Barcelona, April, 1998
The purpose of this paper is to demonstrate that religious fundamentalism has been a major challenge to give effect to intemational human rights instruments especially those relating to womens rights. Adthough the history of human rights reveal that underlying values of human rights are found in elements of the worlds system of religion and ethics; emergence of religious fundamentalist doctrines relating to all major religions explicitly entail curtailment of human rights of women and impose standards of subordination of women.
In my paper I have tried to reflect upon fumdamentalism in Islam and its impact on human
rights of women in the context of the UN Convention on the e1imination of all forms of Discfimination Against Women. I have tried to deal with the practical aspects of the issue
rather than juridical or ideotogical interpretations of Islamic laws among both the Sunni and Shiite sects of Muslims.
According to Encyclopedia Britannica the term "fundamentalism" was first used to designate what is more generally called a conservative type of Christian thought, as opposed to the liberal or modernist tendences which became influential in the latter part of the 19th cenrury and more so in the first part of the 2oth and as the name of a specific conservative movement (The Five Point of Fundamentalism) with its own organizations anda agencies devoted to the propagation of a definite doctrinal programme which, it was claimed constitute the indispensable elements of the true Christian faith (1).
According to classical orthodoxy, fundamentalism is considered merely as a reaction against the liberalizing tendencies of modern thought its purpose was to preserve unchanged the presuppositions and convictions of religion.
Humans rights, on the other hand articulates fundamental principles of justice to all person without distinction of the legal order which was established by the Charter of the United Nations containing international guarantee of human rights having underlying premises
that all human beings are born free and equal in dignity and rights. The Charter of the United Nations, signed in 1945, reaffirms not only "faith in fundamental human rights" and "the dignity and worth of human person" but also "the equal rights of men and Women". The Charters provisions on womens equality offered a clear and compelling basis for the assertion of international law to advance the status of women. The International Bill of Rights (refer collectively to the Universal Declaration of Human Rights The International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights and its two Optional Protocols) strengthens and extends this emphasis on the equal rights of women.
International system of human rights and fundamentalism in Islam
All major five religions Buddhism, Christianity, Hinduism, Judaism and Islam have traditionally required different roles for men and women and entailed women’s religious duty of submission and obedience to men. With the rise of fundamentalists as oppose to liberal or modernist tendencies legal structures of all religions regarded women’s sexuality as potentially evil and destructive of men(2) which has been manifested more explicitly in Islam compared to other religions since Islam is a total way of live and admits no division between religion and state. All its institutions are, in that sense, religious in nature and the state itself is considered a religious institution having as its constitution and law the
"Sharia" i.e. the religious moral values of Islam.
Since the 18th century , there has been a general upsurge of reform in the entire Islamic world the forerunner of which was the Wahhabi movement in Arabia. The major characteristic .of that movement was emphasis on the social content of Islam rather than on the purely spiritual side of the doctrines (3). But these reforms although were important to enunciate the principles of a reinterpretation of Islam in the light of new situations especially relating to social institutions of family and slavery, the liberal modernists failed to deal with issues relating to women’s rights in the family and society.
With the rise of con temporary religious fundamentalism there was a trend in all fundamentalist movement to introduce state laws that reflect religious laws. The most important and fundamental religious concept of Islam being the Sharia which includes both doctrine or belief and practice or the law based on explicit or implicit command of God, little reform was introduced in Sharia,. However, Sharia laws were not followed strictly in many Islamic countries because of the presence of foreign colonial powers in the past who were motivated to intervene in Muslim legislation to protect their own economic interest. Consequently, changes were introduced only in the laws relating to the public sphere of life. As a result of which women benefited little from such reforms. Furthermore, women’s equality of liberty have not been adequately analyzed either in medieval Islam or by modern scholarship. This was one of the advantage of Muslim fundamentalists to vigorously promote and enforce gender roles for women in Islam entailing disempowerment and inequality of women under the justification that their rights and duties under the religious law are different from that of men (5) and therefore, Muslim fundamentalists support traditional notions of morality with emphasis on separate gender roles. As fundamentalist laws systematically treat women differently both in personal as well as in public sphere, it clearly conflicts with international human rights instruments based on equality of sexes in all spheres of live.
The Charter of the United Nations is based on the reaffirmation of faith in fundamental human rights and equality of men and women and thus the members of the United Nations are bound by the minimum standards set by the Charter. The provisions of the Charter shed considerable light on the scope of the promotion and protection of women’s right which also appears in the preamble and makes reference to religions only to assert that equal rights among human must be ensured "without distinction as to race, sex language or religion:(6).
Fundamentalism in Islam · its effects on human rights of women.
Contrary to the provisions of the United Nations Charter and the special instruments having legally binding nature (treaties) states are found violating the provisions of both by asserting religious fundamentalist doctrine which disc mates against women (7) by entering general reservation to provisions in international human right treaties upholding human rights of women. In my article, I would particularly refer to the Convention on the Elimination of all forms of Discriminations against Women (CEDAW) in this connection which is considered as the International Bill of Rights for Women.
Although 54 countries belong to the group know as OIC (Organization of Islamic Countries) which functions as the apex body of trade, commerce and technical Cooperation among Muslim countries, Islam is practiced as a major religion only in Arab and Middle Eastern countries, Pakistan, Afghanistan, Indonesia, Bangladesh, Malaysia, Maldives in South Asia and Turkey. Few countries in central Asia also have a Muslim majority population - however being under communism for may years, secular laws are practiced in those countries.
Convention on the Elimination of All Forms of Discrimination is the international instrument providing the ethical and legal basis for protection, and promotion of human rights of women under United Nations
framework has so for been ratified by 161 ¢countries. Out of these, except few Arab countries, most of the Muslim majority countries have ratified the
Convention(8). Afghanistan has only signed the Convention.
Article 28 of the Convention permits State Parties to make a reservation. The Vienna Convention on the Law of Treaties 1969, defines a reservation as a "unilateral statement, however phrased or named, made by a state, when signing, ratifying a treaty whereby it purports to exclude or to modify the legal effects of certain provisions of the treaty in their application to that state" (9).
One of the major obstacles in the way of actualising the human rights of women faced by the Committee on the Elimination of Discrimination against Women (CEDAW Committee) is the reservation on the Convention which are incompatible with file object and purpose of the Convention. CEDAW Convention has been subjected to more reservation than any other major international treaty over 50 countries have made reservations to some substantive articles of the Convention including most Muslim countries (except Indonesia and Yemen) which have ratified the Convention. Such substantive reservations have the potential to limit significantly the obligations undertaken by the reserving state in protection and promotion of women’s rights as prescribed under the Convention.
It is noted that reservations made by the Islamic countries have followed a general pattern. In spite of the fact that in none of those countries Islamic Sharia law is followed as a general framework of the legal system, the reasons for entering reservation to specific provisions of the article/articles/ are those being "contradictory to the principles of Islamic Sahria law" although these have been phrased differently. "The terms of the reservations often do not explain their legal and practical scope. This is rendered more complicated by differing views among Islamic scholars as to the precise requeriments of the Sharia and whether the Sharia may be subject to evolving interpretation and practice"(10)
In this connection it must be made clear that all reservations made by Islamic countries are not framed directly in terms of Islamic laws -In many cases traditional domestic laws are also being protected though reservations.
Important areas in which Muslim women are faced with severe discrimination fall both within public and private sphere of their life. To strengthen women’s religious duty of submission and obedience to men, the Muslim fundamentalists support the traditional gender segregated spheres of women requiring confinement at home caring for family which severely affect her economic independence and role In public decision making. Article 7 and 8 of the Convention which address discrimination in political and public life are violated when women are required to be confined at home. This further allows men to maintain control over women’s sexuality¥ and demand obedience. Article 9 of the Convention which addresses the rights of women and their children in relation to nationally becomes ineffective when women have no authority to make decisions in the Public sphere. Unequal nationality rights also "creates significant practical disadvantages for them where residence and immigration status are concerned"(11).
Article 10 obligates states to eliminate discrimination in education and article 11 recognizes the right to work as a human right. Muslim fundamentalist subscribe to
modes doctrine where segregation of women from men and use of hejab not only create a barrier between sexes, but also disallow women to pursue lit education and economic
independence by restricting her mobility -thus reinforcing male superiority and control over women.
In private sphere Muslim women are discriminated in all maters relating to marriage, divorce guardianship and child custody and inheritance and ownership of property. An important area of discrimination against women is equal inheritance rights. On the one hand, Muslim personal laws protect the in heritance rights of women as daughter, mother and wife, on the other hand it prevents inheritance of equal share with their male counterparts. Muslim jurists explain the reason for this difference of share in terms that a woman inherits in various capacity in family relationship and also dower from her husband and she has no responsibility to maintain anybody (12). This is obviously a very weak argument since men also inherit from as many sources. and in many cases women have to partly or fully bear responsibilities for their children and family. Reservations entered by Muslim countries on Article 16 (or part of it) which deals with these rights are considered as a serious violation of human rights of women. A further threat to the unequal marital status is polygamy and losing her right to protection due to disobedience to husband(3). To avoid the numerous resposilities presumed under the above articles parallel reservations on article 2 was established ,which delineates policies to be followed by the state parties to protect women’s fights both in public and private sphere by introducing legislative changes and supportive framework.
Some glaring violation of human rights of women also occurs in the prescribed gender framework for societal institutions and set code for chaste and moral behaviour for women which are different than those expected of men. The fundamentalist groups affirming its ideology of men being superior to women place great emphasis on control of women through requirement of strict obedience total submission and forbidding women to succumb to their sexual impulses. An unique example of disobedience of prescribed sexual rules or prohibitions for women is manifested in "Crimes of Honour" (14) still practiced in some Muslim countries which involves killing of a woman by her father, brother or husband for engaging in sexual practices outside marriage. It is indeed a matter of great concern that nearly two century old instances of social violence is codified to contain it as state violence.
Another extreme example of Muslim fundamentalist doctrine of recent time that challenges international legal system by stripping off women of all their fundamental rights as human beings is being manifested in the Taliban policy in Afghanistan since the end of Najibulah regime in 1992. This problem have been exacerbated by specific and publicly articulated policies designed to remove women flora participating in nearly all aspects of public life relating to their livelihood and survival. The over al situation have been compounded by conflicting interpretations of Islamic tradition and local culture. Women are forced to wear full veil, prohibited to go to work place and attend educational institutions. Taliban prohibition on female access to heath, working in agriculture or livestock production have also seriously affected the food security of the country and the status of children in particular(15). Furthermore, women are harassed, mistreated and imprisoned by the authorities for slightest non-adherence to such edicts. By asserting religious fundamentalist doctrine, the Talibans are profoundly violating all most all basic rights under the 16 substantive articles of the CEDAW Convention the states are obligated to fulfil.
It is apparent that seclusion, veiling and lack of control over own sexuality and above al lack of economic independence resulting from enforcement of relies, traditional and various cultural practices on women which are distinctly different from those followed by the international community and contrary to the United Nations Charter abrogate their
Are fundamentalist views truly Islamic?
"Believers, men and women, are mutual friends. They enjoin what is just and forbid what
is evil" says the Koran (12:7 ). Islam gave women rights in an age when no country or. no
system gave women any fights. Since the Koran. paces great emphasis on human dignity
and freedom, it is inconceivable that it would advocat any form of discrimination based on gender. In fact because of its protective attitudes toward all the downtrodden, the Koran appears to be weighted in may ways n favour of women. (16)
A women under Islamic law is vested with rights including a share in inheritance and rights to divorce and alimony. Polygamy came as a consequence of tribal war leaving women without support was allowed on conditions attached to it. As a matter of fact, Koranic stance on polygamy is that it is objectionable on ethical grounds but tolerated due to particular circumstances. (but if you fear you will not be equitable, then marry only one: (4:3) Koran).
The egalitarian message of Islam and its insistence on the spiritual equality of men and women however, was eroded as Muslim societies suffered moral and material declines. Abuses and discrimination against women got way in Islam. The concept of patriarchal tradition with its accent on male domination resulting in the rise of fundamentalism is explicitly reflected in the reservations entered by Muslim countries o the above articles. Their stance in this regard that the Sharia law is in conflict with particular provisions of the Convention. This divergent view point was based on the Koranic interpretation of consensus (17). They fail to agree on the point that there are certain universal aspect of Islam and the Sharia was not the whole of Islam but interpretation of its fundamental sources as understood a specific context. For example, the traditional Muslim scholars have ignored the Koranic stance on the ethical shortfalls of multiple marriage considering only the verse permitting polygamy as legally valid. The other verse implying that multiple marriage is immoral due to the impossibility of equitable treatment was assumed to have no legal force (18): If you fear that you will not be able to deal justly with orphans, marry women of your choice, two, three, or four , (4:3), and it is explicit here at polygamy is not a right, but a responsibility to ensure that justice being don to orphans.
Sisters in Islam, a group of Muslim women in Malaysia studying and researching the status of women in Islam holds the view that Islam was a liberating religion that uplifted the status of women and gave them rights without difference and both must participate as equal partners in all aspects life as in the Koran there is no. difference in the value given to the creation of women and men (5:49). The Sisters in Islam further argue that the major problem is the isolation of Koranic verse from its context and turning it into universal rule or moral injunction. It is essential to understand that a passage or verse from the Koran can not be taken out of a context or in isolation because the Koran is highly integrated and cohesive text.(19)
It may be concluded that the role a[td status of women. m Islam have thus been defined in a particular setting. Most importantly, Islamic interpretations with respect to male behaviour and way of life have allowed to take into account t contemporary realities but interpretations to laws that concern women even though have limited relevance to day have remained unchanged.
Men who resist to invoke new edicts to accommodate contemporary situation keeping the essence of Islam intact ignore the fact that Islam’sessential message has little to do with gender difference as it is based on the fundamental principle of democratic value.
Under the Charter of Universal Declaration of Human Rights, gender equality has been proclaimed as a fundamental human right. As the Charters words are not self enforcing, states are responsible to devise national policies aimed at realization of human rights especially when states have ratified legally binding instruments (treaties) like the Convention on the Elimination of All Forms of Discriminations Against Women (CEDAW). State is accountable to implement the provisions other treaty by accepting those as the ground rules for the formulation and conduct of domestic policies. On the other hand, the stare can not contravene the Charter by enacting of enforcing discriminatory laws directly or through religious courts nor can allow any other private actors or groups to impose such laws or customary norms in violation of the Human Rights Charter.
Further, a state can not evade its pledged responsibilities by entering reservations to provisions of human right treaties upholding women’s rights. Therefore, when a state defends its stance of maintaining gender discriminatory laws and practices by asserting religious fundamental doctrine and contends that as a basis for entering reservations on substantive articles of CEDAW, that is a clear violation of the charter (20).
The Committee on the Elimination of All forms of Discrimination against Women have expressed its concern tot non compliance of the two-fold responsibilities of the states. Similarly, the General Assembly, regarding the question of reservation have adapted its resolution emphasizing the important of state compliance with their obligation under the convention (21) which also involves initiating affirmative actions on the part of the states to promote and observe human rights of women.
It is observed by the Committee that most Muslim countries have entered reservation to articles of CEDAW "as they conflict with Islamic Sharia Law although they have written constitutions which contain clauses on non discrimination and gender equality. Constitution is the solemn expression of the will of people which further stipulates that as the constitution is usually the supreme law of the land, any other law which is inconsistent with that, shall be automatically void (e.g Bangladesh). Most Muslim countries (Bangladesh, Indonesia, Turkey, Yemen, Tunisia, Algeria) do not practice Sharia law per se, rather are guided by state made laws and therefore have no legal basis for application of Sharia or customary laws only relating to women’s issues. The Committee has continued to question the state policy on the issue of reservation encouraging them to review and amend their laws and policies incompliance with the Convention and General Recommendations No. 4 and 2o formulated by the Committee in this regard (22). In situations where there are expressed provisions of enactment governing any particular area of personal laws, those being preconstitutional, should require to withstand the test of the constitution which can be met by introducing a common civil code (23).
Many researchers on Islamic laws maintain that there are scope for reinterpretation of Islamic personal laws because from its very outset Islam was a liberating religion that uplifted the status of women and gave them rights that were considered revolutionary 1400 years ago. There are also instances of reforms introduced in many personal laws with the understanding that Islam being a comprehensive way of life (al-deen), needed to take into consideration of the contemporary requirements. The fact was emphasized that the true spirit of Islam as reflected in the Koran is not to oppress women but to grant them equality and human dignity (24). the law makers, therefore, must understand the context of the Koranic verses to interpret the values and principles lay behind them.
The foregoing discussions established the fact that withdrawal of reservations by the Islamic states is practicable. The Committee further recommends that instead of making a blanket reservation on a particular article which then denies the benefits covered under that article to all women, the reservations can be qualified highlighting special situation when it may be applied.
Lastly, to address to the challenges of religious fundamentalism, coordinated strategies should be developed. The states should take initiatives towards law reform and legislative advocacy in this regard. More emphasize should be given on dialogue with the fundamentalists rather then confrontation focusing on the fact that the spirit of equality and justice is so insistently enjoined in the Koran that discriminatory laws and practices against women are paralogical.
It may also be emphasizes that free civil society and representative democracy ate preconditions to initiate needed reforms to disallow religious fundamentalists to promote laws and practices validating discriminations against women. NGOs and civil society should therefore, play a predefined role with respect to achieving social goals and interface between the state and other actors for full realization of human rights of women.
(1) Encyclopedia Britannica Vol. 9.
(2) Howland, W Courtney. The Chalenge of Religious Fudamentalism to the Liberty and Equality Rights Of Women: an Analysis under the United Nations Charter, Colombia Journal of Trans - national Law, Vol 35, 1997, Number 2.
(3) Encycopedia Britannica, Vol 12.
(4) Mernissi, Fatima, Beyond the Veil, 1975.
(5) Ibid (2)
(6) UN charter art 1 (3)
(7) Ibid (2)
(8) ALgeria, Azerbaijan, Bangladesh, Bosnia and Herzegovina, Egypt, Indonesia, Iraq, Jordan, Kuwait, Lebanon,Libya, Malasya, Morocco, Pakistan, Tunisia, Turkey and Yemen.
(9) United Nations Treaty Series Vol- 1155, No. 18232, P.331
(10) CEDAW/e/1991/4,12 Nov.1996
(11) Ibid (10)
(12) Khan, salma, the Fifty Percent: Women in Development and Policy in Bangladesh UPL 1988.
(15) The legal codification of Crimes of Honour in Jordanian Penal Code (Nov 16, 196o) "Excuse in Murder" Article 340 Sates · (I) We who catches his wife/other female relatives committing adulate with another, and he kills, wounds, or injures one of both of them is exempt from any penalty (ii) He who catches his wife, female relatives in ah unlawful bed, and he kills or wounds or injures one or both, benefits from a reduction of penalty.
The, article owes its origin to two legal sources Ottoman Penal Code of 1858 and the French Penal Code of 1810. (Both are abolished).
(15) Most information collected from various UN documents some of which are in restricted circulation.
(16) Asia Week Anniversary: women and Islam, Aug. 25, 1995.
(17) Asia Week Women’s Rights Nov. 7, 1993.
( 18) The Qur’anic Ideal of Monogamy, Seeshan Hasan, Star Weekend Magazine, Aug. 3o, 1996.
(19) Sisters in Islam Are Women and Men Equal Before Allah? SIS Forum Malaysia Berhad 1991.
(2o) Ibid (2)
(21) Resolution 4 le 1o8 Of 4 December 986.
(22) General Recommendations made by the Committee on the Elimination of Discrimination Against 21 February .1995
(23) Amir, Tania, Bangadesh Lawyers’ Association, 1996
(24 ) tbid (19)