Shaheen Sardar Ali

Legacies of common law: ‘crimes of honour’ in India and Pakistan

Abstract Through a comparative analysis of crimes of ‘honour’ in India and Pakistan and an examination of appellate judgments from the two countries, we reflect upon how a rights-based discourse of modern nation-states forms a complex terrain where citizenship of the state and membership of communities are negotiated and contested through the unfolding of complex legal rituals in both sites. We identify two axes to explore the complex nature of the interaction between modernity and tradition. The first is that of governance of polities (state statutory governance bodies) and the second is the governance of communities (caste panchayats and jirgahs). We conclude that the diverse legacies of common law in India and Pakistan frame an anxious relationship with the categories of tradition and modernity, which inhabit spaces in between the governance of polities and the governance of communities, and constantly reconstitute the relationship between the local, national and the global.

Evolving Conceptions of Children’s Rights: Some Reflections on Muslim States’ Engagement with the UN Convention on the Rights of the Child

The present chapter explores evolving perceptions of children’s rights as reflected in Muslim state party practice in light of responses to the UN Convention on the Rights of the Child (CRC). The only human rights treaty making specific mention of Islam and ratified by all Muslim states, the CRC, also enjoys near-universal ratification by all UN member states (the only exception being the USA). But this unanimous ratification by Muslim states is accompanied by reservations, some of which have been entered in the name of Islamic law and sharia, raising questions of compatibility between the CRC and Muslims’ perceptions of children’s rights. Reservations to multilateral treaties such as the CRC are one of several indicators of Muslim state practice and of Islam’s plural legal traditions in international law; others include, but are not confined to, country reports submitted to the CRC Committee, as well as a range of ‘Islamic’ human rights instruments. Assessing the first two indicators—reservations and country reports—against the backdrop of Islamic legal traditions and international conceptions of human rights, this chapter bears the following questions in mind: Does membership of the CRC per se constitute active engagement with and ownership of its provisions on the part of Muslim states? If so, is there a discernible or potential paradigm shift in perspectives in this area as a result of this engagement with the CRC as evidenced through reservations, withdrawals of reservations, and country reports? And to what extent do children’s rights as set out in the CRC resonate with comparable conceptions within Islam’s plural legal traditions—especially in relation to freedom of religion, thought, conscience, and the adoption of children? The chapter will focus on two of the CRC articles most widely reserved by Muslim states—Articles 14 (freedom of thought, conscience, and religion and 21 (adoption). It argues that children’s rights are an evolving concept with changing content and connotations in classical Islamic law, in Muslim state practice, and in regional and international child rights instruments. Vague and fluid formulations of various aspects of children’s rights both in the CRC and in classical conceptions of the Islamic legal traditions make it a malleable concept that enables diverse cultures and traditions to implement it in their particular contexts.

Internet Fatawa: Challenging Tradition and Modernity in Women and Gender Issues

Introduction One of the main arguments advanced in this book is the inherent dynamism of the Islamic legal traditions and their responsiveness to social realities through various juristic techniques, mechanisms and institutions. Historically, one such mechanism has been the fatwa (plural fatawa ) through which an individual, a qadi (judge) or a ruler sought a non-binding response to a specific legal issue. Over time these opinions grew into an imposing body of materials, some of which was incorporated into legal textbooks and manuals for future reference. As a flexible vehicle of legal interpretation, fatawa are a reflection of evolving norms of Islamic law and society in language comprehensible to lay members of Muslim communities. Today, in an age of print and electronic media, the institution of ifta (the act of issuing fatawa ) has undergone significant transformation whilst retaining its core function. Beyond the mediums of newspaper, radio and television, fatawa in their latest manifestation are being issued by ‘Internet muftis ’ to a growing, Internet-savvy population of fatwa -seekers. Discourse on Internet fatawa as an interpretative and pedagogical tool, as well as an emerging discursive space in a virtual environment, is an ever-expanding field of investigation. The present chapter looks at the idea that, in employing a combination of traditional ifta tools as well as the virtual environment of the World Wide Web, Internet fatawa simultaneously challenge tradition and modernity. Tradition is being challenged by a fragmentation of authority and a democratizing of knowledge, making it more accessible to individuals and communities at the national, transnational and international levels; while modernity is being challenged in the way Internet fatawa are legitimating and reviving historical formulations of legal interpretations. Drawing upon a selection of fatawa on women, gender and family law norms from selected Internet sites, this chapter makes a number of observations. Most basically, the arrival of Internet fatawa has led to a dislocation of traditional forms of authority within the Islamic legal traditions. Internet fatawa exist within a virtual space, available within the privacy of the home, that makes women in particular more confident in raising questions which they would not pose face-to-face.

CEDAW? What's That? ‘Domesticating’ ‘International’ Women's Human Rights in Muslim Jurisdictions: Reflections on Pakistan's Engagement with CEDAW

Introduction Chapter 5 provided the untold narrative of a complex and nuanced process of Muslim womens contribution to the drafting of CEDAW. This chapter investigates the extent to which CEDAW finds a place in governmental and non-governmental policy documents, legislation, judicial decisions, governance structures and institutions in Pakistan. It poses the question whether CEDAWs pre- and post-ratification processes and attendant discourse have ‘domesticated’ it within state, government and society in that jurisdiction. The study suggests that in a country where pluralism is deeply embedded in legal culture as well as in religious and cultural norms, human rights instruments in general and CEDAW in particular receive an ambivalent and mixed reception as the newest layer of plural legalities. This chapter draws upon a variety of governmental and non-governmental sources, and upon surveys of judicial decisions of the high courts and the Supreme Court that have invoked CEDAW since Pakistans ratification in 1996, and is informed by academic literature on the approach of Pakistan and other Muslim states to CEDAW. I was a participant in the accession process and draw upon those personal experiences in developing the present study. This chapter has also benefited from discussions and personal communications with members of the Pakistani NGO communities, in particular those involved in the thirty-eighth session of the CEDAW Committee, in 2007, where Pakistans country reports were under discussion. As mentioned in Chapter 5, literature on CEDAW focuses on the post-ratification scene, especially in Muslim states due to the far-reaching reservations entered by them citing Islamic law and sharia . Hence there is a need to take a step back and explore the pre-ratifications debates and discourse and then link them to the post-ratification situation. The present chapter attempts to undertake this task using Pakistan as an example. CEDAW within a Religious, Cultural and Socio-legal Context Since its inception as an independent nation in 1947, Pakistan has struggled with multiple strands of its identity (religious, cultural, ethnic, linguistic) and the manner in which these inform conceptions of state, government, law and society, as well as the status of women.

In Search of Legitimacy: The Dilemma of Islamic Finance

Introduction As highlighted in Chapters 1 and 3, Islamic law in its colonial and post-colonial variants is a modern phenomenon – at best a hybrid of its classical form and substance. The inevitable outcome of historical, socio-economic and political processes, Islamic law as generally experienced today exemplifies continuities, discontinuities and ruptures. Modernity, globalization and the nation state increasingly interact with religion, diverse cultures and official and unofficial legal orders, resulting in synthetic phenomena such as modern Islamic finance and banking. Islamic finance law consists of rules (and institutions) that base their objectives and operations on Islamic law and sharia . A variant of Islamic commercial law, Islamic finance law ‘is based on certain parts of classical Islamic law concerning commercial transactions.’ In popular Muslim consciousness, though, Islamic finance is equated with ‘interest-free’ banking the prohibition of (i) riba (exorbitant or excessive interest, or usury), (ii) gharar (uncertainty, risk or speculation), and (iii) maysir (gambling and games of chance). In theory, engaging in religiously permissible, non-exploitative, equitable and ethical financial activities forms the cornerstone of Islamic finance; in practice, for many centuries the reality has been otherwise, and the vast majority of the Muslim world has engaged with conventional (interest-based) financial regimes in one form or another. Classical Islamic finance has two arms: first, there is the ‘profit-and-loss-sharing’ paradigm, where lender and borrower share the risk of making or losing money, rather than the lender alone being guaranteed a fixed, predetermined return. Islamic finance, being equity-based, treats the financier and the entrepreneur as joint partners, co-joined in risk-taking and profit-sharing. Capital is unsecured, unguaranteed, and not entitled to predetermined or fixed interest, and may appreciate or depreciate depending on the market. Second, there is the entrenched requirement of promoting social justice through mandatory almsgiving ( zakat ), voluntary almsgiving ( sadaqa ), and ‘benevolent loans’ ( qard hasan ). Modern Islamic finance has prioritized the profitable over the charitable arm, largely ignoring the moral economy that was an integral component of its classical antecedent. Furthermore, contemporary Islamic finance law is a law operating without a fully supporting legal system, and the emergent picture is one that combines Islamic form with conventional (Western) substance , leading some commentators to observe that, in practice, Islamic finance appears to mimic the conventional financial regime.