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 interÂpretation 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 introÂduced 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 @bits two trends very clearÂly: 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 Zia ul 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 antiÂdiscrimination, several legislative decisions are shown to discriminate against women.
Shah also questions Pakistan’s vague declaÂration to the Women’s Convention and terms it as both untenable and unwarranted when both the Constitution and the superior judiÂciary’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 stressÂing 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 exceptionÂal merit for its thoroughly researched analyÂses, 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
Currently he is writing a monograph on Self Defence in Islamic and International Law: Assessing Al-Qaeda and Iraq Invasion 2003.