IN SEARCH OF COMMON GROUND: RECONCILING ISLAM AND HUMAN RIGHTS (Part 3/3)

The Challenge

Through letters to the editor, memorandums to the government, press statements, training programmes and publications, we took positions, guided by the principles of justice, equality and compassion found in the Qur’an,  on  contentious issues such as polygamy, equal rights, dress and modesty,domestic violence, hudud laws, and eventually on larger issues of freedom of expression, freedom of religion and other fundamental liberties.

Of course by claiming our right and creating the space to speak out in public on Islam, we have made enemies. We are often criticized by patriarchal politicians, conservative scholars and Islamist activists – a common experience of other women’s groups and progressive scholars in other Muslim countries.

The attacks and condemnations usually take three forms:

  1. First, they undermine our right and our legitimacy to speak on Islam by questioning our credentials. They say we have no right to speak on Islam because we are not traditionally educated in religious schools, we do not have a degree in Islam from a recognized Arab university, we do not speak Arabic, and we do not cover our heads. They say we are western-educated feminists representing an elite strata of society who are trying to impose alien western values on Islam and the ummah.
  2. Second, they accuse us of having deviated from our faith. They equate our questioning and challenging of their obscurantist views on women and fundamental liberties, and their interpretations of the Qur’an as questioning the word of God, and therefore they say we doubt the infallibility of God and the perfection of the message.
  3. Third, they contend that it is dangerous to offer alternative opinions and interpretations of the religion as this could confuse the ummah and lead to disunity. There can only be one interpretation to be decided upon by the ulama and all citizens must abide by this interpretation.

It must be understood that while all Muslims accept the Qur’an as one, the human effort in interpreting the Qur’an had always led to diverse and differing opinions. Until today we have the diverse schools of law and schools of theology in the Islamic tradition that are still in use throughout the Muslim world. It is precisely because of this wealth of diversity that Islam spread and flourished in different cultures and societies – all could accommodate the universal message of justice in Islam. And yet in many Muslim societies today, there are many who condemn those who offer alternative views as infidels and apostates, and they willfully choose to deny or negate the richness, complexity and diversity of our heritage.

There is also a denial of the historical context within which Islamic jurisprudence, fiqh, itself was constructed, and of the consequently historical character of the corpus of the Islamic legal tradition as it was developed and applied within early and classical Islamic civilization.

For example, in classical Islamic jurisprudential texts, gender inequality is taken for granted, a priori, as a principle. Women are depicted as “sexual beings” not as “social beings” and their rights are discussed largely in the context of family law. The classical jurists’ construction of women’s roles and responsibilities was right for their times, for it reflected the world in which they lived where inequality between women and men was the natural order of things and women had little role to play in public life. Men were supposed to provide for and protect women and the family, in return women must obey and be available for men’s needs. But today, women provide for and protect their families as well, including the men, but they are still expected to obey and be treated unequally.

Our realities have changed. And yet the conservative ulama that dominate the religious authorities and so many Islamist activists of today seem unable or unwilling to see Islamic law from a historical perspective as rules that were socially constructed to deal with the socio-economic and political context of the time, and that given a different context, these laws have to change to ensure that the eternal principles of justice are served.

In this process, it is human agency that determines which Texts are relevant, and how they should be interpreted to serve the best interest of the community. While the source is divine as it is the revealed word of God, human understanding of the word of God is a human construct that is fallible and changeable in accordance with changing times and circumstances. Therefore the role of human experience and intellect in engagement with the divine Text will lead to the production of Islamic knowledge and Islamic laws that cannot then be regarded as divine.

They can therefore be changed, criticized, refined and redefined. Unfortunately, in the traditional Islamic education most of our ulama have gone through, the belief in taqlid (blind imitation) and that the doors of ijtihad (reinterpretation) are closed is so strong. This rationale is based on the belief that the great scholars of the classical period who lived closer to the time of the Prophet were unsurpassed in their knowledge and interpretative skills.

But to adopt such an attitude is totally untenable in today’s world when we face new and different challenges: the issue of human rights, of democracy, of women’s rights, the challenge of modernity, the challenge of change. How do we find solutions from within our faith if we do not exert in ijtihad and produce new knowledge and new understandings of Islam in the face of new problems? How do we ensure that the eternal principle of justice in Islam remains at the core of Islamic law in substance and in implementation?

This problem is compounded by the fact that most Muslims have traditionallybeen educated to believe that only the ulama have the right to talk about Islam. What are the implications to democratic governance, to human rights and gender justice, if only a small group of people, the ulama, as traditionally believed, have the right to interpret the Qur’an, and codify the Text in a manner that very often isolates the Text from the socio-historical context of its revelation, isolates classical juristic opinion especially on women’s issues, from the socio-historical context of the lives of the founding jurists of Islam, and isolates our textual heritage from the context of contemporary society, the world that we live in today.

What you get today then is a disconnect between law and reality, between dogma and ideology, and reality.  To continue to ignore the changing realities on the ground is untenable.

And yet, we see political leaders, religious leaders, international institutions in paralysis, or worse in complicity in dealing with the ways religion is used and abused in many societies.

As an activist of almost 30 years, I am near to giving up that change can come from the top. Today, I feel very strongly that the role played by civil society groups, the women’s rights and human rights activists who risk life and limb, and public intellectuals will be key in bringing about change in the terms of public engagement on Islam and its role and  place in many Muslim societies.

For this to happen, however, the public space to debate on Islam and Islamic issues have to open up. This is why I believe the struggle for a more just and liberating Islam has to take place within the struggle for democratization within Muslim societies. I am always amazed when Westerners, in particular, the Americans twist themselves into knots, puzzled as to why so much of what they see as Islam in the Muslim world remains misogynistic, undemocratic, extremist and cruel. Well, what do you expect? You cannot expect a democratic and progressive Islam to suddenly grow and thrive within despotic states, led by powerful leaders supported by the most powerful nation on earth.

The fight to open up the space for debate in Muslim contexts is extremely critical and so is the ability to stand your ground when under attack. For Sisters in Islam, every attack against us is seen as an opportunity to bring more voices into the  public space and to challenge the myth that there can be only one opinion in Islam. For example: When the government banned our book Muslim Women and the Challenge of Islamic Extremism, we took them to court, challenging the ban on constitutional grounds. The government claimed that our book was a threat to public order as it confuses Muslims, especially women and those whose faith is shallow! We won at the High Court, the government appealed, we won again at the Court of Appeal and the government appealed yet again to the Federal Court, and the Federal Court threw out the government’s leave for appeal. It was music to our ears when one of the judges, in a panel of five, that included two women, said the Home Minister was supposed to apply his mind to this case, he did not, instead he applied the mind of the religious authorities.

Thank God for little mercies, it makes the struggle worth it. Currently, we are under attack again by a state religious authority. A fatwa has been issued against Sisters in Islam, declaring us as deviants for subscribing to religious pluralism and liberalism, whatever that means. Again, we have taken this case to court challenging it on several constitutional grounds, including freedom of expression, freedom of religion and freedom of association. The High Court has thrown the case to the Shari’ah court, but we are appealing against that decision.

The idea that women have a voice and a say in how the religion is interpreted and practiced in a country that uses Islam as a source of law and public policy, remains a radical notion!! Trust what your heart says and you will know this is not rocket science.

Global Impact

Needless to say, the work of Sisters in Islam in  Malaysia, has had a global impact. In 2007, we led the initiative to form Musawah, the Global Movement for Equality and Justice in the Muslim family.

Given the frustrations and opposition Muslim women activists faced in trying to push for reform of discriminatory Muslim Family laws and the issue of women’s rights in Islam, we felt it was high time that all us who have for decades struggled against patriarchs in government, society, and our private lives, come together and create a very collective international public voice of Muslim women demanding our right to equality and justice. Thus Musawah, which means equality in Arabic, was launched in February 2009 in Kuala Lumpur with over 250 participants from 47 countries, including 32 member countries of the OIC, Organization of Islamic Cooperation. It was an exciting moment that until today we rejoice in.

What Musawah hopes to bring  to the larger women’s and human rights movement at the global level is this:

  • an assertion that Islam can be a source of empowerment, not a source of oppression and discrimination;
  • an effort to open new horizons for rethinking the relationship between Islam and human rights, equality and justice;
  • an offer to open a new constructive dialogue where religion is no longer an obstacle to equality for women, but a source for liberation;
  • a collective strength of conviction and courage to stop governments and patriarchal authorities, and ideological non-state actors from the convenience of using religion and the word of God to silence our demands for equality; and
  • a space where activists, scholars, decision makers, working within the human rights or the Islamic framework, or both, can interact and mutually strengthen our  common pursuit of equality and justice for Muslim women.

Since then, Musawah has gained an international reputation for its groundbreaking work in knowledge building, capacity building and international advocacy. It challenges patriarchal interpretations of the Shari’ah from within Islamic tradition. It links scholarship with activism to bring new perspectives on Islamic teachings, inserting women’s voices and concerns into the production of religious knowledge and legal reform in Muslim contexts. It uses a holistic framework, the Musawah Framework for Action, that integrates Islamic teachings, universal human rights principles, contemporary state constitutions and laws that recognize equality and non-discrimination,  and the lived realities of women and men, to argue for the possibility of reform and for the necessity of equality and justice for women living in Muslim contexts.

Our latest Knowledge Building project on qiwamah and wilayah, twin legal concepts in the Islamic tradition that mandate  male authority over women, has produced a ground breaking publication, Men in Charge? Rethinking Authority in Muslim Legal Tradition.

The book has received raving reviews from major Islamic scholars. The chapters in the book raise several important questions. Why and how did verse 4:34 (commonly interpreted to mean men have authority over women), and not other Qur’anic verses that uphold equality and justice and compassion between men and women, become the foundation for the legal construction of marriage in Islam? How and through what legal logic did these two concepts become organizing principles in Muslim family laws? Why are these concepts still the basis of gender relations in the imagination of modern-day jurists and Muslims who resist and denounce the idea of equality in marriage as alien to Islam? What do equality and justice mean for women and the family today?

I would urge you to buy the book now! Within a few months of its release, it has been used as recommended readings in 17 universities in eight countries, including several Arab countries. I hold my breath for the first Malaysian university to use this book.

Musawah also works in two other key areas – capacity building and international advocacy.  Our 7-day short course, called ‘Islam and Gender Equality and Justice’ exposes women’s rights activists to how knowledge is produced in the Islamic tradition, by examining the methodology and conceptual tools used to build the interpretive and legal traditions in Islam. Participants learn how the Qur’an is interpreted, how Hadith is transmitted, how Fiqh is constructed – all within a social context – and explore the possibilities of constructing new understandings to deal with changing times and circumstances and develop action plans on strategies for reform and building a voice and culture of public debate on matters of religion. In the past one year, we have held regional trainings –  for South Asian activists from Pakistan, Bangladesh, India and Sri Lanka, for the Horn of Africa activists from Sudan, Somalia, Somaliland, Ethiopia, Kenya and Uganda, and for the Middle East activists from Egypt, Jordan, Palestine, Tunisia, Morocco, Algeria and Saudi Arabia.   Guys, the world is changing. Don’t be left behind.

Many find the course empowering and transformative as they discover an Islam that is liberating and that makes sense to their realities. The course builds their knowledge and confidence to critically engage with the ways their governments and religious authorities use Islam to justify discrimination against women and offer an alternative vision of Islam that upholds equality and justice. This training is critical as we believe that change can only happen if we can build a public voice and public will for reform to take place.  And today, more and more women’s rights activists living in Muslim contexts have begun to recognize the strategic need to understand Islam better, acquire the knowledge and courage not just to challenge the ways Islam is used to discriminate against women, but  more importantly to offer an alternative vision that reconciles religion with human rights and women’s rights. In countries and communities where Islam is used as a source of law and public policy and shape culture and tradition, I believe this is an imperative.

In the area of international advocacy, Musawah is engaged deeply with the CEDAW process (the Convention on the Elimination of all Forms of Discrimination against Women – the women’s international bill of rights that Malaysia has ratified). We did a major research on CEDAW and Muslim Family Laws, critically examining how governments from major OIC countries use Islam to justify reservations and non-compliance with treaty obligations. We critiqued their approach, and offer the Musawah Framework for Action as an approach that reconciles Islam with women’s rights, and provide the conceptual legal tools and language to argue for the possibility of equality and justice and reform of Muslim family laws. Today we regularly submit Thematic Reports and issue Oral Statements on Article 16 on marriage and family relations whenever key Muslim countries report before the CEDAW Committee. Governments that continue to say that the Muslim Family Law of their country which discriminate against women cannot be changed because they are God’s law are routinely challenged by CEDAW experts who are now aware of the diversity of interpretations and juristic opinions and the richness of the Muslim legal tradition that enables reform to take place.  They use the examples we provide of good practices from various Muslim countries to question governments that if indeed these discriminatory laws are divine and cannot be changed, why then do different Muslim countries have different laws and practices on any particular issue – all on the basis of Islam. Why does Tunisia ban polygamy, why do Saudi Arabia, Syria, Jordan, Egypt and Lebanon allow a woman to include in her marriage contract that the husband cannot take a another wife and if he breaches this term, she is entitled to a divorce; why does Morocco have equal and minimum age of marriage for both boys and girls at 18, why do Pakistan, Bangladesh, Morocco, Tunisia not require a woman to have a wali/guardian in order to get married, why do Turkey and Tunisia recognize the mother’s equal right to guardianship of her children.

You see, ladies and gentleman, the issue indeed is not that there cannot be reform, there cannot be equality and justice for women in Islam; the issue is whether governments and those in religious authority have the political will to end discrimination against women. The arguments for reform are there – within Islam, within our Constitutional guarantees of equality and non-discrimination on the basis of gender, within the human rights  principles we subscribe to when we agree to be part of the international system, and not least in the realities of women’s lives today and what it means to build and sustain the well-being of the family, all members of the family,  not just one.

The Way Forward

Let me conclude this talk by urging all of us to exercise some clarity in the terms we use to engage publicly on Islamic matters and its role in public law and policy, especially to the lawyers and aspiring lawyers here today.

Let us understand a few key terms that are now bandied about freely and interchangeably today.

First, there are distinctions between Shari’ah, fiqh, hukum and qanun. Shari’ah literally means the way, the path. What we mean by Shari’ah, is God’s revelation to Prophet Muhammad (pbuh) as embodied in the Qur’an, encompassing  ethical values and principles to guide humans in the direction of justice and correct conduct. No person nor institution has the authority to claim certainty in understanding the divine will. Only God possesses perfect knowledge.

This led to the development of fiqh, which literally means understanding. It is the process by which humans attempt to derive legal rules from the Qur’an and the Sunnah (practices) of the Prophet. The classical Muslim jurists developed rigorous methodologies and principles to establish a legal system that they believed could best reflect the divine will. And yet none of them ever claimed certainty over their opinions and rulings. Certitude belongs only to God. So while Shari’ah, God’s revelation, is immutable and infallible; fiqh is changeable and fallible. Much of what we freely label as “Shari’ah law” today is actually fiqh, a human construction. Polygamy is banned in Tunisia, permitted without restrictions in many countries, permitted with permission in countries like Malaysia and Singapore. These decisions are based on different fiqh opinions and understandings. It is decided by men, not God.

Hukum are legal determinations, rulings in any given case. Qanun  are codified laws and regulations enacted by a government.

So what we are actually talking about when we dispute over khalwat, moral policing, cross dressing, hudud, and family laws are actually qanun laws based on fiqh, our human understanding of God’s teachings. They change with time and circumstance. We are not talking about Shari’ah, the divine word of God. We are talking and questioning the role and motivations of human agency and the methodologies used in the construction and implementation of those laws that have increasingly led to injustice and conflict of laws in our constitutional democracy today.

So the next time a self-appointed soldier of God tells you, ‘You don’t have a right to question or have a different opinion,’ ask him exactly what is it that you are not supposed to talk about – Shari’ah, fiqh, hukum, qanun? And be clear yourself that what you are talking about is not theology alone, but the intersection of theology, with law and public policy – and politics and gender. In the end, what we are discussing about is actually public law and public policy that governs and affects our lives in very fundamental ways. And every citizen within a democracy has a right to engage in this.

Second, there are categories of laws in the Muslim legal tradition. Ibadat (rules that regulate the relationship between humans and God) where there is little room for disputation, and  mu’amalat,  rules that regulate the relationship of humans with one another.  Much of the debate and contestations going on now in Malaysia are about mu’amalat laws – where jurists of over 1,000 years ago have favoured human reason, human experience, and discretion to serve the well-being of society, depending on time and place. We all know the famous example of Imam Shafi’i who changed his legal rulings when he moved from Iraq to Egypt –  because of different circumstances and social conditions.  This was a principle established over 1,100 years ago, ladies and gentlemen! It is not a new invention of westernized feminists. It is our tradition.

Third, the Muslim legal tradition is packed with rich and sophisticated juristic concepts that make reform towards equality and justice possible. There are the principles of   maslaha (public interest), ikhtilaf (differences of opinion), istihsan (choosing the best opinion in the interest of equity and justice), istislah (choosing the best opinion in the interest of public good). How do we apply these principles to solve the problems and contestations we face in the context of 21st century  multi-ethnic and multi-religious Malaysia in order  to ensure that justice is done? Or do we continue in our wilful resistance to the changing realities on the ground, and shunt aside all that is good and rich in our tradition?

Let’s build some pride and knowledge in our own legal tradition, instead of defiling it with shrill sloganeering that Islam is under threat, and Muslims are under siege. It’s your authoritarian will that is under threat. Not Islam.

In the end, what we need to ask is this: what is the purpose of Islam in public life and what is the purpose of these Islamic laws? Why would the citizens of Malaysia want an Islamic state with Islamic laws  that assert different rights for Muslim men, Muslim women and citizens of other faiths and minorities, rather than equal rights for all? Why would those whose equal status and rights are recognized by a modern democratic system support the creation of such an Islamic state? If an Islamic state means an authoritarian theocratic political system committed to enforcing androcentric and dogmatic legal rulings that lead only to injustice, and silencing or even eliminating those who challenge state authority and its understanding of Islam, then why would those whose fundamental liberties and human rights  are protected by a democratic state support such an Islamic state?

We as Muslims make the effort to comply with the divine will for a purpose – to do good, to bring about justice, to contribute to the well-being of family and society.

Alas, the ugly truth is too many abuse God and Islam to serve their own personal interest to remain in power, to enrich themselves, to remain privileged and protected or to get into power, only to do more of the same.

As we descend into an Orwellian society where wrong is right and bad is good, and where Big Brother watches our every move, let us who believe in justice and reason take strength in the legal maxim, attributed to Imams Shafi’i and Abu Hanifa: “We believe  that our opinions are correct, but we are always cognizant of the fact that our opinions may be wrong. We also believe that the opinions of our opponents are wrong, but we are always cognizant of the fact that they may be correct.”

And in our search for solutions, let us be resolute and be guided by the words of the 14th century jurist, Ibn Qayim al-Jawziyyah, “The fundamentals of the Shari’ah are rooted in wisdom and promotion of the welfare of human beings in this life and the Hereafter. Shari’ah embraces justice, kindness, the common good and wisdom. Any rule that departs from justice to injustice, from kindness to harshness, from the common good to harm, or from rationality to absurdity cannot be part of Shari’ah …”

 

In the end, only God knows best. So let’s not play God on this earth.

For Sisters in Islam and Musawah, the journey towards our vision of an Islam that is kind and compassionate, that upholds equality and justice remains long and challenging. Many of us live in authoritarian states with little tolerance for dissenting voices. The barbarity of ISIS seems to have no bounds. Our political leaders, many of them unpopular, delegitimized and desperate to stay in power are ever willing to use and abuse religion for political ends.

But for many of us, there is no other choice. We don’t wish to emigrate and live in foreign lands. We must stay and fight for the country we love, we want to live in and leave for our children. The challenge is to expand this public space we have created, to open up the debate, to turn the dissenting voices into a clamour for justice and equality, for freedom and dignity at the national, regional and international levels. And for those in authority to realize that there is already a paradigm shift in Islamic scholarship and activism in Muslim contexts, and to support these critical, ground-breaking initiatives. For change to be sustainable, it must take place from within –  not from the barrel of a gun, from foreign interventions. Change from within is slow, perilous, but there is no other alternative.

I hope you will agree, as many others do, and as I know the late Raja Aziz did,  that indeed what groups like Sisters in Islam and Musawah stand for today are a source of hope to the world, not least the Muslim world, and that what we stand for today represents what it means to be Muslim in the 21st century. Look, it is a no brainer – it is SIS…. or ISIS.

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