Women, the Quran and human rights

By Mushir Anwar

An exhaustive research study by a Pakistani scholar, human rights and peace activist and lawyer, Dr Niaz A. Shah, titled Women, the Koran and International Human Rights Law, published recently, establishes that the statutory Islamic laws of Pakistan are based on an out-of-context interpretation of the Quran as well as international human rights standards. It also asserts that the international human rights regime is gendered and should accommodate the valid concerns of cultural relativists and feminists and address issues specific to women’s humanness. The study focuses on the equality rights of women in the Quran, the statutory Islamic law of Pakistan and compares these with international human rights standards attempting to find a common understanding between the two systems.

Shah argues that the statutory Islamic laws of Pakistan discriminate against women in the areas of criminal law and the law of personal status. These laws conflict with the Quran as well as the 1973 Constitution and international human rights law and, therefore, need to be reformed through judicial ijtihad in accordance with the contextual interpretation of the Quran to bring them into line, first with the spirit of the Book and second, to achieve greater compatibility with international human rights standards. He holds that reformation of laws to meet the exigencies of a given society is a well established principle of Islamic law and that the door of ijtihad is open to those to whom such authority is delegated. He thinks that most judges in Pakistan fulfil the Islamic criterion of mujtahid for carrying out ijtihad, specifically the judges of the Federal Shariat Court.

The study examines the different approaches and reactions to human rights law that one comes across in the Islamic world. First the opinion of those who think that human rights are compatible with Islam; second, those who hold the opposite view and third those who believe that true human rights can only be realised under Islam; fourth, those who regard the human rights concept as an imperialist agenda or even a hidden plot against religion. These schools of thought constitute what Shah labels as the secular, the non-compatible, the reconciliatory and the interpretative approaches. He adopts the interpretative approach in this study as he regards it as an Islamic approach being an internal evolutionary method, not an alien imposition. This approach provides answers to the challenges posed by Islamic relativists who argue that every culture and religion has its own rights system and supports the universalists’ position through reconciliation with the international standards. The foremost advantage of this approach, according to Shah, is its workability as Islamic law can be reformed through ijtihad.

The scope of women’s rights in Islam is studied with reference to Islam’s early history and the status of women in 7th century Arab society, the reforms that Islam introduced and whether as a result of these reforms the women were able to enjoy an equal status. This evaluation is the focus of the book in its first part which also looks at how Islamic law evolved as Islam spread beyond Arabia and the external factors that shaped its growth. The practice of ijtihad in that formative period also receives close attention in this section. Shah says that the process of Quranic reforms demonstrates pragmatism and gradualism. It reflects the intention of the Quran to liberate and uplift the status of women in society. The evolution of Islamic law exhibits two trends very clearly: its inherent dynamism and adaptation to new circumstances and its assimilation of external elements.

In part two of the book Shah reverts to Pakistan to examine its legal system as a case study, investigating the politicisation of religion in the process of legislation generally and the so-called process of Islamisation during the regime of Gen Ziaul Haque. Constitutional provisions relating to women, law of personal status and criminal law are analysed to find out the Quranic position and how the superior courts interpret and apply them and how that impacts women’s rights. The politics of Islamisation, adoption of conservative interpretation of legal norms and the prevailing gender prejudices are all shown interacting to turn law into an instrument of women’s victimisation. Though the equality clause of the constitution is the bedrock of the doctrine of equality and anti-discrimination, several legislative decisions are shown to discriminate against women. Shah also questions Pakistan’s vague declaration to the Women’s Convention and terms it as both untenable and unwarranted when both the Constitution and the superior judiciary’s interpretation of the Quranic concept of gender equality match human rights norms. He commends the corrective role of the Federal Shariat Court on the abusive application of Hudood laws by trial courts although, he complains, it has generally refrained from using its powers to engage in active judicial ijtihad. In the case of family law Shah points to its conflicting and inconsistent interpretation and application which has created confusion in some areas to the disadvantage of both men and women.

The last part of the book analyses international human rights instruments and their claim to universal application in the light of challenges posed by cultural relativism and feminism. These standards are compared with the Islamic laws of Pakistan and the norms that Quran sets in its contextual interpretation to see where the areas of conflict lie. Conflict, however, is certain if conservative and non-contextual interpretations are applied. On the other hand the universalists have to refrain from imposing their standards on the rest of the world while relativists could do without justifying breaches in the name of cultural traditions.

Shah warns that if the West kept on stressing what it thought were the right ‘right standards’, violations and oppression instead of compliance and protection would continue. He prescribes a two-pronged strategy to make normative changes, particularly in the women’s rights regime. First, the women’s Convention which is not free from cultural biases should be made receptive to women’s rights norms from particularly non-western cultures. Second, the scope of the Convention should be extended to encompass issues of specific concern to women such as abortion, marital rape, domestic violence, pornography etc.

Niaz A. Shah’s book is a work of exceptional merit for its thoroughly researched analyses, its balanced views, broad outlook and intellectual integrity. It is a must read for those who wish to have a sound perspective on women’s rights issue in Pakistan. It has not received the kind of intellectual response in his home country as it should have, given the hot issue women’s rights has become but its value as serious literature on Muslim women’s struggle for gender equality and against social oppression will grow with time.

Dr Shah who teaches law at the University of Hull was a more familiar name in Pakistan when he wrote a series of articles on human rights and peace issues as Niaz Ali Shah Kakakhel, and when as a young lawyer he volunteered to defend noted intellectual and activist M. Shujaullah, then HRCP administrator, in a high treason case brought against him by bomb zealots for organising a rally on Hiroshima Day. Currently he is writing a monograph on Self-defence in Islamic and International Law: Assessing Al-Qaeda and Iraq Invasion 2003.

Democrats’ move against Pakistan ill-timed

Sindhi-language newspapers gave an exhaustive coverage last week to the recent moves by the Democrats in the US Congress to make things difficult for Pakistan at a time when the two countries need each other to sustain the 'war on terror’.

The daily Ibrat, in comments on the bill proposing to link assistance to Pakistan with a presidential certificate regarding ties with the Taliban, says the bill would affect Pakistan-US relations as it also calls for the handover of nuclear scientist Dr Abdul Qadeer.

The Ibrat likens the Democrat-sponsored legislation to the Pressler amendment, which had blocked US assistance to Pakistan after the Soviet withdrawal from Afghanistan. The newspaper urges Islamabad to take a 'bold stand’ on the issue.

The daily Kawish and Hilal-i-Pakistan oppose the decision of the cabinet’s economic coordination committee on the sale of 1,423 acres of Pakistan Steel Mills land. The newspapers point out that the matter is sub judice as the Supreme Court has taken up a review petition against its verdict declaring the PSM’s privatisation null and void.

The Hilal-i-Pakistan recalls that during hearings in the privatisation case, the higher courts had made an observation that the land excluded from the deal was the Sindh government’s property.

During the 1970s, the Sindh government had allocated the land to the PSM after paying a meagre compensation to villagers. Although the price of the land is running into billions, it is being gifted to capitalists for ridiculously low sums, the daily alleges.

The Hilal-i-Pakistan also criticises the sale by a number of government organisations of plots given to them for a specific purpose. It calls upon the government to ensure that such plots are used for the purpose they were given to the departments.

The newspaper cites the Railways decision to sell land earmarked for improvement and expansion of the rail network. The Hilal-i-Pakistan terms the action institutionalised land-grabbing.

The daily Koshish editorialises on an incident in Gambat in which a jirga (tribal council) ordered the 'sale’ of two women after declaring them karis.

The Koshish deplores the indifference of the police, pointing out that it did not bother to intervene even though the jirga had taken the decision a month ago.

Even the councillors and nazims remained unmoved, the newspaper laments. “The police filed a case after the incident, but it was too little too late.”

Three newspapers — Ibrat, Kawish, and Awami Awaz — criticise the recent observations of the Indus River System Authority (IRSA) that owing to the 'negligence’ of Wapda and the Sindh and Punjab governments, 200,000 MAF of water is released into the seas and wasted.

The dailies argue that the release of water downstream Kotri is not a wastage because Kotri is not a delta. “There are people and animals who live on the water released downstream Kotri.”

The daily Kawish focuses on a new menace spreading its tentacles in the province -- businessmen, feudal lords, retired and serving officers are advancing loans on exorbitant interest rates.

Most of the debtors have no alternative but to dispose of their properties to keep the loan sharks at bay, Kawish observes.

The analyst wonders how these moneylenders are running business on such a large scale without paying anything by way of income tax.

The Kawish calls upon the government to crack down on 'the parasites’ and take steps to rescue the debtors from their clutches.

Magistrates, inflation go side by side

CITIZENS were expecting some relief when the government had delegated magisterial powers to officers for keeping a wary eye on price hike, hoarding and profiteering in August last year. But the masses soon realised that they had no respite from sky-rocketing prices of commodities as the officers were reluctant to lay hand on big guns and were only interested in netting the retailers.

Following introduction of the devolution of powers plan, the government had squeezed powers of magistrates that led to inflation and hoarding. However after scathing criticism by the people at large, the government had restored magisterial powers of the checking teams and designated officers to work under the supervision of district coordination officers (DCOs).

Sources said before getting the authority, the City District Government Faisalabad (CDG-F) had been clamouring that officials could not control price hike or arrest any hoarder in the absence of magisterial powers. When responsibilities were rested on their shoulders, officers acted lethargically and never made their presence felt in markets to check profiteering. They even fell short of initiating any campaign against exploiters to check the growing inflation.

They said a relatively quiescent bureaucracy had virtually allowed the hoarders to fleece the public at their own sweet will. Magistrates had restricted themselves only to arresting small retailers to show their 'effectiveness.’ Consumers are of the view that the bureaucracy should plan a massive crackdown on giant hoarders to provide a much-needed relief to masses.

Prices fixed by the district price control committee are being violated with impunity, making a mockery of magisterial powers delegated to officers. Most magistrates asked only their subordinates to conduct raids and fine shopkeepers so as to liable them to submit their progress reports to high-ups, the sources said.

They said the pathetic performance of magistrates had made consumers to 'accept’ perpetual increase in prices of kitchen items, including onion, potato, gram pulse, sugar, flour, bread, milk, yogurt, beef and mutton, as stakeholders had been taking a full advantage of the situation. With no fear of magistrates, they said, shopkeepers arbitrarily raised the rates of almost all commodities.

They said the price checking teams showed their 'commitment and dedication’ only during Ramazan.

During the last six months, they said the CDG-F had recovered Rs2.2 million as fine from 4,842 profiteers. Only 64 FIRs were registered and 15 violators arrested.

Unfortunately, the representative body which has been assigned the task to safeguard consumers’ interests in the city is entirely inactive and its members are only enjoying their protocol.

A magistrate said they were fully committed to eliminate the scourge of price hike and hoarding, but the task could not be achieved without empowering them permanently.

“If the government wants to make a significant success in its campaign against profiteering, it will have to empower magistrates to take action against the police for not extending cooperation to magistrates,” he said.

The magistrate said SHOs showed no interest in deputing their subordinates for raids and often refused magistrates to send any constable with them. He said fighting the mafia indulged in profiteering required strong coordination between the police and magistrates.

The officer said although proposals to lessen financial burden on masses had been forwarded to the government, he believed that suggestions would get a lukewarm response.

A senior officer said even the Prime Minister’s Committee on Prices (PMCP) had failed to control inflation. He said the committee was constituted to tackle the price spiral in response to growing anger of citizens. He said the 12-member committee had been given the assignment to monitor prices of consumer items in the country by keeping a close look at the demand and supply situation.

He said the performance of this committee, comprising ministers, bureaucrats and MNAs, was best known to the government.