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Compatibility of Sharia law with the ECHR: can States Parties to the Convention be signatories of the ‘Cairo Declaration’?
2.1. Sharia law
5. For the purposes of this study, it is essential to define Sharia law, its sources, its legal force and its problematic aspects in terms of the European Convention on Human Rights.
6. Sharia law is understood as being ‘the path to be followed’, that is, the ‘law’ to be obeyed by every Muslim. It divides all human action into five categories – what is obligatory, recommended, neutral, disapproved of and prohibited – and takes two forms: a legal ruling (hukm), designed to organise society and deal with everyday situations, and the fatwa, a legal opinion intended to cover a special situation. Sharia law is therefore meant in essence to be positive law enforceable on Muslims. Accordingly, it can be defined as ‘the sacred Law of Islam’, that is, ‘an all-embracing body of religious duties, the totality of Allah’s commands that regulate the life of every Muslim in all its aspects’.
7. The prescriptions of Sharia law originate in the Qur’an, held to be a work that is ‘perfect and unchangeable’. 6 The Qur’an constitutes the primary source of law and consists of 114 surahs or chapters, themselves divided into 6,219 verses, which are sentences or groups of sentences expressing one or more revealed thoughts. 7 However, an Islamic exegesis (tafsir) of the Qur’an is necessary for abstruse passages, and this has given rise to a number of schools.
8. The Sunna, the traditions and practices of the Prophet, is another original source, relating the religious deeds and sayings of the Prophet Muhammad as narrated by his disciples (Sunni branch) or by the imams (Shia branch).
9. In addition to these two basic texts of Islamic law there are secondary sources such as consensus (ijma‘), analogical deduction (qiyas) and individual reasoning based on the general principles of Islam (ijtihad), which have produced a plethora of interpretations. Added to these are spontaneous sources such as local custom (‘urf) and judicial practice (‘amal).
10. Fiqh, the temporal interpretation of the rules of Sharia law, brings together all the rules that had been systematised by the end of the fifth century after the Hijra. There are various schools of Islamic jurisprudence. They include the four Sunni schools: the Hanafi school of Abu Hanifa, the Maliki school of Malik ibn Anas, the Shafi‘i school of Muhammad ibn Idris al-Shafi‘i and the Hanbali school of Ahmad ibn Hanbal. There are at least two main Shia schools: the Ja‘fari and the Zaydi.
2.1.2. Legal nature
11. While most States with Muslim majorities have inserted a provision referring to Islam or Islamic law in their constitutions, the effect of these provisions is symbolic or confined to family law. Admittedly, these religious provisions may have a legal effect if raised in the courts and a political effect if they intrude into institutional attitudes and practices. 9 However, the authority of Sharia law is derived directly from the Qur’an, and traditional Islamic law contains no effective provisions concerning its position in the pyramid of norms. 10
2.1.3. Sharia law: problematic rules in relation to the European Convention on Human Rights
12. In this study I shall be looking at the general principles of Sharia law in relation to the European Convention on Human Rights and particularly Article 14, which prohibits discrimination on grounds such as sex or religion and Article 5 of Protocol No. 7 to the Convention, which establishes equality between spouses in law. In this context, reference should also be made to other provisions of the Convention and its additional protocols – such as Article 2 (right to life), Article 3 (prohibition of torture or inhuman or degrading treatment), Article 6 (right to a fair trial), Article 8 (Right to respect for private and family life), Article 9 (freedom of religion), Article 1 of Protocol No. 1 (protection of property) and Protocols Nos. 6 and 13 prohibiting the death penalty. Here we shall find some problematic features that warrant further analysis.
13. In Islamic family law, men have authority over women. Surah 4:34 states: ‘Men have authority over women because God has made the one superior to the other, and because they spend their wealth to maintain them. Good women are obedient. They guard their unseen parts because God has guarded them. As for those from whom you fear disobedience, admonish them and forsake them in beds apart, and beat them. Then if they obey you, take no further action against them. Surely God is high, supreme.’ While wives clearly have a duty of fidelity, husbands do not. In Sharia law, adultery is strictly prohibited. Legal doctrine holds that the evidence must take the form of corroborating testimony from four witnesses15 to prove an individual’s guilt. These witnesses must be men of good repute and good Muslims. The punishment is severe and degrading, namely ‘a hundred lashes’. In the case of rape, which is seldom committed in public before four male witnesses who are good Muslims, punishing the rapist is difficult if not impossible. In practice, this obliges women to be accompanied by men when they go out and is not conducive to their independence. While divorce by mutual consent is enshrined in Islamic law, the application has to come from the wife, since the husband can repudiate his wife at any time. There is also the question of equal rights with regard to divorce arrangements such as custody of children.
14. For division of an estate among the heirs, distinctions are made according to the sex of the heir. A male heir has a double share, whereas a female heir has a single share. The rights of a surviving wife are half those of a surviving husband.
15. In criminal cases, cruel, inhuman and degrading punishments are authorised by Sharia law, including death by stoning, beheading and hanging, amputation of limbs, and flogging. Apostasy results, firstly, in the apostate’s civil death, with the estate passing to the heirs, and, secondly, in the apostate’s execution if he or she does not recant. Lastly, non-Muslims do not have the same rights as Muslims in civil and criminal law, which is discrimination on the ground of religion within the meaning of Article 14 of the Convention.