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*
PhD; J.D., M.A. Juris., M.Litt. (Oxon), D.I.A., (Harvard),
D.C.L.(Columbia); Barrister at Law, U.K., Atty. at Law, U.S., Senior
Advocate Sup .Ct. of Pakistan., Special UN
Ambassador for Family Dr. Farooq Hassan
educated at Oxford, Cambridge, Lincoln’s Inn, London, Columbia and
Harvard, holds doctoral or post doctoral degrees in Constitutional Law,
International & Comparative Law and International Affairs. A Barrister
of England, an Attorney at Law of US and a Senior Advocate of the
Supreme Court of Pakistan (Queen’s Counsel in England) is a prolific
writer & his works, addresses and famous court cases, make him the
premier legal scholar in the field of international law and family
studies: most search engines estimate such activities between a quarter
of million to half million entries. His diplomatic assignments include
Ambassador to UN, to the US Congress Member former UN H.R. Commission
and the Sub-Commission of Experts of UN in Geneva, the International
Criminal Court, Advisor to four civilian Prime Ministers of Pakistan and
recipient of several distinguished honors: King Faisal Memorial Award,
JNU India Distinguished Professor, Memorial Speaker at several
universities, David M. Kennedy Scholar and Reporteur of UN Conferences.
In May, 2009 he chaired the UN Conference on Environment in Korea;
Recipient of several mentions of Honor and Distinction from,
Massachusetts, US Congress and other state governments in the US, UK &
UNESCO. Member, International Institute of Strategic Studies, London and
the original creator of the “Right to be Different” commissioned by the
UN in 1981.
WE have
gathered here for this truly memorable mega-event to celebrate the most
cherished of our truly cosmopolitan institutions, the traditional Family. Such
is the natural and undeniable force of the normative awareness of this
phenomenon that I classify it as simply amongst the most pious and timely
aspirations that mankind is currently actually experiencing.
The
influence of various significant international developments, UN movements,
notable events and articulations of world statesmen has evidently produced
accumulatively tremendous transnational impact. Many of the policies that have
resulted as a consequence of this phenomenon are basically directed towards the
Weston nations; however some impact is clearly discern able on the policies of
developing states and nations as well. Many of these issues are most significant
for the advanced nations of this world, I am, however, asked by the organizers
of this conference to focus primarily of these effects on only the developing
nations which I propose to do hereinafter in the ensuing analysis.
One
point needs to be explained by me at the outset. This is the political cleavage
that spreads across the world in strategic policies of many important states.
Violence has become most lamentably the perceived vehicle of change and states
are involved in many wars in distant lands. By one estimate of the highly
prestigious International Institute of Strategic Studies, London, presently in
numbers alone, more wars and battles are on than they were at any given time
during the two great wars of the last century.
The
world is experiencing a terrible time generally in harnessing the much needed
rapport between the principal religions and ethnic diversities that
clearly exist in contemporary civilizations; I have little doubt that despite
the best intentions of the mature leadership of statesman and intellectuals
throughout the world, a mistrust is regrettably patent in achieving this
cooperation because of the thesis propounded a quarter of century ago by my
distinguished Harvard colleague, the late Professor Samuel Huntington about a
“clash of civilizations”. More recent events have, however, clearly exhibited
the practical evils when this doctrinal thinking transforms in evidence
regrettably pragmatically in the political developments across the world.
Nevertheless fortunately there also exits an unbridled desire to coalesce our
combined efforts in a direction that bridges rather than extenuates the
historical differences and the prejudices of the international community.
In this
process there is manifestly visible in the field of the sanctity of Family the
dire need to maintain the core and fundamental significance of the Family among
the followers of different Faiths. We are indeed fortunate in possessing as a
living tribute to the clear determination to create an intellectual atmosphere
of understanding and propagating the fundamental human values in following the
historical acceptance of the family as a basic tenet of civilizations in major
human rights texts that emanated with the creation of the UN Charter, such as
the Universal Declaration of Human Rights, 1948.
The
leading text of this nature on what constitutes the family is to be found in
Article 16 (3) thereof that assert in categorical terms:
The Family is the natural and
fundamental group unit of society and is entitled to protection by the society
and the State.
The
challenge to this simple conception what constitutes a natural family has
however arisen can be summarized in the form of the following three
propositions:
From the
work and efforts of anti- traditional Family partisans, stricti sensu.
From the
compendium of legal and constitutional developments in countries such as the US.
From
International developments at the forums designed for manifestly political
purposes such as the UN or in Europe.
The
philosophical and legal message contained in article 16(3) of the Universal
Declaration was derived essentially from the teachings of great faiths and of
the basic attitudes of the monotheistic religions towards this fundamental unit
of any society. But despite this manifest postulate which emanates from the
highest law making sources, a UN Declaration, Family as an institution has been
threatened in Allan Carlson observes with acute perception when he says: “Our
foes have mounted attacks on all aspects of the natural Family, from the bond of
marriage to the birth of the children to true democracy of free homes”
[1]
This
campaign was advocated on a very wide basis internationally with the result that
by the1990s it had global adherents. The UN declared 1994 as the year of the
family but cynically, the opponents too embarked upon their own advocacy of
views divergent to those espoused by the supporters of the traditional family.
Internationally the resultant situation created problems had serious social and
some constitutional ramifications in the Western world. This process led to
vigorous efforts by many leaders of the traditional family to thwart this danger
from anti- traditional family protagonists. Since ultimately in dealing with
what figures on the UN agenda in all such issues, number of states does matter
that are demanding some thing to be debated or resolved, entirely because of the
60 plus Islamic states voting powers the UN agreed to observe 2004 as the 10th
Anniversary of the International Year of the Family.
This
anniversary observance was announced by the UN General Assembly decision number
164/75 given on 18th
December, 2002. The year of 2004 produced a tremendous amount of
scholarship and erudite work by pro-family intellectuals, non-governmental
bodies and religiously based institutions. Prominent international conferences
of 2004 that can be cited for this pro family momentum are the Mexico World
Congress of Families III, the Kuala Lumpur Family International Conference and
the Doha International Conference to which some detailed reference may be
helpful. But before I do so, a word is necessary for comprehending the kinds and
nature of dangers posed by this adversary situation.
The greatest threats to the institution of the family come from contemporary
“liberal” philosophies of the predominantly advanced Western civilizations (and
not from the developing nations). The problem that we are thus faced with is
simple. Some of the “changes” that are currently advocated by a sizeable segment
of liberal-based ideologues are such that they aim to denude the very
foundations and grundnorms of the institution of the family so as to
adversely affect its well-being and character as traditionally understood.
These challenges emanate from principally three sources viz:
(1) The liberal policies of western states in respect to such issues as
allowance of same sex unions or other state operated benefits to non traditional
family units.
(2) The consistent legal and constitutional developments by the institutions
that possess the necessary ingredient of the ability to lay down normative
rules.
(3) The striking failures of traditional pro-family protagonists to lay
appropriate emphasis where it is required; conversely, when opportunities came
to achieve the threshold criteria of success, either through lack of specialized
skill or knowledge or by propagating the wrong cause before the available
forums, the chances were lost to realize the goals.
Let us see more deeply into finding out raison d’ etre of the gist
of these tripartite reasons that have cumulatively contributed to these
difficult state affairs in which we find ourselves.
My many addresses and written articles stress the difficulties faced in Western
nations by the family;[2]
I have several occasions, as a delegate to the Third Committee of the General
Assembly, or as a Member of the former UN Human Rights Commission or the
Sub-Commission of HR Experts of Protection of Human Rights in Geneva to
comment about such facets of contemporary thinking about human rights and
perceivable trends at the United Nations while codifying newer evolutionary
norms of this law. One sure way to meet meaningfully such inherently divergent
ideas for the coming generations is by reliance and adherence to the cherished
values of the great faiths many of us believe in. Indeed, all the principal
religions that have survived through man’s history over several hundreds of
years essentially by stressing this message of the sanctity of marriage and the
resultant creation through procreation of the family.[3]
In the
Family Conference in Doha, and in my subsequent writings, I emphasized the
philosophical need to discuss at the international meetings and conferences
organized by the pro-family protagonists:
(1)
Topics and themes which prima facie had some relevance to the locale of
the conference, thereby actually emphasizing the propriety of examining really
regional and developing nation level local problems rather than to bring up
again and again the core of maladies being confronted by the developed nations
of the Western problems.
(2) To
have learned speakers of genuine international stature or recognition address
such meetings on issues that had to focus more deeply on really contentious
issues rather than to dwell ad infintum on the rhetorical value of own
perceived and known positions with respect to certain well known topics.
Foremost of such issues relates to women issues within the family. While talking
of this subject I pointed out at Doha, that nothing was really canvassed on this
issue since there the absence of this topic within the family and it was not
felt necessary by the organizers to have it on the agenda.
Thus an
opportunity was lost to stress the obvious. I feel that we had a moral
obligation to point out also with equal emphasis the rights and responsibility
of the women in the family set up. In this context rather than to discuss the
social and personal damage to the society by allowing polygamous marriages, it
was considered sufficient to just avoid the subject altogether![4]
This omission to even raise such important contemporary issues relating to
women[5]
laid further strength to the propaganda against the traditional pro-family
advocates, generally described by the “opponents” as ultra conservative right
wing of the Western society.
[6]
The
multinational level of the present gathering establishes this much that what
ever the reality, perception does matter in the media controlled world we live
in.
Apart
from the serious non attention to such specific matters, there is the larger
question when looking at Doha deliberations about the thematic advantage of such
international activity carried on by the Western pro family activists and its
impact in the Third world and developing nations[7].
An objective analysis is required to bring out the two main foundations of my
critique.
The
place of Doha in the contemporary international legal field has been essentially
hyperbolic in nature and exaggerated in its normative character.[8]
It has been evidently enthusiastically touted by those who held that meeting
that it produced or culminated the movement regarding the recognition of the
Family as a fundamental human institution. Is such euphoria generated about Doha
International Conference in November 2004 thus justified?[9]
Significance of what, if anything was really achieved at the Doha Conference
continues to attract attention from legal scholars[10]
and journalists[11]
of note with startlingly different evaluations of what Doha conference actually
or purportedly gained by the Family. Any one interested in this matter will thus
find a fair deal of research material on this matter.
Moreover
it is just plainly legally wrong to contend that the UN GA Resolution laid the
“law” on this point. Not only the GA Resolution simply speaks of “noting” the
Doha deliberations it does not mention at all the Declaration; moreover it
equates the Doha conference with that held in Benin, about six months prior to
the one in Qatar where I was specially invited. Originally all those involved in
the Doha Conference rushed to say that it had laid down the “law;” but because
my repeated and many works on this point this stand was than
changed to the luke warm position of saying that it was the harbinger of “soft
law” which doesn’t mean anything in jurisprudence
My
critiques have not escaped the scholars and critics alike about the relevance of
what was said of Doha, who said it and where it was being said? Indeed I stated
it in simple words in my opening intervention in the presence of the chief guest
of Qatar from the floor when the Chairman of the conference Prime Minister
Mohather Muhammad was present.
It was
utterly incomprehensible to me how a speech written for an audience say in New
York or Salt Lake City could be presented with any conviction to a conservative
Muslim abidance in a small and closed society such as that prevailing in Doha.
This is point of far reaching significance and may be borne in mind. As the
famed British journalist Whitaker remarked it is impossible to gauge the
relevance of the topic of homosexuality to the audience in Qatar or the fact of
monogamous marriages which were the foundation of the main address of the chief
guest from Qatar itself to the Qatar audience.[12]
Thus
when dealing with impacts of such policies on the Third World or the developing
nations, it must be kept in mind that the audience and the speakers and their
addressed matter must have coherent thread and connection.
In many developing nations, since Islam is the dominant faith, I am certain that
the perceived threat from such sources as identified above ranges from marginal
to negligible. I find that with such subjects as homosexuality or divorce there
is not going to be much effect on the developing states of these developments;
however with topics such as birth control, abortion or family planning, the
grater majority of developing nations are already undergoing effects feared
merely two decades ago of these Western & advanced states' developments on
developing states.
After examining the Muslim conceptions which are applicable to about a third of
the world’s total states and its population, I shall also briefly advert to the
other developing counties which are of non Muslim category.
Debates
within Islamic Thinking on “Reform”?
Throughout its history Islamic faith has been both deeply cherished and
misunderstood for its emphasis on enveloping the entirety of a person’s life
with its normative structure of rules of conduct and precepts. Amongst the major
norms of such expected behavior are those that are devised to apply to the
institution of the human family, children and women. Simultaneously, the
jurisprudence and moral philosophy of the faith also acutely focuses on the
larger matter pertaining to the subject of human rights of mankind.
But in
recent times there is an ostensible tussle in progress between the conservative
elements of such societies and the advocates of modernistic attitudes. The
modernistic thinking to which I refer is grounded on secular postulates which
“indicate” that some traditional norms of accepted behavior qua
the Family are in “violation” of the current relevant norms of the philosophy of
human rights. It is also maintained by other elements, in particular the
governments in important Islamic states, that it is necessary for economic
progress to “modify” previously held views on issues of contemporary
significance[13].
Reference can made as an illustration to “reproductive health” which means
family planning. For instance as Reporteur of two major international UN
sponsored conferences on the “rights” of the Family and the Child in Islamabad
in May 2005 I frankly reported that “rules” of “law” and not merely soft
international law were being made by Islamic nations and major Asian countries.[14]
The areas that were focused upon pertained to “rights” that were of
“reproductive” kind and those loosely referred to as “spanking” practices[15].
I think that there is little doubt that most Muslim countries are in progress
towards embracing “family planning” practices. In countries such as Pakistan or
Turkey where there is very vocal presence of conservative Islamic to counter
such opposition. In Pakistan, as I have reported in my Report on the May 2005 UN
Regional Family Conference[16],
the Federal government obtained “fatwa’s” from pliable Muslim clerics of
nondescript note, to vouchsafe the absence of any such dogma in the Shari’a on
it.
Regrettably the Western NGOs, who are otherwise very active in such matters, did
nothing of any note to counter this kind of propaganda. Literally there was
little help or support from such friendly NGOs to guide us in third world
countries to devise modalities that would go some way to meet the policy
declarations by the governments of several Muslim and other Asian countries. I
do not know exactly why, but could it be that it was unconsciously thought as
such developments had little impact in the West, it was best to politely ignore
such Declarations?
Such
secular attitudes are on the other hand manifestly evident in the policies and
state declarations of several advanced Western countries. It is equally obvious
that to exert friendly pressure on many such Islamic nations, mostly belonging
to the developing category, substantial investment of funds is in progress. This
is bound to affect the mores of such societies while certainly
influencing their governments.
Compared
to such current “liberal” Western thinking on moral issues concerning the
Family, the humanitarian postulates and dogmas of Islam are heavily grounded on
principles of high morality. It is this quality of fierce attachment to these
ancient teachings that keeps the Islamic family together in almost the same
moorings with which it began its traditions hundreds of years ago. But are the
about to change? What effect did the Doha Declaration have on such an evolution?
I do not think Doha had any influence over this quite metamorphosis occurring
indeed in Islamic nations; and it more sad when we frankly realize that it was
not designed to have any either.
But I
must hasten to add that any dilution in the ethos of traditional Islamic norms
would disturb the religious practices of its millions of adherents. Such
thinking would also affect the peoples of other Nations that direly need such
ethical mores to keep afloat their own cultural value systems in an
international social milieu rapidly losing such values in the wake of
contemporary “progress”. But regrettably, as it would be noticed, such
“dilution” within Islamic countries seems already in process.
Islam’s
contributions to this subject are a living tribute to the strength of the Faith
to protect and enhance the status of the Family as the crucial nucleus of our
civilization’s civic life. The Quran contains many direct commands for the
purpose of keeping the Family in tact. Such mandates apply regardless of
geography or ethnic specificity as such instructions are binding on everyone.
Furthermore, apart from ethical and moral injunctions, Islamic compendium of
teachings on matters connected with the concept of matrimony and man-woman
relationship, have a codified criminalization of laws relating to what may be
described as wrongs qua this status of traditional marriage.
Impact
on other Developing Societies
While it
is not possible to cover in seriatim most of the other nations
which are developing, a brief thematic illustration would be helpful in
evaluating the over all thrust of their current status with regard to their
policies towards Family. Indeed other nations are tending to show the relics of
the former policies of such societies despite the current changes in demographic
and technological advances that are shaping the future of their peoples.
As such,
for instance, same sex union, howsoever described, will be a serious legal and
not merely a moral objectionable conduct in an Islamic society. In the Indian
Penal Code 1860, initially drafted by Lord McCauley, vide Section
377, this category of action is said to be an “unnatural offence.” This is still
the position in Pakistan and in many countries of the erstwhile Commonwealth
counties where the said Code has been adopted verbatim.[17]
Hence
both by the weight of the teachings of Islam and by the contents of the other
prevalent legal systems, philosophically and by jurisprudence, Muslim countries
along with other developing nations would seem to stand for the maintenance of
normative behavior aimed to preserve the institution of the traditional Family.
However, as noted, these developments may not be identical as illustrated by
the Supreme Court of India while interpreting section 377 of the Penal Code it
chose to depart from the rulings in other counties on this law.
It s
also to be noted that whatever the court may say, by the tabulated accounts of
various surveys undertaken by foreign media, this ruling had no impact on the
volkgeist of the ordinary people of India on this issue. While it is beyond the
scope of the current analysis to look deeply into the legal systems of other
major blocks of countries in the developing world, it is safe to say, that over
all, the evolution will stay the present course. Despite the changes in the laws
of developed world, Family will be kept as it has been for thousands of years in
these cultures.
The
strongest current international evidence to emerge on this point is amply
provided by the Madrid declaration which was endorsed per se by the
representatives of all major religious blocks that presently inhabit this world.
Consistent performance by Islamic Nations
Even a
cursory look at the performance of Muslim states in the international arena will
provide us with over whelming evidence of this attitude and commitment. In the
General Assembly of the UN whenever it mattered, it was the Islamic states that
gave the required numerical support to defeat the agenda of activists of anti
Family protagonists.
In the
UN Human Rights Commission meetings in Geneva, it again fell to the Muslim
countries to defeat a highly organized move of the biggest coalition of Gays,
Lesbians, Bisexuals and Transgender group sever gathered at a UN meeting to
cater for the adoption of the “sexual orientation” resolution which, if adopted,
would doctrinal weaken at least the steadily achieved advance by the traditional
pro Family protagonists on world-wide basis. This impressive contribution began
at the end of the 59th Session of the UNHRC in 2003 when five Islamic countries
led by Pakistan (the others being Egypt, Libya, Saudi Arabia and Malaysia) after
not a vote to take place by moving several Amendments had the Resolution debate
adjourned to 2004. In 2004 during the 60th Session once again it fell to the
Muslim countries to force Brazil on the 29th March to seek postponement of this
measure until 2005.
I feel
that all these matters from a normative perspective and of state practice
deserve to be fully noted, chronicled and duly analyzed. My many legal texts
constitute a kind of work in this field which would be helpful for those trying
to go deeply into a number of issues raised in today’s address. But it remains
to see the extent to which such inherited values of the Muslims as contained in
Shari’s have been really implemented; a brief reference to the Islamic position
on family needs therefore a priori re-iteration. Though not necessary, in
the Annexure to this presentation, the ethos of the major injunctions of Islam,
can be located.
Now I
can finally move to an allied topic regarding the attitudes that are necessary
to lay the proper foundation for this kind of atonement that I visualize may
occur. I refer here to essentially a couple of important points empirically
noted by me in the many conferences I have attended regarding the Family.
(A) Let
the job be done by professionals
There
seems to be tendency amongst many of the current pro-Family NGOs that they
invariably undertake all the conference work by themselves; this signifies that
many of them remain highly motivated and well meaning heads of the NGOs who are
active in this field to accomplish all and everything by themselves. This is a
noble endeavor and fine generally. However, when the field in which
deliberations are required, presupposes technical expertise, say international
law, constitutional law or the situation with respect to multi -ethnic
civilization clash, it is best, if possible logistically to have it represented
by the best possible representative they can locate.
For
instance I wish to place on record the efforts of leading NGOs in the general
field of Christian Charity work such as CARE of London or Focus on the Family of
US who have done so. In 2004 when the UN HR Commission was being advocated the
sexual orientation resolution, two of these organizations just did not come
there to make speeches, they had lawyers, in which I was fortunate to be
designated the leading spokesman, for this purpose. These were CARE and Focus. I
thus think that CARE leadership as presently embodified by my distinguished
friend Lyndon Bowering or my friend Yuri Mantilla of Focus on the Family (who is
present here) or Thomas Jacobson, deserve our gratitude and thanks.
(B)
Avoidance of hyperbolic claims of attainment
We must
guard against over sell of our public postures by not indulging in hyperbolic
claims or evaluations of what we are in the process of achieving. Since sincere
following utterly believes in the cause they profess, non fulfillment of tall
expectations is counter productive. The Nigeria conference, for instance, which
preceded the present World Congress, in my respectful view falls in this
category. Proclaimed as “World Congress of Families: Dialogue of Civilizations”
– our first African conference – will take place in Abuja (Nigeria’s Federal
Capital), at the Musa Yar Adua Conference Centre, June 5-7, 2009”. The historic
theme of this “initial” conference in Africa turned out to be basically the host
country’s own leadership rather than the international conference it promised to
be to one stage to give the largely domestic audience what they had been
expecting. Regrettably the ethos of the theme of “dialogue of civilizations”
wasn’t reflected in any single address that I can tell. Besides despite being
labeled as a part of the “World Congress” there was not much of the World
component really present…What more can I say?
Need of
Civilizational or Interfaith Dialogue
The
pivotal problem that now is faced by the world’ s family protagonists is to find
ways to project the unity of world’s religious forces speaking with a unfired
stand on this matter of the integrity of Family. In this instance, not only I
have formally addressed International Congress and Conferences on this very
subject, I have done already done considerable amount of written work; Reference
to my own two major works contained in the two following works are thus
necessary.
The
relevant links are:
(1)
Dialogue between three mono-theistic faiths, 19 July, 2008:
http://www.greaterdemocracy.org/archives/696
(2) Madrid Declaration through dialogue between Great Faiths: Religion & Family
Values, 6 August, 2008.
http://www.greaterdemocracy.org/archives/701
The
Madrid Interfaith Conference of July 2008 had been organized by Saudi Arabia and
Spain. This Conference had been organized on an initiative of King Abdullah
(whom I have known since 2002-3 when I went to deliver the lecture on Islam and
post 9/11 developments and receive the King Faisal Memorial Award from him in
Riyadh). Over 200 participants attended, including representatives of the
world’s major religions. Among them were the Secretary General of the World
Jewish Congress, Michael Schneider, and Cardinal Jean-Louis Tauran, who is
responsible for dialogue The Madrid Declaration issued at the end of the final
Session on 18 July, 2008 by H.E. Abdulmohsin Al-Turki ( a Saudi Prince) in a
press conference, inter alia, called for:
“Observing peace, honoring agreements and respecting traditions of peoples and
their right to security, freedom and self-determination that are the basis for
building good relations among all the people of the world. Achieving this is a
major objective of all religions and prominent cultures.”
The
Madrid Declaration did highlight the close historical ties between the Vatican
and Muslims’; but it added significantly, I may humbly point out, as a result of
my intellectual and legal efforts the following crucial passage on the sanctity
of the family. All major addresses given by the galaxy of pious people gathered
there were really directed towards the anti-terrorism emphasis of all the great
Faiths of Mankind (religious leaders belonging to Islam, Christianity, Buddhism,
Hinduism, Judaism and Sikhism were gathered there). But in the drafting process
I was able to have the language boldly supportive of our mutual struggles emerge
in clear terms:
“Significance of religions and moral values as well as the need for human beings
to revert to their Creator in the fight against crime, corruption, drugs and
terrorism. We also call upon the people to preserve the institution of the
family and protect societies from deviant behaviors.”
As I see it the Madrid Declaration is the only clear endorsement
of Family by the entirety of the international community. It is not known
however, why we as the activists of this movement cannot draw inspiration from
it? Why we should not own this as the boldest portrayal of support for the
traditional family is not clear. However, because of the efforts of the Saudi
King this stance is now echoed alike by the worlds advanced and developing
nations about the sanctity of this core and natural institution of the family.
Before closing I must thank all those are working in this
interfaith relationship matters since the envisaged harmony amongst the
followers of great faiths is of paramount significance. CARE of London is now
starting a project in this field through the efforts of my dear colleagues Nola
Leach and Sir Charles Hoare under the spiritual guidance of Lyndon & Celia
Bowering.
Annexure to my Plenary Address
Islamic Conceptions Relating to Family
Let us now see the position of “Family” under Islamic principles. In the context
of Islamic family obligations, a family is defined as “a human social group
whose members are bound together by the bond of blood ties and/or marital
relationships.”[18]The
Qur’anic injunctions created the basic framework of such obligations. The major
thrust of such injunctions was to ameliorate the position of women and to grant
to daughters rights and privileges ignored by the ancient customs which were
present at the advent of Islam:
“These Qur’anic reforms, as well as customary practice, constitute the substance
of classical family law” in Muslim philosophy.[19]
The basic perception of marriage, which is considered to be the foundation of
family life, is in the nature of “the strongest bond[20]
that exists in human relations. Surat An-Nisaa’, the fourth chapter of the
Qur’an, allows a marriage of choice but forbids the husband from inheriting the
wife’s property against her will[21].
According to the Qur’an, men and women have equitable and proportionate rights
and responsibilities in a family. In order to preserve the survival of the
family unit and to ensure the viability of the institution, it has been provided
that the weaker elements in this unit have higher levels of protection.
As such, the Qur’an allows the rights of women not only in the context of
marriage,[22]
but in protection from slander,[23]
maintenance,[24]
and care of children.[25]
The cumulative quintessence of these diverse injunctions regarding the family as
a social unit signifies that laws of divine origin are in place to ensure the
integrity of this unit.
In this scheme of the preservation of the family as a unit in a society
described briefly above, the Islamic message seems to be to
(1)
Make marriage based on free consent.
(2) Preserve the economic viability of the wife.
(3) Make the offspring, with great emphasis on the females of this union, an
integral part of this unit, in which they not only owe various duties of loyalty
and respect to their parents, but in return the parents must exert their best
moral influence on them.
Position of Women in Family
While focusing on the institution of the family, two central themes need to be
recognized. First, the extraordinarily “secure” position and status Islamic
thought gives to females in the family. While addressing the topic of females in
a family, the Qur’an has several direct commandments. First, female infanticide,
extensively practiced in non-advanced societies throughout history, has been
severely condemned. Not only did it prohibit the evil cultural heritage of that
seventh century culture in which Islam began its infancy, it rebuked the idol
worshipers of Arabia who ascribed daughters to God but wanted only to have male
heirs, and reacted accordingly in their prevalent social practices.
In Surat Al-Nahl (16:57 -59) the Qur’an says:
[And they assign daughters for Allah! Glory be to Him! And for themselves
(sons—the issue) they desire! When news is brought to them, of (the birth of) a
female (child), his face darkens, and is filled with inward grief! With shame
does he hide himself from his people because of the bad news he has had! Shall
he retain it on (sufferance and) contempt, or bury it in dust? Ah! What an evil
(choice) they decide on!][26]
According to Islamic injunctions, the aim and “purpose of marriage is to create
and live in an atmosphere of love, harmony, and companionship to fulfill the
higher purposes of life.”[27]
Leading Qur’anic mandates concerning these aspects of God’s commandments
stressing the complimentary roles of both sexes to each other can be gleaned
from the following verses:
[They (women) are your garments and ye (men) are their garments.] (Al-Baqarah
2:187)
And again, a famous verse says:
[The Believers, men and women, are protectors one of another.] (At-Tawbah 9:71)
Perhaps equally well known is the following commandment:
[And among His (God’s) Signs is this, that He created for you mates among
yourselves, that ye may dwell in tranquility with them, and He has put love and
mercy between your (hearts): verily in this are signs for those who reflect.]
(Ar-Rum 30:21)
In sum,
Islamic teachings lay the greatest stress on the position of parents (Luqman
31:14), kindness to all of one’s elders in the family (Al-Ahqaf 46:15). The
underlying message in such commandments derive their ethical foundations from
the concept, inter alia, of ihsan. This concept, which figures in diverse
forms in Islamic teachings “denotes what is right, good, and beautiful.”
Position of Children and the Weak in a Family
The Qur’an mandates that young children be properly looked after and nurtured.
[28]
It is further stated in the same injunction that the children be raised by
mutual consultation between the parents. There is a call to the believers that
those who truly believe in Him are asked to be kind and forthcoming in their
assistance to those in need, or are disadvantaged, or are handicapped. Indeed,
these injunctions go as far as to impose hospitality and to provide help to the
elderly kin, those who are indigent, or even for those who are traveling.[29]
An allied concept to provide for those in need in the family is that of zakah.
It is a basic obligation of a Muslim to participate in social responsibilities
by donating a small part of their savings to those in need. This “purifies” the
person giving such assistance. While thanking God for His blessings, it is
deigned to help others in distress and needing help.
The Qur’an says:
[Spend out of (the bounties) We have provided for you, before the day comes when
no bargaining (will avail), nor friendship nor intercession.] (Al-Baqarah 2:254)
In order to cause encouragement in assistance of others God says that He will
multiply the rewards to the generous in the Hereafter. Indeed, in one passage in
the Qur’an it is described as a “loan to God”:
[Who is he that will loan to God a beautiful loan, which God will multiply unto
his credit and multiply many times? It is that God giveth (you) want or plenty,
and to Him shall be your return.] (Al-Baqarah 2:245)
One of the foremost authors on Islamic learning points out, therefore, that “no
religion prior to Islam had consecrated charity, the support of the widow, the
orphan, and the helpless poor, by enrolling it among the positive enactments of
the system.”[30]
Doctrinal Basis of “Care” Rights
Before examining the allied question of human rights in Islam, it may be
instructive to view the doctrinal basis of these “care” rights in the philosophy
of the Qur’an; as I see it, predominant themes permeate this subject.
First, the basis of all the desirable human actions emanate in the concept of
kindness. In Arabic, the corresponding word for God’s ever-present kindness is
designated by the word rahim or rahman. This word appears many
times in the Qur’an and indicates one of the titles for God by referring to Him
as “the Kind One” or “the One Who gives kindness.” Indeed, this word is oft
repeated in Muslim prayers and is perhaps the most beloved of God’s descriptions
in human vocabulary. Linguistically, it comes from the root word rahm
meaning the “womb.” It underscores the theme of God’s care and love for all His
creatures as a “mother.” This is important, for it also shows the status
eventually bestowed upon the institution of motherhood in the family.
The second basis of these rights is the Islamic conception of justice. It will
be seen that the Qur’an while addressing the matters of human relationships laid
the greatest stress on justice. Whether it is a question of the rights of the
members of family, or those of the people in a state, the Qur’an mandates in
various forms highest adherence to justice, called `adl. While there may
be a number of ways to look at this phenomenon, I think the basic message of
Qur’an is that merit and the quality of one’s claims and demands or expectations
are to be evaluated on the basis of justice and righteousness. Righteousness
itself consists of three elements:
(1) Belief (iman)
(2) Just action (`amal)
(3) Justice (`adl)
In anotable injunction, the Qur’an candidly asserts:
[The most honored of you in the sight of Allah is (he who is) the most righteous
of you.] (Al-Hujurat 49:13)
One other memorable passage about justice may be mentioned before leaving this
point.
The Qur’an says:
[O ye who believe! Stand out firmly for justice, as witnesses to Allah, even as
against yourselves. … Follow not the lusts (of your hearts), lest ye swerve, and
if ye distort (justice) or decline to do justice, verily Allah is well
acquainted with all that ye do.] (An-Nisaa’ 4:136)
The above brief analysis reveals the emphatic focus that the Qur’an places on
the concept of kindness and justice. There are other allied concepts as well
that tend to generate the ethos of Islamic dynamics towards creating a caring
society with the family occupying the pivotal position. It is self-evident that
while addressing matters relating to affection for one’s family and the allied
expectation of assistance required of a Muslim community, the ingredient of
`adl or justice plays a uniquely esoteric and ethical role.
Endnotes:
[1] See Dr. Allan Carlson, The
Natural Family Manifesto, 2005, page 5
[2]
Condemnation of Divorce: Survival of
Marriage, Proceedings, WORLD FAMILY POLICY FORUM 2001
www.worldfamilypolicy.org/New%20Page/Forum/2001/Hassan
Threats To Family &
Marriage: International Perspectives ,
Nov. 21-22, 2003, /Mesa,
Arizona,
Link: (www.unitedfamilies.org/hassan_article)
; I have also candidly written enormously on the failings of many Third
World developing Muslim Nations of their inability to conform to
international standards: Needed reforms in the Family Laws of Muslim Countries, Farooq Hassan,
7th Annual World Family Forum Proceedings 2006, Link:
www.worldfamilypolicy.org/forum 2006
[3] The Family in
the New Millennium: Strengthening the family, Editors Scott Loveless, Thomas Holman – 2007, Vol 111, Chapter 25 Analysis of
Islam and Muslim States' International Support for Family Farooq
Hassan (Pakistan) Barrister at Law, Lahore, Pakistan :LINK: books.google.com/books?isbn=027599242X...
[4] See generally:
Farooq Hassan Genesis & Philosophy of Marriage, “Dr.
Farooq Hassan, a leading Islamic thinker of these words is welcome
coming as they come from him“ World Congress of Families IV, Link:
www.greaterdemocracy.org/archives/475/feed
[5] Women’s
Position in Muslim Family Law Reforms, Dr. Farooq Hassan, 2006 Link:
www.un-instraw.org/.../att-0445/
[6]
Women's Protection
Bill: Perception and Realities Farooq
Hassan. Islam on Line posting
& publication of Most well known Muslim International Law Expert —
Pakistan
..... Farooq Hassan has distinguished credentials: DPhil; BA Juris; MA;
MLitt (Oxon); DCL (Columbia);Link: ... www.islamonline.net/servlet/Satellite?c=Article
[7] Australia
puublication: Islam’s
undeclared war on women, Published in the Herald Sun, 8 June 2004.
Farooq Hassan former Pakistan Test
cricketer writing in The Nation, (3/6/04) in an article entitled
"Graces and disgraces" commented: ".....There is an inherent ...Link:
www.endeavourforum.org.au/oct04-07a.htm
[8] Limitations
of Doha Conference, Dr. Farooq
Hassan, Link:
http://www.islamonline.net/english/In_Depth/Doha_Conference/Views/03.shtml
[9]
See generally the Final UNESCO REPORT, SS-80/CONF.806/COL. 7 at
22. The present author was nominated to draft the “Right to be
Different” in which I argued for the preservation of ethnic retention of
the identity peoples of diverse cultures in a multicultural society. See
Hassan, F, The Right to be Different, UNESCO Doc. SS-80/CONF.806/9,
1980). See further this author’s Article , Hassan, F. Solidarity
Rights: Progressive Evolution of Human Rights Law? In Human
Rights Annual, New York Law School, 1983, Volume 1, p 51.
[10]
See generally R. Higgins, The Role of Resolutions on International
Organizations in the Process of creating Norms in the International
System, in Kirgis, International Organizations in their Legal
Settings, 1993, p 342. See further this author’s Article Constitutionalising Morality,
The Nation, 13 August 2003, examining the recent US Supreme Court
Ruling in Lawrence V Texas.
[11]
See Alan Whittaker’s scathing attack on the Doha conference and the
strident criticism of Professor Richard Wilkins of BYU ‘s association
from a Mormon University with an Islamic Sheikhdom of Qatar in The Guardian,
London, 26th January 2005. See further the European publication of February 20, 2008 entitled “A
Fistful Of Euros; Qatar: It’s where the money comes from”
by Alex Harrowell” : The author writes But what especially amuses me is
this: “The
result is the spread of US culture-war tactics across the globe, from
the Czech Republic to Qatar–where right-wing Mormon activist and WCF
co-founder Richard Wilkins has found enough common cause with Muslim
fundamentalists to build the Doha International Institute for Family
Studies and Development.”
[12] My detailed views
are extensively quoted by the recent work of a Christian Minister with
vast UN experience, J .Butler, in a recent book,
Born Again: Christian Right Revisited.
[13] FAROOQ HASSAN
(Pakistan) Rights of Children in WAR & PEACE addressing the UN Human
Rights Commission, 1998, GenevaUN PRESS RELEASE www.un.org/children/conflict/pr/1998-04-2255.html
[14]
UN Regional
Conference , 4 May 2005 Islamabad ,on
Muslim Ulama
& Implementing Restrictive Family and Population Policies,
Rapporteur, FAROOQ HASSAN: International
Ulama Conference on Population and Development (
Women’s Reproductive Rights)
Link:http://www.readingislam.com/servlet/Satellite?c=Article_C&cid=1153698300026&pagename=Zone-English-Discover_Islam%2FDIELayout,
18 May 2005
[15] UN
regional Meeting Islamabad, Rights of the Child, Islamic Perspectives,
May 2005, Farooq Hassan, Report on Islamic
Perspecives of the Rights of Child
at Link: www.defendmarriage.com/Hassan_Children.cfm
[16] Indeed one notable NGO that is very active in
many such activates, just backed of from even nominal support of this
effort of mine and another, perhaps better known than the former, quite
happily circulated my report as its own without any acknowledgement of
its sources.
[17] However, a
reverberating departure occurred in India where just weeks ago the
Indian Supreme Court held this Section 377 of the Penal Code to be in
violation of the human rights provisions of the Constitution and hence
ultra vires. See further my own work on this topic:
Religious liberty in
Pakistan: Law, reality, and perception, Brigham Young University Law Review,
Spring Issue 2002, Link:
http://findarticles.com/p/articles/mi_qa3736
[18] Abdalati,
H. Islam in Focus (Plainfield, Indiana: American Trust
Publications, 1975) pp. 113–114.
[19] Esposito, J. L.,
Women in Muslim Family
Law (Syracuse University Press, 1982) p. 13.
[20] Islam
in Focus, ibid. p. 114. Ali, A. Y., The Meaning of the Holy
Qur’an, (Beltsville, Maryland: Amana Publications, 1995), pp. 184,
190.
[21] Ali, A. Y.,
The Meaning of the Holy
Qur’an, (Beltsville, Maryland: Amana Publications, 1995), pp. 184,
190.
[22] See Al-Baqarah 2:228.
[23]
See An-Nur 24:4–5, 23.
[24] See
Al-Baqarah 2:241.
[25] See Al-Baqarah 2: 233.
[26] See also Ali A. Y.
The
Meaning of the Holy Qur’an (Beltsville, Maryland: Amana
Publications, 1995), p. 651.
[27] Parwez, G.,
Islam, A
Challenge to Religion (Lahore: n.p., 1968) p. 342
[28] Al-Baqarah 2:233
[29] Al-Baqarah 2:177, 180, 215, 263, 273;
An-Nisaa’ 4:8, 15, 36, 92; Al-Ma’idah 5:89; Al-Anfal 8:41; At-Tawbah
9:60; Ar-Rum 30:38; al-Ahzab 33:6; Al-Mujadilah 58:4; al-Ma`un 107:1–3.
[30] Ali, Sayed Ameer,
The
Spirit of Islam, (Karachi: Pakistan Publishing House, 1976) p. 169
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