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Women's Rights and Islamic Concerns with IJTIHAD Over Those Rights

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Women's Rights and Islamic Concerns with IJTIHAD Over Those Rights N o t e s 1 Introduction: Women’s Rights and Islamic Concerns with IJTIHAD over Those Rights 1 . Khalid Mas’ud (2009) offers a comprehensive review of the concept of ijti- had historically. See especially pp. 14–33. For an argument on why ijtihad , in the more formal sense, needs to be revived in the contemporary world to address the challenges of modernity and promote justice and progress within the Muslim world, see USIP, Ijtihad: Reinterpreting Islamic Principles for the Twenty-first Century. Special Report No. 125, August 2004. 2. An interesting insight on the prolific yet controversial issuance of fatwas around the world is in Bennoune, 2013. 3 . M u h a m m a d I q b a l , The Reconstruction of Religious Thought in Islam (Lahore: Institute of Islamic Culture, 1986: 78) as cited in Khalid Mas’ud 2009: 81. 4 . W o r l d B a n k 2013 World Development Indicators , accessed at: http://wdi. worldbank.org/table/1.5. 5 . United Nations “The World’s Women 2010: Trends and Statistics, Executive Summary,” accessed at: http://unstats.un.org/unsd/demographic/products/ Worldswomen/Executive%20summary.htm . 6 . World Bank op. cit. 7 . Ibid., and Inter-Parliamentary Union, based on information provided by National Parliaments by February 1, 2013, accessed at: http://www.ipu.org/ wmn-e/world.htm . 8 . The Koran translated with notes by N. J. Dawood. Penguin Books, 2006, p. 64. 9 . For more on each of these organizations, see their respective websites: http:// www.wluml.org/ and http://www.musawah.org/ . 10 . These include: Algeria, 1996; Bangladesh, 1984; Djibouti, 1998; Egypt, 1981; Indonesia, 1984; Jordan, 1992; Kazakhstan, 1998; Kuwait, 1994; Kyrgyzstan, 1997; Lebanon, 1997; Libya, 1989; Malaysia, 1995; Morocco, 1993; Nigeria, 1985; Pakistan, 1996; Saudi Arabia, 2000; Tajikistan, 1993; Tunisia, 1985; Turkey, 1985; Turkmenistan, 1997; Uzbekistan, 1995; and Yemen, 1984. 160 Notes 11 . “Political and Public Life,” General Recommendation No. 23 of CEDAW Committee, 16th Session, 1997, based on Article 7, as noted in Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals, Oxford University Press, 2000: 196. 12 . CEDAW’s adoption of the impermissibility principle (contained in the Vienna Convention on the Law of Treaties) that disallows any reservation incompatible with the object and purpose of the Convention itself—especially its three fun- damental principles of Equality, Non-discrimination, and State Obligation— has been particularly problematic for Muslim states. While CEDAW permits ratification subject to reservation—a formal declaration that the State does not accept as binding on it specific treaty provisions—this is meant just to be a temporary measure so that States can take steps to remove obstacles to the implementation of the articles it has reserved. CEDAW’s requirements, there- fore, are geared to preclude the original strength and potency of the instru- ment from becoming watered down. 13 . Founded by Malik bin Anas, this school of jurisprudence is dominant in North Africa and parts of Arabia. It is distinct in its acceptance not only of the Qur’an and Sunnah as sources of Islamic law, but also accepts analogical reasoning ( qiyas ) as a legal source. 14 . Based on personal communication in Tunis, October 1999. 15 . This is based on personal communication in Tunis in September 1999. 16 . Shafi’i jurisprudence has traditionally been predominant in this area (as well as in large swatches of Arabia). Founded by Abu ʿ Abdillah Muhammad ibn Idris al-Shafi‘i, it accepts both qiyas and ijma (consensus) as sources of Islamic law (in addition to the Qur’an and Sunnah), though in ways more limiting than Hanafi fiqh does. 17 . Founded by Ab ū Ḥ an ī fa an-Nu‘man ibn Th ā bit, Hanafi fiqh is widely con- sidered the most liberal of the four major schools of Sunni jurisprudence. The predominant madhab in South and Central Asia, it has the most adherents in the Muslim world. 18 . Hisba Judgment by Council of Islamic Ideology, September 2004; I appreci- ate Juan Cole’s help with translating the Judgment. 19 . I appreciate the insights Muhammad Khalid Mas’ud shared with me on this issue, from discussions in Islamabad in August 2013. 20 . Ministry of Population Welfare, Government of Pakistan “Draft National Population Policy 2010,” January 18, 2010, p. 1. 21 . Commission of Inquiry for Women, Government of Pakistan. 1997. Report of the Commission of Inquiry for Women in Pakistan , Islamabad. August. 22 . It is certainly not my intention to omit many other important women’s NGOs which share similar visions, such as ASR, the Women’s Action Forum, Simorgh, War Against Rape, etc. However, focusing on the vision and advo- cacy of these two groups provides an important clarity that is representative of this wider community. Notes 161 2 Legal Reforms and State Policies Affecting Women’s Rights 1 . This section borrows heavily from my earlier work, “Moving Forward with the Legal Empowerment of Women in Pakistan” US Institute for Peace, Special Report 305, May 2012. 2 . At the same time, the state adopted the 1939 Dissolution of Muslim Marriages Act. 3 . I have elaborated further on women’s legal rights in Pakistan in the coun- try’s first few decades in Anita M. Weiss, “Interpreting Women’s Rights: The Dilemma Over Eliminating Discrimination against Women in Pakistan,” International Sociology, Vol. 18, No. 3, September 2003, pp. 581–601. 4 . National Commission on the Status of Women, Women’s Right of Inheritance and Its Implementation (Islamabad: Aligarh Publishers, n.d.), p. 44. 5 . All references are from Government of Pakistan, The Constitution of the Islamic Republic of Pakistan, 1973 (National Assembly of Pakistan, 1993). 6 . I have written extensively on this issue. See for example Weiss 1985, 1986, 1994, and more recently, 2004. 7 . Khalid Masud in Islamabad conveyed this to me, August 17, 2013. 8 . PPP Manifesto for October 1993 elections. 9 . UN General Assembly Document A/RES/44/25 (December 12, 1989), acces- sible at http://www.hrweb.org/legal/child.html. 10 . United Nations General Assembly, “Vienna Declaration and Programme of Action,” July 12, 1993, accessible at: http://www.un.org/ecosocdev/geninfo/ populatin/icpd.htm . 11 . United Nations Population Information Network (POPIN), UN Population Division, Department of Economic and Social Affairs, with support from the UN Population Fund (UNFPA), A/CONF.171/13: Report of the ICPD (94/10/18). 12 . Many heads of state of Pakistan have pledged to do just that, most recently Pervez Musharraf in the mid-2000s, but honor killings apparently continue unabatedly. 13 . This group continues to meet, with the most recent conference, the 8th, held in Khartoum, Sudan, January 17–22, 2013. 14 . As quoted by Beena Sarwar, “Women: Muslim Legislators Conference Sets the Tone for Beijing,” Inter Press Service, August 7, 1995. 15 . Address by Mohtarma Benazir Bhutto, prime minister of the Republic of Pakistan, at the Fourth World Conference on Women, Beijing, September 4, 1995. 1 6 . I b i d . 17 . While it signed the ICESCR, one of the two major UN human rights cov- enants, it wasn’t actually ratified until April 17, 2008, soon after the PPP government came to power. It was on that same date in April 2008 that the 162 Notes PPP government also signed the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), eventually ratify- ing both on June 23, 2010. 18 . Pakistan signed ILO No. 100 on October 11, 2001. 19 . Government of Pakistan 2005. A fuller discussion of this Act can be found in Mustafa 2007. 20 . This quote by MMA MNA Razia Aziz captures the tone of rhetoric used by MMA members once the Hudood reforms were tabled in the National Assembly. Dawn, August 27, 2006, accessible at: http://www.dawn.com /2006/08/27/local20.htm . 21 . Personal conversation with MPA Sikander Sherpao in Peshawar, January 21, 2007. 22 . Ministry for Women Development, Government of Pakistan, 2001a, Preamble, 1. 23 . Ibid., Section 4, paragraph 5. 24 . For more information on GRAP, see its website: http://grap.gop.pk/About%20 Grap.htm . 25 . Former CII Director Khalid Masud conveyed to me the importance of the stance taken by the Council of Islamic Ideology in moving these actions for- ward, on August 17, 2013 in Islamabad. 26 . The BISP was implemented in October 2008. Its website reviews its history: http://www.bisp.gov.pk/. As a poverty alleviation program, it provides modest monthly payments to women in households, not men. 27 . This is the wording used in Pakistan’s 2011 CEDAW Report, where it addresses CEDAW’s Article 16 on Marriage and Family Life. See Committee on the Elimination of Discrimination against Women 2011: 76. 28 . For further details on Sindh’s Women Development Department, see its web- site at: http://www.sindh.gov.pk/wdd/template.asp?page=index . 29 . For further details on Khyber Pakhtunkhwa’s provincial Ministry for Social Welfare and Women Development, see its website at: http://www.khyberpak- htunkhwa.gov.pk/Departments/SocialWelfare/index.php . 30 . UN Women “Q&A with H.E Khawar Mumtaz, Chairperson of the National Commission on the Status of Women, Pakistan,” February 11, 2013, accessed at: http://www.unwomen.org/2013/02/qa-with-h-e-khawar-mumtaz -chairperson-of-the-national-commission-on-the-status-of-women-pakistan/. 31 . Abdul Manan, “Punjab to have commission on status of women,” The Express Tribune , February 13, 2014, p. 5. 32 . “Towards gender ‘equality’: Commission on status of women to be formed,” Express Tribune , November 28, 2013, accessed at: http://tribune.com.pk/ story/638454/towards-gender-equality-commission-on-status-of-women-to -be-formed/.
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