Women’s Rights In Islam And Reservations To Convention On The Elimination Of All Forms Of Discrimination Against Women

CEDAW

Women’s Rights In Islam: An Analysis Of Sharia And A Brief Perusal Of The Reservations Made By Muslim Countries To The Convention On The Elimination Of All Forms Of Discrimination Against Women

Introduction

“The non-universal, relativist view of human rights…loses sight of the fact that human rights are human rights…I believe, profoundly, in the universality of the human spirit. Individuals everywhere want the same essential things…there is nothing in these aspirations that is dependent upon culture, or religion, or stage of development.

-Rosalyn Higgins[1]

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted by the United Nations General Assembly in 1979 and came into force in 1981. This was seen as being the first attempt at recognising the palpable discriminatory treatment meted out against women in both developing and developed States and in ensuring that steps be taken to eradicate such laws and practices. However, despite simply being a human rights treaty, but one that sought to focus and enunciate upon the rights of women and advocating for their equal treatment, a majority of States, regardless of their secular or religious status, signed and ratified CEDAW subject to reservations. The focus of this paper, however, shall be regarding the reservations made by Muslim states seeking to justify any deviations from the CEDAW on the basis of Sharia law.

I will begin by discussing the concept of Sharia as I understand it. I will then move on to discuss how the sources of Islamic law have been subject to patriarchal interpretations, and which interpretations have been used to justify discriminatory treatment. The discussion will then focus on the reservations made by Egypt and Morocco in relation to Article 16 of CEDAW, and how these reservations simply seek to uphold the rights of women guaranteed to them by the Quran, and should not be viewed as being in violation or against the principles enunciated by CEDAW. I will then conclude on two parts, firstly, in reference to the difficulties posed in promoting contemporary and egalitarian readings of Islamic legal sources and secondly, discuss the importance of allowing the concept of women’s rights to be promoted within the framework of Islam.

What is Sharia?

A perusal of the reservations made by several Muslim states upon the ratification of CEDAW has one thing in common, and that is that mention of the term Sharia. It needs to be understood, however, that despite the common usage of the term Sharia, the interpretation and implementation of Sharia differs not only from Muslim State to Muslim State, but also differs from region to region, and from sect to sect.

However, before one can critique it, one first needs to understand what Sharia is. Sharia is defined as the basic Islamic legal system, which derives itself from both the teachings of the Holy Quran and hadith.[2] However, despite the universal acceptance of the Quran’s content, being treated as the word of God, its translation and interpretation is surprisingly varied. The interpretation of Quranic verses in relation to the rights of women is one such clear example of this.

Islamic scripture has been the subject of misogynist readings and interpreted not to give effect to the word of God, which promotes and calls upon the creation of a society based on egalitarian foundations, but one which is read in a way to suit and promote inherently patriarchal cultural values. Different readings, therefore, as Leila Ahmed observed, has created “fundamentally different Islams.[3]

It must also be acknowledged and remembered that theology, or in this instance, Sharia, is not the product of divine revelation alone, it is, as Engineer points out, also conditioned by the social circumstances and traditions prevalent in a society, and the end product which we receive is a combination of all this, but which then, erroneously, is treated and accepted as “pure divine knowledge”[4].

Sharia, I therefore conclude, is simply a reflection of the interpretation of Islamic principles in light of one’s culture and traditions, and would hence be more aptly defined as, as I term it, Cultural Islam. This observation may find substantiation in the statement made by Dr. Mohammad Arkoun, who held that:

[The Quran] has been ripped from its historical, linguistic, literary, and psychological contexts and then been continually recontextualized in various cultures and according to the ideological needs of various actors[5].

Moreover, it also needs to be recognised, as Engineer eloquently puts it, that every interpretation has a “human dimension[6]”, and therefore has the capability of being questioned and even challenged.

The Patriarchal Reading of Islamic Scripture

“Chivalry” in the form of “protectionist, patronising legal measures[7]”, mixed with patriarchal reading of the Islamic law sources, have come together to create this culturally tainted form of Islamic law. This has then been used to justify reservations and laws that promote, or rather, demote the status of women in society. One such form of patriarchal reading can be observed in the way verse 2:228 of the Quran, which deals with the rights of husbands and wives in relation to divorce, is translated by two different Islamic Scholars. Take note of Ali Ünal’s translation of verse 2:228, which is as follows:

According to customary good and religiously approvable practice, women have rights similar to those against them (that men have), but men (in respect of their heavier duty and responsibility) have a degree above them (which they must not abuse)[8].

And now take note of the translation provided by Muhammad Sarwar:

Women have benefits as well as responsibilities. Men have a status above women.[9]

One can clearly see the disparity between the above two, whilst both seek to translate the same verse of the Quran, the former, while simply clarifying that the husband has a degree more responsibility towards his wife, the latter instead translates the verse in a way that clearly seeks to assert the status and authority of men over that of women, and propagating inequality between the two in respect of their gender. This phenomenon has been prevalent throughout Islamic history, since:

the Qur’an was revealed in / to an existing patriarchy and has been interpreted by adherents of patriarchies ever since…[10]

An-Na’im further explains that such interpretations are “historically-conditioned” as early Islamic jurists construed and understood the Quran and Sunnah in light of their own social, economic, and political circumstances, and it was therefore:

natural and indeed inevitable that Muslim jurists would understand the relevant texts of the Qur’an and Sunnah as confirming rather than repudiating the realities of the day.[11]

Moreover, even though Muslim women directly experience the consequences of oppressive misreading of religious texts, few question their legitimacy and fewer still have explored the libratory aspects of the Quran’s teachings.[12] The reasoning for not questioning such oppressive interpretations is quite obvious: the sacred and sacrosanct reverence given to religious texts as being the divine word of God. This, as Balras rightly points out:

…serves as the strongest argument for inequality and discrimination among Muslims since many people have not read the Quran or accept its patriarchal exegesis unquestioningly.[13]

Despite the above, Islamic scripture has been recognised as having an “in-built dynamism” that is “sensitive and susceptible to changing needs of time.[14]”  However, patriarchy has been “silencing the more egalitarian aspects of Islam[15]” by adopting a “literalist approach” as opposed to a progressive interpretation of the sources of Islamic law, in order to continue providing divine legitimacy to oppressive, patriarchal, and misogynistic cultural practices.

These patriarchal and inherently discriminatory interpretations of Islamic legal principles, therefore, need to be challenged to ensure the full recognition of women’s rights and to allow for modern and contemporary practices to be reflected in Sharia, for, as An-Na’im correctly observed:

To accept the authority of any group and then to resign oneself to the misreading of Islam not only makes one complicit in the continued abuse of Islam and the abuse of women in the name of Islam, but it also means losing the battle over meaning without even fighting it[16].

The Recognition of rights guaranteed under Islam – A Perusal of Egypt and Morocco’s Reservations

Albeit the rights in CEDAW seek to codify women’s rights, there are certain aspects of Islamic Law that seek to protect women taking into account their biological differences with men, and the Quran, whilst recognising these differences, then seeks to make accommodations for these vulnerabilities.

Several Muslim states have simply made reservations citing Sharia as its basis, however some, such as Egypt and Morocco, go on to explain their reasoning for doing so. The main reservation I would like to discuss here pertains to Article 16 of CEDAW, which talks about rights relating to marriage. Both Egypt and Morocco explain that Sharia (or more specifically the Quran) makes provisions for the rights of the wife, where the wife has complete rights over her property, money and earning and bars the husband from claiming any right in it[17], unless the wife allows him so[18]. Furthermore, taking into account the woman’s role as a mother, the husband is also under a religious obligation to maintain her financially[19], even in the event of separation, and even during the period after the divorce[20]. The woman, interestingly, is under no obligation to maintain, support or even provide for her husband unless she does so willingly. These rights are clearly progressive and a bare perusal is enough to show, that the husband’s obligations towards his wife outweigh the wife’s obligation to the husband. Despite the above, these rights have also, unfortunately been painted with the patriarchal brush, and some interpretations have even gone as far to say that these rights are conditional upon the complete subjugation of the wife to her husband.

Nevertheless, these rights acknowledge that women and men, to the extent of their biological makeup, are different, and hence, by providing equitable rights, it seeks to assert that at times treating women and men differently does not always amount to treating them unequally, nor does treating them identically necessarily mean treating them equally.[21] These reservations, should therefore, not be seen as a rejection of the rights of women, but be accepted as seeking to enunciate these rights but within the framework of Islam.

Difficulties

The situation is made more complex by the fact women also identify with their culture and are offended by the arrogant gaze of outsiders who criticize their way of doing things. Since their sense of identity is integrally linked to the general attitude towards their community, their sense of dignity and self-respect often comes from members of the larger community. [22]

The above comment was made in relation to difficulties in imposing changes to cultural practices that seek to marginalize women. Both and men and women derive their identity from their cultures and traditions, and any attack on their culture, is an attack on their identity. With women, their honour also forms part of their identity and often viewed as being more valuable than their ability to exercise their rights.

Change, then essentially needs to come from within. To say that human rights are “relative” is a fallacy, meant to provide a shield to justify polices and laws which seek to marginalize women. However the imposition of new standards, even if these are beneficial for women, will be met with resistance, even from the women, because this is what has now become associated with their identity. What needs to be done is to approach these issues taking into account the cultural sensitives, while continuing to recognise the universality of human rights standards.

Conclusion: Working from within the framework of Islam to promote women’s rights

The fundamental position of the contemporary human rights movement is that all human beings are equal in worth and dignity, regardless of gender, religion, or race. This position finds clear and unequivocal substantiation by the Quran and other Islamic sources. In numerous verses, for example, the Quran speaks of honour and dignity for ‘humankind’ and ‘children of Adam’, without distinction as to race, colour, gender, or religion. By drawing on those sources and upon the willingness to set aside archaic interpretations of the Quran and hadith, one can provide Islamic legitimacy to the full range of women’s rights provided for in CEDAW.

However, in order to be effective, and without seeking to offend cultural and religious sensitivities, I conclude, by reiterating the position asserted by An-Na’im, that human rights advocates in the Muslim world must work within the framework of Islam to be effective and the recognition of the human dimension of Sharia provides one with the legitimate room needed for disagreement and debate over the precise nature of these dictates in the modern context. This, however, would be a challenge taking into account current events, where even more extremist interpretations of not only Sharia, but of the Quran, seek to undermine the status of women and to undo efforts made to promote the egalitarian interpretation of Islamic scripture. This will be a journey fraught with obstacles, but a journey which is nevertheless important to make.

—–

References:

[1] Rosalyn Higgins, Problems and Process: International Law and How We Use it (1994), at 96

[2] Sayings and teaching of the Prophet Muhammad (P.B.U.H.)

[3] L. Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate, Yale University Press, Jan 1, 1992

[4] A. A. Engineer, The Rights of Women in Islam, London: C. Hurst & Co., 1992

[5] M. Arkoun, Rethinking Islam: Common Questions, Uncommon Answers, Westview Press, 1994

[6] See fn 4

[7] R. K. M. Smith, Texts & Materials on International Human Rights, Routledge-Cavendish (May 30, 2006)

[8] A. Ünal, The Quran with Annotated Interpretation in Modern English, Tughra Books, 2006

[9] S. M. Sarwar, The Holy Qur’an, Islamic Seminary, Elmhurst, June 1981

[10]A. Barlas,  “Believing Women” in Islam: Unreading Patriarchal interpretation of the Qur’an, U of Texas Press, 2004

[11] A. A. An-Na’im, Human Rights in the Muslim World, 3 Harv.Hum.Rts.J.13(1990)

[12] Ibid

[13] See fn. 10

[14]S.S. Ali, Gender and Human Rights in Islam and International Law Equal before Allah, Unequal Before Man?, Kluwer Law International, The Hague, pp. 358, 2000.

[15] Ibid

[16] See fn. 11

[17] Verse 4:32 : (People differ from each other in capacity and means of livelihood; nor is it in your hands to be born male or female. Therefore) do not covet that in which God has made some of you excel others (thus envying others in such things as status or wealth or physical charms and so objecting to God’s distribution). Men shall have a share according to what they have earned (in both material and spiritual terms), and women shall have a share according to what they have earned.

[18]  Verse 4:4: Give to the women (whom you marry) their bridal-due (mahr) willingly and for good (i.e. without expecting a return); however, if of their own accord they remit any part of it to you, then you are welcome to enjoy it gladly.

[19] Verse 4:34: Men (those who are able to carry out their responsibilities) are the protectors and maintainers of women inasmuch as God has endowed some of people (in some respects) with greater capacity than others and inasmuch as they (the men) spend of their wealth (for the family’s maintenance).

[20] Verse 2:241: And for divorced women, maintenance (should be provided) on reasonable (scale). This is a duty on Al-Muttaqun (the pious)

[21] See fn. 10

[22] Radhika Coomaraswamy,  Special Rapporteur on Violence against Women, Report on Cultural Practices in the Family that are violent towards women, Commission on Human Rights, E/CN.4/2002/83,2002

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which she might be associated.

Neshmiya Adnan Khan

The writer is a lawyer who practiced both in Islamabad and Lahore, dealing with human rights, constitutional and civil law matters. She is currently pursuing her LL.M in Natural Resources Law and International Environmental Law from Háskóli Íslands (University of Iceland).



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