Legal and practical challenges to the fulfilment of fundamental rights in Muslim-majority states
Pursuing the objectives of the UN Charter the UN General Assembly adopted a Declaration of Human Rights on 10 December 1948. Its preamble, inter alia, emphasizes the faith of the peoples in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women. However, the rights reflected in the Declaration have been contested by some Muslim states as incompatible with their religious values and cultural tradition. In order to transform the principles expressed in the Declaration into treaty provisions that would create legal obligations for state parties, on 16th December 1966, the General Assembly adopted two covenants, one reflecting social, economic and cultural rights and another civil and political rights. As of today, the majority of Muslim countries are parties to both covenants as well as other human rights instruments, although some with so-called ‘sharia reservations’.
Despite the professed intentions of Muslim-majority states their peoples have been far from enjoying the rights envisaged by the human rights treaties facing the grim spectre of discrimination and oppression. Poor human rights records reflect the state of constitutionalism in more than forty Muslim-majority countries which was traditionally bleak. Any regime may be called constitutional if it provides for limited and accountable government, adherence to the rule of law and protection of fundamental rights. Whereas almost all Muslim-majority countries have embraced the idea that a constitution is an integral feature of modern governance, its components have often been distinctly absent, mostly due to the dominant role of sharia (Islamic law) in the legal order. A fundamental feature of sharia and one of the main challenges to the law reform, which is immune from critical evaluation, is the divine source of Islamic law under which God is the only sovereign and the only source of law. The constitutions of Egypt, Iraq, Afghanistan, Iran, and Libya proclaim sharia as the principal source of legislation or designate Islam as the official religion of the country. In Muslim rule of law system, religious authorities (individuals) usually possess a special status and may stand above the law, the concept that has been historically exploited by rulers and governments against people and individuals. In order to understand the significance of sharia in the Islamic legal system and its effect on the rights of people in Muslim societies, a brief look at the fundamental debate between western and Islamic concepts of constitutionalism is in order.
The role of constitutionalism
In western legal tradition, a higher law is grounded on human reason and the idea of constitutionalism is based on the firm notion of natural law with a relatively weak influence of the idea of divine law. In Islamic tradition, in contrast, the divine law has the primary place and the idea of natural law is relatively weak which may lead to a clash between the higher law of human-made constitution with the higher law of God, sharia. Given that legal norms contained in sharia are immutable, many intellectuals argue that this clash prevents Muslim reformers from revising sharia according to their perception of the ideas of good governance and human rights. Muslim reformers strived to reform and re-interpret sharia with the view of reconceptualization of Islamic governance and the establishment of new and more efficient political institutions that embody a genuine purpose of an Islamic ethical system. However, from the very beginning, they were vociferously challenged by many conservatives who perceived constitutionalism as the latest assault on divine law believed to be sacrosanct and administered directly by God. Such fundamental differences in perception of the constitutional process and the value of the constitution for nations have had serious and far-reaching consequences for Muslim societies; the rights of women and religious minorities have been affected the most. And in a more general context, they have stifled the development of constitutionalism or have led to its demise as a whole.
Universal human rights and sharia
The relation between human rights and Islamic law has been the subject of many studies and debates. Unlike human rights experts who generally have a common view of the legal regime of human rights and their status, the perspectives of Islamic law scholars on the relation of that law to human rights law are substantially different. A fundamental or traditional interpretation normally sees no compatibility or even need for compatibility between Islamic laws and human rights. A modern interpretation normally tries to see common points and show that there is or can be harmony. A conflict between sharia and the fundamental principles of democracy was stressed by the European Court of Human Rights: “It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts.” Such aspects of sharia as criminal and family matters as well as rights to education, equality, and work are considered by many experts as the most notoriously censured. National legal systems based on sharia of many Islam states represent one of the greatest challenges to the enjoyment of fundamental rights along with endemic corruption, absence of rule of law, insecurity, and the lack of awareness of the law among the people.
Violations of fundamental rights in Islamic countries are based on fundamental differences between sharia and the universally accepted human rights standards. A good example of this is the so-called ‘sharia reservations’ of Muslim states to international human rights treaties which account for 40 per cent of all reservations and mostly relate to family relations. The most heavily reserved treaties are the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. The majority of sharia reservations made to CEDAW relate to article 16 on the elimination of gender discrimination in family relations, particularly during marriage, divorce, and child custody. In Muslim-majority states these issues are regulated by sharia which provides for different treatment of men and women in this area; whereas the former have access to customary and court divorce proceedings, the latter has limited abilities to initiate divorce and carry the burden of proof. According to Egypt’s reservation made to Articles 16 of CEDAW “[t]he provisions of the Shari’a lay down that the husband shall pay bridal money to the wife and maintain her fully and shall also make a payment to her upon divorce, whereas the wife retains full rights over her property and is not obliged to spend anything on her keep. The Shari’a, therefore, restricts the wife’s rights to divorce by making it contingent on a judge’s ruling, whereas no such restriction is laid down in the case of the husband.” Entering sharia reservations and failing to incorporate basic human rights standards into their domestic law state parties not only deprive their citizens of necessary protection mechanisms but also prevent the monitoring bodies from assessing their modified obligations due to the vague nature of the remaining duties. In some instances, sharia reservations are contrary to the object and purpose of a treaty raising questions of vagueness and the state’s party full commitment to the treaty.
However, even in those Islamic states where international human rights standards have become an integral part of the domestic legal system very few governments can boast that the fulfilment and protection of fundamental rights are on top of their priority list. Different forms of discrimination thrive in Muslim-majority countries the most damaging of which is the persistent discrimination against women that is attributed to the will of God. Most women who became victims of entrenched discrimination hardly complain about it for such resistance will be perceived as defiance of Allah. In Afghanistan, despite the guarantees of fundamental rights prescribed by the constitution and ratified human rights instruments, women and girls are daily subjected to various grave violations mostly because of failure of law enforcement authorities to take action, the prevalence of discriminatory provisions in laws and policies, conservative and authoritarian traditions, lack of awareness of basic rights. The atmosphere of impunity is intensified by the wide use of mediation in criminal offences of violence against women, parallel judicial mechanisms, and slow implementation of the Law on Elimination of Violence against Women which denies women fair treatment before the law.
Many Muslim-majority countries have not adopted equality of rights into their everyday practice and are still a haven for violence and suppression. Protecting fundamental rights has proven especially problematic, in particular, due to concerns that some rights believed to be fundamental by western states, like gender equality or the right to absolute religious freedom, are inconsistent with the religious and cultural values of the most Muslim-majority states. In order to realize a truly constitutional order, Muslim societies should embrace and institutionalize these universally accepted fundamental rights within their legal systems and secure that they are thoroughly protected at the political level. Such a path would require the adoption of secularism by separating religion from the legal and political system.
 Michel Rosenfeld, “Modern constitutionalism as interplay between identity and diversity”.
 The Universal Islamic Declaration of Human Rights denotes sharia as the totality of ordinances derived from the Qur'an and the Sunnah and any other laws that are deduced from these two sources by methods considered valid in Islamic jurisprudence.
 Esmaeili, Hossein, “The Nature and Development of Law in Islam and the Rule of Law Challenge in the Middle East and the Muslim World”.
 “The Nature and Development of Law in Islam and the Rule of Law Challenge in the Middle East and the Muslim World”.
 Sohail Hashmi, “Islam and Constitutionalism”.
 “Islam and Constitutionalism”.
 “Islam and Constitutionalism”.
 Said Mahmoudi, “Islamic Approach to International Law”.
 “Islamic Approach to International Law”.
 Refah Partisi (The Welfare Party) and Others v. Turkey.
 Cruel, inhuman or degrading punishments are prescribed by sharia, including death by flogging, stoning, amputation of limbs, beheading and hanging.
 Surah 4:34 states: “Men have authority over women because God has made the one superior to the other, and because they spend their wealth to maintain them. Good women are obedient. They guard their unseen parts because God has guarded them. As for those from whom you fear disobedience, admonish them and forsake them in beds apart, and beat them. Then if they obey you, take no further action against them. Surely God is high, supreme.”
Ahmd Ali Sawad, “Islamic Reservations to Human Rights Treaties and Universality of Human Rights within the Cultural Relativists Paradigm”.
 Nora Salem, “Sharia Reservations to Human Rights Treaties”.
 “Sharia Reservations to Human Rights Treaties”.
 United Nations Treaty Collection.
 In 2006, during the accession of Bahrain to ICCPR the UN Human Rights Committee stressed the vague nature of Bahrain’s reference to sharia to Articles 18 and 23 and emphasized that it may impair the raison d’être of ICCPR. Sharia reservations of Qatar to articles 2(a) and 16(1)(a),(c),(f) of CEDAW were characterized by the monitoring body as incompatible with the object and purpose of the Convention.
Publicēts 04. maijs, 2021