made the plot to assassinate
Taseer. After his murder, Qadree was hailed as a hero and a soldier of Islam.
People justified the killing was out of love of the Prophet Mohammad. However,
Qadree was arrested and later sentenced to death. During his arrest, time in prison,
and during his trials massive demonstration against the Government and
judiciary took place. The protestors and demonstrators demanded his immediate release
from the prison and to be cleared from all the trials. He was than executed to
death and a large number of people came out for his funeral giving him the
title of martyrdom.

Sharia law in Pakistan practice the death penalty15
punishment for aggravated murders, blasphemy and terrorism resulting in death
or terrorism not resulting in death. In case of murder offense, the family of
the victim can forgive the killer, receiving an amount of money from him. This
procedure is known as sulah and it is a traditional settlement between people.
It is well known that in Pakistan a lot of families prefer this procedure, and
they even refuse to take the money from the assassin.

 

 

Rights of children

Another disputable theme from Islamic Law in International Law is
the right of the children. In article 7 Cairo Declaration: (a) As of the moment
of birth, every child has rights due from the parents, the society and the
state to be accorded for proper nursing, education and material, hygienic and
moral care. Both the foetus and the mother must be safeguarded and accorded
special care.

There are normative frameworks on right of the children as the
Universal Declaration on Human Rights, the International Covenant on Civil and Political
Rights, and the International Covenant on Economic, Social and Cultural Rights.
The matters protected in the international framework are the rights of a child
to life; to national identity; freedom of expression; freedom of thought,
conscience, religion and association; to protection of privacy, family, home,
correspondence, honour and reputation; the rights to education, health care,
parental care and social security, and the right to protection from physical or
mental injury, sexual exploitation and abuse, and from neglect or maltreatment.

In Islam a child is considered having rights since he is an unborn
child16(foetus),
and owes no obligation to anyone at all. 
Naturally, the child has rights promised by God, which are separated in
2 classes.
First class provides the unborn child with safeguards for personal protection,
meaning that in case of an attack during the pregnancy of a women, the unborn
child dies, the murderer is accused of a criminal offense.  Another case is the abortion of the unborn
child which Islam forbids it but not entirely. Islamic scholars’ conclusion is
that a woman can have abortion only when the foetus is at risk of a genetically
transmitted diseases, congenital defect or intrauterine diagnosis of a severe
foetal abnormality, added to these is the issue of voluntary abortion of a
foetus ground of rape.

 

The second class enables him to acquire certain material benefits.
As, common and roman law allows, a child can receive properties in the form of
gifts or inheritance since is unborn.

 

In Pakistan, a massive number of the children live in an environment
harsh for living a normal life where access to basic rights such as health
care, education, protection from abuse, neglect and exploitation, are not
provided at high standards17. To top it up there is child
labour which is spread out the country due to poverty stricken families and
economic issues in Pakistan. Family are forced to send their children to work
and not to enrol in school, and this just to survive every day. A worse fact is
that children are becoming victims to militancy. Either through recruitment as
suicide bombers, through indoctrination at unregulated and rogue madrassas,
through displacement from conflict zones, or through a complete breakdown of
the health and education system in militancy-riddled areas.

The current security and economic crisis in the country made that
the rights of the children to be violated, even though Pakistan has ratified
few international conventions on children’s rights. It can be noticed that even
Sharia is not respected regarding the children’s rights which confers many
rights for the living, development. education, and wellbeing of the child.

The essay shows that Islamic Law is compatible with International
Human Rights, but the perception, behaviour, thinking and knowledge of the
society is neither compatible with Islamic Law nor with International Human
Rights. Unfortunately, the political system’s role is majoritarian and succeed
to overlap the legal system’s role in a way that lead the society to a wrong
perception of life.

The world is separated in two parts, the West and the East. These
two sides of the World are completely different although all over the motherland
people have same needs, wishes and desire for same rights. The differences
between these two “worlds” are history, culture, political system, education
and so on.

This separation shouldn’t exist once every human being has the
same basic human rights. International community and Islamic community should
communicate in order to make the human’s rights to be respected. Both
communities have good and useful legislation, as well bad and harmful, it can
be proved from statistic. Islamic Law cannot be Ignored just because some of
its punishment for criminal offences are not compatible with western thinking
and approach. There is a requirement for Islamic Law to be studied, analysed,
promote and supported for the essential rights enshrined in it. It is required
that these two-legal system to collaborate in order to create pace and
fulfilment of the rights which is universal and accepted by all.

1
Islamic Law and International Human Rights Law: searching for common ground? – International Bar Association, Center of Theological Inquiry (Princeton,
N.J.), Salzburg Global Seminar 2012, pp.55-57

 

2 Vogel, Frank E. (2000) Islamic Law and the Legal System of
Saudi: Studies of Saudi Arabia, Brill. pp. 4–5. 

 

3 General Comment No.
28, paragraph 25

 

4 Ibid, paragraph 6

5 Pakistan’s
Constitution 1973

6
http://www.history.com/topics/womens-history/benazir-bhutto

7 K.N. Ahmed, The Muslim Law of Divorce (Islamabad: Islamic
Research Institute, 1972), pp. 184-185

 

8 See Convention on the Elimination of All Forms of
Discrimination Against Women. Reservations, available at :
http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm

 

9 A. Elizabeth Mayer,
Islam and Human Rights: Tradition and Politics (3 rd edn, Westview Press
Colorado 1999), p.149

 

10 See the Article 10 of
OIC Cairo Declaration on Human Rights in Islam and Article 2 – A of Pakistan’s
Constitution, 1973

11 Qur’an 2:256

 

12 A. Guillaume, The Life
of Muhammad — A Translation of Ishaq’s Sirat Rasul Allah, (Oxford
University Press, Karachi, 1955; pp. 231-233.

 

13
https://www.justice.gov/sites/default/files/eoir/legacy/2014/03/04/PAK104258.E.pdf

14 Ali Muhammad Bhat,
Freedom of expression from Islamic
perspective, Journal of Media and Communication Studies 6, p. 69-77

15 Pakistan The Offense of ZinaPakistan The Offense of Zina
(Enforcement of Hudood) Ordinance, as amended by the Protection of Women
(Criminal Laws Amendment) Act of 2006, sec. 5

 

16
Children Rights, International Human Rights and the promise of Islamic Legal
theory http://www.saflii.org/za/journals/LDD/2008/13.pdf,
p. 75-78

17 https://www.unicef.org/pakistan/overview.html