TABLE OF CONTENTS:
I.
Introduction
II.
Review
on the Feminist Perspective on Human Rights
III.
Human
Rights Perspectives (Western vs. Islam)
IV.
Zina
(A Case of “Honorable” Killings)
V.
Human
Rights as Part of International Law
VI.
Bibliography
I.
Introduction
Issues on human rights of women in
Islamic countries stem from a lot of gender as well as equality claims and or
domestic violence and other problems that are most commonly rooted by the norms
dictated by religion and societal laws. The Islam community’s view on human
rights takes into account matters related to their beliefs and religious
principles such as morality (particularly international morality) and the
Shari’a. (Tibi 1994, 277)
The problem that is faced by Islamic women
actually is embedded on the proper and legitimate enforcement of human rights which will uphold their status in the
society. (Binion 1995, 509) Also, human rights, consider by many as a Western
concept, from where it initially developed, is not viable for Islamic parameters
in pursuit of the protection of human rights of women as it undermines the
socio-cultural and religious aspects of Islam. However, this contradicts the
“universality of human rights” by separating the Western bias, to successfully
retain an Islamic perspective. (Bielefeldt 2000, 92)
In this light, this paper aims to explore
the problems that are faced by Islamic women with regard to human rights and
how not infallible the world-widely accepted Western notion is as it sets a “conflict between the call for an
implementation of the Islamic Shari’a and the universally accepted human rights
standards.” (Tibi 1994, 282) Besides this, this paper shall discuss also
the obstructions that Islam (in reference to the Shari’a law) as a religion and
culture brings to the effective fortification of human rights of women. As a
question posed by a scholar, “Is Islam a
repressor of human rights?” (Price 2002, 213)
While religion and perspective are
important matters, a case of this plight of women in Islamic countries in
relation to human rights will also be critically reviewed as an issue not
delimited to the Middle Eastern region but something which spills over the
whole of the international system:
“Violations of human
rights in the Muslim world must be condemned and dealt with internationally,
for “humanity can no longer disclaim responsibility for the fate of human
beings in any part of the world.” (Tibi 1994, 285)
II.
A Review on the Feminist Perspective on
Human Rights
The general take on human rights of
feminists primarily deals with the proper enforcement and the realization of
the legalities of women’s rights within the society. Many feminists want to
promote the welfare of women and they aim for the world to recognize that women
are equal with men in the entirety of the world.
The problem on human rights of women is
not experienced solely in the Islamic community. The whole world is faced with
challenges that deal with matters like this. Most commonly, violations of human
rights of women take many forms such as oppression, misconduct or abuses,
marriage and sexual exploitation, gender –related discrimination, etc.
Basically, feminism wants to eliminate
or to put a stop on the issues mentioned above. It focuses on asking “questions about where the law fits within
women's experience, what is its role in perpetuating these gendered systems,
and how might law be a vehicle for change.” (Binion 1995, 512)
Feminism considers the actual human experience as their pilot ground in
analyzing the problems that are encountered by women. “And, while the focus of analysis is on women's experience, a
feminist approach might have immediate implications for the rights of all
disempowered peoples and raise questions about social organization generally.” (Binion
1995, 513)
The advocacies of the feminist regime
practically want to preserve the equality of men and women and pave way to the
advent of well-protected lives and a safe environment for everyone. The law is
viewed by feminists as an instrument that can eliminate the disparity brought
about by patriarchal traditions and the suppression of women which is
attributed to the roles of women in the olden times. The problem now is that legal institutions are nevertheless
criticized on how they can actually protect women’s rights. These institutions
are being viewed as “hierarchical,
adversarial, exclusionary, and unlikely to respect claims made by women.” (Binion
1995, 513) Apparently, the exercise of women’s rights does not overrule the
pre-existing laws and norms of the society because feminists do not advocate
this. It is vital to point out that even if there is little trust to the law as
a means to crash the inequalities and discrimination, it is just argued though
that what is questioned by feminists is their “reliance” over the law (Binion
1995, 514) because:
“Feminists find little political support
for their movement to scale the presumptive wall between state and family and
to implicate parties other than the government for human rights violations.”
(Binion 1995, 516)
III.
Human Rights Perspectives (Western vs.
Islam)
A.
Western Perspective on Human Rights
Historically, the "Western origin” of human
rights means the simple fact that the idea of universal rights of freedom and
equality, so far as we know, was first proclaimed in Western Europe and North
America. (Bielefeldt 2000,
100)
The idea of
human rights, being conceived in the West is however argued that it is not
merely of geographical reference but
of where the notion of the protection of human dignity and rights of men, women
and minorities first existed. It is also where the political, cultural, religious and social dimensions on human
rights was developed as a response to the crisis
experienced in Europe attributed to the conflicts that rose out of civil wars and fall of Christendom.
(Bielefeldt 2000, 101) The troubles of the people initiated the need for a peaceful coexistence and cooperation. The
European tradition also shows “resistance” which is not only manifested
politically but in the religious and
cultural aspects as well.
B. Islamic Perspective on Human Rights
Islam has a
very solid background on troubles with regard to human rights violations. It stresses
an individual's obligations to society rather than individual rights that
cannot be violated by governments. (Price
2002, 213) Tracking down the history if Islam on the sole issue of human
rights, it can be described as poor.
Nations operating under the Shari’a (their
foremost source of laws) face problems regarding the proper enforcement of laws
in the state. As the laws practically refer to the Shari’a as the basis of
“lawful” actions, thence the problems arise. It is indeed in a way, religiously
or culturally infected due to the strong ties of tradition built up within and
operated under the Islamic community.
One of the prime hitches of the Shari’a
is of course relevant to women. “Although
acknowledging women's legal personality, the traditional Shariah did not
include the principle of equality in rights for men and women. It is especially
in matters of marriage, family life, divorce, and inheritance that differences
in legal standing between the genders have persisted to the present day.
Measured against the benchmark of modern human rights, they must be regarded as
discriminating against women.” (Bielefeldt 2000, 103)
Persisting until the present time, it is
but right to presume that the Shari’a definitely is a barrier to the exercise
of unilateral freedoms and human rights in the modern era for women. The value
given to tradition overshadows the value of women in the society and their
roles are always preconditioned to the olden conceptions of being under the social
hierarchy of a patriarchal setting.
Essentially, both the Western and
Islamic perspective on human rights seem to project as problems for the women
in Islamic countries in order for them to actually be granted individual
freedoms, to eliminate gender inequalities or basically to be given “human”
rights. While the Western view on human rights explain how politics come into
the forefront in the event of an informal “resistance” to what is supposedly to
be followed, this is a challenge to the women who want to advance their own
human rights. For when women push through with what they advocate for, it will
most of the time be viewed by the government and other legal institutions as a
form of opposition to the pre-existing ones. On the contrary, the Islamic
Shari’a as a reference for all the laws of the nations in the Middle Eastern
region, shall forever avert the exertion of women of their human rights for the
“divine” tradition is always of greater importance regardless of the legal
regulations that modern states should follow as presented in the Universal
Declaration of Human Rights.
IV:
ZINA: A Case of “Honorable[?]”
Killings
One of the more serious and critical
cases of human rights violations is presented by the Zina Ordinance (ZINA, meaning illicit sex). (Khan 2003, 75) It is a widely-known matter in
Pakistan which defies family ties and intricately disregards the biological
connections of families living under the rule.
What is Zina, basically? Zina refers to
sex outside of marriage – both adultery and fornication. In Pakistan, the Zina
Ordinance suggests and regulates what constitutes ethical behavior in sex, and
more generally, within the family and the social institution of marriage in
ways in which women's fundamental rights under the constitution and some argue
in Islam, are violated. (Khan 2003, 76)
Zina
is meant to punish those people, regardless of sex, who dishonor their
families. In the case of rape, a woman, who apparently is the victim, will be charged
of committing adultery (acknowledging she has had intercourse). In the event that the man would deny the accusations
towards him, if in any circumstance there is lack of evidence, hence, the man
will be released or will not be
charged of rape. (Khan 2003, 76)
This
is a clear presentation of the unequal treatment on Pakistani women and how
immorality is not addressed in situations as such. Definitely, it is a
violation of the human rights of women in Pakistan. Unfortunately, many victims
who are supposed to be given justice are the ones who suffer the sanctions
implied by the rule. Furthermore, the usual victims are those who have no
educational backgrounds, illiterate or those who lack the confidence and trust
in the state to voice out their predicaments for it will backfire against them.
Essentially, the legal dimension of the Zina Ordinance is totally insignificant
as those who cannot afford their lawyers to protect them will most likely be charged and jailed. (Khan 2003, 77)
Hypocritically,
“The zina laws were promulgated to help
bring about a just and moral society in Pakistan.” (Khan 2003, 77)
In
effect, the issue on morality as opposed to human dignity has a stronger impact
on what is lawfully “right” since it is basically of reference to a culturally
accepted tradition as it was promulgated
by the Hadood Ordinance of 1979 by General Zia-ul-Haq. (Khan 2003, 76)
While it is important to conform to the
society’s traditions and beliefs, the case of the Zina truly is a discrepancy
to the promotion of women’s human rights in Pakistan. It is important to deal
with matters as such for it is totally demoralizing and exploitative of women
not being able to voice out their highly sensitive dilemmas on abuses such as
rape and to not be charged of a crime for doing so. Those who try to open up
the crime publicly is most of the time discriminated against instead of being
supported by the people. With this, the victims gain no support not only from
their families who have despised them, but as well as those who should be the
source of help. “Their vulnerability to
the Zina laws helps deflect attention away from societal corruption and a
political economy of defence towards an embodied immorality of the individual.”
(Khan 2003)
As
a case of human rights violation, this is one good example for the experiences
of women in Pakistan because of the Zina Ordinance seemingly take away their
freedom to be provided with justice and be protected by their own state. The
issue of “immorality” is accused upon them as sexual intercourse is acknowledged
and this is an injustice on the part of the victim in a case of rape. Instead
of charging the suspect for taking advantage of a woman, what particularly
happens is the other way around. But this is not always the case because men
can also be charged with the Zina. However, this paper focuses only on the
plights of women and the author has limited the exponents to the perspective of
women.
V.
Conclusion: Human Rights as Part of
International Law
Human rights were put into a legal
context through the Westerners. Because
of the Universal Declaration of Human
Rights (UDHR) by the United Nations in 1948 and the covenants of 1966, that
went into force in 1976, these rights have now become international law. In
this context we are talking about legal rule, both domestic and international, because
rights can only be institutionalized in a legal context. Thus, human rights, democracy,
and legal rule are intrinsically interrelated to one another. (Tibi 1994, 78)
In connection to the issue of women’s
human rights in Islamic countries, it is argued that “Human rights concerns become a delicate issue when the acknowledgement
of their secular and ethical-universal claims are related to the example of the
foremost non-Western civilization, i.e., to Islam and its legal concepts and
frameworks described as Shari’a.” (Tibi 1994, 285)
Taken into legal context, it cannot be
denied that although human rights violations are already recognized and dealt
with internationally, the Islam culture still maintains a strong regard of the
Shari’a as a basis of their laws. In this light, the bias brought about by this
principle towards women and their roles in the community neglects the rights of
women. As long as they are under the provisions of the Shari’a, the status of
Islamic women in the social order will remain the same. Problems will continue
to be experienced by women and even with the presence of internationally
imposed legalities, the cultural and religious elements on human rights will
persist. Perhaps, if the democratic rules will outdo the heritage of the
Shari’a, the world of women in Islamic countries would not be narrow. In a
sense, they can fully exercise their unique and deserved freedoms, religious
liberties and be spared from being treated indifferently. Inherently, the
Shari’a is indeed a primary source of problems for women to be able to achieve
complete liberation from the constraints dictated by the Islamic community and
enjoy their human rights fully.
Another concern is that traditions in
different Islamic communities somewhat defy the regulations set by the
international arena on human rights. With this, it is evident that sovereignty
still plays a huge role in states. Just
like in Pakistan, the problem of the Zina Ordinance lies essentially in its
enforcement. It is legally conducted but the litigation process seems to favor
the accused rather than the victim. This is because of the fact that what Zina
wants to address is limited to a matter that mostly women become subverted to
which is sex. Hence, if proceedings do not properly happen, there is nothing
else that women can do but be put to jail and be incarcerated. Being tortured
because of bringing dishonor to the family, something which is contestable for
a crime of rape that was committed definitely disgusts the application of human
rights of women in Pakistan.
This makes it harder for international law to adjust with the
cultural backgrounds set on their people’s human values. The pre-existent laws
which were borne due to the “higher being” or being religion-based are hard to
overpower as it is immensely practiced and recognized by the Islamic society.
Women, conventionally having predestined roles under the patriarchal world,
will not have their taste of self-determination unless they stop identifying
themselves with the Islamic traditions. But then again, being women under
Islam, although heavily suppressed by their own beliefs, cannot escape the law
of the Shari’a for this element is impossible to defeat.
However, the world is moving at a fast pace and there is still
hope that one day this issue on the contradicting religious and legal
implications of the Shari’a will be addressed and dealt with. There is still
light at the end of the tunnel that the world will be able to adapt to a more
rational legal order and will be more inclined to the protection of women
particularly the Islamic women.
VI.
Bibliography
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H. 2000. "Western"
versus "Islamic" Human Rights Conceptions?: A Critique of Cultural
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Binion, G.
1995. Human Rights: A
Feminist Perspective. Human Rights
Quarterly, Vol. 17, No. 3 (Aug., 1995), pp. 509-526. http://www.jstor.org/ (accessed October 1, 2017).
Khan, S. 2003. "Zina" and the
Moral Regulation of Pakistani Women. Feminist
Review, No. 75, Identities (2003), pp. 75-100. http://www.jstor.org/ (accessed October 1, 2017).
Price, D. 2002. Islam and Human Rights:
A Case of Deceptive First Appearances. Journal
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213-225. http://www.jstor.org/ (accessed October 1, 2017).
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Vriens,
Lauren. 2003. Islam: Governing Under Sharia. http://www.cfr.org/publication/8034/islam.html (accessed October 3, 2017).
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