The Navigator from CGP


Islam, Human Rights, and Religious Freedom: A Jurist’s Analysis

PUBLISHED December 13, 2017

To commemorate Human Rights Week, this week’s Special Issue offers a more in-depth analysis than is typical of the Navigator, in which we examine human rights in Muslim contexts, with a focus on religious freedom and liberty.

Many non-Western Muslims view international human rights treaties as instruments of Western hegemony that do not account for Muslim concerns. Specifically, Muslim-majority states use “the Sharia exception” as a way to distinguish their human rights laws from international norms. Sharia-based reservations to human rights treaties have long frustrated policymakers and human rights activists working in or with Muslim states, but recent developments bring the possibility of change.

Religious Liberty for Muslims in Muslim States

Violations of religious liberty in majority-Muslim states make news headlines regularly. Many of those news stories feature non-Muslim victims, and indeed, members of minority religions are hurt disproportionately, owing largely to the government’s failure to prosecute crimes committed against them. But in terms of absolute numbers, it is Muslims of minority sects or Muslim dissidents who are most consistently victimized. The U.S. Commission on International Religious Freedom regularly reports this fact with the intention of highlighting the urgency of the issue and the reasons why Muslims in majority-Muslim states should be personally invested in furthering religious freedom.

The scope of intra-Muslim religious liberty violations is wide. It can include regulations on how Muslims pray — for example, the state prosecution of an Indonesian Muslim who prayed in Bahasa instead of in Arabic. Blasphemy laws in majority-Muslim states have been used to penalize citizens for merely “liking” a Facebook status deemed religiously offensive. Academic freedom, too, has fallen prey to anti-religious liberty laws. Perhaps the most famous case is that of Dr. Nasr Abu Zayd, the late-professor of Cairo University, a progressive Quranic thinker and one of the foremost liberal theologians in Islam, famous for his development of a humanistic Quranic hermeneutics. He criticized the political manipulation of Islam and argued that the Quran was not just a religious text but a literary one as well. For that, he became a target of orthodox scholars, who contested the religious legitimacy of Abu Zayd’s academic claims and initiated a hisbah lawsuit against him. (“Hisbah” refers to the divinely-sanctioned duty of the government to “enjoin good and forbid wrong.”) As a result of this trial, in 1993, an Egyptian court declared Dr. Abu Zayd an apostate, ultimately forcing the scholar to flee the country.

Religious Freedom as Antithetical to Islam

Despite these dramatic, wide-ranging, and all-too-frequent violations of religious and academic freedom in Muslim contexts, my own research in this area has routinely made clear that American Muslims barely recognize that this persecution occurs. This is particularly surprising considering that other Muslims are the primary targets of such persecution.

American Muslims are largely unaware of the broader issue, let alone the specifics. Muslims in Muslim-majority states may be more familiar with the situation, but are still unaware of its urgency and scope. They do not recognize that in many cases such persecution may be a matter of life or death. An underlying assumption by both sets of Muslims is the idea that religious freedom as a concept and as a human right is somehow antithetical to Islam.

One reflection of this view is how many critics within Muslim-majority states dismiss  international human rights treaties – such as the International Covenant on Civil and Political Rights (ICCPR) – as instruments of Western impositions. However, diplomats serving as state representatives from Muslim-majority countries were involved in the preparation of the ICCPR and left their permanent marks on the ICCPR in the form of the treaty’s final language. For example, the documented negotiation of Article 18 of the ICCPR, which covers freedom of religion or belief, is markedly unclear on the right to change religion. 18(1) reads: “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”

Egypt and Saudi Arabia objected to any express reference to “changing” one’s religion. In their view, such a right would encourage missionary or atheist activities. Other state representatives, however, considered the right to change one’s religion inherent to freedom of religion. The compromise led to the less-than-clear “freedom to have or to adopt a religion or belief of his choice” we see today.

The Sharia Exception to Human Rights Instruments

The drafting process of Article 18(1) proves on technical grounds that the ICCPR is not wholly a Judeo-Christian or Western imposition devoid of Muslim involvement. But beyond technicalities is the more important question of substantive principles. That is, are international human rights inherently in conflict with Sharia? Sharia itself is a fluid concept, defined without specificity or reference to diverse cultural applications. Yet the Sharia exception — a reservation to human rights treaties based on the idea that the Sharia mandates a different scope or interpretation — has crept into human rights discourse repeatedly.

When the Universal Declaration of Human Rights was drafted, for example, one Iranian official stated that the declaration was a “secular understanding of the Judeo-Christian tradition” that was impossible to implement without contravening Islamic law. A direct by-product of this West-versus-Islam perspective is the Cairo Declaration on Human Rights in Islam, which the Organization for Islamic Cooperation (OIC) adopted in 1990.

Critics have pointed to many important weaknesses in the Cairo Declaration, but foremost among them is the lack of inherent universality of its human rights protections. The Declaration limits the scope of many human rights to a Sharia-specific framework. For example, Article 22 states: “(a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of Sharia; (b) Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Sharia.”

Despite the centrality of “Sharia” to the Declaration’s conception of rights, the term itself remains undefined, thus giving governments wide discretion to interpret the term and the scope of its limitation. This broad government discretion makes the Cairo Declaration largely irrelevant in fostering human rights reforms or protections, and until the 2005 Ten-Year Program of Action, it did not inspire the OIC to embark on any human rights-protective initiatives. And while the Program created the Independent Permanent Human Rights Commission in 2011 to, among other things, review and revise the Cairo Declaration to make it more effective, it remains unclear what those revisions will look like.

The 2004 Arab Charter on Human Rights adopted by the Council of the League of Arab States took a step forward, affirming the principles of the Universal Declaration of Human Rights and ICCPR in addition to Sharia principles. But even its provisions use Sharia to limit the scope of protection. Consider Article 3 (3): “Men and women are equal in respect of human dignity, rights and obligations within the framework of the positive discrimination established in favor of women by the Islamic Sharia, other divine laws and by applicable laws and legal instruments.”

Beyond these distinct human rights documents, many majority-Muslim states have also entered Sharia-based reservations or interpretative declarations to human rights treaties. That is, these states have obligated themselves to applying the human rights provision only to the extent it is compatible with local interpretations and applications of Sharia. Other Muslim states that have not entered such reservations or interpretative declarations have referenced Sharia in their periodic human rights reports to the relevant U.N. treaty bodies.

Among the provisions diminished by the Sharia exception is Article 18 of the ICCPR, on the freedom of religion or belief. Some reservations explicitly state that Article 18 will be interpreted in a manner “not affecting in any way the prescriptions of Islamic Sharia.” Other reservations limit the implementation of Article 18 in conformance with the national constitution, which in turn references Sharia.

In all these instances of Sharia being invoked in the human rights context, it is envisioned as a limiting factor — that is, it imposes conditions where the ICCPR does not. The disagreement over the right to change one’s religion exemplifies this scope-restrictive function of Sharia. The assumption is always that the international human rights treaties embody a Western conception of human rights that, if implemented in Muslim states, will create a society that does not conform to Islamic law. This idea of inherent conflict between Islam and international human rights treaties is one that has vexed policy makers and activists for a long time and is arguably the biggest obstacle to ensuring adequate human rights protections across Muslim-majority states.

Possibilities for Change

Recently, though, there has been some movement in the realm of human rights and religious liberty. For example, in January 2016, Sheikh Abdullah bin Bayyah, a well-known Mauritanian professor of Islamic studies at the King Abdul Aziz University in Jeddah, Saudi Arabia, convened more than 200 Muslim spiritual leaders — and senior leaders of other faiths — in Marrakesh. Their goal was to discuss the legal protection of non-Muslims in majority-Muslim states and to explicitly use Sharia as the foundation for religious freedom.

The backdrop to the discussions was the Medina Charter, drafted by the Prophet Muhammad in 622 CE as a blueprint for peace and an inter-faith cooperation among diverse religious groups. The Marrakesh Declaration — issued at the conclusion of the summit — states that the Medina Charter lays out a juridical framework for the protection of religious minorities and those principles must be applied today. “…The Charter of Medina[’s] …provisions contained a number of the principles of constitutional contractual citizenship, such as freedom of movement, property ownership, mutual solidarity and defense, as well as principles of justice and equality before the law.”

Importantly, the Declaration goes on to say: “The objectives of the Charter of Medina provide a suitable framework for national constitutions in countries with Muslim majorities; and the United Nations Charter and related documents, such as the Universal Declaration of Human Rights, are in harmony with the Charter of Medina …”

In other words, the Declaration stated at a global convention, with the backing of a world-renowned Islamic scholar, that international human rights documents are in line with Islam. This helps to dismantle the misleading dichotomy between universal human rights and Sharia, or more broadly, between the religion of Islam and secular ideals of religious liberty.

Legal scholars working on Islamic law and human rights issues have articulated arguments for an even broader dissection of the ‘Sharia versus secularism’ dichotomy. University of Wisconsin law professor Asifa Quraishi-Landes, in “The Sharia Problem with Sharia Legislation,” delineates two sets of rules implemented in Muslim states: (1) fiqh rules, which religious scholars derive from scripture; and (2) siyasa, which are laws created by non-religious authorities, such as rulers, to serve the public good. Contrary to the common conception of siyasa as “secular” law that is somehow distinct from Sharia, Quraishi-Landes argues that in fact Sharia, properly defined, encompasses all laws serving the public good — that is, it includes both fiqh and siyasa, even if siyasa is not derived from scripture. In other words, there is no separation of church and state, or religious from secular, in Islamic law. It is all Sharia, and therefore, it is all religious. Quraishi-Landes’ research pokes a deep and fundamental hole in any argument that Sharia requires deviation from international human rights norms merely because those norms are “secular.”

Like the Marrakesh Declaration’s endorsement of international human rights treaties on the basis of Islamic sources, the framework offered by Quraishi-Landes has the potential to radically alter the frame by which Muslim states view those same treaties. These emerging analyses make it possible to finally reconcile Islam and human rights, as articulated in the ICCPR, with religious authenticity. And for policymakers and activists in this area, this reconciliation opens the door for fuller implementation of international human rights norms. “Sharia” — undefined and fluid — is no longer a legitimate exception merely because it provides a religious reference to a “secular” human rights framework. Without Sharia as a cover for states to hide behind, their own discretion is severely limited — a significant step toward empowering individuals over states. Policymakers can take advantage of this opening.

Practical Recommendations for Policy Makers

Both American Muslims and Muslims in Muslim-majority states need to know there are viable religious arguments, based in traditional scholarship, that support a robust protection of religious liberty. Policy makers should help facilitate awareness through a variety of channels, including local and national media and engagement. Next, policy makers can facilitate implementation initiatives. The practical implications of religious human rights arguments need to be fleshed out. Policy makers can convene human rights specialists from a variety of Muslim-majority states to brainstorm the ways the religious arguments can shift domestic human rights discourse and amend problematic laws. Policy makers should also support the indigenous advocacy and education efforts that will help produce this change.
Finally, policymakers must broaden the range of stakeholders engaged in the issue. Religious arguments for broad human rights protection take place at the level of religious scholars. But to translate those arguments into on-the-ground change, a more diverse group of stakeholders need to be seated at the table. As Susie Hayward aptly explains in her report on the Marrakesh Declaration for the U.S. Institute of Peace, “This will require a broad and visible platform, with actions and messages coordinated across regional, sectarian, and racial borders and advanced virtually and on the ground, demonstrating inclusive, representative leadership across genders, generations, and social class. Youth can and must play an important role in these efforts, particularly in advancing an online movement.” Giving voice to this diverse array of stakeholders will turn the dial on the discussion of Islam, religious freedom, and human rights in Muslim-majority countries, putting those most affected in a position to direct future discourse and subsequent policy-making. As Washington knows, religious freedom is vital for social, political, and economic development and stability; it is thus an essential antidote to Islamist extremism.

 

Asma T. Uddin is a religious liberty lawyer and scholar working to protect the religious expression of people of all faiths, in both the U.S. and abroad. A graduate of the University of Chicago Law School, Uddin served as Counsel for the Becket Fund for Religious Liberty, Director of Strategy for the Center for Islam and Religious Freedom, as well as a fellow with the Initiative on Security and Religious Freedom at the UCLA Burkle Center for International Relations. Her areas of expertise include Law and Religion (Church/State relations), International human rights law on religious freedom, and Islam and religious freedom, among others. Uddin is an active lecturer to diverse religious groups in the U.S. and overseas on the importance of international religious liberty and freedom. The views expressed herein are the author’s and do not necessarily reflect those of CGP.

Image Credit: Reuters

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