Abstract of Lectures

 

 

Noor Aisha Abdul Rahman: CEDAW and prospects for reforms of the Muslim personal law in Singapore

 

This paper attempts to discuss some of the problems pertaining to the reservations of the Singapore Muslim community leaders to articles 2 and 16 of the Convention on the Elimination of Discrimination against Women (CEDAW). These articles encapsulate a number of provisions with the overriding aim of ensuring gender equality within the marriage institution and after its breakdown.  Contrary to oft cited justification that the reservation is due to the nature of Islamic law itself which renders the relevant articles incompatible with it, this presentation contends that the major factor conditioning the attitude and stance towards CEDAW lies in the dominant mode of thinking on the Islamic law by relevant social groups within the religious domain. By mode of thinking we mean how the law is approached and perceived. It is maintained that to a large extent this mode of thinking reveals the traits of religious traditionalism. This factor has strong repercussions on the extent to which the Muslim law can reconcile with the underlying values embodied within the relevant articles at issue in CEDAW. It also conditions the understanding of CEDAW itself. 

This presentation will also examine some socio-historical factors that have conditioned the dominant mode of thinking about the Muslim personal law. They include among others, centuries of Malay feudalism as a socio-political culture of the Malay kingdoms, the dynamics of Islamisation itself, the nature of the carriers of the religion, the impact of colonialism, the style of thought of the influential religious elite as well as contemporary problems of mass society and their implications on religious experience. How these affect the way the Muslim law can be revaluated to address the challenges of social change that bears upon changing expectations of marriage, gender roles and rights and obligations within the family will be discussed.

The overriding aim is to explore the repercussions of the reservation to CEDAW on the Muslim community. In particular it shall discuss how the stance has resulted in a missed opportunity to review and evaluate the state of the Muslim personal law in operation in Singapore. The laws pertaining to rights and conditions of  marriage including polygamy, rights and obligations during marriage, rules affecting both women and men upon divorce, ancillary issues arising from divorce including those affecting children, as well as problems of inheritance will be addressed. The ramifications of the reservation on prospects for engaging in competing and conflicting legal opinions on these areas within the Muslim legal tradition as well as in various jurisdictions of modern Muslim nation states will be dealt with. The extent to which   the Muslim law can be strengthened by best practices from the contributions of modern societies both Muslim and non Muslim and its ability to facilitate Muslims towards integrating effectively into the wider legal system and thought which they are subjected to as citizens, resulting from the reservation,  will also be discussed.

 

Noor Aisha Binte Abdul Rahma: Problems of Islamic Law Making and its Administration in Malaysia: Implications on Individual Rights and Dignity.     

 

This presentation is based on screening a documentary entitled Menchari Kartika (Searching for Kartika) a documentary by first-time film maker Norhayati Kaprawi. (40 min, Malay with English subtitles) Kaprawi was inspired to produce the film after surveys by the polling house Merdeka Center found that a majority of Muslims in Malaysia supported the caning of Kartika Sari Dewi Shukarno for consuming alcohol. This documentary explores the Muslims’ perception of ‘justice’ in the context of Malaysia.  A 30-minute version of the film was screened at the V Women Film Festival in Jakarta in March 2010. The screenings in Kuala Lumpur were met with enthusiasm by the media and the public.

 

While the documentary has been used for various purposes depending on the agendas of the groups that utilize it, my objective in screening it is to debunk the pervasive and reductive perception that the problem lies with the "masculine" nature of Islamic law which discriminates women and fuels gender inequality. The overriding aim is to reveal that it is the politicisation of the Muslim law by dominant social groups and their dominant mode of thought in conceiving Islamic law that are the crux of the problem.  How these factors condition a host of problems including oversights, gaps, loopholes, arbitrariness in enforcement of the syariah criminal offences will be highlighted. The repercussions of these shorcomings in the making, administration and enforcement of the Muslim law on the rights and dignity of the common man, the ultimate consumer of the law, is the focus of the presentation. Some reflections on how the problem may be addressed will also be discussed.     

 

Mostafa Alaei :  The relationship between cultural diversity and human rights

 

The subject of the statement is the relationship between the cultural diversity and human rights in more than one aspect: the human rights per se, the universality of human rights and the roots of the notion of cultural diversity in the human rights documents developed and adopted in the United Nation system and other organizations. In this statement, the notion of cultural diversity, based on the abovementioned documents, is reflected as a general and broad term that refers to a wide range of concepts such as national and historical conditions, national, historical and regional particularities, development circumstances, etc.  Therefore the statement seeks to focus on the following three elements:

1)      Human rights, the nature, the genesis and the question of universality

 

a)      Cultural essentialism

Some hold the view that the basic human rights and their ramifications are essentially rooted in the western cultures. Among them some western thinkers, on the left and the right, suggest that the human rights are western construct and to have the access to human rights, other nations should accept the western value systems.

 

b)      Cultural retrospective outlook

Others perceive human rights “as the center of a cross-cultural overlapping consensus” based on basic commonalities such as justice, dignity, rights, freedom as well as rejection of subjugation of human being to human being. 

 

Some Points of departure:

-Universality of human rights should be interpreted in a way to allow preservation of cultural and religious diversity. In other words, it should “create space for diversity within universality and finding support for universality within diversity”.

-Human rights is a “dynamic and evolving process”. Thus the Universality of human rights should constitute a learning process in which different cultures and religions could involve in intercultural dialogue and interaction aiming at reaching cross-cultural basic elements to facilitate the implementation of universal rights.

-Human rights are all about political and legal justice. Thus human rights do not provide a worldview and cannot compete with cultures and religions in that they do not talk about death and life and the corresponding ways of life.

-Human rights are universal. However, the universality of human rights does not necessarily imply, per se, the universality of all human rights instruments. There are human rights instruments that are, theoretically and practically, not universal. Documents based on regional and religious particularities are the best proof.

2)      The nature and aspects of cultural diversity within universality

The expression and implementation of human rights in the national context should remain in the competence and responsibility of each government. Owing to the recognition of the immense complexity of the issue of human rights due to the wide diversity in history, culture, value systems, geography and phases of development among the nations and regions of the world, the implementation of human rights in different processes should take into account cultural and regional particularities and value systems in each country and region.

The rights of the individual should be balanced by the rights of the community, in other words, balanced by the obligation equally to respect the rights of others, the rights of the society and the rights of nation.

-The question of how to implement human rights dose not lead to a readymade and identical prescription for all cultures and religions. The peoples and nations are free to choose the way, best fitted into their particular circumstances to implement the basic human rights.

-The human rights are universal. Thus all human beings everywhere in the world, be it in Asia, America, Africa and Europe entitled equally to enjoy all human rights. There should be no selectivity of nations, religions and cultures in this regard.

-There should be no selectivity and double standards in the implementation of human rights and the only way, based on the Charter of the United Nations, to address it is the international cooperation and not confrontation.

-Rights are indivisible, interrelated and interdependent. No hierarchy of rights. No supremacy for a particular group of rights over others.

       3) Roots of cultural diversity in documents and practice

The notion of cultural diversity is rooted in variety of United Nations documents ranging from the ones adopted in the first decades and the recent ones. The notion is also embraced, practically, in many regional and multilateral documents.

 

United Nation documents:

Among various documents in the United Nations system, the following documents drew more attention:

UDHR

Declaration on international cultural cooperation

Documents referring to the right to self determination

Vienna Declaration and Program of Action

Bangkok Declaration

Tunis Declaration

San Jose Declaration

 

Regional documents:

The nations in different regions and of particular religions and cultures embarked upon outlining and defining various aspects of human rights, based on their particularities and national and historical conditions, though they accept internationally agreed human rights instrument. Another evidence, in this context representing the roots and the genesis of cultural diversity in many parts of the world, is  hundreds of reservations the governments introduced upon their ratifications of the given instruments, particularly to their basic and central concepts.

 

Examples:

a)      Islamic countries:

Some Islamic countries abstain from voting the Universal Declaration of Human Rights

Many Islamic nations present their reservations to the Bill of Rights and the core human rights instruments describing their specific jurisprudence as being departed from the corresponding provisions in the given instrument.

In an assertive move, The Islamic countries, embarked upon drafting, through eleven years, the Islamic human rights declaration known as Cairo Declaration in which the member countries of the OIC articulated provisions representing their specific views on rights emanated from the Islamic worldview.

The Islamic and some likeminded members of the United Nations presented their different views from that of the western countries on a wide range of human rights issues based on their cultural diversity through the tense and careful negotiations on a variety of human rights documents.  Wide reservations to the final documents are another evidence of cultural diversity.

       b)    The African Charter of people’s rights

The name, the spirit and the letter of the African Charter is clearly indicative of the cultural diversity within the universality of human rights and the existence of the specific understanding of how the rights are defined and implemented in Africa.

c)      The European Convention and numerous related human rights documents are also a good example characterizing the European specific standpoint on what constitute human rights in their own cultural discipline.

In view of the points described above, the fact is that the existence of cultural diversity in human rights domain is undisputable and thus the observance and enforcing cultural diversity within the universality of human rights is essential.    

 

Janet Blake :An Introduction to Cultural Diversity and Cultural Rights

 

This introductory talk begins by asking the question – What is cultural diversity? The notion is then explained both “as a fact” and also from the point of view of cultural policy-making on the international and national levels. The challenges that cultural diversity poses for governments is also noted here. Cultural diversity as a value is also addressed as is the relationship between cultural diversity and human rights. This leads to an examination of the relationship between cultural diversity and human rights, whereby the former is understood as a fundamental element in human rights given the constitutive role of culture in identity and the importance of identity to human dignity. The way cultural diversity is treated in international instruments is then presented and some of its important domains are set out. 

The second part introduces cultural rights and rights related to culture - although cultural rights are often the most directly implicated in preserving diversity of cultural identities, they are by no means the only human rights relevant to culture. However, cultural rights present a special set of challenges both to governments and to human rights theorists that have led to the neglect of this set of rights. These are introduced here as follows: t); the ‘culture’ in cultural rights; the ‘right to cultural identity’; identifying cultural rights (as opposed to rights related to culture); collective versus individual rights; and universal (HR) standards versus cultural relativism.

Janet Blake: Some Ways of Looking at Cultural Diversity

 

This presentation is aimed at introducing a workshop session on different aspects of cultural diversity and also picks up from the introductory presentation by the same speaker. It will look in greater detail at some of the questions referred to there – such as cultural relativism and multiculturalism – and concentrate on specific domains of cultural diversity as follows: cultural identity and cultural heritage; linguistic diversity and multilingualism; and the diversity of cultural expressions.

As a broad framework, the UNESCO cultural policy- and law-making in this area is presented, concentrating on the 2001 Declaration on Cultural Diversity and its three related instruments – the 2003 Convention on Intangible Heritage, the 2003 Recommendation on Multilingualism in Cyberspace and the 2005 Convention on Diversity of Cultural Expressions. The way in which these three instruments contribute to the promotion and preservation of cultural diversity will be examined.

On the basis of the above and additional materials provided, workgroups will be established on the following topics:

Ø  Dilemmas posed by preserving traditional cultural practices (with a specific reference to implementing the 2003 Convention)

Ø  Measuring cultural diversity and cultural rights;

Ø  Safeguarding endangered languages and promoting multilingualism;

Ø  The positives and negatives of muliticulturalism as an approach; and

Ø  Policies for protecting cultural diversity in the face of global pressures (including ICT).

Each workgroup will then work independently on the subject given to it and, after an appropriate time, will present its ideas to the other participants in plenary. A discussion will be held on each presentation, guided by myself.

 

Linda Briskman: Rights to Cultural Identity

 

The question of rights to cultural identity is contested domain in a number of countries.  Cultural identity is of profound importance for a sense of belonging for the diverse groups that inhabit the world, including when they relocate to settings where such groups may become vulnerable minorities.  On a global scale, there are many examples of settings where there are endeavours to minimise cultural pluralism, reinforce assimilation and suppress cultural identity, often driven by community attitudes based on ignorance and prejudice.  There is little recognition in these settings about how cultural identity is dynamic, not fixed in time and gradually evolves according to context and generation. The result of lack of affirmation of cultural identities can result in the privileging of the rights of dominant groups in societies.

The paper will examine provisions of United Nations Conventions that relate to cultural rights and then turn to global examples where the rights to cultural identity are minimized, particularly in Western countries. Examples include Indigenous peoples, Muslim asylum seekers and the Roma. Endeavours to overcome the minimisation of rights will be presented, especially those stemming from civil society organisations.

Discussion questions

• What ideologies and belief systems put cultural rights at risk?
• How are these ideologies perpetrated? 
• What are some examples where cultural rights are in place?
• What are some examples where cultural rights are in jeopardy?
• What is the impact on groups when the right to culture is eroded?
• How does this erosion impact on people’s human rights?
• Can cultural identitiescan grow even stronger when under threat?

Linda Briskman: Protection of Human Rights in Multicultural Communities

 

The paper traces the development of the concept of multiculturalism and its application in a number of contexts. It then focuses on critiques of multiculturalism that have arisen, particularly in industrialised societies, in relation to what has become known as a Politics of Fear.  Critiques of both multiculturalism idealism and celebration will be discussed in relation to the minimisation of rights.    There will be an examination of dominant discourses that proclaim that the interests of nation states should be privileged over the rights of migrant minority communities.  As it is apparent that some migrants and their cultures are valued over others, and that these change over time, there will be an exploration of how prejudice takes hold. Examples from media sources will be incorporated.

Prospects for change will also be suggested with a focus on how the human rights of all peoples within multicultural societies can be achieved.

Discussion questions

• Why is multiculturalism such a contested concept?
• What can be done to move multiculturalism beyond ‘the imagined’ to reality?
• What are some practical measures that can ensure that human rights are protected in multicultural societies?
• How can human rights support the rights of minority groups in multicultural societies? 

Carolyn Noble:  Social, cultural and economic rights

 

Before one can pursue the advancement of social, cultural and economic rights advocates  must be conversant  with what these rights are, how they were developed and  in what context historically, culturally and politically they were framed. Importantly one must reflect on how applicable these rights are culturally and politically and how they can be protected especially when religious groups, Governments and other vested interests have many other agendas to follow.

This workshop explores these issues and sets the exploration in the context of what are social, cultural and economic rights and how applicable are they for transportation across countries, cultures and different political and religious systems. These challenges are discussed against the background of international obligations, the millennium goals and western concepts of social and individual justice.

 

Michele Brunelli The Man and the State. From the Status Subiectionis to the Citizenship.

 

The parabola of the Human Rights achievement Society is defined as modern and contemporary not for merely temporal reasons alone, but above all because it has a particular corpus that actually lists a series of rights/values that must unequivocally be universal, or rather, they must inevitably concern everyone, protect everyone and apply to everyone. These rights concern the right to/value of life, liberty, dignity, equality, health and welfare, private property, education and the protection of children.

 

 It is a group of universal and inalienable rights (and consequent prohibitions) that rise above the individual cultural traditions of any ethnic group or population. Out of such rights, in an almost natural and consequential way, emerge a series of prohibitions.

 

Many of these rights, that were rediscovered and brought back into fashion in the XVIII century in the wake of American and French revolutionary forces, already existed in the great monotheistic religions, in what Muslims call ahl al-Kitab, the people of the Book and in the revealed Books (the Torah, Gospels, Koran, Avesta and Rigveda).

 

Nevertheless, in order for these precepts, from religious beginnings (therefore potentially only acceptable and applicable to believers) to become trans-cultural and even laic, therefore universal, it was necessary to wait for them to undergo a particular historical political process. A process that lasted centuries and focused on the State and especially the evolution of the relationship between the State and Man, with the slow but inexorable transformation of ‘Sovereign’ into ‘Servant of the State’ and ‘subject’ into ‘citizen’. These were transformations that led man to recapture his centrality, through the attribution to his singularity of certain rights that characterise him and simultaneously extol his privileges. Here a critical transition occurs, which historically saw the evolution of a state of classes, which had characterised Europe until the Middle Ages, into a State of society, or the Modern State/Absolute State, which had its premonitions in the XV century, but would be in development until the XVIII century. It was a transition that, by shaping the State, the conception of the State, its powers and its prerogatives, would shape a new conception of law, which would also make the transition from general to specific. This transition to the specific – paradoxical only in appearance – would sanction universality, the universality of the value of rights for every single Man

 

 

Paimaneh Hasteh: Development with culture and identity, with collaboration among Indigenous peoples”

 

            Indigenous peoples suffer the consequences of historical injustices, including colonialism, the doctrine of discovery, dispossession from their lands and resources, oppression and discrimination. Today, many indigenous peoples remain impoverished and marginalized and their right to development is denied. Development paradigms of modernization and industrialization have often resulted in the destruction of indigenous governance, economic, social, education, cultural, health, spiritual and knowledge systems and natural resources.

            Indigenous peoples’ cultures and values are seen to be contradictory to the values of the market economy, such as the accumulation of profit, hyper consumption and competitiveness. In many countries, the history and the continuing practice of assimilation has resulted in blanket public policies that have excluded indigenous peoples and are discriminatory in respect of their cultures and identities. Human rights development with culture and identity can be further strengthened through genuine collaboration among indigenous peoples, academics, States, United Nations bodies and NGOs. When pursued correctly, collaboration can be beneficial not only for empowering indigenous peoples and their cultures but also for enriching and having a positive impact on the broader society and environment.

 

 

Kamran Hashemi : Protection of Minorities Rights to Cultural Identity – The Muslim Experience

 

The relation between cultural diversity and human rights has been an issue of long- standing debate among human rights scholars, policy-makers and advocates, the most controversial of which has been the conflict between cultural relativism and the universality of human rights. On the other hand, human rights and cultural diversity are intertwined; full respect for human rights creates an enabling environment for guaranteeing cultural diversity. Cultural diversity can be guaranteed only if human rights and fundamental freedoms are protected. Conversely, an environment conducive to cultural diversity will contribute in a significant manner to the full respect of human rights and humanitarian universal values.

 

Among many different related matters, the way cultures contribute to the enrichment of the concept of human rights in a normative and practical manner in order to achieve wider enjoyment of human rights requires further exploration. As a case study, the paper will focus on the historical and contemporary role of Muslim legal culture in protection of Minorities.

 

Muslim legal culture on protection of minorities, called Dhimmi system, have experienced a long history of regulating the status of minorities in Muslim territories.  Mayer points out that “[i]n particular, the treatment of the Jewish minority in Muslim societies stands out as fair and enlightened when compared with the dismal record of Christian European persecution of Jews over the centuries.”[1] She also states:  “The annals of history point out to the fact that the same degree of religious freedom as granted by Shariah to the non-Muslims living in Islamic state were non-existent in the history of other religions.” [2] Bielefeldt has a similar comparison as follows: “Historic evidence shows that some Christian minorities and dissidents preferred living under Islamic rule to being persecuted by their fellow Christians in the Byzantine and Habsburg empires. Thus, with regard to religious tolerance, Islam seems to have a better historical record than Christianity.” [3]

 

In fact, Muslims by applying the Dhimmah system have established the widest and oldest system for recognition and regulating the status of religious minorities within majority Muslims and their protection; the system has survived for about fourteen centuries in an extended area from Spain in Western Europe to Pacific Ocean in East Asia. In recent centuries the Dhimmah system, by the name of Millet, governed the status of minorities in multi-religious areas under the Ottoman reign in parts of Eastern Europe and most areas of the Middle East and North Africa.

 

Examining the related UN documents and state practices with regard to the protection of religious or ethno-religious minorities in their right to identity, one might conclude that in the absence of any clear binding provision for states, the application of personal legal autonomy regimes could be considered as a clear instance of protecting this right.