Gender and Human Rights in Islam and International Law Equal Before Allah, Unequal Before Man?

by

Shaheen Sardar Ali

KLUWER LAW INTERNATIONAL THE HAGUE / LONDON / BOSTON

Table of Contents

List of Abbreviations Table of Cases Table of Treaties Table of Statutes Introduction PartI Women's Human Rights in Islam: Initiating the Discourse Chapter I Human Rights in Islam and International Law: A Conceptual Analysis The Definitional Debate and Nature of Human Rights Foundations of Human Rights in the 'Western' Tradition Sources of Human Rights in Islam 'Secular' and 'Western' versus 'Divine' and 'Islamic': A Clash of Traditions? Rights-based and Duty-based Human Rights: A Valid Distinction? Islam, Human Rights and Individualism Human Rights as Hierarchical Entitlements? Rights of White, Free, Male, Elite in the 'Western' Tradition and Entitlements of Adult, Free, Male, Muslims in the Islamic Concluding Remarks

xiii xvi xix xxi 1

^ l 9

11 12 16 19 25 29 33 36 40

Chapter II Women's Human Rights in Islam: Towards a Theoretical Framework ,42; From the Saintly to the Evil? Conflicting Images of Women in Quran and Hadith Literature and Implications for Women's Human _ Rights in Islam V44 Ibadaat and Muamalaat: Esposito's Hierarchical Notion of Rights in the Islamic Tradition 47

viii

Gender and Human Rights in Islam and International Lau*

Women's Human Rights in Islam as Categories of Entitlement 49, The Non-Discriminatory Categories of Rights, Ibadaat and Women's Human Rights 50 The Protective and Corrective Category, Muamalaat and Women's Human Rights 56 Discriminatory Category of Rights: The Verse 4:34 Debate 63 Evidentiary Value of Women's Testimony 70 Inheritance Rights of Women: A Fixed, Unchangeable Share or the Basic Minimum? 72 Polygamy: An Acknowledgement of 'Different Needs' or Statement of Male Superiority? 73 Hijab (Veiling of Women): A Prescription for Female Modesty or Symbolic Division of Muslim Space on the Basis of Gender? 75 Gradualism as a Method of Interpretation for Women's Human Rights in Islam 79 Evolutionary Approach to Women's Human Rights in Islam 85 Equal before Allah, Unequal before Man? Dilemma of Women in the j ,'-.-. Muslim World , 87

Part II Women's Human Rights in Islam: Application in Muslim Jurisdictions Chapter III 'Public' and 'Secular'? Women's Human Rights Under Constitutional Law The Public/Private Dichotomy, Legal Pluralism and Women's Human Rights in Muslim Jurisdictions Constitutionally Guaranteed Equality for Women and the 'Secular' 'Public' Sphere: Replicating the Ibadaat Category of NonDiscriminatory Rights in Islam? Application of the Equality Norm as Espoused by Article 25 of the Constitution of Pakistan: An Overview in the Light of Reported Case-Law Islamic Provisions and the Constitution of Pakistan: Conflicting or Complementary Norms? 'Islamisation' of the Constitution: Redefining the Equality Norm? Evidentiary Value of Women and 'Islamisation' of Laws in Pakistan

89

92 92 94 96 98 101 102

Table of Contents The 'Islamic' Criminal Laws: Another Blow to Equal Rights Norms of the Constitution of Pakistan Insertion of Article 2A as a Substantive Provision of the Constitution: The Ensuing Debate and Implications of Women's Rights The Protective/Corrective Muamalaat Category of Women's Human Pvights in the Public Sphere in Pakistan: Testing the Limits of Affirmative Action Measures Economic Rights of Women in Pakistan: Rhetoric and Reality 'Seek Knowledge from the Cradle to the Grave': Muslim Women and the Right to Education 'The Strong Muslim (Believer) is Better and Closer to God than the Weak One.' Women's Access to Basic Health Facilities Women and Employment Rights: Breaking Down the Public/Private Dichotomy? Muslim Women and the Räght to Political Participation Concluding Remarks Chapter IV 'Private' and 'Islamic'? A Discussion of Muslim Personal Law and Implications for Women's Human Rights Background to the Legislation Affecting Family Law in Pakistan: An Overview The Period of Muslim Rule in the Sub-Continent The Early Period of British Rule in India The 'Anglicisation' of the Administration ofJustice Personal Law left Largely Untouched Custom as Source of Law: Attempt at Codification Codification of Islamic Family Law Child Marriages Restraint Act 1929 The Dissolution of Muslim Marriages Act, 1939 (DMMA) The Muslim Family Law Ordinance, 1961 (MFLO) Is An Adult Muslim Woman Sui Juris? A Discussion on the Legal Status of Women in Pakistan with Reference to the Saima Waheed Case Definition of Marriage Dower Valid, Irregulär and Void Marriages Marriage in Islam: Civil Contract or Sacrament? Guardianship in Marriage (Jab'r), Equality in Marriage (Kafat) and Option of Puberty (Khiyar-ul-Bulugh)

ix 105 109

112 112 116 121 124 129 136

138 139 140 141 142 143 144 146 147 147 148

150 151 153 154 157 160

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Gender and Human Rights in Islam and International Law

Consent in Marriage by Adult Muslim Woman Versus Consent to Marriage by Walk Competing or Complementary Rights? Kafat or Equality in Marriage Guardianship in Marriage and Khiyar-ul-Bulugh The Saima Waheed Case: Opening Up Pandora's Box? Chapter V Customary Practices and 'Cultural Islam': Emergence of the 'Operative' Islam Law on Women's Human Rights The Role of Customary Practices in Perpetuating Gender Hierarchies in Muslim Jurisdictions: The Case of the North-West Frontier Province of Pakistan Crisis of Muslim Identity, Islamic 'Revivalism' and Implications for Women's Human Rights in Islam Emergence of the 'Operative' Islamic Law on Rights of Muslim Women

Part III International Discourses on Women's Human Rights: Impact on Women in the Islamic Tradition Chapter VI Developments of the International Norm ofNonDiscrimination on the Basis of Sex: An Evaluation of Women's Human Rights in International Law Development of the International Norm of Non-Discrimination on the Basis of Sex: An Overview The UN and Regional Approach to Women's Human Rights From Mexico to Beijing: Mainstreaming Women's Human Rights The Women's Convention: A Synthesis of the International Legal Norm of Non-Discrimination on the Basis of Sex? Women's Rights and Child Rights: Making the Linkages 'Complementarity' Equals 'Equality'? A 'Muslim' View of the Norm of Non-Discrimination on the Basis of Sex Non-Discrimination on the Basis of Sex: An Evolving Norm of Customary International Law?

161 163 166 170

173 173 183 187

193

195 196 198 206 212 216 218 231

Table of Contents

Chapter VII Response of Muslim States to International Human Rights Instruments Affecting Women: A Discussion in the Light of Reservations to the Women's Convention The Reservations Regime of Multilateral Treaties and its Applications to Human Rights Instruments: An Overview of the Contemporary Position in International Law Reservations to the Women's Convention: An Overview of the Debate in the Muslim Context Reservations to the Women's Convention by Muslim States Parties: An Analysis Categories of Reservations to the Women's Convention: General, Specific, and Reservations based on Repugnancy to Islamic Law and Shari'a The 'Most Reserved' Articles of the Women's Convention by Muslim States: 'Islamic' or 'Secular' Reservations? Application of 'Operative' Islamic Law in the Context of International Human Rights: The Case of Pakistan's Ratification of the Women's Convention Addressing Reservations to the Women's Convention by Muslim States: Response of the International Community

xi

238 240 246 249 250 252 265 272

Conclusion International versus Islamic Schemes of Women's Human Rights: A Move Towards Convergence?

277

Appendix Appendix Appendix Appendix

I II III IV

287 299 307 315

Glossary Bibliography

319 325

Index

349