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February 24, 2003
Council on Foreign Relations
[Note: A transcript of this meeting is unavailable. The discussion is summarized below.]
The speaker, a legal scholar and professor of law, addressed the following questions:
What is the relationship between common law as set out in national constitutions and legislation and the Shariah, in various Muslim countries;
What can advocates for women’s rights within Muslim states learn from these precedents; and
What strategies should be pursued to help ensure equal rights and opportunities for women within the legal framework? What strategies should donors pursue to support equal rights for women?
1. What We Know:
Current legal and constitutional framework in Muslim countries
A large number of Muslim countries underwent colonization during the 19th and 20th centuries, and their current legal frameworks are a mixture of colonial/secular law and religious law. In most of these countries, the application of religious law is confined to family laws while common law forms the basis of commercial and criminal law. This co-existence of and discrepancy between the legal frameworks is a remnant of the colonial days when the ‘personal status codes’ were largely derived from the Shariah, while the criminal and commercial laws were based on common law. The exceptions are Saudi Arabia and a few Gulf states where all laws are derived from the Shariah, both in terms of the spirit of the law, as well as actual content.
The constitutions of many Muslim countries provide for equal rights of all their citizens by proclaiming that all people are equal. These constitutions also state that the country is an Islamic state. What is crucial, however, is how such equality can be enforced and what can be done to reconcile the gender discrimination in Shariah law with the equality of all citizens provided for by the constitution.
Afghanistan as case study: Afghanistan is a traditional, conservative society and has suffered in the last few centuries because of relentless foreign intervention. Consequently, many Afghans mistrust all ideas deemed foreign. The Afghanistan Constitution Drafting Committee is under pressure from various international donors to ensure that equal rights for men and women are guaranteed in the new constitution. This will most likely happen, but it is not clear whether these provisions will be sustained.
The women activists who advocate equality for men and women are perceived by many as out of touch with local culture and sentiments. The determining factor as per whether equality of the sexes, even as a legal concept, is actually applied across Afghanistan is dependent upon who gets to determine these provisions, and also who interprets these into law. The judiciary is unlikely to be favorable to women, since the judiciary is, at this point, almost entirely composed of (male and very conservative) mullahs, who believe in the application to the letter of the Shariah rather than deriving laws based on the spirit and principles of the Shariah.
2. What We Don’t Know:
Quite sharp differences emerged on whether women’s rights could be most effectively pursued through emphasis on precedents within the Koran and traditional jurisprudence or through international law – or both.
On the one hand it was argued that:
In Muslim societies, reform needs to come from within. A foundation already exists within the Koran which states that both men and women are created from the same soul. In fact, on some issues, Islam invokes ‘affirmative action’ for women. This feminist critique from within Islam is currently underway. The Taliban’s style of governing, and exclusion of women from all public spheres, was contrary to Islam and women and activists of their rights need to challenge such misinterpretations of the religion.
Any attempt to go too fast, or to impose external/Western ideals will backfire. Many of the buzz words used widely in the West are counterproductive in the Muslim world. There is suspicion for and an aversion to the word “equal.” Instead the promotion of the Koranic edict could be used to engage in affirmative action for women. In traditional Islamic jurisprudence, both men and women are expected to acquire education, and earn a living, women are entitled to full financial independence, marriage is deemed a unity of two, and women are respected as full spiritual entities. Islam celebrates the differences between men and women, and the only standard for judgment is piety.
International covenants, such as UN’s Beijing agreement did not allow Muslim countries to present their perspective; instead representatives from Muslim countries were asked to approve already-drafted agreements. Such UN conventions need to be revisited.
On the other hand, it was argued that:
Although the concept of debating within the Islamic discourse is attractive, the approach is a very long-term one. Benefits will only be realized after a generation or more. Thus, it is unclear how such an approach can improve the situation in the short to medium term when interpretations contrary to women’s rights hold sway.
Both in Afghanistan and other Muslim countries women do understand that they are being deprived of their rights, and want to claim them. They are, however, coerced and intimidated into silence by severe cultural oppression and deeply-rooted patriarchal expectations.
3. What Are the Next Steps; What Should Be Done and by Whom?
To ensure that women’s rights are actually being strengthened and advanced, social changes should necessarily accompany all positive legal/constitutional changes. Otherwise such discussions are merely normative discourses. Universal education and participation in the economic sphere is one of the most widely agreed upon routes to such emancipation, but it is unclear how long societal transformation, in favor of equal rights for women, can take.
Because believing women are generally not willing to violate “God’s word” and often see cultural practices as religiously-sanctioned decree, it is imperative that Muslim women are educated about the rights granted to them by Islam. Currently most are not aware of these rights.
Women’s rights activists in Muslim countries can and should learn from favorable precedents in other Muslim countries. For example, Egyptian activists, together with respected Al-Azhar scholars, were able to amend the Egyptian divorce law so that a woman could unilaterally seek a divorce. Similar changes followed in Jordan.
Immense upfront education of both the leadership, as well as the general populace, is needed to revive the tradition of freedom of conscience without coercion in Islam.
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