Islam and Human Rights: Is Compatibility achievable between the Sharia and Human Rights Law?

I.

Introduction:

The Sharia as well as human rights law form essential segments of regulatory behaviour for all Muslim societies: the role and influence of both remains substantial as well as uncontested. However, there is considerable debate surrounding the incompatibility of application between the Sharia on the one hand and human rights norms on the other. In engaging with the subject, the present paper examines the following issues: Can the application of the Sharia be compatible with human rights law or can Sharia-compliant States (or even Muslim majority States aspiring to follow the Sharia) ever find compatibility with evolving norms of international human rights. In engaging with this debate, this paper contends that Sharia and human rights are not incompatible to each other. It goes on to argue that in fact Sharia may compliment human rights norms so long as the operational spheres for both the Sharia and human rights law are determined and understood and an effort is made to retain both within their specific mandates spheres. This paper is divided into five substantive sections. After these introductory comments, section II examines those juristic views that advance the position of incompatibility between the Sharia and human rights law. In highlighting the views advanced by eminent scholars, Section III aims to discuss policies of reconciliation and rapprochement. Section IV, presents a number of personal reflections of the author on the subject, while section V, the concluding ends with some final thoughts on the issue of operational sphere and compatibility of the Sharia with human rights law.

II.

Views on the Compatibility of Sharia and human rights:

Any discussion of Islam, particularly in relation to Islamic values and the compatibility of the Sharia with norms of human rights right law is extremely interesting and yet evokes considerable controversy. In addressing this subject, widely divergent views have been
1

Javaid Rehman, Professor of Law, Brunel University, London, UK. This is written version of a paper presented at an international conference in Konya (Turkey, 30 November 1 December 2013). Professor Rehman is most thankful to Dr Nezir Akyesilmen (Lecturer in Department of International Relations and Deputy Chair of Human Rights Centre in Selcuk University, Konya-Turkey) for the generous invitation to participate in the conference and to Ville Forsman (Raoul Wallenberg Institute, Sweden) for the generous sponsorship and travel grant to participate in the conference.

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adopted. The most pronounced views have been advanced by the so-called rejectionists and the apologist camps. The rejectionist camp, as the title suggests takes the view that Sharia, in its essence, can never be compatible with human rights law and this view has been advanced both within the western jurisprudence as well as by the Islamic jurists and activists.2 The European Court of Human Rights in the famous Refah Partisi (the welfare party) against Turkey held the Sharia to be incompatible with the fundamental principles of democracy and human rights law and noted that Like the Constitutional Court, the Court considers that sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it. The Court notes that, when read together, the offending statements, which contain explicit references to the introduction of sharia, are difficult to reconcile with the fundamental principles of democracy, as conceived in the Convention taken as a whole. It is difficult to declare ones 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. ... In the Courts view, a political party whose actions seem to be aimed at introducing sharia in a State party to the Convention can hardly be regarded as an association complying with the democratic ideal that underlies the whole of the Convention.3 The European Court of Human Rights appears to suggest that democratic ideals including democracy, free expression and human rights cannot be accommodated within the Sharia model. This rejectionist approach is unfortunately not found exclusively within the domain of western, secularist ideologies, but also represents the mindset of many factions within Islamic world. The typical position is advanced by Maulana Mawdudi, an Islamic jurist of the twentieth century. In his view the divine ordinances that are enunciated through the Sharia are not open to any challenges nor do these have to be compatible to man-made evolutionary systems such as modern day human rights law. 4 Such rejectionist approaches are also prevalent in those groups and factions who see the predominance of the Islamic system of Sharia over all other systems. These factions and groups (which would include Jihadists and Islamic radicals) in upholding the Sharia over all other competing philosophies and legal system would look towards the global dominance of Islam. They would engage in what they perceive as Jihad against Kufr. In advocating such a
For a useful analysis see D McGoldrick, Accommodating Muslims in Europe: From Adopting Sharia Law to Religiously Based Opt Outs from Generally Applicable Laws 9 Human Rights Law Review (2009) 603.
2 3

Refah Partisi (the welfare party) and others v. Turkey (Judgment of 31 July 2001) 35 EHRR 3, at para 72.

. See Abu al-A'la al-Mawdudi, Political Theory of Islam in K Ahmad (ed.) Islam: Its Meaning and Message (London: Islamic Council of Europe, 1976), pp. 15961
4

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scheme they would seek subservience of elected representation as well as inferior position of religious minorities as well as Muslim women within the constitutional and legal frameworks. They would also advance such human rights violations as death penalty for those seeking a right to convert out of Islam, to have heterosexual relationships outside of marriage or to engage in consensual homosexual and lesbian sexual practices. Modern human rights norms, which present a challenge to the Sharia principles are therefore unacceptable to such entities and organisations. In this theocratic model, the Sharia and its ordinances are supreme and cannot be subject to any challenges based upon man-made systems such as the human rights. In advocating militant Jihad to establish the Sharia and the God-ordained Law, Pakistans Tehrik-i-Taliban has advanced the following position: our Jihad is against kufr, and to get back our lands that kufr has occupied, and our Jihad is meant to make supreme the Word of Allah and to establish the system of Shariah. Our Jihad isn't limited to Pakistan or Afghanistan. . . Our Jihad is a global Jihad, and we aim to liberate Muslims throughout the world and obliterate tumult, oppression and mischief, and establish the system of Shariah all over the world. We want the Law of Allah on the Land of Allah. 5

III.

Attempts at Reconciliation and Rapprochement

As a reaction to the rejectionist approaches, there have been various attempts at reconciliation and rapprochement. Scholars and jurist have argued that in fact Sharia is compatible with human rights and a number of themes have been presented. Attempting to reconcile Sharia with human rights law is a consistent preoccupation of Politians and statesmen. These theories of reconciliation have various strands, some closely interrelated to each other, while others differing quite considerably. Some jurists and scholars have attempted to analyse the debate of Islams compatibility with human rights through a historical and political prism, suggesting a gradual evolutionary and improving picture in the Islamic model of human rights. It is argued that Islam was a positive force of change in the seventh century Arabia and produced many positive features including an egalitarian model of rights, and Islams contribution to human rights must be viewed within this historical, social and political kaleidoscope. 6 A second, though unrelated strain of argument analyses the various sources of the Sharia (and most prominently the primary sources of the Quran and Sunna). In attempts to establish compatibility with human rights law, this analysis focuses on those aspects of the Sharia where great compatibility could be established. Thus, for example, Professor Abdullahi Ahmed An-Naim would concentrate upon those Quranic verses suggesting egalitarianism, humanity and were in all probability revealed in the earlier
. See Peter Chamberlin, Who Controls the Predators http://www.atlanticfreepress.com/news/1/9167paramilitary-pretense-who-controls-the-predators.html (last visited 29 November 2013).
5 6

.For some of the arguments see Javaid Rehman, The Sharia, Islamic Family Laws and International Human Rights Law: Examining the Theory and Practice of Polygamy and Talaq 21(1) International Journal of Law, Family and Policy (2007), 108.

(Meccan) phases of the Quranic revelation. 7 Armed with these aspects of compatibility, Professor An-Naim would campaign for the legislative abrogation (nashk) of the discriminatory aspects of the Sharia. 8 These discriminatory aspects include inequality towards women and religious minorities as well as probably advocacy (or at least equivocal approaches) towards aggressive Jihad and political violence.9 An aligned argument for the revocation of discriminatory aspects in the Sharia relates to the possible frailties within human understanding of the Sharia (the limitations of the fiqh) and its application in the modern contexts. Those favouring such an approach argue that it is often a question of human understanding of the applicability of rights in a particular context. It is argued that Sharia could never be misleading, erroneous or contradictory to rights, but it is in fact the misinterpretation and misapplication of the Sharia which leads to discrepancies and ultimately the violation of human rights. A number of examples can be advanced to substantiate this argument. On the critical issue of the rights of women, it is suggested that a proper interpretation of the Sharia would legitimise abolition of polygamy and the banning of such practices as unilateral divorces and the unsatisfactory post-divorce maintenance provisions for divorced wives. Similarly if properly applied, the fiqh would direct towards complete equality between all human beings regardless of religious differences or gender or race. Similarly, there would be no discrimination against Lesbian, Gay, Bisexual and Transvestite communities. 10 The Sharia if properly understood, it is argued, would not prohibit any restrictions on the free exercise of religion, including allowing freedom to change ones religion or belief.

IV.

Personal Reflections on the Sharia and Human Rights

In making an assessment as to the compatibility of the Sharia with human rights, it is important to conceptualise and visualize the content, scope and definition of both the Sharia and human rights law. Human rights law is a modern construct, which is evolving and is laden with its own, inherent shortcomings of context, and relativity of historical, cultural, geographical and religious relativism. Likewise, although God-ordained, the Sharia must be understood within its proper context. According to the belief of all Muslims, Sharia has an

. See Abdullahi Ahmed An-Naim, Islamic Law, International Relations and Human Rights: Challenge and Response 20 Cornell International Law Journal (1987) 317. 8 . See Abdullahi Ahmed An-Naim, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law (Syracuse, N.Y.: Syracuse University Press) 1990.
7

. See Abdullahi Ahmed An-Naim, Muslims and Global Justice (Philadelphia: University of Pennsylvania Press) 2011, 3564.
9

. See J Rehman and E Polymenopoulou Is Green a part of the Rainbow? Sharia, homosexuality and LGBT Rights in the Muslim World, 37(1) Fordham International Law Journal (2013), 1.
10

overarching role in the lives of the followers of Islam; Sharia means, the righteous path or more literally, the road to the watering place.11 The bulk of the Sharia is focused towards mans spiritual needs, the relationship of man with Allah Almighty, mans relationship with man in the sense of ethics, morality, religious, ritual practices and mannerism. It is undoubtedly that case that the Sharia does contain some law, but the content of law is very limited and is subject to individualised, subjective assessments. As one noted Islamic law scholar has pointed out the so-called legal matter . . .consists mainly of broad general propositions as to what the aims and aspirations of Muslim society should be. It is essentially the bare formulation of the Islamic religious ethic . . . In short, the primary purpose of the Quran is to regulate not the relationship of man with his fellows but his relationship with his creator. 12 Similar positions have been advanced in relations to other sources of the Sharia, including the Sunna of Prophet Muhammad. Thus Sharia, is undoubtedly imbued with some legal content although [this legal content] is hard to find. 13 Jurists and scholars are not unanimous in their interpretations of the established Sharia law, and the implementation and application of such law is therefore susceptible to subjective interpretations. Even in the context of those Sharia ordinances where penal punishments are explicitly prescribed in the Quran, the application is circumscribed with such serious conditions and caveats that makes it application pretty neigh difficult if not impossible in the present-day conditions prevalent in the contemporary Muslim societies. For the Hudood punishments, the evidential requirements and material conditions are so stringent so as to ensure that the punishment is awarded only in the absence of any doubt as to the commission of the crime by the accused through the requisite mens rea. Taking the example of the Hud punishment for Zina: in order to secure a conviction, the testimony of four male eye witnesses is a mandatory requirement, all of these must have witnessed the actual act of penetration at the same time. The actus reas as well as the mens rea of the offence must be established beyond a shadow of doubt. Similarly, the criminal punishment for theft cannot be applied in social and economic circumstances where the thief has been forced to steal for his survival or the survival of his family. Complications with Sharias varied subjective interpretations and the issues of applicability of Sharia-derived laws in modern society

11

. R Landau, Islam and the Arabs (London: George Allen and Unwin Ltd) 1958, 141; AR Doi , Shariah: The Islamic Law (London: Taha Publishers) 1997, 2.
12

NJ Coulson, A History of Islamic Law (New York: Macmillan Co) 1954, 1112.

13

HP Glenn, Legal Traditions of the World: Sustainable Diversity in Law (Oxford: Oxford University Press) 2000, 159.

The Sharias overarching role in Muslim societies has been noted and the difficulties to distil laws from the Sharia have also been considered. It is important to highlight that efforts to extrapolate legal norms from the Sharia has led to considerable uncertainty within Muslim societies. In light of these difficulties and inherent uncertainties, any implementation of the Sharia through State devised laws has been susceptible to subjective, politically or ideologically motivated interpretations and therefore ultimately proved unworkable. Such self-motivated interpretations are likely to discriminate against other religious sects or madahib. A recent, rather unfortunate example was the attempted induction of the so-called Nizam-Mustafa or the Islamisation process by the late Military General of Pakistan, General Zia-ul-Haq (19791988). In his Islamisation process, General Zia-ul-Haq introduced numerous laws ranging from separate electorates for non-Muslims, to Hudood Ordinances and anti-blasphemy laws. Ostensibly to establish an Islamic system of governance, these laws were a vehicle to perpetuate his own dictatorial rule with the laws creating enormous injustice to various communities of the society and in particular women and religious minorities. The aforementioned examples drawn from General Zia-ul-Haqs Islamisation process vividly highlight complications of practical applicability of Sharia-derived laws in modern societies. This also confirms that the subjective interpretation and the application of such Shariaderived laws are already redundant. Furthermore, just as General Zia-ul-Haq so miserably failed in the implementation of Islamic criminal laws through Hudood ordinances or through the Qisas and Diyat ordinances, similar lack of viability is confronted if concepts such as the Jihad ideology or the Muslim Umma is given an official endorsement. In the contemporary world order national and international affairs are established on the basis of nationality, and modern constitutional frameworks can no longer retain the luxury of either discriminating against nationals or granting privileges to non-nationals solely on the basis of commonality of a religious belief. Islamic nations are now divided into independent nation-States with sovereign jurisdictions, each working towards its own national interest and promoting the interest of its own nationals. It is the case that not only the national interest an Islamic State may not coincide with another Islamic States, but at the same time, the interests and affiliations of Islamic States may be aligned with non-Muslim States and against the interest of another Islamic State or States. Political, social and economic alliance are built and based around strategic interests and not upon religions bonds. It is therefore a stark reality that regardless of the sincerity of intent, religious law cannot determine public laws and laws of public international law.

V.

Conclusions:

This paper set itself the task of assessing as to whether the application of the Sharia can ever be compatible with human rights law or can the Sharia-compliant States ever find compatibility with evolving norms of international human rights. In its examination of relevant issues, the paper also investigated the merits of various views: those asserting the compatibility of the Sharia with human rights law or advocating a rejectionist view. The

personal reflective approach takes the position that the acceptance and application of the Sharia is not incompatible with human rights norms. It has been argued that Sharias primary and most eminent sphere is at the ethical, moral and spiritual level. The essence of the Sharia is targeted towards mans spiritual needs, the relationship of man with Allah Almighty, mans relationship with man in the sense of ethics, morality, and ritual practices. From the available evidence provided in the primary sources of the Sharia, it is clearly arguable that even in the limited instances where Sharia has interaction with legal and constitutional matters, standards are laid out with such ingenuity that these do not compete with human rights or public laws of the society. Further investigation of the two crimes for which punishment is prescribed in the Quran substantiates and confirms these points. As considered above, in order to establish the crime of adultery and theft within the Sharia, stringent substantive and evidentiary requirements suggest the almost impossible burden on the prosecution and therefore a consequent improbability of implementation of these punishments. On the other hand, the focus of human rights law is inherently upon public law matters and regulating relations of members of a society with each other. Such simplified bifurcation of roles and responsibility is not to deny the often complex interaction between matters of faith and public law, but the central idea is to present an essential guideline upon which a fruitful, compatible and congenial relationship between the Sharia and human rights law could be formed.