Family law Archives - OURs - The Observatory of the Universality of Rights

HRC 35: Strong concerns on the resolution on the protection of the family

In Vienna, States reaffirmed their commitment to the Universal Declaration of Human Rights. In that vein, we would like to express our strong concerns about the draft resolution on the protection of the family [A/HRC/35/L.21 on “Protection of the Family: Role of the family in supporting the protection and promotion of human rights of older persons.”]

Together with NGOs working on the rights of older persons, we highlight that this resolution:

reinforces ageist stereotypes,
fails to adequately recognize older persons as individual rightsholders and
falls far short of States’ obligations to respect, protect and fulfil their rights.

We reject its limited focus on ‘protection and assistance’ and failure to reflect research that the family is the primary site of violence against older persons. [We also note that the resolution ignores the work of the Open-ended Working Group on Ageing and ignores the conclusions of the Independent Expert on the enjoyment of all human rights by older persons.]

This resolution is one of a series of Protection of the Family resolutions that aim to subvert the universality of international human rights; stifle diversity and autonomy; and to shift rights protections away from family members, including older persons, into the institution of ‘the family’. We are concerned that the resolution attempts to instrumentalize older persons and their rights towards these ends.

We are also concerned by the resolution’s failure to recognize that various forms of family exist everywhere, and its stating that “the family plays a crucial role in the preservation of cultural identity, traditions, morals, heritage and the values system of society,” without recognising that families can perpetuate discriminatory and harmful values and traditions, particularly against older women. Culture and tradition are not static or homogeneous; we all have equal human rights to participate in and create culture. [When powerful institutions attempt to claim ownership over, or enforce ‘authentic’ interpretations of culture, tradition, or values, individuals – particularly those who are marginalized or vulnerable – are denied their fundamental rights.

For these reasons, we do not believe this draft resolution is in line with human rights principles and standards and therefore call on the Core Group to withdraw it or for members of the Human Rights Council to amend or vote against it.

Read the full statement from AWID.

What is a family? UN Women video

UN Women has published a video titled “What is a family?” to promote the diversity of different forms of families worldwide.

Showing symbols of different families, the video says that “families come in many forms” and “it’s time for policies to recognize their diversity”.

Watch the full video from UN Women’s Twitter Account.

Female clerics declare fatwa on child marriage in Indonesia

Female clerics on Thursday issued an unprecedented fatwa against child marriage in Indonesia in a bid to stop young girls becoming brides in the world’s most populous Muslim country.

The fatwa – which is influential among Muslims but not legally binding – came at the end of an extraordinary three-day conference of female Islamic clerics: a rare example of women assuming a lead role in religious affairs in this mostly-Muslim country.

“Maternal mortality is very high in Indonesia. We – as female clerics – can play a role on the issue of child marriage,” conference organiser Ninik Rahayu told the Thomson Reuters Foundation.

“Female clerics know the issues and obstacles women face, we can take action and not just wait for the government to protect these children,” she said by phone from Cirebon in the West Java province, where the congress was held.

Indonesia has one of the worst records for under-age marriage – its high number of child brides puts it among the top 10 countries worldwide – and it is common for girls to marry before they turn 18.

Thursday’s fatwa, or religious edict, called underage marriage “harmful” and said its prevention was mandatory.

Read the full story from the Thomas Reuters Foundation.

Sri Lankan Muslim Clerics Say Women Are Not Equal To Men, Defend Marriage Before Puberty

In an alarming submission made to several parliamentarians and other conservative groups with regard to proposed amendments to the Muslim Marriage and Divorce Act, the All Ceylon Jamiyathul Ulama (ACJU) has said that they agree with the Hadith “No people will ever prosper who appoint a woman in charge of their affairs” and therefore a woman isn’t worthy of being appointed a Qazi (judge).

The ACJU is the main body of theologians of Muslims in Sri Lanka. In a brief document dated March 2017 of which the Colombo Telegraph possesses a copy, the clerics have said that therefore they oppose the appointing of female judges (Qazis).

The Hadiths, which was compiled at least 230 years after the death of the Prophet quotes Muhammad the Prophet of Islam as making the statement, the veracity of which has been questioned throughout the Islamic intellectual tradition.

The submission also includes the fact of the marriage of the Prophet to Aisha, of which the contract of marriage was said to have taken place when she was 6 years of age.

It uses the story as a justification for the marriage of girls who have not attained puberty.

Again quoting a Hadith the document says “A father giving in marriage his daughter before attaining puberty is possible and this is the evidence that Abu Bakr (RA) gave Aisha (RA) on marriage to the Prophet (PBUH) when she was 6”.

However, the narration is also a construct of later day scholars although documented in Bukhari, one of the most voluminous of the compilers and considered to be a Sahih (truthful) Hadith.

There has been no other evidence to the effect that Aisha was in fact 6 and that the marriage was consummated when she was 9 except for Hadith, which according to academics was compilation though hearsay. Muhammad is said to have been 53 years at the time.

The ACJU accordingly has made a sweeping conclusion saying they are against any female judge sitting in as a Qazi and that her edicts will be not binding as per the Sharia and will therefore be null and void. Instead the ACJU has sought to confine the female in a consultative capacity.

Adding insult to injury, the ACJU has justified its view using the same justification of Saudi Arabia- saying “It is to protect the rights, honour and modesty of women”.

The head cleric of the ACJU Mufthi Rizwe was yesterday on record that the MMDA is “perfect in the present state”.

Several organizations including Muslim led civil society groups and the media have highlighted and documented many issues of rural Muslim women suffering as a result of the MMDA, including many instances of child marriage.

Read the full article from the Colombo Telegraph.

Muslim Women In India Ask Top Court To Ban Instant Divorce

Women in India are fighting the harmful talaq divorce practice in court.

Married at 14 and divorced by 16, Seema Parveen had a marriage as brutal as it was short. Now 42, Parveen remembers her husband threatening to hurl her from the balcony of their home. She blinks back tears recalling his rage when she bore him a daughter and not a son.

“His whole family was upset,” she says. In conservative northern India where they lived, boys are preferred over girls — who have been traditionally viewed as a burden. When her daughter was one month old, Parveen went to stay with her mother. “That’s when my husband wrote and said, ‘Talaq.‘ ”

All that’s required for a Muslim man in India to end a marriage is to declare, talaq, which means divorce in Arabic. Pronounced three times, it’s irrevocable. Many Islamic countries have banned the practice.

Parveen says her husband rebuffed all her attempts to return to him.

“I was so young,” she says, “I didn’t know what was happening.”

Maimoona Mollah, president of the All India Democratic Women’s Association, Delhi Chapter, condemns the practice of talaq as “unilateral” and “arbitrary.”

Mollah says women can also initiate divorce. But members of the community say a woman must first consult a cleric, while a man, she says, “severs the relationship” on his own. She says there needs to be a “formal process” for any divorce where a woman and her children receive financial support.

The way talaq is practiced, “it definitely stands in the way of a woman getting her rightful place,” Mollah says.

Several divorced women have petitioned India’s Supreme Court to ban this form of instant divorce. Countries including Pakistan, Tunisia, and Egypt have curbed the practice and moved divorce into the orbit of the state and judiciary.

Zakia Soman, co-founder of the Indian Muslim Women’s Movement, says the courts provide women “a level playing field.” But she says reforming the Indian Muslim community’s divorce customs won’t be easy.

“Legal reform is just one part of overall reform which is required in society … This is just the beginning,” she says.

Read the full article from NPR.

Sri Lanka: Article 16(1) – Muslim Women and Girls As Unequal Citizens

By Hyshyama Hamin and Hasanah Cegu Isadeen –

In November, we completed ‘Unequal Citizens: Muslim women’s struggle for justice and equality in Sri Lanka’ – a one-year study that sought answers as to why the reforms to the Muslim Marriage and Divorce Act (MMDA) was many decades overdue.

In light of the constitutional reforms process, the study also led to the inquiry about whether or not as a result of our religious affiliation and gender – we and our sisters in faith were equal before the law, as others. The answer, as we found out is a resounding ‘no’, and the reasons are many.

Not only are Sri Lankan Muslim women subject to personal laws that deny us equality in an integral aspect of our lives – marriage and family, but there are also no constitutional guarantees and safeguards of our fundamental rights of equality and non-discrimination in these very aspects.

The events and widespread discussions of the past few months around the Muslim Marriage and Divorce Act (MMDA) of 1951, has made it clear that the status quo with respect to MMDA is untenable. There are serious shortcomings in provisions of the law, procedures and implementation. There are also serious consequences of these shortcomings in creating a culture of discrimination that has adversely impacted on the rights and wellbeing of women and girls within the Muslim community. The struggle of Muslim women for reform of the MMDA against heavy odds has been led by few committed activists, admirable and long suffering but also riven with limitations.

But the legal discriminations do not end there. Since 1978, Article 16(1) of our Constitution has prevented those affected by the MMDA – women and men – from being able to seek redress against discriminatory aspects of the law and has rendered Muslims less than equal as citizens. In other words, if our rights were in any way violated by said personal laws to which we are compelled to abide by should we choose to marry another Muslim, there is no constitutional redress or remedy.

We are in essence denied protection of our individual rights as citizens, simply because we belong to a certain faith group.

So how can this be resolved? What was clear from the study were certain aspects of politics, law making and societal understanding the needs to come together in ensuring that the struggle for equality and justice for Muslims in Sri Lanka is not in vain.

Sri Lankan government has the right and the primary responsibility to address and intervene on MMDA related issues

For everyone who argues that the MMDA is only up to the Muslim community to decide and debate upon – let us not forget that the Quazi court system was established, administered and is funded by the State and tax-payers money of citizens, Muslim and otherwise. Therefore the Sri Lankan government has the primary duty to address issues and inequalities faced by Muslims under the MMDA. It has the foremost responsibility to ensure that State laws protect the rights of citizens and is not in turn causing discrimination and injustice on the basis of gender and religion.

Abd Allāh Ahmad Naʻīm the author of ‘Islamic Family Law in A Changing World’, which studied the implementation of Islamic family law in 38 countries, wrote that transformation of Islamic family law has been happening to different extents. In the vast majority of countries in which it applies – “The law is enacted in statutory form by the State, rather than being derived from traditional sources of Sharia… Moreover, whether a judgment is based on statute or a selection by a judge, it is legally binding and enforceable only by the authority of the State”.

Ahmad Naʻīm also argues that, “…it is better to recognize openly that this field (Islamic law) like all other law, derives its authority from the political will of the State”. Thus implying that the realm of personal laws if and when mandated by the State becomes the responsibility of the same to address the consequences of the law and to reform, amend or rescind where necessary.
Reforms to the MMDA are critical and long overdue. However as our study shows, it is highly unlikely that 1) consensus will be reached any time soon on all aspects of the MMDA, procedures and Quazi court system 2) the reforms recommended to the MMDA will actually address all the grievances experienced by Muslim women and girls, and 3) that MMDA reforms will be harmonized to ensure that the Act does not infringe fundamental rights enshrined in the Constitution.

Therefore it is imperative that in addition to pushing for progressive reforms to the MMDA, it is equally, if not more important to ensure that the new Constitution protects rights of all citizens, regardless of when or whether or not reforms takes place.

Ensuring equality in the Constitution and allowing for judicial review

The ongoing constitutional reforms process has opened many doors of discussion about individual and collective rights. This is particularly poignant with regard to debate about fundamental rights, personal laws and Article 16(1). While there are many myths regarding Article 16(1) that is prompting few individuals to question whether it should be repealed or retained, what is fundamentally clear is that Article 16(1) is not a positively articulated clause that protects 600+ laws including personal laws. Rather it is a negatively articulated clause that protects discriminatory provisions in these over 600 laws, including the MMDA, granting impunity if provisions in these laws violate fundamental rights.

Therefore in principle for anyone and everyone who believes in equality and non-discrimination for ALL citizens of Sri Lanka – Article 16(1) has to be repealed.

There have been extensive calls for repeal of Article 16(1) tracking back to district level consultations organized by the Public Representations Committee (PRC) since early 2016. Both men and women activists, advocates and affected persons particularly in the North and East have testified and given statements before the commissioners calling for a review of the MMDA. Calls have also included the option to marry under the General Marriage Registration Ordinance (GMRO) – which also discriminates against Muslims by exempting Muslim couples from marrying under the ordinance should they choose to do so.

Consequently, it is imperative that the Constitution grants full equality and protection of fundamental rights to all its citizens, regardless of ethnicity, gender, religion or sect, in order to ensure a standard set of basic rights for all.

What use will a new Constitution and Bill of Rights be if a segment of the population are denied unconditional protection of their fundamental rights?

Repeal of Article 16(1) is particularly imperative for the Muslim community, which has been the target of hate speech and violent rhetoric in the recent past. Muslim citizens understand intimately the struggle to be treated as equal citizens as all others and the importance of having our rights protected in this regard. Therefore repealing Article 16(1) and demanding full protection of our fundamental rights should be an essential demand to this struggle for non-discrimination. To ask the State for our right to be free from discrimination, while being complacent and even soliciting the denial of protection of fundamental rights by continuation of Article 16(1) – is hypocrisy of the highest order.

The new Constitution must address discriminations, heal the crevices that have formed amidst citizens and propel Sri Lanka forward. It cannot leave anyone behind, especially not the most marginalized. To do so, is to render the entire process meaningless and futile. To do so is to knowingly perpetrate injustice for decades to come.

Access full study of Unequal Citizens

Read more about Muslim Personal Law Reforms in Sri Lanka here: www.mplreforms.com

Article originally published by the Colombo Telegraph: Article 16 (1) – Repeal it or continue to render Muslim women and girls as unequal citizens

Pagara exhorts disciples to educate girls, give rights to women in Pakistan

In Pakistan, the Pir Pagara, spiritual head of the Hurs, exhorted his disciples to educate their children, particularly girls, and give due respect to their women family members and their neighbours.

Wearing traditional robe and ‘kalangi’, he was addressing tens of thousands of his devotees in Awadh, some 20kms from Sanghar, on Sunday.

The Pir Pagaro was on a five-day spiritual tour of the district of Sanghar where a huge majority of his followers live. His address in Awadh mainly dwelt on women’s rights, especially their right to inheritance and education.

He said that in order to face contemporary challenges, education was a necessity. He encouraged them to arrange inter-caste marriages and advised them to discourage underage and forced marriages.

He said that an educated woman was a blessing for a family and urged his followers to give due right of inheritance to their female family members.

Read the full article from Dawn.

Russia to decriminalise domestic violence to preserve ‘tradition of parental authority’

A bill aimed at decriminalising domestic violence to preserve the “tradition of parental authority” has easily passed through the first stage of approval in the Russian parliament.

Ultra-conservative MP Yelena Mizulina, who chairs a committee on family and women’s affairs, proposed the bill to have “battery within families” taken out of Russia’s criminal code, removing the right of victims to press charges.

“In Russian traditional family culture parent-child relationships are built on the authority of the parents’ power,” she told a meeting of parliament in Moscow. “The laws should support that family tradition.”

The proposed law was approved by 368 MPs, with only one coming out in opposition.

In July last year, Vladimir Putin oversaw an amendment to the law which declared family violence a criminal offence for the first time in Russia. Ms Mizulina and her supporters have been protesting the ruling ever since.

“Battery carried out towards family members should be an administrative offence,” Ms Mizulina continued. “You don’t want people to be imprisoned for two years and labelled a criminal for the rest of their lives for a slap.

Read the full story from The Independent

Women in Saudi Arabia want to be full-fledged citizens

Saudi Arabian women have signed a controversial petition to end male guardianship. We are ready to pay the price, Hatoon Als Fassi told DW.

DW: Ms Hatoon Al Fassi, you are one of the famous women’s rights activists in Saudi Arabia and a professor for woman’s history at “King Saud University.” Over 14,500 people in Saudi Arabia have signed a petition sent to King Salman calling for an end to the kingdom’s guardianship system, which requires women to have male permission for most of life’s tasks. That is a remarkable number for Saudi Arabia. How could this new collective consciousness develop in very traditional Saudi society?

Hatoon Al Fassi: We cannot tell where this sample of signatories have come from; we need to do another statistical analysis and we don’t have much information. One question was asked, what do you do. But in general and from the social media that keeps the trend of this campaign going every day – today it reached its 95th day – we can say that it comes from middle class women and men, educated and young. Most of the indications go in this direction and with the support of many men.

Hatoon Al Fassi is one of the leading figures of the women’s rights movement in Saudi Arabia

What exactly do you want to change?

With this petition we wanted first to change the status quo that renders Saudi women a “thing” that has no will of its own. The petition is a call to stop and end the system of guardianship for women. This means to stop letting women who are mature and adult to need permission of their guardian (i.e. father, brother, husband, even son) to allow her to study, work, travel, receive a scholarship, be admitted to hospital, undergo an operation related to her own womb, and even to be released from prison after finishing a sentence. This system has nothing to do with religion, however – women were always under the impression that it is so. Our petition and campaign clarified many of these myths as well as showed by proof and evidence that this is a mere patriarchal system that violates women’s human rights.

Is the male dominated society in Saudi Arabia ready for this change?

The conservative society is under the impression that guardianship is religion, so we have seen resistance by many of that community; however, many well-known religious scholars have appeared and spoke out saying that what this campaign is asking for is legitimate and it is true that there is no guardianship on the adult sane mature woman, to name one, Sheikh Abdullah al Menee, member of the Council of Senior Scholars, the highest religious commission in Saudi Arabia that reports to the king directly.

Read the whole interview from Deutsche Welle

Saudi Arabia: Male Guardianship Boxes Women In

Saudi Arabia’s male guardianship system remains the most significant impediment to women’s rights in the country despite limited reforms over the last decade, Human Rights Watch said in a report released today.

Adult women must obtain permission from a male guardian to travel abroad, marry, or be released from prison, and may be required to provide guardian consent to work or get health care. These restrictions last from birth until death, as women are, in the view of the Saudi state, permanent legal minors.The 79-page report, “Boxed In: Women and Saudi Arabia’s Male Guardianship System,” examines in detail the panoply of formal and informal barriers women in Saudi Arabia face when attempting to make decisions or take action without the presence or consent of a male relative. As one 25-year-old Saudi woman told Human Rights Watch, “We all have to live in the borders of the boxes our dads or husbands draw for us.” In some cases, men use the permission requirements to extort large sums of money from female dependents.

Saudi Arabia’s male guardianship system remains the most significant impediment to women’s rights in the country despite limited reforms over the last decade.

“The fact that Saudi women are still forced to get a male guardian’s permission to travel, work, or do anything else is a long-standing rights violation and a barrier to the government’s plans to improve the economy,” said Sarah Leah Whitson, Middle East director. “The government should do itself a favor and finally listen to the demands of half its population to be freed from the shackles of the guardianship system.”

Human Rights Watch interviewed 61 Saudi women and men for the report and analyzed Saudi laws, policies, and official documents. Every Saudi woman must have a male guardian, normally a father or husband, but in some cases a brother or even a son, who has the power to make a range of critical decisions on her behalf.

“My son is my guardian, believe it or not, and this is really humiliating… My own son, the one I delivered, the one I raised, he is my guardian,” a 62-year old Saudi woman told Human Rights Watch. A woman’s other male relatives also have authority over her, although to a lesser extent.

Women’s rights activists in Saudi Arabia have repeatedly called on the government to abolish the male guardianship system. In 2009, and again in 2013, Saudi Arabia agreed after its universal periodic review at the United Nations Human Rights Council.

Since making these promises, Saudi Arabia has taken steps to lessen guardians’ control over women, including no longer requiring permission for women to work and passing a law criminalizing domestic abuse. In 2013, then-King Abdullah appointed 30 women to the Shura Council, his highest advisory body, and, in 2015, women voted and ran as candidates in municipal council elections for the first time.

Saudi Arabia’s male guardianship system remains the most significant impediment to women’s rights in the country despite limited reforms over the last decade.

Despite these limited steps, the male guardianship system remains largely in place, hindering and in some cases nullifying the reforms, Human Rights Watch found.

Women may not apply for a passport without male guardian approval and require permission to travel outside the country. They regularly face difficulty conducting a range of transactions without a male relative, from renting an apartment to filing legal claims. The government does not require guardian permission for women to work, but does not penalize employers who do require this permission. Women cannot study abroad on a government scholarship without guardian approval, and a male relative must accompany her abroad while she studies, though this requirement is not always enforced. Women are barred from driving.

Women face tremendous obstacles when trying to seek help or flee abuse by violent guardians, Human Rights Watch found. For example, a husband retains guardianship control even during divorce proceedings. There is deeply entrenched discrimination within the legal system, and courts recognize legal claims brought by guardians against female dependents to enforce their authority.

Women who have escaped abuse in shelters may, and in prisons do, require a male relative to agree to their release. “The [authorities] keep a woman in jail… until her legal guardian comes and gets her, even if he is the one who put her in jail,” said a women’s rights activist. If a guardian refuses to release a woman from prison, authorities may transfer her to a state shelter or arrange a marriage for her. Her new husband becomes her new guardian.

Human Rights Watch spoke with women who felt their only safe option was to leave the country after male family members abused and threatened them, but who were unable to convince their guardians, in some cases the abusers, to allow them to travel.

Saudi Arabia’s male guardianship system remains the most significant impediment to women’s rights in the country despite limited reforms over the last decade.

The guardianship system is grounded in the most restrictive interpretation of an ambiguous Quranic verse – an interpretation challenged by dozens of Saudi women, including academics and Islamic feminists, who spoke to Human Rights Watch. A former Saudi judge told Human Rights Watch the country’s imposition of guardianship is not required by Sharia, or Islamic law.

Saudi Arabia, which acceded to the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 2000, is legally obligated to end discrimination against women without delay, including by abolishing the male guardianship system.

Read the full story from Human Rights Watch