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Monday, May 30, 2011

OIC Fatwa on Domestic Violence and the Rights of Women in Islam


In April 2009, the Islamic Fiqh Academy made a ruling entitled ‘Domestic Violence’.  (See here, pp.15-18 of the PDF). This is a highly significant document which reflects a high-level consensus of leading Muslim scholars in the world today. It was clearly issued in the context of criticisms of Islam and Muslim societies for the treatment of women.

The Islamic Fiqh Academy (IFA) was established by the Organization for the Islamic Conference in 1981. It is comprised of 43 scholars, who are elite Islamic jurists of their respective nations. Many are chief justices or grand muftis of their nations.  IFA's resolutions are in Arabic, and they can be found on their website at http://www.fiqhacademy.org.sa/

IFA's aims are:
  • to unite the Ummah (the global Muslim community, conceived of as a single nation, by conforming conduct to the norms of Islam at all levels (from individual to international); 
  • to apply Islam to contemporary problems; 
  • and to create a body of Islamic jurisprudence to meet the needs of modern life.  

In IFA's deliberations, issues are subjected to extensive research, with prior distribution of papers, extensive consultation and discussion, before rulings are agreed upon and issued.  These rulings are very distilled.  The process “allows for a Muslim to see the final opinion without having to use up time and effort considering the research consultations that may extend to hundreds of pages”.  

Undoubtedly IFA speaks for the Islamic mainstream.  In the words of Dr Abdul-Salam Al-Abbadi,  Secretary General of IFA, it is intended to function as the ‘supreme juristic reference for the Muslim world’.  Furthermore, IFA's rulings have the backing of the OIC, which is one of the most significant groupings of states in the world today.

IFA's fatwa or ruling on domestic violence warrants detailed study.  It is not possible to do justice to it in this blog post.  A translation into English is given below.  A few key features are:
  1. This fatwa represents the unapologetic assertion of the absolute authority of the sharia over all understandings of human rights as they apply to women and the family, specifically including international human rights conventions and covenants.  Islamic states are instructed to ignore every article of any convention or covenant which is inconsistent with the sharia.
  2. The fatwa upholds the right of a husband to beat his wife: wife-beating is specifically excluded from its definition of 'domestic violence', as long as the beating conforms to sharia requirements.  The memorable phrase 'non-violent beating' is coined to express this perspective.  Note also the implied threat which warns against 'slander' in the context of resolving marital disputes (implying that a woman must not criticize her husband).
    Here are some hadiths of Muhammad on wife-beating from Sunan Abu Dawud:
    • Muhammad: 'When one of you inflicts a beating, he should avoid beating the face.'

    • Muhammad: "A man will not be asked as to why he beat his wife."  – this principle means that a man cannot required to answer to a sharia court for beating his wife.
    • Muhammad: "Do not beat your wife as you beat your slave-girl."
    • Muhammad: "They are not the best among you." – said of women who complained to Muhammad when he gave permission for their husbands to beat them.
  3. This fatwa also upholds the right of a husband to rape his wife, for it is not 'domestic violence' for a man to insist upon his conjugal rights (section 2(F)).  The key term ihsan 'preservation' is very difficult to translate into English.  It is derived from the root h.s.n which means to fortify or make something inaccessible by building a fortified wall around it.  A 'fortified' woman is a married woman who has a husband to protect her. He also has conjugal rights over her (as she is kept inside his fortress).  The meaning of ihsan is defined by Lane as: ‘With the lawyers, ihsan means the act of coitus conjugalis in a case of valid marriage.’  This fatwa is written in legal language, so what 2(F) is saying is that it is not domestic violence for a Muslim man to 'fortress' his wife, and force her to have sex with him, even if she is unwilling.
  4. The fatwa also upholds the right of a male guardian to contract the marriage of a virgin female (2(H)): he has the right to marry her to another.  Muhammad said that a virgin gives permission to a marriage 'by her silence': in practice this often means the guardian has the sole say over who she will marry.
  5. The fatwa also implicitly upholds the sharia's laws concerning the treatment of adulterers (2(A)).
  6. The fatwa endorses a husband's guardianship over his wife: this means that he legally controls her in many respects.
  7. There is implacable opposition to principles of equality between the sexes.
  8. The right of women to move around freely in public without a supervising male is rejected as contrary to sharia law.
  9. The fatwa upholds sharia law's non-reciprocal approach to divorce, which make it easy for man to divorce his wife, but hard for a women to obtain a divorce, except through a difficult legal process. (In fact Arabic has two different words for these: a divorce initiated by a man, and one initiated by a woman are regarded as two distinct things.)  If a man divorces his wife, this is halal 'permitted' - although dispreferred – but if a woman divorces her husband without "just cause", this is a mortal sin:
    • Muhammad said: "If any woman asks her husband for divorce without some strong reason, the odor of Paradise will be forbidden to her." (Sunan Abu Dawud).
  10. This fatwa implicitly upholds many other aspects of sharia law which are opposed to women's rights.  An example is the rule that if a woman sues for divorce for excessive beatings, she must return the brideprice he paid for her (i.e. she must pay him to win her divorce). Another is the shockingly humiliating law that a woman irrevocably divorced by her husband can only remarry him after she has married another, had sexual relations with the new husband, and been divorced by him (or he dies first).  These regulations, and the way in which they work to deny women basic rights of safety and equality before the law have been well-documented by others and can be found in Islamic legal texts, but deserved to be better known.  This fatwa upholds such conservative time-honored principles of sharia law without conceding an inch to modern understandings of human dignity or human rights.



I find it thought-provoking that this fatwa has been in circulation for two years, and it is backed by the most eminent and credible of Muslim jurists, yet is has received so little attention from non-Muslim commentators.  Why this silence?

 (Suggested improvements to the translation from Arabic are warmly welcomed.)

============== 
THE TRANSLATION
==============

Domestic violence.

The Council of the International Islamic Fiqh Academy, an offshoot of the Organization of the Islamic Conference, held its nineteenth session in the Emirate of Sharjah (United Arab Emirates) from 1-5 Jamadi I, 1430 AH (April 26-30, 2009).

After reviewing the research brought to its attention on the subject of domestic violence, and after listening to discussions on the the subject, and after considering established religious principles for the necessity of establishing the family on the great basis of affection and love, and the provision of legislation which achieves stability and tranquility, and considering that deviations from this approach spread violence in the family, [the Council] have decided the following:

1. the concept of domestic violence

What is meant by violence is acts or words of violence committed by a family member against another member of the same family, which are characterized by severity and cruelty causing physical or mental harm to the family or one of its members, such conduct being prohibited [haram] because it contravenes the objectives of Sharia law for the protection of the soul and mind, and because it contradicts the Lord’s order, which is based on kindness and righteousness in relationships.

2. [the following] are not considered to be violence or discrimination from the Islamic perspective:

(A)   Adherance  to sharia rulings governing marital relationships, and the prohibition of illicit conjugal unions.
(B)   Denying access to contraceptives for illegally married couples.
(C)  The prohibition of abortion, except in exceptional medical cases determined by  the sharia.
(D)  The criminalization of homosexuality.
(E)   A husband forbidding his wife from travelling alone, except with his permission and in accordance with the sharia.
(F)  The legal Islamic right of husband and wife to maintain chastity [abstinence from extra-marital relations] and "preservation" [ihsan], even if one of them is unwilling.
(G) The women’s primary role in caring for children and the family home, and the husband’s responsibility of stewardship [i.e. maintenance and guardianship].
(H) Legal guardianship over a virgin female in (entering into a contract for her) marriage.
(I)   What the shari’s has established regarding the division of inheritance and wills.
(J)   Legal divorce in accordance with the shari’a.
(K) Polygamy based on justice.

3. The Islamic approach of settling marital disputes

When settling marital disputes, especially regarding a disobedient wife who has exalted herself against her husband [i.e. she disobeys him] the following Islamic legal standards are to be observed: 

(A)    Avoid insults, defamation and slander.
(B)    Follow the sharia in dealing with the wife, commencing with preaching [admonishing her], then [sexual] abandonment [of the wife], and ending with non-violent beating, which [can be defined as] almost waving it without doing it. To resort to [beating] is the opposite of what is preferred, for [Muhammad] said: “those of you who are the best, shall not beat”, and [one should] follow the example of his action, that he did not ever beat a woman.
(C)    Resort to the judgment of two people when the dispute is exacerbated.
(D)   Resort to the divorce system in accordance with rules established by sharia regulations (for revocable divorce, major or minor irrevocable divorce, and times of its occurrence), and regarding it as the worst of the halal [what is permitted] from Allah.
  
4. The council determines as follows
 
(A)    At the level of the family:
                          i.         Focus on bringing up children in a faith-based manner, as a pathway for nurturing them socially;
                        ii.         Emphasize established rules of the sharia related to the construction of the family, such as cooperation, affection, compassion, kindness, righteousness, and kindness between the spouses.
                       iii.         Adopt dialogue to resolve internal family issues.

(B)    At the level of official institutions and departments:

                         i.         Hold periodic workshops to raise the awareness of families about the risks of violence, and to establish the dialogue approach.
                       ii.         Require educational institutions to teach [material which] addresses issues of domestic violence in its various forms and manifestations.
                      iii.         Coordinate between relevant ministries and departments to adopt a unified and consistent policy, to preserve the fundamental principles of the nation [ummah] in the face of the westernizing trends aimed at the family.
                      iv.         Provide guidance for the media to assume its responsibilities in a framework for the right path to social development.

(C)    At the level of Muslim countries:

                          i.         It is necessary to submit all international conventions regarding women and children, as well as draft laws, to sharia specialists and legal scholars, before they are issued and signed into law.  [They are] to be weighed against the sharia: what conflicts with the provisions and purposes of the sharia is to be rejected. It is necessary to call upon Islamic governments to review agreements that have been signed, to identify articles which are inconsistent with the sharia, and to reject those articles, without negating positive aspects which do not contradict the sharia.
                         ii.         Reject any articles of international agreements and conventions which are contrary to the provisions of sharia law: [such as] call for the abolition of innate differences between the roles of men and women in society and advocate for full equality between male and female in all degrees of inheritance, and abuse the divorce system in the Islamic sharia, calling for the abolition of supremacy of men over the family, and other things which are established in the Islamic sharia.
                       iii.         Reject all clauses contained in agreements which permit the violation of  Islamic laws and natural instincts, such as allowing same sex marriage and sexual relations outside of a legal marrage, and mixing [of the sexes] in a way which is legally prohibited, and other clauses which contradict the provisions of the Islamic sharia.
                       iv.         Call upon all legislative bodies to enact laws that criminalize all forms of violence between family members, on the grounds that sharia law has forbidden such acts.
                         v.         Limit executive authority to the relevant judicial authorities.
                       vi.         Emphasize a commitment to preserve the specifics of Islamic culture and sharia rulings, and respect the reservations of Muslim governments and their representatives concerning clauses which contradict Islamic law in covenants and conventions related to the family.
                      vii.         Form a committee to prepare a code to regulate the rights and duties of members of the family, which will lead to the drafting of a Family Law Code compatible with Islamic law.

Wednesday, May 18, 2011

Australia Gets It Right on Sharia Implementation

The Australian Government is holding a national inquiry into multiculturalism.  The Australian newspaper yesterday reported that the Australian Federation of Islamic Councils has requested the introduction of Sharia law under the umbrella of multiculuralism (the AFIC submission can be downloaded here: other submissions are available here).  However, Australian Attorney-General, Robert McClelland has stated that:
"Sharia law has no place in the Australian legal system."
"As our citizenship pledge makes clear, coming to Australia means obeying Australian laws and upholding Australian values."
"Australia's brand of multiculturalism promotes integration. If there is any inconsistency between cultural values and the rule of law, then   Australian law wins out."
"People who migrate to Australia do so because of the fact we have a free, open and tolerant society where men and women are equal before the law irrespective of race, religious or cultural background."
"Indeed, all applicants for citizenship swear collective allegiance to the people of Australia, and undertake to respect our customs and abide by our laws. The values underpinning those principles will not be changing."
Arguments used by the Federation of Islamic Councils and its representatives for accommodating sharia law include:
  • Islam itself advocates legal pluralism, each religious community following its own laws.
  • Islam allows a role for customs or cultural practices, provided that they do not conflict with fundamental requirements of Islam.
  • The dhimmi system under the Ottomans allowed non-Muslims to be governed by their own law, giving them power and dignity in their own right.
  • Although modern scholars now reject the dhimmi system as unjust, Muslims in the West are treated worse than dhimmis, because they are compelled to live under Western law and are not granted their own 'Millet' or legally recognized religious community.
  • Islamic law is part of Muslims' culture, so multiculturalism should provide a place for Islamic law.
  • The Archbishop of Canterbury and Lord Chief Justice of England have both endorsed religious pluralism through accommodations sharia law.
  • The Australian Government already actively supports accommodation to sharia law in the areas of halal food and Islamic finance: the Australian Assistant Treasurer, Nick Sherry, it is claimed, has 'pledged' to amend tax laws in order to attract more Islamic finance to the country.
  • It is inconsistent to rule out introducing sharia law while at the same time encouraging the development of Islamic finance and the government regulation of halal food.
  • Although some Muslims believe that sharia is immutable, many Muslim scholars do not agree, and "AFIC takes the position that Islamic law is changeable according to the requirements of
  • different places and times, and therefore, suits the values shared by Australian people."
  • A compromised is required between Muslims and Australia:  "Muslims in Australia should accept the Australian values, and Australia should also provide a 'public sphere' for Muslims to practice their belief."  This implies that for Muslims to actively support Australia as a concept, they need the quid pro quo of being provided with  official public recognition of Islam through legal accommodation of sharia law:  "This approach demands a compromise from Islam, which should be open to other values, and also to make a similar demand of Australia. It is not only Australian Muslims who should reconcile these identities, but also all Australians." This is what the submission called 'twin tolerations': the religion tolerates the state and the state tolerates the religion (citing Alfred Stephan).  The submission states 'It takes two to tango.'
The AFIC submission is a  request for Australian society to offer a kind of legal covering for Islamic sharia to exist in Australian society.  In separate comments, AFIC spokesman advanced further arguments:
  • Sharia accommodation is already working well in Britain the the USA.
  • If the Government does accommodate, this will prevent 'extremists' within Islam from taking over the agenda.
  • What is being proposed at present are accommodations to divorce and family law, which will not affect non-Muslim Australians: "This is about personal issues about family, and won't affect any other Australian," and "It's about a system that does not impinge on the rights of any other Australian."
In a related news story, it has been reported that sharia courts are already functioning in Sydney, Australia.  This is hardly surprising, and only mirrors a  pattern which has been observed all throughout Western nations.

To which I make the following observations:

The Australian Government is wise and sensible to act quickly to reject sharia implementation.  This is consistent with a series of statements made over the past decade by both Labor and Liberal governments.

It is a terrible irony that Muslims use references to the oppressive dhimmi system as an argument for implementing legal apartheid in Western nations.  

The Muslims' suggestion that accommodating sharia law will combat extremism can be interpreted as a threat:  "If you don't give us the sharia we want, then you'll have to deal with the extremists, who will 'take over' the agenda of the Islamic community."  Does this an unstated threat of terrorism?  It is  important not to capitulate to such threats, in which 'moderates' exploit the threat of 'extremism' to advance their sharia agenda.

Requests for sharia implementation will never end.  No matter how much is granted, more is demanded.  There is hardly an Islamic state in the world that is not troubled with activists demanding stricter sharia observance.  These groups often resort to violence.  So it does not follow that granting more sharia someone mollifies the extremists.  If that were so, then more sharia-compliant societies would have see violence from the extreme sharia advocates.  In fact the opposite is true.  In fact demands for sharia are a slippery slope: the more is given, the more is demanded.  Better to draw a line in the sand now.  The Australian Government is right to take a stand on this issue.

We should have one law for all.  What AFIC is in effect asking for, is for Muslim women to be treated as second-class citizens under Australian law, because they will have less rights in a sharia court considering issues such as divorce and custody, than in a state court.  It is self-serving for Muslim men to argue that Australia must respect the rights of Muslim women to chose live according to sharia law, when sharia gives men such advantages over women.

Islamic law discriminates against Muslims by compelling Muslims to live according to a legal code which their conscience may reject.  For this reason, in 2003, the Grand Chamber of  European Human Rights court upheld the dissolution of the Refah Party in Turkey.  Refah had aimed to install a plurality of legal systems, under which each community would be ruled according to its own religious principles.  The court found that a plurality of legal system is incompatible with human rights.  This was against the European Convention of Human Rights, because the state would thereby compel individual Muslims to live according to religious rules with which they may not personally agree (See Paul Taylor, Freedom of religion: UN and European human rights law and practice, p.315).

Australian authorities should pay careful attention to AFIC's argument that halal food regulation and sharia finance are examples of accommodation to sharia, and seriously consider limiting the advance of these two practices in our nation, for this very reason.  There is much that could be done.  For example, it should be required for halal-slaughtered meat to be labeled clearly, so that customers may know they are buying the meat of ritually slaughtered animals, especially since part of the price they pay consists of certification fees paid to an Islamic agency.

Australia should monitor and introduce laws to limit the advance of unofficial sharia courts and other sharia practices.  Sharia law, as it applies to family issues, discriminates against women, and is contrary to basic principles of justice and fairness.   For example the state could make it illegal for licensed religious practitioners (who are licensed by the state as marriage celebrants and whose activities receive tax concessions and ) to officiate at religious marriages if these marriages are not also recognized by the state.

A particular issue is the coercion of people to go to sharia courts to settle matters.  The state should explore the introduction of laws which protect the rights of Muslims - specifically and especially women - who choose to live in ways which are not sharia-compliant.  For example if a woman obtains a civil divorce, she should not be subject to unfair discrimination and intimidation from other Muslims because her divorce is not an Islamic one.  Clearly this is a complex area, and there are limits to the ways in which the state should intrude on religious issues, but it does need to protect the rights of individuals to live according to their consciences, without fear.

Australian authorities have been setting a good example to the world through their clear stand against sharia implementation.  However much more could  be done.

Of one thing we can be sure: religious requirements mean that the request for sharia accommodation will not go away, ever.  The challenge is to just keep saying 'no'.

Tuesday, May 3, 2011

Final remarks by Geert Wilders at his trial in Amsterdam, May 2nd, 2011

"Mister President, members of the Court. I recently tried to have Your Honors removed from the case for your refusal to register a statement of perjury against Mr. Hendriks. My challenge of the court did not succeed. I must accept that. I do wish to say, however, that I was more annoyed by another declaration of the President of the Court on the day of the official hearing of Mr. Jansen. He said that I was a free man, that I could not be compared to Mr. Nekschot because I was a free man.

Mister President, you could not be more wrong. For almost seven years now, I have not been a free man. I lost my freedom in 2004. I live as a prisoner with guards without you having convicted me. Without protection I am even less certain of my life than I am now. Mister President, you would not use the words “free man” if you could change places with me for one week.

Mister President, members of the court, I am here as a suspect again today. I have said so before: This penal case is a political trial. An attempt is being made here to silence a politician who speaks on behalf of one and a half million people and who already pays a heavy price for that every single day. Formally, only I stand on trial here, but in practice the freedom of speech of millions of Dutchmen is on trial.

This trial is not merely a political trial. It is also an unjust trial. When you look at the order of the court (to prosecute me) it is clear that the verdict has already been passed. The court has issued an order to prosecute me in which it concludes that I am guilty of incitement to hatred. The court has concluded that my statements as such are of an insulting nature. The court has concluded that I am guilty of the most serious charge: the incitement to hatred and discrimination. The court has concluded that it expects that the criminal prosecution will indeed lead to a conviction. Mister President, members of the court, the court has already done your job. Long before I was brought to trial before you, I was found guilty and was condemned. Hence my right to a just trial has been violated.

Alas, this is but the tip of the iceberg. Without any doubt, the judges who presided this case have conveyed a semblance of partiality. I have been denied 15 of the 18 witnesses whom I wanted to call. Every high representative of the judicial power has given his view on this case, and often to my disadvantage. But Counselor Schalken was the worst.

Counselor Schalken, who co-authored the decision to prosecute me, makes a habit of discussing my trial and arguing his case at elegant dinner parties for intellectuals. Counselor Schalken dined with my witness, Mr Jansen – note that he was one of the only three witnesses whom I was allowed to call – three days before Mr. Jansen was to be interrogated by the court. During this dinner Mr. Schalken TRIED to influence Mr Jansen. The fact that he did not succeed is irrelevant.

Mr. President, members of the court, stop this unfair, political trial. Respect our Dutch freedoms. If this trial continues, despite the fact that the principle of the presumption of innocence has been violated, and if I am convicted, not only my freedom will be infringed, but also the right of all Dutch people to hear the truth. The 19th century black American politician Frederick Douglass, the son of a slave, put it as follows: “To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker.”

Mr. President, members of the court, I end with a quote of George Washington, who said: “If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.” Mr. President, members of the court, do not let this warning become reality. Stop this charade, this political trial where I have already been convicted by the court even before I was a suspect. Stop it now. If you do so, and I passionately hope you will, this will benefit freedom of speech as well as the respectability of the judicial power and the rule of law."