Muhammad Khalid Masud

The significant contribution of the legal and religious traditions towards the ideas of human dignity, justice, individual accountability, protection of basic rights, rule of law, ratiocination and freedom of consciousness cannot be overstressed. Arguably, it is the legal and social constructions in these areas that paved the way for the monumental progress in international law especially on human rights. Ignoring this contribution human rights lawyers have come to regard religious and local laws as antinomic and incompatible with international law. Recent studies on the nature of international law, sovereignty of states, constitutions, universality and ownership of human rights of human rights, social change through law reforms, and human rights as cultural constructs for gaining global supremacy or resisting globalization have exposed the paradoxical side of the thesis of antinomy. In my view, rather than antinomy these issues suggest an epistemological crisis in current legal thinking. Let me illustrate it with the example of debates about sovereignty. The Universal Declaration of Human Rights 1948 and subsequent conventions are treaties under international law signed and ratified by sovereign states. Some of the signatory countries added reservations to their ratifications, which have lately become debatable in international law studies. Pakistan, for instance, has been asked to withdraw her reservations and even to make amendments in the constitution. It is significant that some experts like Ryan Goodmani suggest that the signatory states are bound to abide by these treaties despite these reservations. This legal view has brought the concept of sovereignty of state into question.

SOVEREIGNTY

Goodman argues that the cardinal principle is that no reservation can be made to a treaty which is contrary to the purpose of treaty. The problem, however, is about the legal remedy for a reservation which is determined invalid. International lawyers have suggested three options. First, the state remains bound to the treaty except for the provision(s) to which the reservation is related. Second, the invalid reservation nullifies ratification as a whole and thus the state is no longer a party to the treaty. Third, an invalid reservation can be severed from the instrument of ratification such that the state remains bound to the treaty including the provision(s) to which the reservation related. Those who oppose the third option argue that a state cannot be bound by treaty terms that it specifically declined to accept. Goodman suggests that third option is not for the signatory state; it is for a third-party institution (e.g., a domestic court, a national human rights commission, a regional court, the International Court of Justice, a treaty body) to adopt this option after having found a reservation invalid. In his view, this option should be the optimal remedy. Goodman’s explanation touches upon the notions of antinomy, but more importantly on the changing epistemology in current legal thinking on sovereignty. His concluding remarks are worth quoting in his own words: The current severability debate has been characterized by an antinomy common to public international law arguments: the imposition of multilateral agreements (especially human rights treaties) versus the interests of sovereignty and state consent. The tendency to think in these terms can be traced to conventional concerns about the penetration of international law into areas of domestic governance and more recent concerns about the erosion of the nation-state’s power and autonomy caused by globalization. … Recent scholarship has revealed how weaker conceptions of sovereignty existed during and ever since the creation of the Westphalian state. Moreover, other scholars have begun to discuss the need to integrate commitments to international rights and multilateralism with a genuine commitment to sovereignty and state consent. In a sense, much of the international relations scholarship discussed above, by identifying dynamic reasons that states choose to bind themselves to international agreements, points in the same directionii. If international law experts find sovereignty of nation-state problematic for the applicability of human rights, Muslim religious scholars insist that this sovereignty negates Divine sovereignty. In fact both views are finding the concept paradoxical because they are using the terms from different epistemological perspectives. The present legal construct of sovereignty is a product of legal positivism that required an all powerful institution of state to command obedience of the people by use of sanctions and punishments for disobedience. The epistemological perspective of rights places more emphasis on the autonomy of self and his or her volition. Similarly, in a global situation international law must preserve the notion of sovereignty of individual states and honor the significance of voluntary consent of the signatories in order to prevent powerful states from exploiting the situation. According to this new epistemology, sovereignty would simply mean collective will of the people of a country who empower a state to legislate and enforce law and order in the country as well as to sign treaties with other states and bind its people to international laws. Whether it is in reference to state or is to an individual human being, the intent and consent would be meaningless without sovereignty to will. Sovereignty also loses its significance when it is defined in terms of supremacy and coercion. Rationalizing obedience to law in terms of sanctions and punishments suggests a simplistic view of the normativity of law. The issue of sovereignty is extremely complex with reference to Muslim state. Let me first explain the historical context. Some of the Muslim countries had recently gained independence and were going through the process of nation building in 1948 when the Declaration of Human Rights came up for signature. They were still in the process of formation of nation-states when they ratified most of the other UN conventions during 1960-1970s. National identities underscored the ideas of political and cultural sovereignty in framing constitutions and reforming colonial laws. Even though these countries suffered from weak governance, social injustice and dictatorial regimes, the masses were happy with recently gained autonomy. The ideas of law reforms, national sovereignty and economic justice kept the enthusiasm for individual human rights alive. It was during 1960-70 that reforms in family laws, judicial systems, education, and other areas were undertaken. The reform process was opposed by powerful conservative groups. Sovereignty of state was naturally conceived in terms of power and supremacy. In these circumstances, dictatorial regimes dominated the political stage. When faced with political crisis, democratically weak governments had no choice but to win support of the powerful and the conservative, especially the religious groups and left the reform process often unfinished. The religious groups were quick to grab this opportunity for the sake of power even as pressure groups. These groups opposed these reforms continuously mainly pleading antinomy between the Western and Islamic laws and called for uncompromising principles of Sovereignty of God and supremacy of Shari’ah. The intellectual debates revolved around whether sovereignty belonged to the people or to God. The 1973 constitution of Pakistan suggested a theological synthesis between the sovereignty of people and sovereignty of God on the basis of the Qur’anic description of human agency as God’s khalifa. The constitution defined state to be based on the political sovereignty of people delegated to them as agents of God. The constitution declared Islam to be the state religion and provided for Islamic provisions to regulate Islamic laws in the country. Legislation, a function of parliament, was governed by what later came to be known as repugnancy clause: no law could be made contrary to the Qur’an and Sunna. The repugnancy clause is grounded on the principle of ‘liberty’ (ibahah) that presumes things lawful unless forbidden by law. The Council of Islamic Ideology was constituted to review the existing laws in the light of this constitutional provision. It completed reviews of laws existing since 1726 and found that repugnant laws amounted between 5 and 7 percent of the total. The constitution also prevented sectarian legislation by prescribing the Qur’an and Sunna as the only sources of legislation and guaranteed basic rights for all citizens without discrimination. The religious groups disagreed with these definitions of sovereignty. To them sovereignty of God meant supremacy of Shari’ah. Shari’ah was equated with Fiqh, an extremely rich legal literature in Islam. It is, however, academic in nature and was rarely tested as law. The religious groups insist on application of Fiqh as Shari’ah and claim exclusive authority to interpret it. They finally got opportunity to apply it in 1979. Shari’ah in the meaning of codified Fiqh was also applied in Iran, the Sudan, Somalia and in other countries in 1979-80s. It was an innovative experience and provided an opportunity to study efficacy of Fiqh as a legal system. Unfortunately, political considerations did not allow critical studies of the experiment of the Islamization of laws. Politics of Human Rights A global political development has been favorable to religious groups since 1960s. The reformist governments in Muslim countries who had come to power in the wake of growing popularity of communism and the left-leaning politics for social justice and revolution were generally repressive, especially against the religious groups who formed strong opposition. The Western governments considered these religious groups strategic allies against communism, which was vigorously denounced by these groups. The religious leaders also welcomed this opportunity as they had not been faring well in general elections. Western governments gave asylum to a number of these leaders from Middle Eastern countries. The opposition faulted Muslim states for bad governance, lack of freedom, discrimination and torture, issues also highlighted by human rights. UIDHR the universal declaration of Islamic human rights issued from London in 1981 by these groups reflects these concerns. Interestingly, it is also the period when despite continuing international legislation and active UN role in international disputes, selective neglect of the UN resolutions became a normative practice by the Western countries. It gave religious groups ground to argue that UN was a weak institution which was being used by the Western countries to establish their supremacy. The religious groups were quick to denounce these social and legal reforms as Westernization and calling instead for Islamization of laws. The solution was to return to the ideas of Islamic state, supremacy of Shari’ah and sovereignty of God. As mentioned already, a large number of other countries expressed reservations when ratifying UN treaties, Conventions and Protocols. In this regard, the year 1979 is particularly significant. It is the year when CEDAW was ratified but with reservation by a large number of countries. That was also the year of the political rise of religious revivalism in Muslim countries. Occupation of Ka’ba by militant Muslims in Saudi Arabia, Islamic revolution in Iran, Islamization of laws in Pakistan and similar developments in other Muslim countries in that year focused on the issues of Islamic identity, Islamic state, Divine sovereignty and supremacy of Shari’ah. These political developments reinforced the of antinomy between Shari’ah and international law. Antinomy Thesis Unfortunately, Shari’a, which stood for rule of law, justice and equality before law was wrongly used to justify discrimination and growing violation of basic rights. This justification was based on the assumption of antinomy between Shari’ah and human rights which was already advanced by a number of Western critics of Islamic law and in the recent debate on the universality of human rightsiii. Studied analytically, the antinomy thesis is based on a false assumption that identifies Shari’ah with Fiqh doctrines and to the claims of the conservative who disallow Ijtihad or reinterpretation of Shari’ah and insist on Taqlid, adherence to old interpretations. The antinomy thesis disregards the continuing Ijtihad in Muslim societies in response to inevitable social, political, and economic changes. Since nineteenth century volumes of books and growing number of intellectuals have been exploring Shari’ah solutions to modern challenges. They have demonstrated compatibility between Shari’ah and modern developments in international law of human rights. Even the efforts to present alternative schemes of Islamic human rights disprove the antinomy thesis. Let me take the example of two alternative declarations of human rights in Islam. The Universal Islamic Declaration of Human Rights (UIDHR) 1981iv, and (2) the Cairo Declaration of Human Rights in Islam (CDHRI), 1990v issued respectively by Islamic Councilvi and foreign ministers in Muslim countries, differ with each other in focus but agree largely with the UDHR. The two documents express reservations against six out of 30 UDHR articles, which suggest that compatibility range is wider than incompatibility. Regarding reservations, the two documents also differ with each other. The UIDHR expresses reservation against UDHR Articles 1, 3, 5, 16, 18 and 19 which respectively pertain to the following subjects: freedom, security, torture, marriage, freedom of thought and freedom of expression. The CDHRI expresses reservations against Articles 3, 13, 14, 19, 20, and 21. Whereas both documents commonly express reservation against articles 3 and 19, reservations by the Cairo declaration concern freedom of movement, asylum, freedom of expression, freedom of Assembly and public office. These reservations are largely political, but UIDHR reservations point more to incompatibility between Shari’ah and human rights than the Cairo reservations.vii Similar trend is reflected in numerous Muslim writingsviii on Human rights and by new Muslim jurist trendsix which stress on a larger area of common perspectives. Regarding discriminatory laws, Some Muslim countries had already introduced reforms in family laws and provided guarantees against discrimination in constitutions during the period between 1950 and 1970x reforms in family laws pertained largely to women’s rights and legal capacity, especially the issues of age of marriage, registration of marriage and divorce, polygamy, validity of women’s witness, and divorce procedures. I would like to illustrate this point with reference to recent debates about CEDAW committee’s demand for Pakistan’s withdrawal of her reservations. Pakistan’s initial reservation was against Article 29 of the CEDAW convention that relates to settlement of disputes about the interpretation or application of the convention. The Article suggests that in case the dispute is not settled by negotiation one of the parties may go to the International Court of Justice. CEDAW committee insists that Pakistan withdraws this reservation. Recently, CEDAW committee has also asked for legislation against the discriminatory laws that are in contradiction to CEDAW articles 1, 2, 3, 4, 5 and 16. Pakistan’s reservation claim that these articles are subject to the provisions in the Pakistan constitution and Shari’ah. International law experts fail to appreciate the difficulties of the democratically weak governments in Muslim countries. They do not have the required will to lead these reforms and instead of facing the opposition they immediately submit to its pressure. The Council of Islamic Ideology in recent years have suggested revisiting these Fiqh constructions which fail to conform to the principles of justice and equality as purpose of Shari’ah. There is a consensus among Muslim jurists since Ghazali that the purpose of Shari’ah is to protect the five basic rights of life, faith, property, rational integrity and family. Councils’ recommendations about amendments in Hudood Ordinance in 2006 and divorce laws in 2008 met with opposition from religious groups. The government authorities bowed to this pressure rather joined the opposition forcing the Council to review its recommendations. I need not go into details, but I must stress the point that Fiqh is a social construction of Shari’ah and reflects jurists’ efforts to respond to the continuously changing social needs in their times. Islamic jurisprudence, particularly of human rights, requires to be reconstructed in accordance with its primary objectives. In the globalized world, Muslim anxieties emerge from the perspectives of sovereignty and security on the one hand and from religious and cultural perspective on the other hand. Islamic jurisprudence of human rights cannot be developed in the traditional framework of Fiqh which is essentially status oriented and places society in a privileged position against an individual person. Recent debates on Shari’ah in Muslim countries but also in South Africa, United States of America, Britain and Canada have brought home the fact that we are living in an interdependent globalized world and even non-Muslims societies can no longer dismiss Shari’ah as irrelevant. Muslims cannot also effectively exercise Shari’ah as a modern legal system without taking the global context into consideration. Conclusion At the end, I would like now to problematize some issues for the Islamic Jurisprudence of human rights.

SHARI’A AND THE PRESENT EPISTEMOLOGICAL CRISIS

There is an epistemological crisis especially relating to modern interpretation of Shari’ah. Shari’ah is now enmeshed with modern secular concepts of law, jurisprudence and justice. Modern notions of justice, judiciary, rights, and equality have challenged the Usul al-Fiqh and ‘ilm al-kalam which Islamic legal tradition had developed to define and understand Shari’ah. This epistemology was based on ancient Greek logic that provided grounds for qiyas and ijtihad arranged on the pattern of syllogistic reasoning. Methods of formal logic and syllogistic reasoning are giving to new methods of reasoning like deontic logic. The conception of four sources and Usul in traditional Islamic jurisprudence has become extremely ambiguous. They do not help understand the normativity of Shari’ah. Qur’an and Sunna are primary material sources, yet customary law and urf have been the major source of Islamic law and have played a normative role. They constitute the foundation of a number of legal concepts but they are now losing their relevance because they were derived from the tribal customs.

SHARI’A AS PERSONAL LAW

Constructed as religious law, Shari’ah is classified as personal law not bounded by territory. In the pre-modern period as well Muslim jurists have been wrestling with the issues about the personality and territoriality of law with reference to criminal and trade laws between darul harb and darul Islam. Emergence of modern nation-states and permanent presence or settlements of Muslims in secular and non-Muslim countries have raised the question of personality or territoriality of Shari’ah. Shari’ah as personal law isolates Muslims as legal entities in those countries.

SHARI’A AND STATE

The institution of modern state raised a number of issues for Shari’ah. Demands for implementation of Shari’ah have helped Muslims to accepting modern state as sources of legal authority. However, as discussed earlier, the idea of the sovereignty of state is still contested. Fiqh does not allow the role of legislation to a state or the parliament and does not endorse separation between the judiciary and the executive.

SHARI’A AND REFORM

There is a strong belief that Shari’ah is divine and therefore cannot be subjected to reform. In popular parlance Shari’ah consists of the Qur’an, Hadith, Ijma’ of the Ulama including Fiqh and Madhhab. The debates continue defining the requirements and procedure of ijtihad. A general agreement has emerged on the need of collective and institutionalized ijtihad but the possible role of parliament is still contested. The concept of ijtihad is also associated with the question of religious authority, which according to common understanding lies with the Ulama. A serious debate has been about who qualifies as an ‘alim. The intellectual leadership today is often with those who are trained in the Western sciences. The traditional religious establishment insists that only the religious scholars and those trained in madrasas qualify as an ‘alim. Training of judges and legislators who can deal with Islamic law in modern context demands efficient Islamic legal education, which is not adequately provided in the madrasa system.

SHARI’A AND GLOBALIZATION

The globalization is posing a host of questions like pluralism, exclusivity and interdependence. Shari’ah is believed to be universal but Muslims have come to insist on its applicability to Muslims exclusively. Interaction between Shari’ah and modern legal developments is avoided. It has created some very serious tensions with reference to Universal Human Rights, International conventions and treaties relating to women rights, protection of children, marriage, divorce and property. Shari’ah is no longer exclusive to Muslims. Global interaction and legal transactions are Shari’ah. Not only that Muslims must be prepared to discuss and share Shari’ah with the world but Shari’ah must be part of syllabi and curricula in world universities. Islamic legal education requires training in research methodologies and critical studies of Islamic legal tradition in Madrasas and Universities. To conclude, I must reiterate that whereas Western expert’s disregard of the positive contribution of religious and legal traditions towards the foundations of human rights is raising the issue of ownership of human rights, a lack of adequate training in Islamic jurisprudence of human rights is excluding Muslims from human rights discourse.