Guide to Discussion. Areas of Discussion

Transcription

1 Guide to Discussion METHODOLOGY FOR DISCUSSION A discussion leader will introduce the subject very briefly and will call upon panelists to focus on critical issues though questions and answers. The idea is to brainstorm and provoke discussion on shared areas of law reform and practice. OUTCOMES OF THE ROUNDTABLE DRAFTING AND ADOPTING A PLATFORM OF ACTION Participants will be invited to contribute papers to Volume II of Women Leading Change to be published by Wellesley Centers for Women, Wellesley College. CAIRO DECLARATION The release of a Joint Statement or Declaration that will amplify a call to action on a few critical areas of reform Areas of Discussion DAY ONE Discussion One Reform of Family Law Family law is a litmus test for gender equality and has the most intimate and powerful impact on their lives. In almost all countries women face gender based discrimination in the family codes. Family laws in these countries declare that the husband is the head of the family, require the wife to obey her husband, and give the husband power over his wife's right to work and travel, among other rights. Among the countries with the most liberal family codes are Tunisia, which has had a relatively liberal family code for many years, and Morocco, which enacted a family code that substantially expanded women's rights in The Reform of Morocco s Mudaawana was a watershed moment in the history of feminism and showcases the extent of the powerful force unleashed by these women. Culminating in 2004, the struggle for the reform of the family law led to greater empowerment of women. The Mudawana raised the age of marriage to 18, restricted polygamy, and provided women greater security at divorce. 1

2 Reform of the family code has been a high priority objective of women's rights advocates, as well as liberalminded lawyers, judges, and Islamic scholars. The Morocco reform has had an important regional impact, as it has strengthened the argument of those who say that equal status within marriage is compatible with Shari'a law. One of the strategies advocates are using is a progressive interpretation of Islamic principles is being used in the revision of Malaysian Islamic Family Law of 1984 and in the Million Signature campaign begun in 2006 in Iran for a more egalitarian revision of the civil laws. The 2002 reforms to the Turkish Civil Law raised the age of marriage to 17 and equalized it to both women and men. Moreover, it created a joint system of property at marriage and equalized women s and men s rights in the marriage in relation to custody, property ownership, registration of marriage, and births, etc. I n Egypt, Honorable Mushira Khattab has led the charge to raise the age of marriage in the reform of the Children s Rights Law in In Indonesia, Dr. Siti Mulia drafted a groundbreaking Counter Legal Draft to address these discriminatory provisions through Islamic jurisprudence. Dr. Siti Mulia launched the Counter Legal Draft (CLD) in 2004 as an alternative statement of family law principles in keeping with the spirit of the Koran. The CLD is a pluralistic and humanistic interpretation consistent with the Koran s principles of justice and gender equality. Dr. Siti Mulia argues that laws are a reflection of the values of society, and given that Islamic legal theory or al adat muhkamat specifically allows tradition or custom in a community to become law, laws must be interpreted according to modern context. Dr. Siti Mulia s counterpoint to Indonesia s Islamic Code created much debate and is a model that can be used in prohibiting child marriage, outlawing polygamy, and allowing interfaith marriage, reclaiming gender equality in marriage, making marriage registration mandatory, and prohibiting gender discrimination in inheritance laws. The egalitarian proposals she advances are grounded in a progressive interpretation of the Koran and the theoretical underpinnings of the Koran that support these reformist initiatives. Some Questions for Discussion: What are the Islamic underpinnings that support the progressive proposals in the counter legal draft? How do we separate Islam from the patriarchal forces that discriminate against women in law and practice? How did you respond to the change resistant elements of society? What lessons can other countries learn from this experience? How can this draft be modeled in other countries? How do we harness the power of women s movements and campaigns in reformist processes? Despite a backlash how do we go forward? Some of the areas of reform have included but have not been limited to the following areas of discrimination: The minimum age of marriage is lower for women than men. A woman, regardless of her age, can only marry with her guardian's consent, whereas a man does not need to get the consent of a guardian. A Muslim man can marry a non Muslim woman but a Muslim woman cannot marry a non Muslim man. A man may marry multiple wives (up to four), but a woman can only have a monogamous marriage. A woman is supposed to obey her husband. Her failure to comply with the "lawful" wishes of her husband can mean she lose her right to maintenance. A man might be able to divorce his wife at will, outside of the court system, but a woman has to go through a different process. Custody and guardianship of children are determined separately. The mother has a right to physical custody of her children only up to the age seven for a son or nine for a daughter, after which custody devolves upon the father. Under certain laws, a woman is not entitled to guardianship of her children. Similar discriminatory provisions in personal laws are common in many countries throughout the world. In response to such discriminatory provisions, women's groups in many Muslim countries are calling for reform of Muslim family laws. 2

3 Discussion Two A Feminist interpretation of the Koran: Giving Voice to Women Despite the egalitarian underpinnings of the Koran, women have been subordinated by patriarchal interpretations of the Koran that have distorted an insight into the way in which Islam provides a foundation for a radical restatement of women s rights. This resurgence of a feminist interpretation of the Koran must be seen within the context of a movement to disenfranchise women in the name of religion. The women leaders present at the roundtable embrace a progressive interpretation of Islam to support women s rights. These leaders are working within the tenets of Islam to make changes for women and to broaden the frontiers of economic, political, and educational participation for women. These efforts are critical to bridging the conflict between those championing reform and those seeking to oppress women in the name of religious tradition. The members of our network are on the frontlines leading reform in their countries and are among the most influential feminist thinkers in the Islamic world. Scholars and practitioners who are setting into motion a resurgence of an egalitarian Islam argue that although the position of women is contested around the world and in different traditions, the patriarchal interpretations of Islam is a distortion of Islam reinforced by patriarchal forces. What is uncontested, however, is that a burgeoning body of scholarship on Islamic feminism has emerged in this field. The commingling of Islam and feminism is sometimes considered problematic by feminists of Muslim faith who espouse a feminism based on a secular framework. This tension can be best understood in the words of Shirin Ebadi, the Iranian Nobel Laureate who states: If Islamic feminism means that a Muslim woman can also be a feminist and feminism and Islam do not have to be incompatible, I would agree with it. But if it means that feminism in Muslim societies is somehow peculiar and totally different from feminism in other societies so that it has to be always Islamic, I do not agree with such a concept. 1 Most Islamic feminists rely on the power of ijtihad, which is a creative interpretation of the Quran based on independent and contextual reasoning in light of relevant societal, historic, and cultural reasoning. Ijtihad is a flexible tool which can be used to mold and shape traditional Islamic legal theory to fit the needs of changing times. They all recognize the need for a more dynamic interpretation of the Koran in order to advance women s rights. Ijtihad opens the door for the reinterpretation of traditional rules of Islamic jurisprudence in light of modern conditions. Similarly, Siyasa, the legal authority to supplement the broad criminal law principles of the Koran and other Islamic texts rejects rigidity in the application of Islamic Law. Takhayyur, or independent judgment expanded by the enforcement of Shariah, permits consideration of the opinions of individual jurists from different schools of thought. Shirin Ebadi too argues that, [i]n Islam, there exists a tradition of intellectual interpretation and innovation known as ijtihad, practiced by jurists and other clerics over the centuries to debate the meaning of Koranic teachings as well as their application to modern ideas and situations. 2 In recent times, even the judiciary has invoked ijtihad in its jurisprudence. For example, Justice Nasim Hasan Shah of the Supreme Court of Pakistan has spoken extensively on the subject of ijtihad. He noted: The Commands of the Holy Qur an that have been expressed in nass (clear edict) terms and cover a very small field and by far the much larger area of human activity has been left unspecified wherein the Lawgiver in the State is permitted to do whatever is necessary for the common good. Indeed the Almighty, in this field, has left it to us Muslims to provide for whatever may be necessary in the circumstances, through additional legislation by the exercise of our ijtihad (independent reasoning) in consonance with the spirit of Islam. 3 1 Interview with Nayereh Tohidi, "Islamic Feminism: Perils and Promises," Middle East Women's Studies Review 16, nos. 3 4 (Winter 2002), (accessed [insert date accessed]). 2 P191 of Shirin Ebadi s Iran Awakening. 3 Justice Nasim Hasan Shah, Justice and Islam, Paper presented at the Conference of the Islamic Philosophical Association of Pakistan ( Nov. 12, 1987), reprinted in 40 All Pak. Legal decisions, J 1, 4 (1988). 3

4 Although ijtihad provides an important space for the adaptation of Islamic values to the reality of women s lives, it also allows different patriarchal clerics to interpret the Koran for their gain. Through the tasks of reinterpretation and reconstruction, our roundtable participants are marrying felt needs on the ground with the nobility of spirit that characterizes Koranic texts that have been submerged in favor of interpretations that led to patriarchal interpretations of the law. Despite some ideological differences between Islamic feminists and secular feminists in Islamic countries, both groups agree on the need to reclaim Islam from chauvinist interpretations. Although secular feminists urge a reinterpretation of women s rights in their countries in line with international human rights norms and Islamic feminists want to bring their laws in harmony with a progressive interpretation of the Shariah, most often both schools agree on the need for a gender friendly interpretation of the Shariah law that embodies the spirit of the international human rights framework. However, there is no uniform perspective on these issues and a dynamic internal discourse reveals the divergent views extant within the Muslim community about women's rights issues both on the global and national level. A cross cultural dialogue between the Islamic community and the international human rights community is important for a shared basis for human rights and towards advancing the legitimacy of universal human rights norms to local communities that are defined by religious affiliation. Such internal discourse and cross cultural dialogue is critical to resolving conflicts within Islam as well as between Islam and human rights. Such dialogue triggers discussions on controversial issues implicating Islamic values and human rights norms and expels notions that there is one absolute or final notion of Islam or that any one person can claim to have the one true teaching. Internal dialogue also frees up space for discussion and Muslims are able to address features of Islam that are positive towards human rights norms with a view to bring about a nexus between the two. Some Questions for Discussion: How do we reinterpret the Koran in the spirit of equality under law and international human rights norms and the CEDAW? Are there major divergences in the different interpretations developed by secular feminism and Islamic feminism? How can we reconcile these tensions? How can a modernist and progressive interpretation of the Islamic texts resonate with different elements in the community? What are the different schools of thought in the reinterpretation of the Koran? How can information between these different schools be exchanged and how can cross cultural dialogue be facilitated? DAY TWO Discussion Three Enhancing Women s Political Participation Women in politics is critical to ensuring not just the advancement of women but the prevention of the rollback of equality for women. Despite the unprecedented reform of gender discriminatory laws in the Arab world, the region has one of the lowest representation of women in political and economic participation. Kuwait reformed its election law in 2005 and allowed women to equally practice their full political rights, and as a result, in 2009, four women were able to be elected as members of the Kuwaiti parliament without relying on any quota system. A new quota system opened the doors for 35 women to enter the Moroccan parliament in This was followed by a progressive reform of the Mudwana law which allowed women to become judges. The Inter Parliamentary Union s (IPU) figures reveal that though the average percentage of women in 2006 in national parliaments around the world is 16.6%, the figure for Arab states is 8.2% the lowest figure for any region of the world. Below are the figures for women in three critical societal aspects (education, labor, government) of the 22 nations in the Arab League. 4

5 Some Questions for Discussion: How do we integrate the concept of substantive equality and quotas for women into the equal protection clause of Constitution and other laws? How do we prevent gender stereotypes in the law masquerading as over protections that disadvantage women in the law? How do we address patriarchal practices in the public and private spheres that prevent women from engaging in political participation? How do we introduce and implement measures to attain at least 33% women s representation in local and national levels of governance, in the cabinet, judiciary, civil services, political party structures and nominations, in the private sector, statutory boards NGO s, and in the media? How do we review the legal system to identify laws policies and practices that militate against women s political or public participation (these laws may be inheritance laws, family laws, property laws, or labor laws)? How do we address issues of gender bias, violence, and discrimination against women in politics? Discussion Four Violence against Women a) Crimes against women in the name of family honor As honor crimes occur predominantly, although not exclusively, in Muslim countries, an examination of the treatment of women in Islamic culture deserves scrutiny in order to reveal underlying notions supporting this deadly problem. Inequitable legal codes, biased tribal arbitration and formal justice systems, and maledominated interpretations of Islamic law sustain the practice of honor crimes. This cultural conception of honor is modulated by a gender construct under which women, and particularly their sexual activities, represent the honor of the family, and men are considered the protectors of this honor. Rather than possessing honor herself, a woman is a symbolic vessel of male honor, therefore all of her actions are considered to reflect upon her male family members. Some countries still retain laws that allow for mitigation or exculpation for murderers who purport to have killed for the sake of "honor." The Jordanian Penal Code contained a representative example of a "defense of honor" statute in Article 340 (i) and (ii). Section (i) states that "[h]e who catches his wife, or one of his female mahrams committing adultery with another, and... kills, wounds, or injures one or both of them, is exempt from any penalty." There is no such comparable exculpatory provision for a woman who murders an adulterous husband or family member. The killer must prove that he actually witnessed the act of adultery before he will be exempt from punishment. Section (ii) stated that "[h]e who catches his wife, or one of his female mahrams with another in an unlawful bed, and he kills or wounds or injures one or both of them, benefits from a reduction of penalty. Only men can benefit from a reduced penalty for murder. In order to receive mitigation, the male killer does not have to prove he witnessed actual intercourse, but must show he witnessed one of his female relatives in "an unlawful bed," that is, in a clearly sexually compromising situation. Such honor crime mitigation statutes are at least a partial byproduct of Western legal influences. In Pakistan, despite the promulgation of the Women s Protection Act in 2006 and the revisions to the criminal law to prohibit honor crimes in 2004, Qisas and Diyat ordinances present another legal obstacle to effective redress of honor crimes. Qisas and Diyat ordinances are a codification of the Islamic concept that a victim or her heirs can accept a form of monetary compensation from the murderer in return for "forgiveness," i.e., an agreement not to pursue a legal claim against him. The state is statutorily required to do its best to assist family members who choose to exercise forgiveness rights under the ordinances. Qisas and Diyat ordinances essentially place the choice of prosecution wholly in the hands of the victim or her heirs, rather than the government. 5

6 b) Acid Attacks Though acid attacks against women are relatively unheard of in the West, they are a heinous tool of violence against women in countries in South and Southeast Asia and Egypt. The occurrence of acid violence appears to be spreading. The free availability and relative inexpensiveness of acid makes it an easy punitive weapon against a woman. While approximately 96 percent of women die from acid attack, the mutilation of a woman s face and beauty is often a far worse burden to shoulder than death. Acid injuries often results in the rejection of the woman by society and her chances of economic and social independence are completely doomed. Honor killings and acid attacks are also interlinked in that they seem to take place in a climate of impunity and are legitimized at the altar of family honor. Because of the Bangladesh National Women Lawyer s Association s advocacy in 2002, Bangladesh passed two groundbreaking laws to combat acid violence: the Acid Control Act and the Acid Crime Control Act. The goal of the Acid Control Act is to monitor the import, production, transportation, storage, sale, and use of acid. The purpose of the second law, the Acid Crime Control Act was to prosecute acid crimes. Although there is data that acid attacks have decreased in Bangladesh, there is still a lack of enforcement of the laws. c) Women, Peace and Security On October 31 st 2000, the United Nations Security Council adopted Resolution 1325 on women, peace, and security (UNSC Resolution 1325). UNSC Resolution 1325 was the first Resolution addressing gender issues to be passed by the Security Council. It emphasized the vital role of women in conflict resolution and mandated a review of the impact of armed conflict on women and girls, the role of women in peace building, and the gender dimensions of peace processes and conflict resolution, as well as reconstruction and rehabilitation processes. The UNSC 1325 and CEDAW are powerful tools when used together. The 10th anniversary of Resolution 1325 in October 2010 highlighted the increasing demand for accountability to UN Security Council Resolution 1325 on Women, Peace, and Security. Approximately, 22 Member States out of 192 have adopted national action plans. Women are still underrepresented if not totally absent in most official peace negotiations and sexual violence in conflict continue to increase. These realities emphasize the need to use other legal mechanisms to strengthen the implementation of SCR 1325, particularly CEDAW. The well established mechanisms of CEDAW the Member States compliance report and the civil society shadow reporting process were cited as powerful instruments to ensure accountability. While CEDAW and UN Security Council Resolutions 1325 and 1820 on Women, Peace, and Security are important international instruments on their own, Resolution 1820 links sexual violence as a tactic of war with the maintenance of international peace and security. It also demands a comprehensive report from the UN Secretary General on implementation and strategies for improving information flow to the Security Council; and adoption of concrete protection and prevention measures to end sexual violence. There is also an intersection among the three standards that can be used to enhance their implementation and impact. Resolutions 1325 and 1820 and CEDAW share the following agenda on women s human rights and gender equality: 1. Demand women s participation in decision making at all levels 2. Rejection of violence against women as it impedes the advancement of women and maintains their subordinate status 3. Equality of women and men under the law; protection of women and girls through the rule of law 4. Demand security forces and systems to protect women and girls from gender based violence 5. Recognition of the fact that distinct experiences and burdens of women and girls come from systemic discrimination 6. Ensure that women s experiences, needs, and perspectives are incorporated into the political, legal, and social decisions that determine the achievement of just and lasting peace A General Comment from the CEDAW committee could strengthen women s advocacy for the full implementation of Resolutions 1325 and 1820 at the country and community levels. Conversely, CEDAW s relevance to conflict affected areas will be underscored further by the two Resolutions. In other words, all three international instruments will reinforce each other and be much more effective if used together in leveraging women s human rights. 6

7 Some Questions for Discussion: What are the recent lawmaking efforts to address honor crimes and acid crimes? What are the gaps in the existing laws on honor crimes including lack of implementation, honor crime litigation statutes, the existence of Qisas and Diyat laws which nullify the honor crime laws etc? How do we increase the awareness and obligations under CEDAW and UNSC resolution 1325 and how can these obligations can be practically applied at the national and local levels in the Middle East and other Conflict Areas? What are the practical suggestions for a roadmap for advocates in government and civil society on how to advocate for and support the effective implementation of CEDAW and UNSC Resolution 1325 at the national and local levels in conflict prevention rehabilitation, reintegration, and reconstruction? How can the CEDAW (Including General Recommendations and concluding Observations) and the CRC and CRPD be better integrated into law, policy, and practice? How can we enhance state accountability under these Conventions and develop standards of due diligence that comply with both Islamic Jurisprudence and the human rights framework? 7