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CEDAW and Muslim Family Laws: in Search of Common Ground  The Musawah research project on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) examined States parties’ justifications for their failure to implement CEDAW with regard to family laws and practices that discriminate against Muslim women. The research reviewed documents for 44 Muslim majority and minority countries that reported to the CEDAW Committee from 2005-2010. This report documents the trends identified in the review, and presents Musawah’s responses to these justifications based on its holistic Framework for Action. It includes recommendations to the CEDAW Committee for a deeper engagement and more meaningful dialogue on the connections between Muslim family laws and practices and international human rights standards. Musawah is a global movement of women and men who believe that equality and justice in the Muslim family are necessary and possible. In the 21st century there cannot be justice without equality; the time for equality and justice is now! Equality in the family is the foundation for equality in society. Families in all their multiple forms are central to our lives, and should be a safe and happy space, equally empowering for all. Musawah builds on centuries of effort to promote and protect equality and justice in the family and in society. Musawah is led by Muslim women who seek to publicly reclaim Islam’s spirit of justice for all. CEDAW and Musawah acts together with individuals and groups to grow the movement, build knowledge and advocate for change on multiple levels. MUSLIM FAMILY LAWS Musawah uses a holistic framework that integrates Islamic teachings, universal human rights, national constitutional guarantees of equality, and the lived realities In Search of Common Ground of women and men. Musawah was launched in February 2009 at a Global Meeting in Kuala Lumpur, Malaysia, attended by over 250 women and men from 47 countries of Africa, Asia, Europe, the Middle East, North America and the Pacific. For details see www.musawah.org c/o: Sisters in Islam (SIS Forum Malaysia) 7, Jalan 6/10, 46000 Petaling Jaya, Selangor, MALAYSIA Tel : +603 7785 6121 Fax : +603 7785 8737 E-mail : [email protected] Website : www.musawah.org CEDAW and Muslim Family Laws: In Search of Common Ground CEDAW and Muslim Family Laws Musawah for Equality in the Family CEDAW and Muslim Family Laws: In Search of Common Ground CEDAW and Muslim Family Laws In Search of Common Ground v Musawah for Equality in the Family © Ssters n Islam, 2011 Published in Malaysia by: Musawah an ntatve of Ssters n Islam (SIS Forum Malaysa) 7 Jalan 6/10, 46000 Petalng Jaya, Selangor, Malaysa Tel: +603 7785 6121 Fax: +603 7785 8737 Emal: [email protected] Web: http://www.musawah.org Project Leader: Zanah Anwar Advisory Team: Amra Sonbol, Zba Mr-Hossen, Cassandra Balchn, Shanth Daram Writing Team: Jana Rummnger, Janne Moussa, Zanah Anwar Research Team: Janne Moussa (chef researcher), supported by Yasmn Masd, Sujatha Rangaswam, Jessca D’Cruz, Magdalena Pskunowcz and Esra Esenlk. Thanks also to Vjay Nagaraj for hs support to the Geneva-based researchers. Editing Team: Janne Moussa, Jana Rummnger, Zanah Anwar, Cassandra Balchn and other members of the advsory team. Cover Design: Gerakbudaya Enterprse Layout: Gerakbudaya Enterprse Printer: Vnln Press Sdn Bhd 2, Jalan Merant Perma 1, Merant Perma Industral Park, Batu 15, Jalan Puchong, 47100 Puchong, Selangor, Malaysa. Any part of ths publcaton may be coped, reproduced, adapted, stored n a retreval system or transmtted in any form or by any means to meet local needs, wthout permsson from Musawah, provded that there is no intention of gaining material profits and that all copies, reproductions, adaptation and translaton through mechancal, electrcal or electronc means acknowledge Musawah and the authors as the sources. A copy of any reproducton, adaptaton or translaton should be sent to Musawah at the above address. CEDAW and Muslim Family Laws: In Search of Common Ground v CONTENTS 1. INTRODUCTION 1 1.1 About Musawah 1 1.2 The Musawah CEDAW Project 2 2. APPROACHES TO CEDAW AND MUSLIM FAMILY LAWS AND PRACTICES 5 2.1 Methodology 5 2.2 CEDAW Committee approaches 6 2.2.1 Statements on reservatons to the Conventon 6 2.2.2 Legal systems and conflicts of laws 7 2.2.3 Specific issues related to marriage and family matters 7 2.2.4 Suggestons and recommendatons to States partes 9 2.3 State party approaches and justifications for non-compliance 11 2.3.1 Complyng or n the process of complyng 11 2.3.2 Shari‘ah is the principal source of law defining rights, duties, and responsbltes of men and women 12 2.3.3 Cannot implement if inconsistent or in conflict with Islam/Shari‘ah 12 2.3.4 Islam provides sufficient or superior justice for women or complementarty of rghts and dutes between men and women 13 2.3.5 Culture, customs, or tradtons prevent full mplementaton 14 2.3.6 Respect for mnorty rghts prevents full mplementaton 15 2.3.7 Other obstacles to mplementaton 16 2.3.8 Constructve engagement 16 2.4 NGO approaches and strategies 18 3. APPLYING THE MUSAWAH FRAMEWORK IN THE CONTEXT OF CEDAW 21 3.1 General application of the Musawah Framework 22 3.2 Responses to common State party justifications for non-implementation of CEDAW 24 3.2.1 Shari‘ah is the principal source of law defining rights, duties, and responsbltes of men and women 24 3.2.2 Cannot implement if inconsistent or in conflict with Islam/Shari‘ah 25 3.2.3 Islam provides superior or sufficient justice for women or complementarty of rghts and dutes between men and women 26 3.2.4 Culture, customs, or tradtons, ncludng mnorty rghts, prevent full mplementaton 28 3.3 Responses to specific issues 29 3.3.1 Chld marrage 30 3.3.2 Freedom to choose f, when, and whom to marry 32 3.3.3 Polygamy 33 3.3.4 Fnancal ssues and obedence 36 3.3.5 Inhertance 38 v Musawah for Equality in the Family 4. CONCLUSION AND RECOMMENDATIONS 41 ANNEXES 43 ANNEX 1: GLOSSARY OF KEY TERMS 43 AnnEx 2: TAblE of RighTS-bASED lAWS in ThE MuSliM WoRlD 45 ANNEX 3: OIC COUNTRIES AND THE CEDAW CONVENTION 49 ANNEX 4: SELECTED READINGS ON LAW AND FEMINISM IN MUSLIM CONTEXTS 65 NOTES 67 CEDAW and Muslim Family Laws: In Search of Common Ground 1. INTRODUCTION This report is based on a Musawah research Musawah uses a holistic framework that project on the Convention on the Elimination integrates Islamic teachings, universal of All Forms of Discrimination against human rights, national constitutional Women (‘CEDAW’ or ‘the Convention’) guarantees of equality, and lived realities that examined States parties’ justifications of women and men. What makes Musawah for their failure to implement CEDAW with different is that it brings Islamic and human regard to family laws and practices that rights frameworks together and argues for discriminate against Muslim women. The equality within the Islamic legal tradition. As research project reviewed documents for 44 such, Musawah recognises the compatibility countries with Muslim majority or significant between concepts of equality and justice Muslim minority populations that reported in Islam and in international human to the Committee on the Elimination of rights standards, including the CEDAW Discrimination against Women (‘CEDAW Convention. Musawah also recognises the Committee’ or ‘the Committee’) from critical importance of such human rights 2005 to 200. This report documents the standards, which guarantee all women a trends identified in this review, along with voice in defining their culture. Although responses from Musawah based on its holistic women in most cultures and other religions Framework for Action and recommendations also suffer discrimination, it is troubling the to the CEDAW Committee for a deeper extent to which women’s roles within the engagement and more meaningful dialogue Muslim family have become politicised, with on the connections between Muslim family women and family laws becoming symbols of laws and practices and international human cultural authenticity and carriers of religious rights law. tradition. Because Muslim family laws are regarded by many Muslims to be derived 1.1 About Musawah directly from the teachings of the religion, this makes reform particularly difficult. Musawah is a global movement of women and Those determined to preserve the status men who believe that equality and justice in quo conflate human understanding of God’s the Muslim family are necessary and possible. message with the divine word itself, thus Musawah, which means ‘Equality’ in Arabic, interpreting women’s demands for reform builds on centuries of effort to promote and towards equality and justice as demands to protect equality and justice in the family and change the divine message. in society. Musawah is led by Muslim women, Musawah intends to bring the following who seek publicly to reclaim Islam’s spirit of to the larger women’s and human rights justice for all. Musawah acts together with movement: individuals and groups to grow the movement, build knowledge and advocate for change on • An assertion that Islam can be a source multiple levels. Its launch at a Global Meeting of empowerment, not a source of oppression and discrimination; in Kuala Lumpur, Malaysia, in February 2009 brought together over 250 participants • An effort to open new horizons for — women and men, activists, scholars, rethinking the relationship between and policy makers — from 47 countries, human rights, equality and justice, and Islam; including 32 countries that are members of the Organisation of the Islamic Conference • An offer to open a new constructive (OIC). For details, visit the Musawah website dialogue where religion is no longer an at: http://www.musawah.org.
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