İHSAN YILMAZ

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İHSAN YILMAZ
October 26, 2011, Wednesday

Human rights, gender sensitivity and Islamic law

ISLAMABAD -- I am in Pakistan to present a paper at an international conference at the prestigious University of the Punjab in Lahore and give a series of speeches at several think tanks and universities in Lahore, Islamabad and Karachi on the transformations taking place in Turkey. My conference presentation is on Pakistani Islamic law and its relation to human rights and gender sensitivity.

Pakistan is one of the few countries that have legal organs using Shariah language, norms and methods to shape the substantive law. The modern nation-state of Pakistan has been producing positive law based on Shariah law even though the process is almost chaotic, let alone being nonlinear, thanks to tensions and interactions between politics, society, local concerns, norms and practices. The failure of the state to penetrate society, coupled with an inconsistent and unstable legal system, has been a source of unofficial legal pluralism in the country. Considerable variation in the enforcement and interpretation of Islamic laws by the courts has only intensified this pluralism. However, this flexibility and pluralism of Islamic law could be used for democratization and good governance in almost total contradiction to the essentialized stereotypical portrayal of Islamic law. Good governance is used here to describe how public institutions conduct public affairs in order to guarantee the realization of human rights.

My main contention on the issue is that as some recent decisions of the Pakistani courts show, there is an almost linear progression towards good governance. A survey of case law shows that the judges of the Federal Shariah Court (FSC) and the Supreme Court made use of Islamic concepts such as justice (adl) and public welfare (maslaha) to get rid of oppressive and illiberal laws made by politicians. Human rights and gender sensitivity in the light of human rights standards have recently been on the agenda of the courts. Moreover, case law shows that Pakistani judges are increasingly employing plural legal frameworks, including international human rights law, to overcome the negative consequences of illiberal laws.

Since the late 1990s, judges, courts, the FSC and so on have agreed on the pace of Islamization in light of human rights standards. The close link between Islam and human rights was highlighted in 1996: “The Court preferred the interpretive approach so as to achieve democracy, tolerance, equality and social justice according to Islam.” Pakistani constitutional thought, like its American counterpart, acknowledges that fundamental rights may exist that are not enumerated in the constitutional text. There are some cases where reliance on Islamic law did have a real impact on the substantive issues of a case. For instance, the right to equality and right to be heard were applied in a manner similar to constitutionally guaranteed fundamental rights.

Contrary to the conventional wisdom construing Islamic law as opposed to women's rights, the constitutionalization of Islam in Pakistan has proven to be a potent tool in the service of women's interests. A review of hudood cases suggest that an interpretative strategy had been employed by the courts using a combination of constitutional rights, Islamic law and international human rights with a view to advance women's rights.

An analysis of Pakistani Islamic law suggests once again that there is no pure, neatly defined Islamic law. As the Pakistani case shows, the ulama (religious scholars), intellectuals, opinion leaders and judges can debate Islamic law in the public sphere and agree to define, interpret and apply it in a human rights-friendly fashion despite the pressure of politics.

Pakistani Islamic law shows also that contrary to received wisdom, Islamic law has retained its vitality and has continued to evolve and change. This finding challenges once again the views of authorities such as Joseph Schacht, Noel J. Coulson and Chafik Chehata who argued that by the 10th century the essentials of Islamic legal doctrine (in particular that of the Hanafi school) were already fully formulated and that with the exception of some minor points this doctrine remained fixed.

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