Ed. La Scuola – 12-1996
- Religious Freedom
The concept of religious freedom, unlike that of tolerance, implies equal rights for each citizen. “Any discriminatory treatment motivated by different religious convictions violates human rights. The position of the citizen before the law must not be privileged by the belonging to a specific religious confession “. (7)
The recognition of human rights is a recent acquisition in the Catholic Church. The reliefs expressed in this regard by Pope Pius IX culminated in the document Syllabus Errorum of the last century. But we had to wait for Vatican II for a universal formulation on the subject.
On the Islamic side, as we will see later, religion still predominates over the rights of citizens, even if some weak voice is raised calling for a separation between faith and law. Islamic documents containing declarations of equality and freedom pose serious limitations and discrimination for those who are not Muslims. It should also be kept in mind that the Islamic world is not at all monolithic; indeed, it has within it a great variety of positions: from the fundamentalist minority (Salafeya) to that which demands more freedom and greater acceptance of the modern world. In the middle there is a vast spectrum of “Orthodox” Muslims. Consequently, the application by the courts of the statements contained in the constitutions and international treaties signed by the respective governments is anything but uniform.
- European current affairs
The problems relating to religious freedom in Europe are brought to the forefront by the arrival of Muslim immigrants: their countries cannot remain extraneous to their solution. The study of legislation that guarantees immigrants in Europe must be accompanied by measures in favor of human rights also in the countries of origin, where religious discrimination is a reality. For example: the woman is normally in a position of inferiority before the law, especially in matrimonial law; the choice of a different religious affiliation involves prison sentences and the loss of civil rights; the foreclosure of some public offices and the teaching of some subjects. Even just the normal maintenance of non-Islamic buildings of worship involves an endless series of problems. It is right to protect the rights of immigrants with adequate legislation, demanding that they conform to the laws of the host country. Reciprocity from the respective governments should also be encouraged, so that they guarantee human rights and religious freedom for all.
Peaceful coexistence requires that the leaders of each country abandon demagogy and retaliate to define a policy that guarantees equal opportunities for all citizens. In this way the values of freedom, democracy and respect for human rights could be spread in cultures traditionally distant from attention to the person as a subject of law. Operationally, bilateral conventions and treaties can help establish equal dignity and opportunities among citizens of different countries, erasing discrimination between minority and majority.
- Sharia and human rights
For Muslims the law, Shari’a, represents “the totality of the arrangements extracted from the Koran and the Sunna and from any other law deduced from these two sources by methods deemed valid in Islamic jurisprudence. The Sunna or hadith, is the collection of what Muhammad said, done or accepted, and life example”. (1)
In the eyes of Muslims, Islam is the perfect religion, the only true one, embodied in a community (umma) (8) with its leader, its faith and its laws. The whole is made sacred by the Koranic revelation. The first centuries of Islam remain a model of state order to which fundamentalist Muslims look with nostalgia. Religion is considered inseparable from the system of state organization. There is no separation between the spiritual sphere and the temporal sphere.
The shari’a is therefore the product of the human understanding of the sources of Islam in the historical context between the VII and the IX century AD In this time, Muslim jurists interpreted the Koran and other sources with the aim of establishing general legislation that could serve in every corner of the vast empire subjected to Islam. The interpretation effort (ightihad) was interrupted, and still is, for fear of abuse. The will of God and Muhammad often became a tool to maintain control over the empire. The application of the shari’a today still refers, in many countries, to the canons codified by the Islamic jurisprudence of ten centuries ago and applied by the four juridical schools.
It must be said that in the first centuries of Islam the shari’a could be considered an improvement for those minorities that had been taken away from the domination of Byzantium and Persia, where religious discrimination was strong.
The advent of Islam has improved the living conditions of the woman who suffered severe conditions of subordination before the seventh century. Over the centuries, however, her rights have been eroded.
The woman finds herself disadvantaged compared to the man before the law, especially with regard to matrimonial law and the rules of succession. It is true, however, that polygamy, accepted by the shari’a, is no longer in use due to the increasing difficulty of keeping four wives. Some states, such as Tunisia, have introduced laws that forbid it. The unilateral right of repudiation on the part of man is limited by recent legislation, even if not completely erased. Islamic fundamentalism, where it is widespread, including Europe, sometimes requires women to cover their faces as a sign of submission. Although the Koran does not specifically require it, the veil has in some cases been raised to a visible symbol of a true Islamic society. (4).
According to what was reported by the weekly magazine of the Al-Ahram Group of December 1, 1994, pp. 16, the Egyptian constitutional court denied the right of a woman to obtain a divorce in case her husband takes another wife. The sentence states that the fact does not damage the first wife and does not constitute a valid cause for divorce. On the other hand, Dr. Zenaib Radwan, a professor of Islamic philosophy at the University of Cairo, argues that polygamy is acceptable in the light of the Koranic law, but not the refusal to grant divorce to the woman. She maintains that the shari’a is a guideline and the Koran and the hadiths should not be taken literally, but interpreted taking into account historical developments. Dr. Radwan took issue with the claim that to consider interpretation of the Koranic laws as an immutable corpus, is inconsistent with the original spirit of the shari’ah and will impoverish the virtues and spiritual values of the Koranic message.
Under pressure from feminist groups, a bill was proposed in Egypt in 1995 which provides for the possibility of stipulating a contract between future spouses with whom, in writing, the husband undertakes to guarantee the woman the right to work to education, to travel, and to unconditional divorce, as well as all the rights that you can exercise without your husband’s consent. The bill was formulated by the National Conference for Women held in June 1994 under the presidency of none other than Susanna Mubarak, wife of the Egyptian President.
Sharia has shaped the mentality and conduct of Islamic peoples in relation to the question of human rights and religious freedom. An example is that of abuses committed on women in the name of the divine law according to which the very ancient and cruel custom of the excision of female genitals would be justified as soon as puberty is reached. (2)
Muslim jurists are divided in attributing this practice to a religious obligation or rather to an ancient tradition incorporated in the precepts of the shari’a.
At the Cairo conference on population and development(September 1994), Gad El-Haq Ali Gad El-Haq, rector of the prestigious Islamic university Al Azhar in Cairo, says he is in favor of the excision that would “honor the women who practice it”, and cites some sayings of Muhammad and the thought of a medieval theologian who claimed that “Muslims must take up arms against nations that abandon this practice”. Replies Sayed Tantawi, Grand Mufti (supreme religious leader) of Egypt, who denies any reference to Muhammad, leaving every decision regarding the doctors. There are about a thousand such interventions per day in Egypt. (3)
Since Islam does not recognize a supreme religious authority, the application of religious law suffers from interpretations that often contradict each other, and it is difficult to categorically affirm the correct application of the dictates of Islam.
We can therefore reiterate that within Islam there is not a single authoritative voice and a supreme leader who speaks in the name of all. Hence the difficulty in finding an interlocutor who represents Muslims. That the absence of a central authority is a deeply felt need in the Muslim world, so much so that it was also discussed at the meeting of heads of state of Islamic countries held in Casablanca (Morocco) in December 1994. On this occasion it was also discussed the position of Islam in the face of the challenges of modernity.
One of the problems faced by men called to apply the shari’a in the name of God is how to know his will, exposing himself to accusations of heresy by the fundamentalists, who affirm that they do not conform to the divine will , with all the resulting legal consequences.
We quote, in this regard, an intervention by Hussein Kouatly, director of Dar al-Fetwa, the top Islamic religious institution in Lebanon: “Muslim citizens have a duty to support the Islamic authority; in case it does not apply Islamic law, they must to endeavor to abolish it and declare holy war (Jihad) until the seizure of power. If they are in a minority situation, Muslims can accept compromise formulas by continuing to work by all means to obtain power at the right time “. (Le Reveil, 18.7.1978).
Although various voices persistently claim to demand a more modern application of Koranic law, corporal punishment is still practiced in Sudan, Arabia, Iran and Pakistan. They include, among other things, hand cutting, public flogging, stoning and hanging. The discriminatory treatments towards dhimmi (that is the non-Muslims belonging to the religions of the book) have their foundation in shari’a, but their implementation depends on time and place.
- Non-Muslims: a world apart
The religious freedom of non-Muslims is one of the most delicate issues of Islamic law. According to traditional doctrine, non-Muslims must observe precise conditions to be able to coexist within the Dar el Islam, that is, the Islamic world.
The concept of tolerance in early Islam was very similar to the Christian one of the same period. Not having undergone Islamic law, no evolution whatsoever, even the concept of religious tolerance within the Muslim order has stopped for centuries.
Jews, Christians and Zoroastrians, the so-called “peoples of the book”, were considered “protected” and as such enjoyed a certain autonomy within a legislative order that heavily discriminated against non-Muslims. The main constraints concerned clothing, the payment of special taxes to guarantee the confiscation of property and to ensure permanence on earth, access to public offices, testimony in court against a Muslim, prohibition of military service, the regulation of religious worship (which was to be discreet), the prohibition of building temples and churches, the prohibition of exposing crosses or other signs of worship in public. (5)
There are therefore many anachronisms in which Islamic legislation falls. For example, when a married couple converts to Islam in a couple who contracted Christian marriage, the minor children automatically become Muslims, as the shari’a entrusts the education of children to the religion considered perfect.
- International law and Shari’a
From a comparison between the Universal Declaration of Human Rights (approved by the United Nations December 10, 1948) and the shari’a we can draw further elements of reflection about religious freedom and human rights in Islam. (6)
Article 1 states: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and must act towards each other in a spirit of brotherhood”.
Islamic law establishes a categorical difference between the prerogatives of Muslims and those of dhimmi, considered lower class citizens. The spirit of brotherhood recalled by the Universal Declaration in the Islamic world is only valid for Muslims, and cannot be extended to non-Muslims.
“Every individual – states article 2 – has all the rights and freedoms set forth in this Declaration, without distinction for reasons of race, color, sex, language, religion, political opinion or other gender, of national or social origin, of wealth, birth or other condition “.
For the shari’a the only holder of these rights is the male Muslim. The woman is in a subordinate position.
Articles 4 and 5 relate to slavery and torture (“No individual may be subjected to torture or cruel, inhuman or degrading treatment or punishment”, Article 5).
How can this statement be reconciled with the practices of amputation, stoning and flogging largely in force in Islamic countries of strict observance (Pakistan, Saudi Arabia, Iran, Sudan)?
Articles 6 and 7 recognize equality before the law and the sacred right of equal protection to every man. “Everyone has the right, in every place, to the recognition of his legal personality”, claims Article 6. And 7: “All are equal before the law and are entitled, without any discrimination to equal protection under the law
In this regard the differences with Islamic law are substantial, just think of the differences between Muslims and non-Muslims, family law, personal rights, the value of testimony in court.
With regard to matrimonial law, we take article 16: “Men and women of full age have the right to marry and to found a family, without any limitation of race, citizenship or religion. They have equal rights and duties with respect to marriage, during the marriage and at the time of its dissolution. (…) “.
In Islam, a Muslim woman is not allowed to marry a man of a different religion, unless he is converted. In mixed marriages, when the male spouse is Muslim, the children automatically become Muslims, with no choice. Registration in the state registers is automatic and without the possibility of revocation. The man has the possibility to repudiate the woman, who for the right is “half”: her testimony in court does not have the same value as that of man (he cannot testify in criminal cases of a certain delicacy); in the rules of succession the woman has a share of inheritance halved compared to that of man. According to the shari’a, no woman can hold a public office that provides authority over men. A man can have up to four wives and get repudiation with ease; the woman can have only one husband at a time and it is difficult to get a divorce.
In flagrant contradiction with Article 16 of the Universal Declaration of Human Rights, most of the constitutions of Islamic countries, with the exception of Turkey and Tunisia, forbid a Christian or a Jew from marrying a Muslim woman. It is also forbidden for a woman to marry a citizen belonging to a religion that is not legally recognized. Conversion from Islam to another religion is not possible and is but punishable by law as a crime against society. The consequences range from the annulment of the marriage already contracted, to the deprivation of child custody, to the interdiction to inherit, to the “civil death”. In Iran, Saudi Arabia and Sudan, there is a risk of capital punishment, as was the case with the Sudanese intellectual Mahmoud Mohamed Taha on 18 January 1985 and Hossein Soodmand in Iran on 13 December 1990.
In article 18 freedom of thought, conscience and religion are examined: “Everyone has the right to freedom of thought, conscience and religion; this right includes the freedom to change religion or faith, and the freedom to demonstrate, in isolation or in common, in public and private, one’s own religion or belief in teaching, practices, worship and observance of rituals “.
For a Muslim, moving to another religion means “civil death” and in some cases even hanging. The convert loses his children, his family, his possessions. And it also exposes the religious community that welcomes it to retaliation. In practice he is forced to emigrate and to take the citizenship of a country not yet touched by jihad which aims to extend Islamic law throughout the world. Freedom of expression is also severely limited.
A bill in Egypt provided for the death penalty for an apostate was stopped in extremis by President Sadat. Mr. Ali Mahgoub, President of the parliamentary commission for religious affairs in 1994, asks for forced labor for life for the biggest offense against Islam, apostasy.
With regard to participation in the government of public affairs, Article 21 of the Universal Declaration states, in point 1: “Everyone has the right to participate in the government of his country, either directly or through freely chosen representatives”. And in the following paragraph: “Everyone has the right to access the public offices of his country in conditions of equality”. And again: “The will of the people is the foundation of the government; this will must be expressed through regular and real elections, carried out with universal and equal suffrage, by secret ballot, or by an equivalent procedure of free voting”.
- The rights of the person according to Islamic institutions
Authoritative Islamic bodies have attempted to issue their own universal declarations regarding human rights and religious freedom. Despite this, Muslims as a whole in the world do not feel obliged by these Documents, for lack of a single authority. It must be said because they are still a step forward, because they try to harmonize shari’a with the modern conception of human rights. (11)
A group of jurists and Muslim scholars drafted a document entitled “Universal Islamic Declaration of Human Rights”, issued by the Islamic Council of Europe
“Universal Islamic Declaration of Human Rights”, issued by the Islamic Council of Europe and solemnly proclaimed in Paris at the UNESCO headquarters on 19 September 1981. It contains 23 articles on fundamental rights and freedoms in light of the Koranic doctrine and of the Muslim legal tradition. This text, expression of an open vision of Islam, in addition to incorporating the principles of the Universal Declaration promulgated by the United Nations, recalls the special responsibilities of believers regarding freedom and justice and in matters of religious freedom.
All juridical statements have as their foundation the shari’a and must be interpreted in the light of the Islamic orders. It specifically states that governors and governed are subject to the Koranic law and are equal before it; every earthly power must be exercised within its limits and must tend to affirm Islam everywhere. Despite the limited nature of the concept of equality and religious freedom, it is still a step forward in the field of human rights within the Islamic world.
In 1990, in Cairo, a “Declaration on Human Rights in Islam” was promulgated by the Organization of Islamic Conference, where it specifically denies the possibility of an individual moving from the Muslim religion to another confession. The Cairo Declaration entrusts custody of the religion to the state, denying the individual freedom of conscience.
- Ordinances of Islamic constitutions
The diversity of constitutional orders does not allow us to draw unanimous conclusions for all states; however, it can be said that the concept of tolerance, with restrictions and discrimination against non-Muslims, remains in the constitutions of various Islamic states. Most of the constitutional orders provide for equality between citizens and religious freedom, without prejudice to the fact that the shari’a remains the source of inspiration for the law; the position of head of state, in this logic, is reserved for a Muslim; recognized minorities enjoy representation in parliament.
The constitution of the Republic of Iran, for example, proclaims Islam as Shiite state religion. Article 13 guarantees certain autonomies to specific minorities: Jews, Christians and Zoroastrians. Religions that are not legally recognized are excluded from these privileges. The shari’a is however the inspiring principle of the law of the state and the discriminations against the dhimmi still remain.
Within the Islamic Council of Europe, in 1983, a Model of Islamic Constitution was drawn up which takes up the cornerstones of the Koranic law, reaffirming the holy war as a tool to defend the Islamic order and to affirm the true religion in the territories not yet conquered.
- Evolution attempts
Various voices have been raised lately to try to interpret the Koranic laws in the light of modern law. We cite for example Roger Garaudy, a French convert to Islam, Sudanese Abdullah Ahmed El Naim, the late Egyptian Minister of Education Taha Hussein, Naguib Mahfouz, Nobel laureate. Together with them many other prestigious representatives of Muslim culture propose revisions and changes.
These intellectuals propose to read the Koran with the eyes of the twentieth century, purifying it from the literalism advocated by fundamentalists. They argue that the sharia would contain a true inflation of hadith, that is, of rules derived from alleged sayings of Muhammad. According to them they would have been introduced by the first caliphs to give a form of sacredness to their own government. According to them, the violations of human rights in contemporary Islam would not derive from the religious message itself, but from a series of perversions and contaminations entered into the juridical corpus through particular traditions developed in the Near East and Arabia.
The attitudes to be reviewed, according to them, are essentially these:
1) the closure on the past, with the stiffening of the interpretation of the Koran and the prohibition of a new exegesis which, although not distorting the principles, may be more adherent to the times;
2) the discriminatory attitude towards other religions by the mere fact of considering Islam the only and true religion, ignoring their message and denying that there are other ways that lead to God;
3) the legalism that deprives Islam of its dimension of interiority and love, and caused the ostracism and persecution of Sufism by the Sunni communities;
4) the impossibility of religious expression in Islamic countries, where those who publicly express opinions contrary to the Muslim one risk severe penalties, when not lynching;
5) criticism of the West for asylum offered to extremist Muslims under repression in their country.
Then there is the knot of communication and the free circulation of ideas, so that every man develops his own opinions.
According to these modernist Muslims it is possible to review sharia so that it responds to the needs of the contemporary world without losing the originality of the religious message of Islam. The fundamentalists make the mistake of applying a thousand-year-old rules and concepts, born in completely different historical circumstances.
As regards human rights, many steps remain to be taken, such as the possibility of freely choosing his religion even with the abandonment of Islam without incurring blackmail and the risk of being killed, the possibility for a Muslim woman to marry a a man of another religion, the possibility of accessing the highest public functions regardless of their religion. A communication and free information effort and television and other media debates are desirable to create a free circulation of ideas, and that every man can freely develop his fundamental life choices.
According to the modernists, it is necessary to give life to an Islamic shari’a that responds to the needs of the contemporary world while not discussing the firm heads of faith and human values that every religion seeks to enhance. The error of the fundamentalist currents and the defenders of the return to the ancient (salafiyin) is in the “insistence to want to apply to the world of today systems and concepts codified in the X century. According to Abdullahi Ahmed An-Naim, professor of law at the University of Khartoum, (Sudan) “The first Muslims interpreted the divine sources in light of the historical context in which they lived in order to create a coherent and practicable system, which achieved significant improvements on the level of human rights vis-à-vis previous and contemporary systems; it is the right and responsibility of Muslims today to do the same thing, to give life to a modern Islamic shari’a, destined for the radically changed current context. Muslim radical way frustrates the divine purpose.
And yet In their historical context Muslim religious laws represented an improvement over the systems in force at that time “(12).
The Egyptian Nobel Prize winner Naguib Mahfouz, along with a hundred other intellectuals and politicians, founded an association in August 1992 to consolidate national unity following the religious violence that was unleashed against the Copts. The founding president is Ibrahim Nafie, President of the Al-Ahram Publishing Group. The main objective of the association is to combat religious fundamentalism and to promote equality among all citizens, both Muslim and Christian. According to the association’s spokesperson, religious violence began in Egypt when Nasser resorted to Islam to consolidate his power in the country and in the Arab world. Fundamentalist groups then used religion to seize political power, which is their real goal.
A prominent Islamic professor, Ahmed Kamal Abul-Magd, former Egyptian Information Minister, called on Islamic theologians to rethink the spirit of the Koranic message in light of the challenges of the contemporary world, correcting the distorted image that Muslims give today of their religion. This problem is so felt by the highest civil authorities that at the fifteenth summit of the six Gulf countries (Gulf Cooperation Council) held in Bahrain in December 1994, the proposal of Oman to “abandon extremism and religious fanaticism that distort the image of tolerance of the shari’a which promotes non-violence and coexistence with all religions “.
- Towards what future?
What will be the rules that will guarantee Muslims and non-Muslims living in Islamic territories tomorrow?
Will it be possible for a non-Muslim to be a full citizen in a state where Islam is the official religion?
How to regulate relations between the Islamic state and the international community, modeled on pluralist principles?
The shari’a is currently the inspiring criterion for the constitutional papers of Islamic countries. Can Muslims ever conceive a democratic state order that guarantees freedom of religion and worship for all citizens, equal before the law, regardless of religion or ideology?
Some Muslim researchers are inclined to affirm that the Islamic faith is not only reconcilable to human rights but can contribute to their promotion with the rediscovery of the original meaning of the shari’a of ethical guidance and not to consider it a rigid codification of legal norms. (9)
These are some questions that must be answered. This is why the time has come for the monotheistic religions to find together the way to translate commonly the ethical norms into practice.
Religious freedom of thought and expression is the cornerstone of the entire structure of human rights, as stated by John Paul II. The restrictions that Catholics face in many Muslim-majority countries must be denounced and condemned. Receiving the Pakistani bishops visiting Limina in audience, the Pope claimed the right to freedom of worship for believers of all faiths.
Giuseppe Samir Eid
Free web translation from the original in Italian
The published articles intend to provide the tools for a social inclusion of the migratory flow, shed light on human rights and the condition of life of Christians in the Islamic world from which the author comes. Knowledge of others, cultural and religious diversity are primary ingredients for create peace in the hearts of men everywhere, a prerequisite for a peaceful coexistence and convinced citizenship in the territory.