Abdulrahim P. VUAPUR* THE ISLAMIC CONCEPT OF HUMAN RIGHTS AND THE INTERNATIONAL BILL OF RIGHTS: THE...

Abdulrahim P VUAPUR

THE ISLAMIC CONCEPT OF HUMAN RIGHTS AND THE INTERNATIONAL BILL OF RIGHTS

THE DILEMMA OF MUSLIM STATES

INTRODUCTION

The purpose of this paper is to explore the reasons as to why the Muslim States are reluctant to ratify International Covenants on human rights Out of some 45 Muslim States1

less than half of them have ratified the two UN Covenants2

- International Covenant on Economic Social and Cultural Rights (hereafter ICESCR) and the International Covenant on Civil and Political Rights (hereafter ICCPR) None have ratified the

The author İs Reader İn Politİcal Science at Aligarh Muslim University Aligarh shy202002 (India) He wishes to thank Prof Theo Van Boven Prof Kevin Boyle Cecilia Medina Jacqueline Smith and Leo Zwaak for theİr comments on an earlier draft of this artiele

This paper İs a revİsed and enlarged version of a semİnar that the author presented at the Human Rights Centre Unİversity of Essex Colehester (England) in February 1989

1 Note that throughout this paper the term Muslim State is loosely defined it ineludes not onlyall the Arab States but also non-Arab States which either have majority Muslim population or deelare Islam as the State religİon (or both) For our analysis we have labelled (though arbitrarily) all the members of OIC (Organization of Islamic Conference) as Muslim States even when some of them have less than 50 of Muslim population or are secular like Turkey Palestine is the only member which is not a state in the legal sense ofthe term At present OIC has 45 members Afghanistan AIgeria Bahrain Bangladesh Benin Brunei Burkina Faso Cameroon Chad Comoros Dijibuti Egypt Gabon Gambia Guinea Guinea-Bİssau Indonesia Iran Iraq Jordan Kuwait Lebanon Libya Malaysia Maldives Mali Mauritania Morocco Niger Nigeria Oman Pakistan Palestine Qatar Saudi Arabia Senegal Sierra Leone Somalia Sudan Syria Tunİsia Turkey Uganda United Arab Emirates and Yemen

2 By 31 March 1991 out of 93 states parties following states had ratified the Covenant Afghanistan AIgeria Cameroon Egypt Gambia Guinea Iran Jordan Lebanon Libya Mali Morocco Niger Senegal Somalia Sudan Syria Tunisia and Yemen

104 TURKISH YEARBOOK OF HUMAN RIGHTS

Optional Protocol to the ICCPR This state of affairs raises a much broader question is the internationallaw of human rights (as reflected in the international Covenants) incompatible with Islamic precepts and jurshyisprudence if not to what extent are there similarities in Islamic law and the UN law of human rights Why do some Muslim States find the inshyternational law of human rights unaccetableunsuitable to their socieshyties Is it true that Islam really has a concept ofhuman rights -as daimed by some Muslim scholars and countries- which is comparable ifnot equshyivalent to that ofthe contemporary internationallaw ofhuman rights

These and related questions are the subject of this paper Its focus is to attempt a theoretical discussion of these issues In doing so the discussion is limited only to some important civil and political rights as spelled out in ICCPR For reasons of space most of the rights recognized in ICESCR have been kept outside this framework which in no way should be considered less significant

On the question of human rights in Islam two divergent opinions prevail -representing two extreme and often contradictory positions One group of scholars3 hold that human rights have an important place in Islam Mawdudi a prominent scholar of Islam from the Indian subshycontinent argues that uIslam has laid down some universal fundamental rights for humanityas a whole which are to be observed and respected under all circumstances fundamental rights for every man by virtue of his status as a human being4

It has been contended that the basic concepts and principles of human rights had from the very beginning been embodied in Islamic law5bull

One scholar has even daimed that contemporary human rights doctrines merely give recognition to 1400-year old Islamic ideas In fact this recognition existed in a better and more perfect from in Islam than in any document ever enacted by lawgivers6

bull Some orthodox scholars also assert

3 These include Abul Ala Mawdudi Muzaffar-ud-Oin Nadvi and Sultan H Tabandeh

4 Abul Ala Mawdudi Human Rights in Islam Leicester 1970 p 10 5 Muzaffar-ud-Oin Nadvi Human Rights and Ohligation in the Light of the Koran

and Hadith Lahore 1966 pp 14-15 6 Sultan H Tabandeh A Muslim Commentary on the Universal Oeclaratİon of

Human Rights London 1970 pp 1 8 and 85

105 THE ISLAMIC CONCEPT OF HUMAN RIGHTS

that the Holy Quran has everything necessary for human welfare and is a perfect documentlguide for all peoples and all ages and contains solution to every problem

On the other hand certain Western scholars argue that there is no concept ofhuman rights in Islam Jack Donnelly claims that human rights is a Western discovery Islam in his view provides only a framework of human dignity rather than human rights as such7

bull Sir Norman Anderson formerly director of the Institute of Advanced Legal Studies of the University of London one of the great scholars of Islamic lawoutside the Muslim world notes the following doctrinal deficiencies ofIslam vis-a-vis human rights (i) The cast-iron view of predestination supportedby the Quran leading to a fatalism which plays a large part in the daily lives of millions of Muslims To this the lethargy and lack of progress which until recently at least has for centuries characterized Muslim countries can be partially attributed (ii) Islam sanctions slavery and the slave trade and the unlimited right ofconcubinage which a Muslim enjoys with his female slaves This extends even to married women captured in war and opened the door to terrible abuse during the early wars of expansion when almost any woman in a conquered land would be considered a slave by capture The would-be reformer of the position of women finds that polygamy slave-concubinage unilateral divorce and the beating of refractory wives is permitted by divine authority (iii) The last section of sharia (h) deals with Punishments or criminal sanctions These provide İnter alia for the murderer to be executed by the family of his victim for one who causes physical injury to another to be submitted to the like for the thief to have his right hand cut off and for the adulterer to be stoned and the fornicator beaten (iv) The Universal Declaration has been approved by all Muslim states except Saudi Arabia and the Yemen because a provision in the Declaration which affirms a mans right to change his religion if he so desires runs directly counter to the Islamic law of apostasys

Another British scholar from London University has advanced a two-fold argument in supporting his thesis that Islamic law does not

7 Jack Donnelly Human Rights and Human Dignity An Analytic Critique of Non-Western Conceptions of Human Rights The American Political Science Review Vol 76 No 2 1982 pp 306-7

8 Norman Anderson Islam in Norman Anderson (ed) The Worlds Religions London 1955 pp 82-88-90 and 93-94


recognize the concept of fundamental freedoms First the essential function of Islamic law is to regulate the relations between man and his creator and therefore the regulation ofhuman relationship is dealt with only in the context ofthe essential function Second although the Shariah (lslamic law) doctrine ofSiyasa (government administration) recognizes certain functions of the state such as the protection of an individuals life and property in as much as Siyasa allows discretion to the ruler in the interests of the state individuals do not have effective freedoms This is evident from the various rules of penal law of Islam which invest discretionary powers in the ruler And finally no independentjudiciary in Islamic law exists to enforce fundamental rights9

bull

Neither ofthese positions on human rights and Islam can be said to be entirely true The divergent views expressed by these opposing groups of scholars correspond to the positions of the apologist and the critic of Islamic law Though their observations contain an element of truth yet theyare far from being objective Neither ofthem tell us the true story of human rights in Islamic law What follows thus is a preliminary attempt to examine the concept of human rights in Islam by reference to certain fundamental civil and political rights The basic purpose of our analysis however is not only to make an attempt to identify areas of conflict between Shariah and the universal standards of human rights but also to seek to achieve a reconciliation between the two systems which is possible only by developing newand appropriate principles (within the Islamic framework of course) through reinterpretation and reformation of Shariah

NA TURE AND SOURCES OF SHARIAH (ISLAMIC LA W)

A proper understanding of the nature and extent of human rights in Islam necessitates the presentation of a brief survey of Islamic Law

Islamic law is called Shariah in Arabic According to the established belief it is the Canon Law of Islam It means literally the straight path There are five sources of Shariah the Quran the SunnaProphetic traditions Ijma or consensus of the opinion of scholars and judges qiyas

9 JN Coulson The State and the Individual İn Islamic Law Intenıatİonal and Comparative Law Quarterly Vol 6 No 1 1957 pp 50-53


(analogy) and Ijtihad or independent reasoning The Quran and Sunna are considered as primary sources and the remainder secondary sources

In Islamic literature there is no agreed definition of Shariah According to a traditional view it is the law ofGod set down for all time in the divine revelation lts author is God himself Therefore it is immutable and beyond human review Patrick Bannerman a British d~plomatshyscholar1o

identifies four different definitions of Shariah from the history of Islamic law

- it comprises the entire corpus of law elaborated over the first four or five centuries of the Muslim era and contained in the legal compilations of the recognized schools of law

- it comprises the rules and principles contained in the Quran and the Sunna (the latter in its entirety)

- it comprises the rules and principles contained in the Quran and that part of the Sunna which is both authentic and concerned with the elucidation and interpretation of the divine precepts and

- it comprises only the rules and principles contained in the Quran

In Bannermans view the first definition has generally prevailed and is widely held today although the second and the third are generally the basis for the agreements of most 19th and 20th century thinkers The fourth has rare takers but it provides the maximum degree of flexibility This diversity of opinion calls for a brief examination of the nature of its sources and their relationship

The Quran is the first source of Shariah it is the word of God revealed through Archangel Gabriel Since it is divinely ordained it must be immutable and valid for all time and all places Revelations occurred whenever Prophet encountered a problem or needed divine guidance it consists of 114 chapters and each comprising a number of verses The Quran contains instructions in unambiguous language in detail on very

10 Patriek Bannerman Islam in Perspeetive - A Guide to Islamic Sodety Politics and Law London 1988 pp 33-34


few subjects and these reIate mainly to matters of personal status -marriage diyorce inheritance etc- legal scholars generally hold that the Quran contains no more than 500 verses concerning legal matters of which some 80 are legislative in the strict sense of the termIl Whereas the remaining verses are ofgeneral moral exhortations from which broad general principles have been deduced As far as the legislative verses are concerned these eighty texts have been construed by a method of statutory interpretation which Anglo-American lawyers might well find congenial so as to extract the utmost ounce of meaning from them12

It is interesting to note that the Quran never daimed that it contains solutions to every problem it prescribes only those details which are essentİal It leaves many things to be developed in accordance with the changing times Indeed it warns against seeking the regulation of everything in Quran O Ye who believe do not keep asking about things which if they were expounded to you would become troublesome for you Allah has left them out Allah is Most Forgiving Forbearing A people before you made such demands and when they received the directions they repudiated them13 That which Allah has left out is meant to be devised in accordanee with the prescribed standards and values and in consonance with the framework through mutual consultation14 to meet the need when it should arise In the light ofthese verses Ijma giyas and Ijtihad are developed

Sunna Since the Quran provides broad principles and quidelines Sunna (the sayings and actions of Prophet and his tacit approval of the practice of others) represents an example of the manner in which the Quranic principles can be put into practice The Sunna therefore represents hoth the interpretation and elaboration of the rules enshrined in the Quran it is generally regarded as divinely inspired ~1any of the Prophetic sayingspractices are recorded and compiled by six different scholars such as Bokhari Muslim Miskin Tirmizi ete The collections of

11 Fazlur Rahman Islam Chicago 1979 p 69 Noel Coulson A History of Islamic Law Edinhurgh 1964 p 12

12 SG Versey Fitzgerald Sources and Nature of the Shariah in Majid Khaduri and Herhert Liehesney (ed)Law in the Middle East Washington DC 1955 p 87

13 The Quran Chapter 5 verses 102-3 14 Ihid Chapter 3 verse 100 Chapter 42 verse 39


first two scholars are considered as authoritative The compilation of Sunna continued upto about two centuries from the Prophet Despite the intellectual honesty exercised by the compilers in recording these traditions which runs into several thousands the narrations of some reporters of events or practices are considered to have contributed a great deal of distortion and mythogenesis about Prophets life It is now generally acknowledged that many of the traditions included in the standard literature are apocryphal1sbull Except a few unauthentic traditions large majority of them are considered to be authentic

Many Muslims believe including some scholars that Sunna hıas divinity and its legal status is equivalent to that of the Quran But such beliefs can be countered by citing a Quranic verses to the fact that Muhammed was a mortaps Even the conservative writer like Mawdudi writes the Quran leaves no doubt that the Prophet is but a human being and has no share whatever in Divinity The Prophet is neither super human nor is he free of human weakness (emphasis added)17

Ijma literally means consensus ljma is recognized as a source of law on the basis of a Prophetic saying that My people will never agree in error There has been a considerable difference of opinion over the proper identification of those qualified to participate in the consensus For some it is the entire Muslim community for some the first generation ofMuslims only for some the recognized medievaljurists and for some it is the recognized scholars of a given period Ijma has been defined as the concordant doctrines and opinions ofthose who are in any given period the men with the power to bind and to loose it is their office to interpret and deduce lawand theological doctrine and to decide whether lawand doctrines are correctly applied18

Qivas precisely means analogical deduction or reasoning When the solution to a problem can not be derived directly from the Quran the

15 GHA Juynboll The Authenticity of the Tradition Literature Leiden 1969 pp 114-20 150-52

16 The Quran Chapter 18 verse 111 and Chapter 41 verse 6 17 Abul Ala Mawdudi What Islam Stands For in Altaf Gauhar (ed) The

Challenge of Islam London 1978 p 9 18 Ignaz Goldziher Introduction to Islamic Theology and Law translated by Andras

and Ruth Hamoraİ Princeton 1981 p 52


Sunna or from accepted consensus (Ijma) the jurist seeks to identify an accepted ruling to a problem which has sufficient similarity to allow the application of the terms reasoning and methodology of the accepted ruling to the new problem by a process of analogical reasoning it is in fact a particular form of Ijtihad

Ijtihad means independent reasoning from first principles Where a legal problem was not susceptible to resolution by recourse to the traditional sources ofthe law suitably qualified individuals were deemed capable ofderiving a solution by the use of logic and reason working from first principles Most Sunni Muslims believe that the gate ofljtihad was closed in the eleventh century (fourth century oflslamic calender) as the Islamic jurisprudence had reached a stage of stagnation as a result of the codification of views by four schools of thought (Hanefi Maliki Shafi and Hanbali) The leading scholars of Islam felt that the point had been reached when all essential questions in law had been answered and that there was no further room for evol ving the system through research and investigation19

bull As a result Ijtihad was not vigorously pursued since eleventh century thereby causing adecline of Islamic jurisprudence

Nonetheless in the modern era many scholars have demanded that there is an urgent need of reopening the gates of Ijtihad The poet-philosopher of the Indian sub continent Sir Muhemmad Iqbal was one of them20

bull Likewise all modern reform movements insist upon the right to exercise Ijtihad

While summing up our discussion it must be pointed out that all these sources of Shariah are intrinsically related to each other The following incident illustrates this point When the Prophet appointed Muaz as Qazi (Judge) ofYemen he asked him what rule he would follow when he had to make a decision Muaz said he would look for the rule in the Book of Allah H And if you do not find the answer in the Book [the Quran] queried the Prophet HI shall seek for it in the example of the Prophet And if you still lack an answer I shall exercise my own judgement ttThat is the right way he was assured by the Prophet21

bull

19 Ahmed Zaki Yamani The Eternal Shariah New York University Journal of International Lawand Politics Vol 12 1978 p 211

20 For a seholarly presentation of this point of view see Muhammad Iqbal The Reeonstruction of Religious Thought İn Islam Lahore 1960 pp 146-80

21 Tirmadhi I Seet Judgements Ch Problems facing a Judge ete eited in Muhammad Zafrullah Khan Islam and Human Rights The Hague 1967 p 15


Thus it emerges from this brief survey that Shariah can be a dynamic flexible and pragmatic system it has the potentiality to adjust to the requirements of a corı ~tantly changing social milieu But the question is how to ensure this dynamism One way is to modernize or rationalize Shariah from time to time The modernist approach of Chirag Ali and the speculative rationalism of Sir Sayyid Ahmad Khan -two prominent scholars from 19th century India- should be seriously considered for this purpose Some modernists argue that Shariah applied only to the debased and tribal conditions of the 7th century Arabia The general tendeneyamong them is to emp~asize the spirit behind these laws Chirag Ali took a radically modernist position on the Quran as a source of law when he wrote in 1883 The Koran does not profess to teach a social and politicallaw The more important civil and political institutions of the Muhammadan Law Cannon Law based on the Koran are mere inferences and deductions from a single word or a isolated sentence In short the Koran does not interfere in political questions nor does it lay down specific rules of conduct in the Civil Law What it teaches is a revelation ofcertain doctrines of religion and ~ertain rules ofmorality22

Sayyid Ahmed Khan the founder of Aligarh Muslim University advanced a thesis that the word ofGod (quran) must be in harmony with the work of God (nature) 23 - that is that since the Quran is the word of God it could neither contradict nor violate the laws of nature which are Gods creation He argued therefore that the Quran was the only essential element and that all else is subsidiary and of secondary importance24 The elassical distinction between elear and ambishyguous verses in the Quran became in his hands essential and symbolic2s The former constituted the immutable fundamentals of Islam while the latter were open to differing interpretations appropriate to different times and circumstances He insisted however that the variable interpretations must nevertheless be consistent with the laws of nature and with reason Sayyid Ahmad Khan also insİsted that ijtihad

22 Cited in Ishtiaq Ahmad The Concept of an Islarnic State an Analysis of the Ideological Controversy in Pakistan London 1987 p 48

23 EJJ Rosenthal Islam in the Modern National State Cambridge 1965 p 191 24 W Cantwell-Smith Modern Islam in India revised edn London 1946 p 20 25 Some ofits verses are precise in meaning -theyare foundation of the Book- and

others allegorical But no one knows the interpretation of the latter verses except Allah The Quran Chapter 3 verses 6-7


should be exereised freely and without limitation and that such exercise was a fundamental right for all Muslims thus rejecting not only the traditional limitation of ijtihad to those qualified to exercise it but also the rigidity of classical doctrine

One final point about Shariah As it is well known that Islam provides a u complete system for regulating every aspect of human life the application of Islamic penal system should b~ seen as a part of that system No isolated part of Shariah can make any sense The recent attempts by the Pakistan Government to introduce selected parts of Shariah is bound to fail when the entire population (community) has hardly adopted to the Islamic way of life An Egyptian scholar rightly concludes It is therefore nonsense to say that we must apply the Islamic penal system to present - day Muslim societies in their present circumstances it is nonsense to ampute the thiefs hand when he has no means of support but stealing It is nonsense to punish in any way for adultry in a community where everything invites and encourages unlawful sexual relationships

ISLAM AND THE INTERNATIONAL BILL OF RIGHTS

Before making a comparison between Islamic concept of rights and the international bill of rights one needs to bear in mind the following points to have a proper perspective of both the regimes of law concerning the nature of Islamic view First in Islam there is more stress on obligations and duties than on rights The essential characteristic of human rights in Islam said one American scholar is that they constitute obligations connected with Divine and derive their force from this connection Human rights exist only in relation to human obligations towards God fellow humans and nature all of which are defined by Shariah When individuals meet these obligations they acquire certain rights and freedoms which are again prescribed by the Shariah27 It

26 Mohammed S EI-Awa Punİshments in Islamic Law A Comparative Study Delhi 1983 p 136 This book İs based on a doctoral thesis submitted to the School of Oriental and African Studies of the University of London in 1972 A similar view about the application of penallaws was expressed by Iate Abul Ala Mawdudi in his book Islamic Lawand Constitution Lahore 1967 pp 53-59

27 Abdul Aziz Said Precept and Practice of Human Rights in Islam Universal Human Rights Vol 1 No 11979 pp 63 73-74


should be noted that Islam in Arabic literally means both peace and submission to God Second rights in Islam are God-granted - theyare of divine origin28

bull Khadduri writes that theyare privileges of God because authority ultimately belongs to Him29

bull Third Islam generally lays down broad values and standards which elearly endorse the spirit and purpose of the International Bill it does not pronounce verbatim all the specific provions of this Bill And finally as regards the divine nature of human rights in Islam - which raises questions like are they not entitlementselaims if so how can one elaim them against God -- it must be noted that Islam envisages a political social and economic system in which these rights are ensured

At the outset it can be said that most of the rights which have been recognized in the UN Covenants are found in one form or another in Shariah though theyare not as precisely defined as in the international bilL For reasons of space here it is not possible to undertake a comprehensive dİscussion of all those rights Therefore our discussİon will confine to som~ ofthe most İmportant but controversİal (from Islamic point of view) rİghts of the individuals

EQUALITY AND NON-DISCRIMINATION

The UN Covenants recognize that rights are to be accessible to all irrespective of race colour sex language or religion (Common Art 2) They have to be enjoyed equally both by men and women (Common Art 3) The principle of equality and non-discrimination are important bases of human rights law

Recial Equality And Non-Dİscriminatİon

Islam has no concept or practice of racial discrimination Though in the Quran the question of race and coIour is not a burning issue who of its verses can be cited which have a direct bearing upon the issue The first reads Among the signs of Allah are the creation of the Heaven and

28 AK Brohi The Nature of Islamic Lawand the Concept of Human Rights A Key - note Address to the Seminar of Human Rights in Islam held in Kuwait in Human Rights in Islam - Report of a seminar in Kuwait Geneva International Commission of Jurists 1982 p 51

29 Majid Khadduri Human Rights in Islam The Anals Vol 243 1946 p 7


of the Earth and the diversity of your languages and colours Lo herein indeed are portens (signs) for men of knowledge30 The second verse reads O mankind Lo We have created you from a male and female and we have made you into nations and tribes so that ye may know one another Lo the noblest of you in the eyes of God is the most pious for Allah is Knower and Aware31 From these two verses it is obvious that the Quranic teachings express no racial or colour prejudice

The farewell discourse of the Prophet and many of the traditions from his Sunna also confirm that Islam spoke of racial equality In his farewell speech the Prophet said O men truly your God is one God and your father too is one you are all born of Adam and Adam is but dust The noblest of you with Allah is the most dutifuı No man whether he İs an Arab or not and whatever his race and colour İs superior to anyother man except İn uprightness (Emphasis added) Tradition relates that Abu Dharz al-Ghifari and Bilal (a slave Muslim from Ethiopia) were once arguing in the presence of the Prophet The argument grew heated and Ahu Dharz scoffed at Bilal calling him son of anegress This is too much exclaimed the Prophet in anger and to Abu Dharz he said You are still not free from pre-Islamic ignorance The son of a white woman is in no way superior to the son of a negress the only difference between men lies in their righteousness32 At another occasion the Prophet is reported to have said I was sent to the red and the black an expression meant to embrace the whole mankind Also once the Prophet said Obey whover is put in authority over you even if he be an Ethiopian slave On stilI another occasion he is reported to have said Do not marry women for their beauty which may destroy them or for their money which may corrupt them but for religion A slit-nosed black slave woman if pious is preferable33

On the racial intermarriage issue in the Muslim world the British historian Arnold Toynbees comment is very helpfuı He said until

30 The Quran Chapter 30 verse 22 31 Ibid Chapter 49 Verse 13 32 Cited in Ali Abdel Wahid Wafi Human Rights in Islam Islamic Quarterly

London Vol 11 Nos 1-2 1967 pp 69-70 33 Both these traditions are cited in Fadel AbdamIlah Islam Slavery and Racism

The Use of Strategy İn the Pursuİt of Human Rights The American Journal of Islamic Social Sciences Vol 4 No 1 1987 p 42


nowadays whites and blacks are intermingled under the aegis of Islam through the length and breadth of the Indian and African continent Under this searching test the white Muslims have demonstrated their freedom from racial feeling by the most convincing of all proofs they have given their daughters to black Muslims in marriage34

Islam in view of an Arab scholar sees mankind as a large garden in which there are followers of many colours but no one colour is superior to any other To substantiate his conclusion he cites a Prophetic saying I am the forerunner of the Arabs Suhaib of the Greeks Salman of the Persians and Bilal of the Ethiopians In fact these men from different regions and races were the first among their own peoples to embrace Islam and so that the Prophet gathered them together with himself into a faithful garland3S

The fact that 33 Muslim states have ratified the International eonvention on the Elimination of Racial Discrimination (as of 4 March 1991 )36 testifies the above analysis

Sexual Equality And Dİscriminatİon

At the outset it must be said that though discrimination on the basis of sex is not only not prohobited but sanctioned by Shariah (which has reduced Muslim women to a lower status) a system of complete equality between men and women can be established in a Muslim society by reforming and reinterpreting Shariah

Islam has been criticized on the ground of polygamy divorce laws veiling and seclusion of women and the generally prevailing unequal treatment of women as compared to men Though Islam does permit

34 Arnold Tynbee A Study of History Oxford 1939 Vol I p 226 Two well known examples of interracial marriage can be cited here Bilal married to one Arab girl and Abu Dharr (an Arab) married to a black slave woman Cited in Abdallah Ibid p 41

35 Abd-al-Aziz Abd-al-Qadir Kamal Islam and the Race Question Paris UNESCO 1970 p 29

36 Besides states parties to the ICCPR (See note 2) following MuslimStates have acceeded to the Convention Bangladesh Burkina Faso Chad Kuwait Maldives Mauritania Nigeria Pakistan Qatar Sierra Leone Uganda and United Arab Emirates


plurality of wives not exceeding four it is only on the condition of strict equality of treatment among them But the practice shows that it is not followed universally by majority of Muslims in the world God warns that If you fear you will not be able to deal justly with them then marry only one37 Polygamy is not a general rule it is only a necessaryand emergency provision for the preservation and fostering of high social values and for safeguarding society against promiscuity38 This permisshysion has undoubtedly been abused but many Muslim states are seeking to eradicate such abuse through legal regulation of the institution of marriage For example Egypt changed its marriage laws in 1920 1923 1929 and in 1956 it abrogated the Shariah courts Tunisia Morocco AIgeria Iraq South Yemen have enacted new laws of personal status laws39 Syria Morocco Pakistan and Iran have also severely restricted polygamy and justified their efforts in doing so by noting the impossibility of fulfilling the Quranic injunction that multiple wives be treated equally Tunisia has gone the farthest in directly outlawing polygamous marrishyages40

bull

Originally divorce laws were fair Out of three kinds of divorce two were to be initiated by women First a wife may seek from a court a judicial separation on grounds of deficiency mischief fear of temptation arising due to long absence of the husband or inadequate maintanence Second a wife can seek divorce by redemption (Khul) on grounds of deep-seated animosity But the most commonly practiced system is divorce by the husband -independently of his wife or of court intervention- leading to misuse In the majority of divorce cases husband plays a dominant role The tightening of divorce laws were the later developments

37 The Quran Chapter 4 verse 4 In another place He cautions ye are never able to be fair and just between women even if it is your ardent desire L Chapt 4 verse 3 and Chapt 4 verse 129

38 Zafrullah Khan n 21 p 40 39 James P Piscatori Human Rights in Islamic Politİcal Culture in Kenneth W

Thompson (ed) The Moral Imperatives of Human Rights A World Survey Washington DC 1980 p 149

40 In Lebanon Egypt and Morocco the woman ean insert in her marriage contract the right to divorce if her husband should take a second wife For adetailed objective and authoritative study of the legal rights and obligations of women both under the traditional Shariah and modern Islamic legislation See Jamal J Nasir The Status of Women Under Islamie Lawand Under Modern Islamie Legislation DordrechtLondon 1990


The basis of discrimination againts women is generalIy attributed to Quranic injunctionsverses Aliteral restrictive interpretation of these verses reduces women to a lower status Let us cite these verses Men stand superİor to women in that God has preferred the one over the other they have authority over the other they have authority over women because they spend theİr wealth to maintain them Good women are obedient As for those from whom you fear disobedience admonish them and send them to beds apart and beat them but if they obey you take no further action against them (Emphasis added) 41 Veiling of women is supported through verses 30-31 ofChapter 24 verse 53 amp 59 of Chapter 33

In the 7th century Arabia and other places women were economishycalIy dependent on men for their survival and security In such a social and historical context the Quranic pronouncement of mens superiority was rationalized Women then were considered as wards of men Applyshying his evolutionary principle of interpretation Ustadh Mahmoud Taha the leader of a reformist movement in Sudan who was executed by forshymer President Numeiri says that now the male guardianship over women should be terminated as women are no longer economicalIy dependent on men these days This verse should be set aside as having served its purpose and should not be applied to the contemporary societies42

bull

As regards the veiling it should be said that it was a pre -Islamic practice in many societies- from Greece to Persia and the Byzantine Empire One verse ofthe Quran telIs women to veil their bosoms and hide their ornaments Ornaments was later taken (by the early interpreters of Quran from Persia) to mean everything except the hands feet and perhaps the face though this interpretation makes no logical or linguistic sense In addition if everything was to be veiled there would be no point in ordering bosoms veiled separetely An other verse tells women to draw their clocks tightly round them so that they may be recognized and not annoyed And these are the only words taken to refer to veiling43

bull Thus it

41 The Quran Chapter 4 Verse 34 42 Abdullahi Ahmed An-Naim Toward an Islamic Reformation-Civil Liberties

Human Rights and International Law Syracuse NY 1990 p 180 43 Nikki R Keddie The Rights of Women İn Contemporary Islam in Leroy S

Rouner (ed) Human Rights and the Worlds Religions Notre Dame Indiana 1988 p 81


appears that the veiling and the harem system were later developments that arose in certain Muslim countries as a result of social conditions and local traditions Whatever are the causes of their development such practices have nothing to do with the principles of Islam44

bull

At this point it should be noted that during the time of the Prophet women in fact enjoyed high status Some even played significant role in war and military affairs In every one of the Prophets wars of conquest women worked along with men and succoured the wounded History records the heroic deeds of some ofthese brave women such as Umayyat bint al-Gafariyya whose courage at the time of the battle of Khaibar was praised by the Prophet After the victory the Prophet presented her w~th a necklace as a counterpart of the military decorations of our day She wore it throughout her life and it was buried with her in accordance with her wi1l45 it is also interesting to note that until the third century of the hijra and even later women enjoyed with men the right to pray in the mosque Khaliph Omar is said to have appointed a Quran reader specially for them at public workship46

Despite the low status of woman in Muslim society many writers argue that Islamic law considerably improved the position of women Though they do not deny that Islam does not speak of equality of both sexes in the strict sense of the term they try to justify the Islamic stand Speaking about this subject Al Mafregy writes Equality of sexes is conceived as the rights and duties of each sex as based on human nature The distinction between the sexes is based on naturallawand is justified in the Quran by the fact that the physical physiological biological and psychological make-up of men and women is different Normally the man who is stronger works outside the house and the woman in accordance with human nature is chiefly concerned with educating children and managing the household Each sex compliments the other men and women are not equal but are equivalent in that they have particular functions47 From the Islamic point of vİew writes another

44 Ali Abdel Vahid Wafi The Problem of Human Rights in the Islamic Tradition UNESCO Round Table Meeting on Human Rights 1965 Reprinted İn Human Rights Teaching Paris Vol 1 No 1979 p 40

45 Ibid 46 Reuben Levy The Social Structure of Islam Cambridge 1957 p 126 47 ıhsan Hamid Al-Mafregy Islam and Human Rights Human Rights Teaching

Paris UNESCO Vol II No 1 1981 p 13


great contemporary scholar the question of equality of men and women is meaningless It is like discussing the equality of a rose and jasmine Each has certain duties and functions in accordanee with his or her nature and constitution48

Equality between muslims and Non-Muslims

In early Muslim states Jews and Christians were the religious mİnorities (dimmis) In exchange for paying poll tax (jizya) to the state they were allowed to follow their own laws of personal status to own property to travel without restriction (except in religious places) and to practice their own religion Some scholars justify the payment of poll tax because non-Muslims were exempted from military service and should therefore share the cost ofdefending the state49 But the fact was that they were not allowed to hold high ranking posts in military as well as government as their loyalty to Muslim state was in doubt Non-Muslims were also prevented from marrying Muslim women whereas Muslim males were allowed to marry Christian and Jewish women In view of such restrictions imposed on the civil status of dimmis Khadduri comments that theyare considered as second class citizensso One Arab writer Mohd Tatat-al-GhunaymiS1

argues that theyare non-citizens in the Islamic polity

RIGHT TO LIFE AND DIGNITY OF PERSON

Islam is as emphatic as any other system in safeguarding the right to life The Quran provides many injunctions for this God says Do not kilI a soul which Allah has made sacred except through the due process of

48 Seyyed Hussein Nasr Ideals and Relatİes of Islam London 1966 p 112 49 One English writer gives several examples of Christian groups who were exempt

from payment ofjizia in exchange of serving in Muslim armİes T Arnold The Preaching of Islam 1913 cited in Abdullahİ Ahmad An-Naim Islamic Law International Relations And Human Rights Challenge and Response Cornell International Law Journal Vol 20 Summer 1987 p 331 This occurrence was rather exceptional and contrary to the predominant practice

50 Majid Khadduri War and Peace in Islam Baltimore 1955 pp 177 195-98 MK Nawaz The Concept of Human Rights in Islamic Law Howard Law Journal Vol 11 1965 pp 326-27

51 Cited in Piscatori n 39 p 146


law52 The sense of horror thought to be inspired against destroying human life may be gathered from Wherefrom We prescribed for the children of Israel that whosoever killed a person it shall be as if he had slaughtered all mankind and whoso secures the life of one it shall be as if he had secured the life of all mankind53

The law ofretaliation (Lexis talonis) in the case ofmurder however is recognized by Islamic law54 with origins in Mosaic and Roman law This law replaces the pre-Islamic acts of revenge It constitutes the private right of the victim and can only be exercised against the quilty person it is a public right in the sense that it is protected by the state in the interests ofsociel utility It is part ofboth the law ofman and the law of God since the victim is one of Gods subjects55

This law plays a major role in the Islamic panel code because its aim is to maintain a balance between the harmful act committed and the penalty infiictedwith no distinction being made on the ground of race or class This penalty is not easily enforced and may only be exercised where Muslim customs prevail and where a persons elementary needs have been satisfied

Two more verses of the Quran can be cited with regard to this right Suicide56 and infanticide57 are forbidden

FREEDOM FROM TORTURE AND INHUMAN TREATMENT

Generally all persons are entitled to fair and equal treatment and dignified behaviour without any discrimination

As we saw in the first section of this paper Islam has been severely criticized for certain harsh penalties which are sanctioned by Quran Since in the early days of Islam there was no system of prisons and since the independent reasoning ie Ijtihad was in a formatiye stage Quranic

52 The Quran Chapter 6 Verse ısı 53 Ibid Chapter 5 Verse 35 54 Ibid Chapter 2 Verse 175 55 Ibid Chapter 17 Verse 35 56 Ibid Chapter 4 Verse 30 57 Ibid Chapter 17 Verse 31 Chapter 81 Verses 9-10


verses were given literal interpretation especially the phrase cutting of hands a penalty prescribed for theft Modern scholars do not favour a strict or narrow interpretation of the terme On the basis of such interpretations in modern times most of the muslim states have prescribed a term ofimprisonment for thieves and the literalcutting off of hands is exacted in few states and in rare cases For this writes Zafrullah Khan former President of the International Court of Justice and a prominent Islamic scholar and statesman from Pakistan modern jurists and scholars have found justifications in canons of interpretation lt is interesting to note that Zafrullah Khan advances a new interpretshyationsabull To him the term aidee (hands in Arabic) has both a primary (physical) and a secondary connotation For instance Abraham Isaac and Jacob are described as possessing hands and eyesS9 which obviously means possessed of power and vision Aidee therefore might well connote strength or capacity

The word Qata (cutting off in Arabic) has also a secondary connotation ie circumscribing the use of For instance qataal lisan (cutting off of the tongue) means imposin3 silence upon or circumsshycribing or prohibiting their use of speech

Thus cutting oIT hands would have the secondary connotation circumscribing their capacity or activity or prohibiting their free movement In this context the following examples of the use of gata or its derivatives may be of interest

Those who break tho covenant of Allah after having established it and cut asunder what Allah has bidden to be joined60 meaning those who are not mindful of the ties of kinship

Would you then if you are placed in authority create disorder in the land and cl1t off your wombs61 that is to say severe your ties of kinship

This building of theirs which they have built will ever continue to be a source of disquiet in their hearts unless their hearts be cut to

58 Khan n 21 pp 74-76 59 The Quran Chapter 38 Verse 48 60 Ibid Chapter 2 verse 28 61 Ibid Chapter 47 verse 23


pieces62 that is to say till their hearts become incapable of feeling

Of the people of Lot it is said Do you indeed come lustfully to men and cut offthe highway63 that is to imply destroy its security and thus make it unsafe for travellers

Even when Qata is used in the literal sense it does not necessarily mean complete severing it is said ofthe women of Egypt when they saw him (Josehp) they thought highly of him and cut their hands (gattana aideeahunna) and said Allah be glorified64 and when Joseph was summoned to the presence ofthe King he said to the messenger Go back to thy Lord and ask him how fair the women who cut their hands65

Zafrullah Khans thesis appears to be more convincing Moreover the Quranic text which prescribes cutting ofhands for the erime oftheft (under chapter 5 verses 39-39) Cıearly states that the culprit should be given a change of seeking Divine forgiveness ifhe is deprived of his hand straightway the forgiveness clause in the Quran would appear to be meaningless Therefore most commentators have inferred from this verse that hands can be severed only as an extreme punishment and that too when the erime is committed third time Also what is significant is that the erime should be examined in the context of the total situation and the actual motivation of the ciriminal before passing a judgement it is worth recalling an incident which supports the above inference when Khaliph Umar onee refused to sever the hand of a thief on the ground that he had been deprived of foo d for several days66

Asimilar kind of argument is advanced by another writer with regard to theft Jamal Kwaja says when the principle of commutation is applicable to the penalty for murder67 why should it not be applied to the penalty of theft Depriving a person of his life is a much greater evil than

62 Ibid Chapter 9 verse 110 63 Ibid Chapter 29 verse 30 64 Ibid Chapter 12 verse 32 65 Ibid Chapter 12 verse 51 66 Cited İn Jamal Khwaja Quest for Islam - A Philosophers Approach New Delhi

1977 pp 223-24 67 The Quran provides the penalty ofdeath sentenee for homoeide or the paymeİlt of

blood money (eompensation) if the relatİves of the vietim do not demand retaliation See the Quran Chapter II Verses 178-79 and Chapter IV verse 92


depriving him of his property and if commutation applies to the greater erime ie murder it should also apply to the lesser İe theft 68

Therefore the need of the hour İs to attempt more rational interpretatİons of the Quran as done above by Zafrullah Khan and Jamal Khwaja with regard to other types of offences wlere Quran prescribed flogging for those quilty of adultery and fornication69

bull However it is encouraging to note that in most of the Muslim states cutting of hands and flogging are no longer practiced today except in Saudi Arabia Nevertheless from an historical perspective the practice of such punishments in Muslim states for many centuries should not be considered as harsh The history of no legal system is free from such hard punishments Thus İn England theft of property worth more than a shilling was classified as felony and like every other felony was punished with death upto as Iate as 1861 7deg

FREEDOM FROM SLA VERY AND FORCED LABOUR

The institution of slavery is older than Islam it is also part of ancient wisdom of Athens Sparta and Rome it flourished during the period of European colonialism After the occupation of Amerİca and the West Indies for 350 years traffic in slave-trade continued During onlyone century (from 1680 to 1786) the total number of free people who were captured and enslaved only for British colonİes amounts according to the estimate of British authors to 20 million human beings71

bull

68 Khwaja n 66 pp 223-24 69 See The Quran Chapter 24 verses 3-5 The Quran talks of only flogging for these

crimes whereas Sunna prescribed stoning (which generally leads to death) Prophets practice appears to contradict Quranic prescrİption it İs narrated that the Prophet ordered stonİng punİshment İn four cases in one of whİch a Jewish couple was İnvolved Since Torah and prescrİbed stoning to death as penalty for adultery the Jewİsh couple was punished according to theİr law it is not clear İn other three cases who were also stoned whether it was carried out before or after the prescription of 100 lashes was revealed in Chapter 24 ofthe Quran See El-Awa n 26 pp 15-17

70 Khan n 21 74 For many centurİes İn British law capital punİshment was appIİcable to many crİmes includİng for some petty crİmes such as rape horse sheep and catte stealing house breaking stealing of letters by servants of the Post Office etc See Leon Rodzinowİcz A History of English Criminal Lawand its Administration from 1750 Vol 4 London 1968 pp 303-40

71 Mawdudİ n 4 p 20

124 TURKISH YEARBDDK OF HUMAN RIGHTS

Islam has been criticized for not outlawing slavery Same writers even argue that it sanctions slavery This criticism is unjustified as the following analysis shows

Though in pre-Islamic Arabia slavery flourished unchecked and the lot of theslave was miserable Prophet Mohammad (who surprisingly) never owned a slave in his whole life In fact he freed many slaves of Khadeeja his first wife when she placed all that she possessed at his disposaL Thousands of prophetic traditions compel Muslims to treat their slaves with humane feelings and with love

One of the major sources of slavery was the people captured in war which was fought in defence of their consciencereligion In exchange of ransam or Muslim prisoners the slaves were set free In many cases prisoners ofWar were released without exchange or ransam as amatter of favour Ransam could be very light After the battle of Badr it was announced that the ransam of a literate prisoner would be that he should teach the alphabet to ten Muslim children

Since there was no regular army during those days and warriors were not paid regularly they could only get by way of compensation out of spoils gained on the battle field such thines as arms armour camels horses and the ransam paid for POW Sametimes the prisoners were given to warriors as slaves That is how slavery continued in Muslim states However Shariah took a number of measures to limit its practice In fact it abolished six of the main kinds of slavery enslavement of captives taken in a civil war or a war between two beHeying nations enslavement resulting from piracy and the abduction of free men slavery as a punishment for certain crimes enslavement of debtors slavery resulting from a fathers right to sell his children as slaves and slavery resulting from amans right to sell himself 72

Islam retained only two of all the sources of slavery -hereditary enslavement of the children of a slave- woman and enslavement of prisoners taken in a lawful war against anather nation steps have been taken to hasten the process of removing even these two forms of slavery73

72 Wafi n 32 p 41 73 Ibid


One of the measures designed to restrict hereditary slavery was the provision that children born of a union between a master and his own slave should not be slaves Islam proCıaimed that such offsprings were born legally free and were entitled to take the civil status of their father According to one Arab scholar if we consider the fact that most of the children of female slaves were the offspring of the masters themselves -since the sole object of rich men in acquiring slaves was to satisfy their own desires- we shall realize the importance of this measure designed to restrict hereditary slavery which Islam alone of all legal systems that permitted slavery ordained The consequence was that this type of slavery soon died out74 No doubt this scholar is fair in praising the steps that Islam has taken to dry up the very source of slavery but what he has failed to realize (indeed Islam too) is the fact that sexual exploitation of female slaves amounts not only to their inhuman treatment but also to in this writers view the offence offornication which Islam doesnt tolerate at any cost

To restrict the second type of slavery many conditions were set for waging lawful war -only in self- defense Even if a war is lawful Islam does not stipulate that prisoners shall necessarily be enslaved it allowed the authorities concerned to pardon captives freely or to set them free in return for ransom in the form of either money or work or in exchange for Muslim prisoners In fact the Quran does not even mention enslavement as one of the permissible ways in which military authorities may treat prisoners it mentions only pardon and ransom It says set them free as a favour or ransom75 One can discern from the practice of the Prophet that he always preferred pardon and ransom Islam in fact did not reshygard enslavement as a necessary consequence of capture but only as one of the measures open to the authorities with preference always going to pardon and ransom Moreover it did not permit the enslavement except under certain conditions which were fulfilled only in the battles that Islam was obliged to fight in the early days Once Islam took firm roots on the ground and had established stable relations with neighbouring countries those conditions became increasingly uncommon In other words Wafi concludes Islam maintained this source of slavery only for a relatively short span of time its attitude towards it therefore was the

74 Ibid pp 41-42 75 The Quran Chapter 74 verse 4


same as its attitude towards hereditary slavery In both cases the restrictions imposed were such as to remove the sources of slavery76

Nevertheless it should be pointed out that Shariah opened up the door to freedom of the slaves more widely In pre-Islamic period emancipation was practically impossible But with the rise of Islam Shariah introduced numerous opportunities to gain the freedom of slaves and provided methods of their emancipation some of which would of themselves suffice to destroy the institution of slavery in a short time Wafi discusses eight such methods in detaip7 but here we are explaining two of the most important methods

Quran stipulated that slaves must be set free in expiation for a number of common faults and sins78 and regarded their voluntary emancipation as a most praiseworthy religious act and the best way of gaining Gods favour19bull

Shariah set aside part of the Zakat (the alms tax) for buying the freedom of slaves and helping those who needed monetary assistance to secure their freedom from their masters (provided the master is agreeing to free him on the payment of some money)80 Moreover the Shariah prescribed that the slaves be treated with kindness and dignity by their masters The Quran in fact permitted slave man to marry a slave woman or the male and female slaves were allowed to marry other slaves or free men - the laws governing the marriages and divorce were same as in the

81marriages of free men Thus Shariah tried to improve the lot of the slaves The only reason wihy it permitted slavery was because of overriding socioeconomic conditions of the time It was anticipated that gradually it would die down but the hereditary slavery continued till recently in some Muslim states

RIGHT TO LIBERTY AND FREEDOM FROM ARBITRARY DETENTION

Inferred from the Sunna by Imam Khattabi and Imam Abu Yusuf a tradition is reported by Abu Daud to the effect that some persons were

76 Wafi n 32 p 42Wafi n 32 p 42 77 lbid pp 42-43 78 The Quran Chapter 4 verse 92 Chapter 5 verse 89 and Chapter 58 verse 3 79 lbid Chapter 90 verses 11-13 80 This principle is enjoined in the Quran Chapter 9 verse 60 81 The Quran Chapter 24 verse 32


arrested on suspicion in Medina during the Prophet Mohammads times Subsequently while the Prophet was delivering the Friday sermon a companion enquired of him as to why and on what grounds had these persons been arrested The Prophet maintained sitence while the question was repeated twice thus giying an opportunity to the prosecutor who was present there to explain the position When the question was put for the third time and it again failed to elicit a reply from the prosecutor Prophet ordored that those persons should be released On the basis of this tradition Imam Khattabi argues that Islam recognizes only two kinds of detention Under the orders from the court and for the purpose of investigation There is no other ground on which a person can be deprived of his liberty From this it follows that noone can be imprisoned on false and unproved charges Khaliph Omer is reported to have said In Islam noone can be imprisoned without due course of justice82 Thus in the light of above traditions it can be said that in no way does Islamic teaching justify arbitrary detention

THE FREEDOM OF OPlNION AND EXPRESSION

This right implies that the believer is under an obligation to speak out truth without fear or favour On religious matters one possesses the right of Ijtihad within the limits ofcertain framework without challenging the bases or fundamentals of the religion On the other hand in worldly matters one enjoys complete freedom of opinion and expression Once Mohammed said (lfl give you an order concerning your religion obey it but ifl give you an order which is the fruit ofmy opinion remember that i am but a human being (implying that his opinion may go wrong) and you know your own affairs better than i dO83 One more illustrative anecdote can be offered On being asked whether Mohammads plan for the battle ofAl Khandaq was divinely inspired or his own idea he admitted that the battleplan was the result ofhis own thinking and therefore he was willing to change the plan on the advice of others84 This incident reveals that Islam has respect for such civil and political liberties as individual freedom of expression and non-discrİmination

82 This incident and quotation of Omer is cited in Mawdudi n 4 p 28 83 Cited in Wahid Wafi n 32 p 39 84 Cited in John Warwİck Montgomery Human Rights and Human Dignity

Michigan 1986 p 116


The right of freedom of opinion and expression was put to severe test with the publication of the novel Satanie Verses by Salman Rushdie which set in motion a debate whether Islam permits freedom of opinion and expression At the outset it must be said that Islam like any other legal system does not provide absolute rights All Rights are subject to reasonable limitationsrestrictions and the right of freedom of expresshysion is no exception8S

bull AIso the exercise of one right is dependent on the other When we look at Salman Rushdies case86 we are bound to argue that his unlimited exercise of the right of freedom of expressİon has landed him in the dark solitary world (he is İn hiding since February 1989) Has not this cost him dearly his other right Le right to freedom of movement (which he is badly in need of) Ever since Ayatullah Khomeini pronounced death decree on him his right to life is endangered His political and civil rights are affected (as he cannot contest election or address public gatherings) In sum most of his rights have become meashyningless

Whatever little support earlier he enjoyed among his Western supporters his recoversİon to Islam (in December 1990) has enabled some of his liberal friends to abandon him once for allB7

84 Cited in John Warwiek Montgomery Human Rights and Human Dignity Michigan 1986 p 116

85 For an exeellent and th(jmght-provoking analysis of the eoneept of freedom in Islam see Seyyed Hosseİn Nasr The Coneept and Reality of Freedom in Islam and Islamie Civilization in Alan S Rosenbaum (ed) The Philosophy of Human Rights International Perspeetive Westport Conn 1980 pp 95-101

86 For various other agruments on the eontroversy of Satanie Verses see Ali A Mazrui The Satanie Verses or a Satanie Novel Moral Dilemmas ofthe Rushdİe Affair (based on a leeture deliyered at Cornell University Ithaea New York) Alternatives New DelhilNew York Vol 151990 pp 97-121 James Piseatori The Rushdie Affair and the Politics of Ambiguity International Affairs London Vol 66 No 4 1990 pp 767 -89 Peter Jones Respeeting Beliefs and Rebuking Rushdie British Journal of Politieal Seienee Vol 20 pp 415-37 SJD Green Beyond Satanie Verses - Conservative Religion and the Liberal Soeiety Eneounter June 1990 pp 12-20 Abdulrahim P Vijapur The Rushdie Affeİr A Human Rights Perspeetive The Muslim World League Journal Meeea Vol 21 No 4 Oetober 1993 pp 51-53 Malise Ruthven A Satanie Affair Salman Rushdie and the Rage ofislam London 1990 For Salman Rushdies defense see his two booklets In Good Faith and In Nothing Sacred both published by GRANTA in London in 1990

87 Dina VakiL The Satanie Reverses New Chapter İn Rushdie Affair Times of India January 10 1991

129 THE ISLAMIC CONCEPT OF HUMAN RlGHTS

FREEDOM OF THOUGHT CONSIENCE AND RELIGION

Many Quranic verses dedare that there is no compulsion in religion88

bull Islam requires every believer to respect and develop the spirit of religious tolerance with regard to other faiths especially of Jews and Christians Once Islam is professed in exercise of ones freedom of religion renouncing it is considered as apostasy89 Undoubtedly this contradicts the UN standards which recognize every persons right to change ones religion This rule is said to have emerged from a historic incident which was the result of an armed conflict between the Arabs of Medina city and the Jewish refugees The Jews then thought to let some of them join Islam and then renounce it in order to make the Arabs suspect their religion and be misled Since this principle of prohibiting a Muslim to change ones religion contradicts with the International Bill the Saudi Government justifies its non-acceptance of the International bill90

bull

POLITICAL RIGHTSPARTICIPATION

Islam permits the citizens of a Muslim state to participate in the affairs of the state They can criticize the governmentrulers if they

88 The Quran Chapter 2 verse 256 89 It should be noted that Iate Ayatuıtah Khomeinis pronouncement of death

sentence against Rushdie was for his erime of aposmsy rather than blasphemy His unilateral pronouncement is against Shariah which prescribes a proper trial of the convict giving him a chance to defend himself In this case no trial was held Moreover the Quran (in its verses 217 ofChapter II 90-91 of Chapter III 54 of Chapter V 106 of Chapter 16) categorically states that punishment for apostasy has to be carried out in the life hereafter ie in the next life implying that God will punish the apostate after hislher death In Prophetic traditions there is lot of controversy and ambiguity with regard to applying death penalty for apostasy On this point see EI-Awa n 26 pp 51-58 it is also interesting to note that the European Commission on Human Rights decided against the admissibility of Salman Rushdie case Which alleged the violation of Artides 9 and 14 of the European Convention with regard to the Muslims of UK For the full text of Commissions decision of 5 March 1991 Application no 1743990-Choudhary v UK See Human Rights Law Jounıal Vol 12 No 41991 pp 172-73

90 The Saudi delegate abstained from the voting on the Universal Dedaration on the ground that its Art 18 contradicts Islamic Law which forbids a Muslim to change his faith For his statement see lJN GAOR Third Committee 127th Mtg pp 391-92 (AC3SR127) On 13 May 1969 Saudi Government submitted to the UN Commİssion ofHuman Rights a detailed memorandum in which its objections and reservations to the UN Covenants was outlined For details of the document see Commİssions report for the year 1969

130 TURKISH YEARBOOK OF HUMAN RlGHTS

become corropt For this theyare not to be penalized but dissent is never tolerated in practice According to Shariah sovereignty in theory belongs to God Man is described as a vicarrepresentative of God on earthe Government according to the Quran must be based on Shura (Consultation) it implies that in practice sovereignty is vested with the entire community People can depose the head of the state if they no longer want him The first four Khalips were selected on the basis of popular consensus But unfortunately over the years the rulersiMuslim states did not aHow the early experiments of Shura to mature The subsequent Khalips did not adhere to the noble traditions set by first two Khalips ie Abu Bakr and Omar that the government must be democratic and that the polity must be based on principles of brotherhood equality and on a deep sense of moral responsibility

The are certain restrictions in the exercise ofpolitical rights First in a Muslim state no non-Muslim can become the head of the state though non-Muslims may hold key position in government This is understanshydable Second there is no specific authorization in Shariah of a woman heading the government Shariah does not explicitly provide any political rights to women But this tradition has been set aside in the Indian sub-continent where one finds a few examples contrary to this generally prevailing practice that women are not allowed to the statelgovernment In the 13th century the founder of Muslim Slave Dynasty in Delhi Iltumish had designated his daughter Razia to succeed him to the throne ho became the first Muslim womanqueen to role North India Benazir Bhutto in Pakistan and Khalida Zia in Bangladesh are two other recent examples

PROMOTION OF HUMAN RIGHTS IN THE ARAB WORLD

In response to the UN initiative the Arab League established a permanent Arab Commission on Human Rights in 1968 as a regional organization concerned with human rights The Commission held its first meeting in Cairo (March 1969) which was dominated by the Arab shyIsraeli conflict and the position of Arab population in the occupied territories At its second session the Commission established the work programme which was envisaged at three levels (i) At the national level the the commission invited the Member States to form the national commission on human rights with a view to cooperating with the regional


commission of the joint Arab action in the field ofhuman rights (ii) At the Arab level it proposed to coordinate the activities of the national commissions in individual Arab states and to help the UN ad-hoc group on occupied territories of Israel in its investigation (iii) At the world level its aims include appeal to humanitarİan principles and to internationallaw in order to arouse greater interest in the Arab cause to secure legitimacy for the struggle waged by the Palestinİans and the protection of holy places and archaelogical sites of Muslims91

bull

One of the significant achievements of the Arab Commission was that it prepared and adopted a draft Arab Declaration on human rights in July 1971 (though originaUy it was asked to prepare an Arab Charter of Human Rights) This draft declaration was submitted to Member States for their comments and subsequent adoption at the conference of Arab League While a number of states submitted comments on the draft not all took the opportunity to do S092 Regrettably even after twenty years of the adoption of the draft declaration (ie in 1991) the Arab Commission has so far not achieved any progress in drafting an Islamic Charter Convention on human rights The Arab reluctance which can be explashyined could be for two important reasons Fiı-st there is a lack of political wiU in the ruling elites of the Muslim states on the one hand and on the other they lack the much needed political unity due to different ideological and socioeconomic outlooks to have a unitary approach to human rights Second some conversative Arab states like Saudi Arabia and Oman consider that Islam is the only source of their national legislation (Saudi Arabia has no constitution) whereas other Muslim states consider Islam as merely a principal source of legislatıon (in the field of human rights or any other field)

it is encouraging to note that at a non-governmental level two attempts have been made to draft human rights documents First with the active interestsupport extended by the then UNESCOs Director shyGeneral Amada Mahtar M Bow himself a Muslim the European Islamic Council (composed of eminent Muslim scholars jurists and representashy

91 See B Boutros-Ghali The League of Arab States İn Karel Yasak (ed) The International Dimensİons of Human Rights Paris UNESCa 1982 p 578

92 See generally the reports submitted by the League of Arab States to the UN Sub-commissİon on Human Rights including ECN41089 (1971) ECN 41229 (1976) and ECN 41283 (1977)

132 TIJRKlSH YEARBOOK OF HUMAN mGHTS

tives of Islamic movements and thought) adopted the Universal Islaınic Declaration of Human Rights on 19 September 1981 Second under the auspices of the International Institute of Higher Studies in Criminal Sciences Siracuse (ltaly) a group of distinguished personalities and jurists from Arab Countries adopted (on 12 December 1986) the draft Charter on Human and Peoples Rights in the Arab World But unfortushynately none of these documents have received formal approval by the Arab Commission on Human Rights and the Arab League of States

SUMMARY OBSERVATIONS

No doubt there exists a concept of human rights in Islam but it is substantially different from the modern international law of human rights The traditional Shariah establishes only a restricted human rights regime Under classicalhistorical interpretation ofShanah some people are more equal than others in a Muslim state Under Shanah all the subjects of the State are classified in terms of gender and religion At the top of the hierarchy are Muslim men who enjoy the highest level of ci vii and political rights followed by Muslim women and non-Muslim minorities - the Jews and Christians Thus it appears that the non-Muslim in a Muslim state do not enjoy the same civil status as the Muslim males do Discrimination on the ground of religion and sex is not only not prohibited but sanctioned by Islamic law In fact it should be noted that none of the subjects including the Muslim men enjoy the full rights of a citizen in the modern sense of the term because under Shariah there is more stress on duties than rights as such

One finds many areas of conflict between Shanah and the universal standards of human rights especially with regard to its application of penallaw for certain crimes (such as adultery theft ete) exploitation (sexual) of female slaves right to marriage apostasy ete From our discussion of the nature and sources of Shariah it is very clear that the much needed reconciliation between the Islamic precepts and the UN standards of human rights can be achieved best by developing newand appropriate principles through reinterpretation and reformation of Shariah In fact the reformation modernization and rationalization of Shariah which has been forcefully argued throughout this study can not only enhance and reaffirm the universal valuerelevance ofIslam but also ameliorate its understanding of the concept of human rights


Nonetheless it is gratifying to note that no human right contained in the International Bill of Rights really contradicts Islamic precepts except with regard to certain rights and punishments noted above In fact Shariah has an excellent record of promoting its principle of universal brotherhood beyond racial barriers Unlike the other legal systems itdid not tolerate racial discrimination Moreover the fact that no Muslim state that has ratified UN Covenants has made any substantial reservation to the rights recognized therein (except one reservation which concerning Israel is made by some of them) confirms our inference that a justification can be reasoned out in Shariah for the International Bill

Notwithstanding these posıtıve aspects of ShaMah many Muslim states are reluctant to ratify the UN Covenants it can be said that by joining the UN human rights elub Muslim states gradually can come of age By participating in the UN procedures to promote human rights they can share their experiencesdifficulties with the peoples ofother cultures regions and religions In evolving UN law of human rights the Socialist states and the Third World have already challenged the Western domishynance by adding new dimensions to the concept it is now time for the Muslims to make their contribution to this ongoing process ofthought

HUMAN RIGHTS 15pdf


Optional Protocol to the ICCPR This state of affairs raises a much broader question is the internationallaw of human rights (as reflected in the international Covenants) incompatible with Islamic precepts and jurshyisprudence if not to what extent are there similarities in Islamic law and the UN law of human rights Why do some Muslim States find the inshyternational law of human rights unaccetableunsuitable to their socieshyties Is it true that Islam really has a concept ofhuman rights -as daimed by some Muslim scholars and countries- which is comparable ifnot equshyivalent to that ofthe contemporary internationallaw ofhuman rights

These and related questions are the subject of this paper Its focus is to attempt a theoretical discussion of these issues In doing so the discussion is limited only to some important civil and political rights as spelled out in ICCPR For reasons of space most of the rights recognized in ICESCR have been kept outside this framework which in no way should be considered less significant

On the question of human rights in Islam two divergent opinions prevail -representing two extreme and often contradictory positions One group of scholars3 hold that human rights have an important place in Islam Mawdudi a prominent scholar of Islam from the Indian subshycontinent argues that uIslam has laid down some universal fundamental rights for humanityas a whole which are to be observed and respected under all circumstances fundamental rights for every man by virtue of his status as a human being4

It has been contended that the basic concepts and principles of human rights had from the very beginning been embodied in Islamic law5bull

One scholar has even daimed that contemporary human rights doctrines merely give recognition to 1400-year old Islamic ideas In fact this recognition existed in a better and more perfect from in Islam than in any document ever enacted by lawgivers6

bull Some orthodox scholars also assert

3 These include Abul Ala Mawdudi Muzaffar-ud-Oin Nadvi and Sultan H Tabandeh

4 Abul Ala Mawdudi Human Rights in Islam Leicester 1970 p 10 5 Muzaffar-ud-Oin Nadvi Human Rights and Ohligation in the Light of the Koran

and Hadith Lahore 1966 pp 14-15 6 Sultan H Tabandeh A Muslim Commentary on the Universal Oeclaratİon of

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Michigan 1986 p 116













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HUMAN RIGHTS 15pdf



bull

















































bull






























Michigan 1986 p 116













bull













bull













HUMAN RIGHTS 15pdf












































bull






























Michigan 1986 p 116













bull













bull













HUMAN RIGHTS 15pdf


























Michigan 1986 p 116













bull













bull













HUMAN RIGHTS 15pdf













bull













bull













HUMAN RIGHTS 15pdf








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HUMAN RIGHTS 15pdf









HUMAN RIGHTS 15pdf

Abdulrahim P. VUAPUR* THE ISLAMIC CONCEPT OF HUMAN RIGHTS AND THE INTERNATIONAL BILL OF RIGHTS: THE...

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Transcript of Abdulrahim P. VUAPUR* THE ISLAMIC CONCEPT OF HUMAN RIGHTS AND THE INTERNATIONAL BILL OF RIGHTS: THE...