December 18th, 2014

Islam and rights

DRAWING comparisons should be underlined by a balance of commonalities and contrasts, but in the case before us, Islam and human rights are often seen to be too different to recognise and accommodate one another.

Yet, the commonalities between them are undoubtedly predominant: Islam upholds human dignity, justice, the rule of law, basic rights and liberties, and an egalitarian social order.

The juristic and scholastic articulations of Islam bear the influences of history and time, which may not be integral to its essence and must, therefore, remain open to evolution and reform.

Whereas the scriptural sources of Islam speak of human guidance and welfare, of virtuous conduct and how spirituality and religion can train the individual and guide him to the right path, Muslim jurists tend to shift to the centrality of the religion, of conformity to rules and ritualism, almost independently of the higher objectives of the law.

The emphasis tends to shift from the human being to the religion itself.

There is a general consensus among ulama of all ages to the effect that Syariah, from beginning to end, is meant to realise human welfare, which clearly strikes a close note with human rights.

The higher goals and purposes of Syariah are similarly focused on a cluster of basic human rights: protection of the right of life; protection of faith, human intellect and reason; and, protection of property and that of the family, collectively known as the five essentials (al-daruriyyat al-khamsah), are all indicative of commonalities between Syariah and human rights.

The primacy of human rights is also attested to by the binary division in Syariah of rights into the Right of God (haqq Allah) and Right of Man (haq al-adami), and what is of interest in this connection is that a possible conflict between them must, as a matter of principle, be determined in favour of the latter.

This is because unlike human beings, God, our creator, is in no need of any rights as such, hence, the primacy in juristic terms of the rights of humans.

The Islamic human rights declarations and documents we have seen in recent decades, such as the Universal Islamic Declaration of Human Rights 1981, and Cairo Declaration of Human Rights in Islam 1990, echo Islam’s basic commitment to human rights, and show, in the meantime, the unmistakable lines of convergence with international human rights law.

Notwithstanding the valid concern that human rights must stand above the particularities of geography and culture, experience has shown that progress in human rights has been relative to the variables of culture, economic capability, education and public opinion.

One also learns that human rights can be better advanced when they are culture-sensitive and unencumbered by partisan and obscurantist political interests.

Poverty, illiteracy, rule of law issues and, more recently, violence and security problems, still dominate the government agenda in the larger part of the Muslim world, and progress in human rights is not independent of these unpleasant realities.

Yet, one also notes that the human rights discourse has been gaining ground in the Muslim world, attested to, perhaps, by the popular demands that underlined the early phases of the Arab Spring.

In the last two decades, especially in the years preceding the 9/11 attacks, Islamic parties and movements have spoken in support of democratic governance and turned to the ballot box in large numbers, and, in some countries, such as Turkey and Indonesia, they became the ruling parties.

Furthermore, the laws and Constitutions of most present-day Muslims countries articulate basic rights and liberties, and commit the state authorities to their implementation, and they are broadly supportive of human rights principles, although scope for better implementation exists in almost every case.

Yet, ineffective governance, entrenched patriarchal custom, tribalism and the rise of radical fundamentalism present enormous challenges, especially to gender equality and freedom of religion, often beyond the control of national governments, only to show that it takes more than prescriptive legislation to realise healthy adjustment and reform.

The Islamic family law reform movement of the 20th century, which started in Egypt and Afghanistan in the 1920s, gained momentum during the latter half of that century.

Many Muslim countries introduced reformist legislation that sought to improve the status of women, especially in the areas of polygamy and divorce.

Whereas both of these were previously regarded as prerogatives of the husband, novel interpretations of the relevant Quranic passages have offered fresh insight and have become the basis of law reform.

Polygamy and divorce became subject to court order, and the law stipulates conditions that have to be met before the court granted permission.

Women’s rights to participation in government, political leadership and appointment to judicial office, and their right to education, similarly, have seen marked improvement, although challenges remain and progress is uneven in various countries and regions.

Rights and obligations in Islam are the concretised manifestations of human dignity, which is recognised for all members of the human fraternity, regardless of race, colour and creed.

Impartial justice also takes a high priority in the Quran and it is a right not only of Muslims, but of all human persons, as a perusal of Quranic verses on the subject would show.

This may also be indicative of a certain difference in outlook. Whereas the Universal Declaration of Human Rights (UDHR) 1948 upholds the primacy of rights, Syariah tends to emphasise justice, which consists of a balanced implementation of rights and obligations.

The UDHR is similarly grounded in individualism, whereas Syariah tends to be more communitarian in orientation. Yet, one hardly fails to notice that theoretical differences such as these may not affect the basic lines of harmony between Syariah and human rights.

Syariah and human rights are both supportive of the freedom of expression and movement, rights to personal security against unlawful arrest and aggression, rights to fair trial and personal privacy, and rights to work and education.

Prof Mohammad Hashim Kamali NST Columnist 17 December 2014 @ 8:19 AM