Islamic Law and the CRC

Islamic Law and the CRC(Convention on the Rights of the Child)

Imran Ahsan Nyazee∗

Table of Contents

I. The Convention on the Rights of the Child . 69A. Brief History of the Convention . . . . . . . . 71B. The Drafting, Adoption and Ratification of the

Convention. . . . . . . . . . . . . . . . . 73C. The Basic Principles and Features of the CRC. . 74

(1) Universal Principles . . . . . . . . . . . 74(2) Highlights of the Convention . . . . . . . . 76(3) Monitoring . . . . . . . . . . . . . . . 78

II. The United States and Criticism of the CRC. 80A. Global Parenthood: Attack on Parental Authority. 81B. The CRC Violates the Fundamental Idea of Child

Protection . . . . . . . . . . . . . . . . . 83C. Children Have no Rights . . . . . . . . . . . 85D. Support for the United States . . . . . . . . . 85E. Understanding the Issues . . . . . . . . . . . 87

III. Reports Submitted by Muslim Countries tothe Committee on the Rights of the Child. . 87A. Report Submitted by Saudi Arabia . . . . . . . 88B. Report Submitted by Egypt . . . . . . . . . . 91C. Report Submitted by Iran . . . . . . . . . . . 96D. Report Submitted by Pakistan . . . . . . . . . 98

∗The Author is Chief Editor, Faculty of Sharı‘ah and Law, InternationalIslamic University.

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66 ISLAMABAD LAW REVIEW [Vol. 1 : 1 & 2,

IV. Examining a Few Principles . . . . . . . . . 104A. Methodology for Interpreting U. N. Conventions in

the Light of the Sharı‘ah . . . . . . . . . . . 104B. Do Children Really Have Rights? . . . . . . . 109C. Who is a Child?. . . . . . . . . . . . . . . 114

(1) Criminal Liability . . . . . . . . . . . . 114(2) Civil Liability . . . . . . . . . . . . . . 116

D. The Best Interests of the Child . . . . . . . . 117E. Non-Discrimination and Islamic Law. . . . . . 119F. Adoption . . . . . . . . . . . . . . . . . . 119

V. Conclusion . . . . . . . . . . . . . . . . . . 120

Comparative lawyers identify three legal families in the presentday world. The two most widely distributed families are Romano-Germanic civil law and the the Anglo-American common law. Thethird family that is gradually gaining significance is Islamic law,which is practised by one-fourth of humanity. This third family isnot being permitted to play a positive role in international law,especially in the area of human rights. In fact, an impression hasbeen created that Islamic law is against human rights and is notprepared to support them. Many non-governmental organisations(NGOs) working in the area of human rights, in particular therights of women and children, are contributing to this impression.The defective implementation of certain laws is taken to be a de-fect in Islamic law itself and charges of discrimination are levelledfreely against this law.1

Part of the problem lies with the attitude of the Muslimstowards their own legal system. As the bulk of this law is notimplemented, they discuss it in vague terms. Thus, they discuss

1One such campaign is against the h. udud laws implemented in Pakistan.These laws, it has to be admitted, were implemented in haste by a formermilitary regime. The solution is to examine these laws and remove the pro-cedural or other defects that are creating problems. The NGOs, however, donot wish to pursue this solution and it appears that their main goal is toremove these laws from the statute book by claiming again and again thatthese are “discriminatory laws.” It is suggested that the solution can only befound within Islamic law not outside it. The major target is the the Offenceof Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance VII of 1979),which deals with unlawful sexual intercourse.

Spring/Summer, 2003] Islamic Law and the CRC 67

human rights in the most superficial manner, when they should beshowing how these rights are actually enforced and made justicia-ble within the Islamic legal system after reconciling the prioritiesamong conflicting rights. The maximum that they do is quotesome relevant verses and traditions, believing that the problemsof implementation will take care of themeselves.

The combined result of the above is that the positive aspectsof this legal system are being ignored completely. A legal systemthat is followed by one-fourth of humanity (likely to become one-half of humanity in fifty years or more) cannot be wished away norcan it be ignored. If it is neglected without appropriate action, itis likely to cause more problems than it will solve. It is, therefore,time to focus on the positive contributions that the Islamic legalsystem can, and will, make both inside the Muslim countries andoutside them.

One area in which such potential contribution may be appre-ciated is that of the rights of the child. Perhaps, no legal systemin history has been as strong on the protection of the family andchildren as Islamic law. In the recent “PrepComs” prior to the2002 summit for the rights of the child, two kinds of views wereexpressed about Islamic law in relation to these rights. The viewswere reported in Newsletter No. 5 issued by the NGO Commit-tee on UNICEF under the heading: Religious Groups Square offAround the Outcome Document: Two Islamic Views at Odds.2

Part of the text is reproduced below:

Religious groups are engaged in a rugged skirmish overwhether the Outcome document undermines or reinforcesthe family—and whether it supports abortion.

Speaking on behalf of the International Islamic Commit-tee for Woman and Child (IICWC) at a Tuesday briefing,Dr. Amani Faraj assailed the document for ignoring re-ligion and undermining the family. She also condemnedwhat she referred to as the document’s “deliberate negli-gence” of abortion. “A foetus is a child,” she said.

2For this and other informative newsletters see the UNICEF website, athttp://www.ngosatunicef.org/Special Session/newsletters/newsletter6.html(last visited Mar. 15 2002).


Dr. Amani Faraj also said that the document reflected aWestern bias. “Why is the UN trying to impose (its) ownWestern agenda on us?” she asked.3

. . . .The idea that child rights as expressed by the UN is some-how at odds with Islam was challenged by Mr. Essam Ali,coordinator of the NGO Coalition on the Rights of theChild. Mr. Ali pointed out that all Muslim countries ex-cept Somalia have ratified the Convention on the Rights ofthe Child (CRC).4 Mr. Ali agreed that the North Africancaucus, which met Wednesday, had raised concerns aboutthe Outcome document. But, he said, these were aboutenvironmental health, social and economic policies, childlabour as well as the effect of sanctions and conflict in theMiddle East. They were not about the family.

We feel that the first view is somewhat emotional and is not likelyto prove very constructive, while the second is not really a replyto the first: ratification does not mean that Muslims, or Muslimstates, should forever remain silent on these issues now that theyhave ratified the Convention. The Convention itself provides aprocedure for amendment and even denunciation.5

In this paper, we shall describe the importance of the Con-vention on the Rights of the Child (CRC), which is the primarydocument for the protection of children. Considerable criticismof the Convention has emerged in the United States. This criti-cism may be seen as the other side of the picture. Accordingly,we shall follow up the description of the CRC with the criticismlevelled against the Convention under the heading “United Statesand Criticism of the CRC.”6 The discussion of the criticism willbe followed by a description of the position taken by countrieswith Muslim majorities, especially their reliance on Islamic law

3“Lauralee Christensen, President of the US-based United Families Inter-national, said she agreed with the IICWC’s arguments. ‘I applaud you. Youare not alone. We’ll support your recommendations.’ ” Id.

4Convention on the Rights of the Child, G.A. Res. 44/25, Annex. 44 U.N.GAOR, Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989), entered intoforce Sept. 2 1990 [hereinafter referred to as Convention].

5See id. arts. 50 & 52.6See infra notes 59–83 and accompanying text.


or its provisions, while appreciating and accepting the principleslaid down in the Convention. For doing so we shall be relying es-sentially on reports submitted by some of these countries,7 as isrequired under the Convention. This description is also intendedto show that the follow up procedures have been designed in sucha way that, after ratification, the monitoring Committee formedunder the Convention continues to question the actions taken byMuslim or other States. We shall go into a little more detail aboutthe position of Pakistan to elaborate this. The Convention is de-tailed and complex and each of its provisions cannot be analysedhere in terms of Islamic law, however, we shall identify some ofthe basic principles of this document to show that Islamic lawcan make a significant contribution in this area, and should betreated as a powerful tool for the implementation of these andother rights. Finally, the conclusion will summarise the recom-mendations we wish to make in the light of the findings in thispaper.

I. The Convention on the Rights of the Child

“To look into some aspects of the future, we do not need projections bysupercomputers. Much of the next millennium can be seen in how we care

for our children today. Tomorrow’s world may be influenced by science andtechnology, but more than anything, it is already taking shape in the bodies

and minds of our children.”—Kofi Annan, Secretary-General of the UN

The Convention deals with rights, therefore, a brief statementabout these rights may provide guidance for understanding theimplications of the CRC. Laura Barnitz, a programme associatewith YAP International, explains:

Rights are usually written as either descriptive or pre-scriptive statements. Descriptive statements specify thoseenforceable claims or legal safeguards an individual iscurrently entitled to in a particular legal system. Prescrip-tive statements are what rights, responsibilities and dutiesshould apply to a defined group of people. UN declarationsare prescriptive statements referring to what ought to be

7We will examine the reports submitted by Saudi Arabia, Egypt, Iran andPakistan. See infra notes 84–140 and accompanying text.


the case for human beings, and the CRC is a prescriptivestatement specifically aimed at children.8

The “ought” in these prescriptive statements becomes a direc-tive for the legislatures and courts of States parties. The existinglaws may be criticised as bad law in the light of these “oughts.”She goes on to explain that the rights of the child include bothparticipation rights and protection rights:

• Participation rights are primarily social and political innature, and include, for example, the right to freedom ofreligion, association, education, and expression.9

• Protective rights are rights to be protected from something.These rights include protection from abusive or degradingtreatment, protection from capital punishment, and protec-tion from the denial of education or health care.10

One point that needs to be mentioned here is that for somestates ratification will automatically turn the Convention into lawand rights become enforceable, that is, the Convention becomesself-executing. In such states, ratification is undertaken with theapproval of the legislature.11 In other states, ratification is under-taken through an executive act and the prescriptive norms of theConvention have to be converted into a system of rules, that is,into laws passed by the legislative authority before they can beimplemented.12 In United States, the approval of the Congress isnecessary, whereas in Pakistan it is an executive act and laws are

8Laura Barnitz, International Treaty Advances the Rights of Children,Youth Advocate Program International Resource Paper 1 (YAP Internationalat 4545 42nd St., NW, Suite 209, Washington, DC 20016; tel: 202/244-1986;email: [email protected]; web: www.yapi.org), http://www.yapi.org (last visitedFeb. 2002).

9Id. These are personal rights that can become the bases of “claims” inthe narrower sense of the generic term “right.”

10Id. Protective rights, in general, impose duties on States parties to un-dertake and implement measures for the protection of various rights.

11In such states, laws are brought into conformity with the ratified Con-vention before it is ratified, and it is for this reason that ratification takeslonger.

12The two approaches are sometimes explained in terms of the theories ofDualism and Monism.


made later to meet the standard of the conventions ratified.13 Afailure on the part of a state to make, or amend, laws to meet thestandard of a convention is likely to draw criticism.14

A. Brief History of the Convention

The Convention15 is the most universally accepted human rightsinstrument in history16—it has been ratified by every country in

13Ms. Sheila Zia and others v. WAPDA, P.L.D. 1994 S.C. 693, 710; S.G.S.Societe Generale v. Pakistan, C.L.D. 2002 Lah. 790 (arguing that the pre-vailing norm in Pakistan is that of Dualism, thus, ratification is based on anexecutive act, which means that the provisions of a ratified convention areimplemented by law-making in the ratifying state). The practice in Pakistancomes from Britain, and is elaborated by Lord Atkin in the following words:“Within the British Empire, there is a well established rule that the makingof a Treaty is an executive Act, while the performance of obligations, if theyentail alteration of the existing domestic law, requires legislative action. Thestipulations of a Treaty do not, by virtue of Treaty alone, have the force oflaw, if the Government of the day decides to incur the ‘obligations of a Treaty’which involves alteration of law they have to run the risk of obtaining theassent of Parliament to the necessary statute or statutes.” Attorney-Generalfor Canada v. Attorney-General for Ontario, L.R. App. Cases, vol. 1937,326, 327 (1937). See also Blackburn v. Attorney-General, All England L.R., vol. 2, at 1380 (1971).

14According to one writer, “International law does not therefore in anyway purport to govern the content of national law in the national field—nordoes it need to. It simply says—and this is all it needs to say—that certainthings are not valid according to international law, and that if a state in theapplication of its domestic law acts contrary to international law in theserespects, it will commit a breach of its international obligations.” GeraldFitzmaurice, The General Principles of International Law Considered fromthe Standpoint of the Rule of Law 92 Recueil des cours de l’Academiede droit international 70 (1957).

15The CRC-Guide made available by UNICEF on its website states that“[i]n general terms, any form of intentional agreement that formally createslegal obligations for the parties thereto is considered a treaty. Treaties takemany different forms including conventions, covenants, protocols, charters,statutes, etc. In the human rights area, the most common term used is ‘con-vention.’ The only important distinction is between a ‘declaration,’ whichrepresents only a moral commitment and is not legally binding and a ‘conven-tion,’ which, by definition, is legally binding.” UNICEF, The Convention onthe Rights of the Child, http://www.unicef.org/crc/introduction.html (lastvisited March 10, 2002) [hereinafter referred to as CRC-Guide].

16Id. The Convention has been ratified by 191 nations leaving behindUnited States and Somalia.


the world except two (the United States17 and Somalia). The Con-vention has been deemed a visionary yet workable document.18

The Convention on the Rights of the Child is the first legallybinding international instrument to incorporate the full range ofhuman rights—civil and political rights as well as economic, socialand cultural rights. Two Optional Protocols, on the involvementof children in armed conflict and on the sale of children, childprostitution and child pornography, were adopted to strengthenthe provisions of the Convention in these areas. They enteredinto force, respectively on 12 February and 18 January 2002.19

The Convention also operates as an umbrella for a set of threerules concerning child justice; the UN Guidelines for the Admin-istration of Juvenile Delinquency (the Riyadh Guidelines),20 theUN Standard Minimum Rules for the Protection of Juvenile Jus-tice (the Beijing Rules),21 and the UN Rules for the Protection ofJuveniles Deprived of their Liberty.22

The details about the Convention and the principles under-lying its adoption can best be understood through two excellent

17On February 16, 1995, the United States (President Clinton) signedthe Convention indicating the nation’s intent to consider ratification. Thenext step is for the President and his advisors to draft a Statement ofReservations, Understandings and Declarations which will be presented withthe Convention to the Senate for its “advice and consent.” Once Senateconsideration is completed in the affirmative, the President will ratify theConvention. As of April 1, 1997, the Convention has not been presented tothe Senate. See United Nations Convention on the Rights of the Child FAQ,http://www.icomm.ca/aiusa/children/faq.htm (last visited Mar. 12, 2002).

18“The Convention is not only a visionary document. We are remindeddaily that it is an agreement that works—and its utility can be seen in theeveryday use to which I have seen it increasingly being put by country aftercountry, in policy, in practice and in law.” Carol Bellamy, UNICEF ExecutiveDirector, Statement to the UNICEF Executive Board, September 1998. SeeCRC-Guide supra note 15.

19Id.20United Nations Guidelines for the Prevention of Juvenile Delinquency,

Riyadh Guidelines, Res. 45/112, 14 December 1990, 68th plenary session.21United Nations Standard Minimum Rules for the Administration of Ju-

venile Justice, Beijing Rules, Res. 40/33, 29 November 1985, 96th plenarysession.

22United Nations Rules for the Protection of Juveniles Deprived of TheirLiberty, Res. 45/113, 14 December 1990, 68th plenary session.


documents, besides a host of others, published by the United Na-tions. These two documents are the CRC-Guide23 and Fact SheetNo. 7.24 It is on these two documents that we rely for the briefdescription on the Convention that follows.

B. The Drafting, Adoption and Ratification of the Convention

The Convention was adopted by the General Assembly of theUnited Nations by its resolution 44/25 of 20 November 1989.25

The process had begun much earlier. A declaration on the rights ofthe child was adopted by the League of Nations in 1924 and thenanother declaration was adopted by the United Nations in 1959.26

In addition, provisions regarding children had been incorporatedin a number of human rights and humanitarian law treaties. Thesedeclarations and provisions were not binding on the states, and aneed was felt for a comprehensive statement on children’s rightsthat is binding under international law.27

In 1979, the International Year of the Child, a draft conventionwas submitted by the Government of Poland taking into accountthe worsening situation of children in the world.28 A workinggroup was set up by the United Nations Commission on HumanRights for drafting the Convention.29 The core of the draftinggroup was formed out of Government delegates, but representa-tives of United Nations bodies and specialised agencies, includingthe Office of the United Nations High Commissioner for Refugees(UNHCR), the International Labour Organisation (ILO), theUnited Nations Children’s Fund (UNICEF) and the World Health

23The CRC-Guide, supra note 15, is a comprehensive document dealingwith almost all the aspects of the Convention on the Rights of the Child, andin a language that is free of jargon.

24http:/www.unhcr.ch/html/menu6/2/fs7.htm (last visited Mar. 2002)[hereinafter referred to as Fact Sheet]

25Id.; see also CRC-Guide: The Convention on the Rights of the Child,supra note 15.

26Declaration of the Rights of the Child, G.A. res. 1386 (XIV), 14 U.N.GAOR Supp. (No. 16) at 19, U.N. Doc. A/4354 (1959). See section ondocuments in this issue.

27Fact Sheet, supra, note 24.28Id.29Id.


Organisation (WHO), as well as a number of non-governmentalorganisations, took part in the deliberations.30 The draft sub-mitted by the Polish Government was extensively amended andexpanded.31

The unanimous adoption of the Convention, on November 20,1989, “by the General Assembly paved the way for the next stage:ratifications by States and the setting up of a monitoring com-mittee. Within less than a year, by September 1990, 20 Stateshad legally endorsed the Convention, which thereby entered intoforce.”32 On the initiative of UNICEF, Canada, Egypt, Mali, Mex-ico, Pakistan and Sweden, the World Summit for Children washeld in New York encouraging all States to ratify the Conven-tion.33 “By the end of 1990, 57 had done so, thereby becomingStates parties. In 1993, the World Conference on Human Rightsheld at Vienna declared that the goal was universal ratification bythe end of 1995. By 31 December 1995, no less than 185 countrieshad ratified the Convention. This number is unprecedented in thefield of human rights.”34

C. The Basic Principles and Features of the CRC

The section on the basic principles and features of the Conventionhas been excerpted entirely from the excellent Fact Sheet No. 7of the United Nations. In addition to this useful, information isto be found in the Unicef-CRC Guide.

(1) Universal Principles.—It is claimed that the CRC hasthe same meaning for people in all parts of the world.35 Theseprinciples provide common standards that take into account the

30Id.31Id.32Id.33Id. The First World Summit for Children was held in 1990, while the

second scheduled for 2001 was delayed due to the incident of 9/11, and washeld in 2002.

34Id.35Id. This appears to be in line with the “Universalist” position taken by

the United Nations with respect to human rights. The other point of view isthat of the “Cultural Relativists.” The basic idea is that the principles areuniversally “true” and, therefore, acceptable to all mankind.


different cultural, social, economic and political realities of in-dividual States so that each State may seek its own means toimplement the rights common to all.36 Four general principlesgovern and guide the interpretation and implementation of theConvention. The four principles are formulated, in particular, inarticles 2, 3, 6 and 12.37

• Non-discrimination (art. 2): States parties must ensure that allchildren within their jurisdiction enjoy their rights. No childshould suffer discrimination. This applies to every child, “irre-spective of the child’s or his or her parent’s or legal guardian’srace, colour, sex, language, religion, political or other opinion,national, ethnic or social origin, property, disability, birth orother status.”38

The essential message is equality of opportunity. Girls shouldbe given the same opportunities as boys. Refugee children, chil-dren of foreign origin, children of indigenous or minority groupsshould have the same rights as all others. Children with disabil-ities should be given the same opportunity to enjoy an adequatestandard of living.39

• Best interests of the child (art. 3): When the authorities of aState take decisions which affect children, the best interests ofchildren must be a primary consideration. This principle re-lates to decisions by courts of law, administrative authorities,legislative bodies and both public and private social-welfare in-stitutions.40

• The right to life, survival and development (art. 6): This ar-ticle includes formulations about the right to survival and to

36This statement favours the position of the Cultural Relativists, but itdoes not acknowledge religion as a basis, unless the word “cultural” can beinterpreted in a wider sense to include religion.

37Id. For the actual text of these articles, see the documents section in thisissue.

38Id. See also infra note 135 and accompanying text for a statement of alearned member of the Committee on the Rights of the Child with respectto the objectives of the Convention, discrimination and Islam.

39Fact Sheet, supra note 24.40Id. See also infra note 180 and accompanying text for a discussion of the

issue from the Islamic perspective.


development, which should be ensured “to the maximum ex-tent possible.” The term “development” is to be interpreted ina broad sense so as to include not only physical health, but alsomental, emotional, cognitive, social and cultural development.41

• The views of the child (art 12): Children should be free to haveopinions in all matters affecting them, and those views shouldbe given due weight “in accordance with the age and maturityof the child.” The underlying idea is that children have the rightto be heard and to have their views taken seriously, including inany judicial or administrative proceedings affecting them.42

(2) Highlights of the Convention.—Fact Sheet No. 7 lists thehighlights of the Convention as follows:

• Every child has the inherent right to life, and States shall ensureto the maximum child survival and development.

• Every child has the right to a name and nationality from birth.

• Children shall not be separated from their parents, except bycompetent authorities for their well-being.

• States shall facilitate reunification of families by permittingtravel into, or out of, their territories.

• Parents have the primary responsibility for a child’s upbringing,but States shall provide them with appropriate assistance anddevelop child-care institutions.43

• States shall protect children from physical or mental harm andneglect, including sexual abuse or exploitation.

• States shall provide parentless children with suitable alternativecare. The adoption process shall be carefully regulated and in-ternational agreements should be sought to provide safeguardsand assure legal validity if and when adoptive parents intend tomove a child from his or her country of birth.44

41Fact Sheet, supra note 24.42Id. This article presents some problems, especially due to the words “to

have opinions on all matters.”43The “responsibilities” of parents are emphasised here without reference

to the rights of parents in the context of their family values and religion.44The CRC does recognise that adoption is not permitted in Islamic law.

The system of kafalah followed in Egypt and Saudi Arabia is also acknowl-edged by the Convention. See infra note 93 and accompanying text.


• Disabled children shall have the right to special treatment, ed-ucation and care.

• Children are entitled to the highest attainable standard ofhealth. States shall ensure that health care is provided to allchildren, placing emphasis on preventive measures, health edu-cation and reduction of infant mortality.

• Primary education shall be free and compulsory. Discipline inschools shall respect the child’s dignity. Education should pre-pare the child for life in a spirit of understanding, peace andtolerance.45

• Children shall have time to rest and play and equal opportunitiesfor cultural and artistic activities.

• States shall protect children from economic exploitation andfrom work that may interfere with their education or be harmfulto their health or well-being.46

• States shall protect children from the illegal use of drugs andinvolvement in drug production or trafficking.

• All efforts shall be made to eliminate the abduction and traf-ficking of children.

• Capital punishment or life imprisonment shall not be imposedfor crimes committed before the age of 18.47

• Children in detention shall be separated from adults; they mustnot be tortured or suffer cruel or degrading treatment.

• No child under 15 shall take any part in hostilities; childrenexposed to armed conflict shall receive special protection.

• Children of minority and indigenous populations shall freely en-joy their own culture, religion and language.

• Children who have suffered mistreatment, neglect or exploita-tion shall receive appropriate treatment or training for recoveryand rehabilitation.

45The words “spirit of understanding, peace and tolerance” need specialemphasis, especially when it is claimed that the sharı‘ah is somehow againstthe principle of non-discrimination.

46See infra note 168 and accompanying text.47See infra note 175 and accompanyiing text for the Islamic perspective.


• Children involved in infringements of the penal law shall betreated in a way that promotes their sense of dignity and worthand aims at reintegrating them into society.

• States shall make the rights set out in the Convention widelyknown to both adults and children.48

The Convention on the Rights of the Child outlines in 41 ar-ticles the human rights to be respected and protected for everychild under the age of 18 years and requires that these rights beimplemented in the light of the Convention’s guiding principles.49

(3) Monitoring.—Articles 42–45 cover the obligation of Statesparties to disseminate the Convention’s principles and provisionsto adults and children; the implementation of the Conventionand monitoring of progress towards the realization of child rightsthrough States parties’ obligations; and the reporting responsi-bilities of States parties.50 The final clauses (articles 46-54) coverthe processes of accession and ratification by States parties; theConvention’s entry into force; and the depositary function of theSecretary-General of the United Nations.51

The Committee on the Rights of the Child, the monitoringbody of the CRC, was first elected in 1991 (six women and fourmen). The Committee holds three sessions a year, each of fourweeks’ duration. The last week is always devoted to preparationfor the next session. The Committee is serviced by the UnitedNations Centre for Human Rights in Geneva. 52 “Under article 44of the Convention, States parties accept the duty to submit regu-lar reports to the Committee on the steps they have taken to putthe Convention into effect and on progress in the enjoyment ofchildren’s rights in their territories. First implementation reportsare to be submitted within two years of ratification of or acces-sion to the Convention and thereafter every five years. The firstinitial reports were due in September 1992. More than 70 State

48Fact Sheet, supra note 24.49CRC-Guide, supra note 15.50Id.51Id.52Id.


reports had reached the Committee by December 1995.”53 TheCommittee has adopted guidelines for the submission of reportsand there is a detailed working procedure for their examination.54

A working group of the Committee meets prior to each ofits sessions for a preliminary examination of reports. In additionto State reports, the working group considers information pro-vided by other human rights treaty bodies, especially throughmechanisms established by the Commission on Human Rights toinvestigate human rights problems in specific countries or on the-matic issues.55 The end result of the pre-sessional working group’sdiscussion on a State report is a “list of issues.”56 This list, whichgives a preliminary indication of the issues which the Committeeconsiders to be priorities for discussion, is sent to the Govern-ment concerned with an invitation to participate in a forthcomingplenary session of the Committee at which its report will be con-sidered. The Government is invited to respond to the issues inwriting, before the session.57

Discussions with States parties are concrete and detailed, andtend to deal with both results and processes. Although all Com-mittee members usually take part in the deliberations, in mostcases two members take the lead on each country as “rappor-teurs.” At the very end of the process, the Committee adopts“concluding observations,” which are a statement on its consid-eration of a State’s report. Concluding observations are meant tobe widely publicised in the State party and to serve as the ba-sis for a national debate on how to improve the enforcement ofthe provisions of the Convention.58 They therefore constitute an

53Id. Pakistan felt that the Committee is overburdened and is lagging be-hind in its schedule. See infra note 140.

54Id. The guidelines are available on UN websites, including proposals forimproving the procedure.

55Id.56The list of issues for each country and the subsequent proceedings for

consideration of reports are available on UN websites.57Id.58It could not be determined, at least with respect to Muslim countries,

whether they publish and distribute their reports that are submitted to theCommittee on the Rights of the Child.


essential document: governments are expected to implement therecommendations contained therein.

The whole process of discussion of States parties’ reports isdesigned to promote public debate. The Committee also requiresthat the national reporting procedure be open and transparent.The reporting procedure is constructive and oriented towards in-ternational cooperation and exchange of information. The aim isto define problems and discuss what corrective measures shouldbe taken. The Committee can also transmit requests for assistanceto the specialised United Nations bodies and agencies, includingUNHCR, ILO, UNICEF, WHO, the United Nations Educational,Scientific and Cultural Organisation (UNESCO) and other com-petent bodies.

II. The United States and Criticism of the CRC

We begin this section with a quotation from the CRC-Guide.The statement is made under the heading “A New Vision.” Thisstatement refers to the issues that have been taken up by variousgroups in the United States to level criticism against the CRC.The CRC-Guide says:

The Convention on the Rights of the Child reflects a newvision of the child. Children are neither the property oftheir parents nor are they helpless objects of charity. Theyare human beings and are the subject of their own rights.The Convention offers a vision of the child as an individualand as a member of a family and community, with rightsand responsibilities appropriate to his or her age and stageof development. By recognising children’s rights in thisway, the Convention firmly sets the focus on the wholechild.59

For purposes of describing the main arguments offered bythose who criticise the CRC in the United States, we shall relymainly on an excellent article by Susan Kilbourne and thereafter

59CRC-Guide: The Convention on the Rights of the Child, supra note 15(emphasis added).


on material available on various websites summarising the argu-ments of the Family Research Council and Concerned Women forAmerica (CWFA).

A. Global Parenthood: Attack on Parental Authority

It has been stated above that the United States has not ratifiedthe Convention on the Rights of the Child as yet. This appears tobe surprising for some, because the U.S. State Department underthe Reagan and Bush administrations was active in the draft-ing process. In fact, under U.S. pressure several articles based onAmerican law were included in the Convention. In addition, theU.S. Ambassador to the United Nations did not object during dis-cussion of the Convention by the General Assembly, and PresidentBush attended the United Nations World Summit for Childrenin 1990.60 Thereafter, a well-organised legislative and grassrootscampaign was launched to support ratification of the Conven-tion.61 At the same time as public support for ratification of the

60See http://www.geocities.com/r traer/Ratification/ushr.fight.child.htm(relying on an informative article by Susan Kilbourne published in the Fallof 1996).

61Id. Senator Bradley and Senator Lugar co-chaired a National AdvisoryCouncil on the Rights of the Child. Letters were sent to President Bushand members of Congress, nine governors and states issued proclamations orpassed resolutions supporting the Convention, and House and Senate res-olutions were approved in the 101st Congress with eighty-five and sixtycosponsors respectively. Id. In 1993 the Senate passed a resolution urgingthe President to transmit the treaty to the Senate for advice and consent.Id. Despite these efforts and the personal support of the First Lady, HillaryRodham Clinton, the United States did not even sign the Convention untilearly in 1995, when the former executive director of UNICEF, James Grant,pleaded from his deathbed for this action. Id. On February 16th the Conven-tion was signed by the U.S. Ambassador to the United Nations, MadelaineAlbright, rather than by the President. Two months later Ambassador Al-bright announced in a speech that the administration had decided to seekratification of the Convention on the Rights of the Child. Id. The beginningof 1995 also saw a newly elected Republican majority in Congress take power.In January of that year Senator Jesse Helms became Chairman of the For-eign Relations Committee. This change has meant that there has been noprogress on ratifying any human rights treaty since 1995. Id.


Convention on the Rights of the Child was being mobilised,62

a coalition of conservative Christian organisations was mountinga vigorous campaign in opposition to ratification. This coalitionincluded the Christian Coalition, Concerned Women for Amer-ica, Eagle Forum, Family Research Council, Focus on the Family,and the National Center for Home Education. The grassrootscampaign of these NGOs generated a flood of mail to Senatorsand Representatives. Senator Jesse Helms claimed to have re-ceived 5,000 letters opposing the Convention and only a singleletter favouring it. On June 14, 1995 he introduced a resolution“expressing the sense of the Senate . . . that, because the UnitedNations Convention on the Rights of the Child could underminethe rights of the family, the President should not sign and trans-mit it to the Senate.”63

The main arguments underlying the criticism are that theCRC undermines families and the authority of parents and pro-motes some kind of “global parenthood” considering children theproperty of the United Nations rather than the parents. Someeven state that, contrary to the claims of the CRC, children haveno rights and it is the parents who have duties. These points arebest explained in the arguments advanced by the National As-sociation for Home Education. Insofar as the Convention posesthreats to the family, the threats fall into three categories:

1. The transfer of God-given parental rights and responsibili-ties to the State. Senator Helms asserted that the “UnitedNations Convention on the Rights of the Child is incompat-ible with the God-given right and responsibility of parentsto raise their children.”64

62In the US, such esteemed organisations as the Albert Schweitzer Foun-dation, the American Bar Association, the American Academy of Childand Adolescent Psychiatry, the American Federation of Teachers, theAmerican Psychological Association, Amnesty International, Child WelfareLeague of America, the International Federation of Social Workers, theNational Council on Family Relations, the National Mental Health As-sociation, the Pearl S. Buck Foundation, Results USA, and the YMCA/YWCA of the USA combine to make a very partial list of supporters.http://www.ubfellowship.org/ghindex.htm.

63http://www.geocities.com/r traer/Ratification/ushr.fight.child.htm64Id.


2. The institutionalisation of rebellion by vesting children withvarious fundamental rights which advance notions of thechild’s autonomy and freedom from parental guidance. Thenotion of “children’s rights” raises difficult questions aboutthe relationship between children and their parents thateven trouble some feminists. Instead of the traditional con-cept that children are “minors” in need of protection byparents, the U.N. treaty embraces the radical view that chil-dren are autonomous agents capable, across the board, ofmaking adult decisions and dealing with adult situations.An example of the type of protection for children in Amer-ica, that could be threatened by the U.N. treaty, is thestatutory rape laws that prohibit adults from engaging insexual relations with minors.65

3. The establishment of bureaucracies and institutions of a na-tional and international nature designed to promote “theideas proclaimed in the Charter of the United Nations” andto investigate and prosecute parents who violate their chil-dren’s rights.66

B. The CRC Violates the Fundamental Idea of Child Protection

The Family Research Council maintains that there might be aneed for legal intervention in some countries to ensure the welfareof children, but argued that such intervention was both unneces-sary in the United States and undermined the rights of parentsas well. “To be charitable, we may assume that this treaty wasdrafted to get at practices such as sexual and industrial child slav-ery in the Third World. However, great danger lies in applyingit to nations where these abuses are already illegal, but where

65Kilbourne notes that opponents of the Convention on the Rights of theChild object particularly to the following articles: Article 13, concerning free-dom of expression; Article 14, protecting freedom of thought, conscience, andreligion; Article 15, asserting freedom of association and peaceful assembly;Article 16, affirming the right of privacy; Article 17, providing for access toinformation; and Article 18, recognising the responsibility of both parents tocare for the child. The argument is that these civil rights are adult rights,which are not properly granted to children. Id.

66Id.


violations of parents’ rights are multiplying.”67 In other words,the CRC has gone beyond the original idea behind it; namely, thecurbing of “sexual and industrial child slavery.”

Those who support the Convention concede that there areareas of ambiguity in the Convention concerning politically con-troversial issues such as abortion, educational materials, and dis-cipline. The Convention does not mention abortion, but it doesaffirm the right to family planning education and services underArticle 24(2)(f) as well as the right to privacy under Article 16,which critics suggest could be used to justify abortion. Due tothe language in Article 29(1)(b) asserting that school curriculashould include attention to the “principles enshrined in the Char-ter of the United Nations,”68 opponents of the Convention areconcerned that children may be required to study humanist orsecular materials contrary to the beliefs of their parents.69

The issue of discipline concerns the right of parents to spanktheir children and measures used by schools to control children.Article 19(1) of the Convention requires that States parties takeall appropriate measures to protect the child from abuse “whilein the care of parents(s), legal guardian(s) or any other personwho has the care of the child.” Article 28 of the Convention saysthat States parties should “take all appropriate measures to en-sure that school discipline is administered in a manner consistentwith the child’s human dignity and in conformity with the presentConvention.” The Convention does not explicitly prohibit corpo-ral punishment, but the Committee on the Rights of the Child hasencouraged States parties to ban corporal punishment in schoolsand within the family.70

67Id.68U. N. Charter pmbl. In Pakistan, such information is now being dis-

seminated in schools.69Id. In response to the latter concern the American Bar Association Work-

ing Group on the Convention recommended that Senate ratification includean understanding that Article 29 does not require the regulation of any “pri-vate educational institutions beyond that which is permitted by the FirstAmendment.” Id.

70Id.


C. Children Have no Rights

Concerned Women for America believe that at the heart of muchof the conflict is an ideological approach to family and children’sissues, enunciated particularly by the current U.S. administration.According to its views, children do not need rights, they are notsubjects of rights. On the contrary, children’s rights undermineparents’ rights and the family. With its ideological focus, the U.S.delegation at the PrepComs attempted to substitute textual ref-erences to children’s rights with references to the “well being” ofchildren.71

D. Support for the United States

At the PrepComs, mentioned above, the U.S. received supportfrom some Islamic countries. On the issue of the reproductiverights of adolescents, some Muslim countries and especially twoold enemies—Iran and Libya—have been U.S. supporters.72 Ac-cording to them, adolescents should not even have the right toinformation on sexuality.73 On the issue of children in armed con-flict, Israel is the U.S. ally, against Arab countries that would likemore protection of children living under military occupation.74

The juvenile justice debates centre on capital punishment andlife imprisonment for those under the age of 18, which is defendedby the U.S.75 Here, Iran is the strongest ally, opposing the Euro-pean Union (EU) and Latin American countries.76 On the issueof child labour, the U.S. position undermines the ILO conven-tions and faces strong opposition from the EU.77 It remains to beseen how far the U.S. administration will go with this diplomaticmanoeuvring in order to satisfy its most conservative supporters.

71http://www.maryknoll.org/global/newsnotes/xnewsnotes/newsnote11 01/un child01.htm (last visited Mar. 2002).

72Id.73Id.74Id.75Id.76Id. The reason is that Iran has not fixed any age of majority. It links

criminal liability to puberty. See section C. in this article on page 96.77http://www.maryknoll.org/global/newsnotes/xnewsnotes/newsnote11 01/

un child01.htm (last visited Mar. 2002).


In the process, Europeans have become the strongest ideologicalopponents of the U.S., followed by the Latin Americans. Africanand Asian representatives are under pressure from either theirdevastating economic situations or their own heavily patriarchalstructures, or both.78

Ambassador Southwick79 of the United States shocked someat the PrepComs. “ ‘[I]t is misleading and inappropriate to use theConvention as a litmus test to measure a nation’s commitment tochildren,’ said Ambassador Southwick. The United States doesnot ‘accept that it is the best or only framework for develop-ing programs and policies to benefit children. . . . The text goestoo far when it asserts entitlements based on the economic, so-cial and cultural rights contained in the Convention and otherinstruments.’ ”80

This was interpreted as some kind of support for poor andThird-World countries. As Catholic Family & Human Rights In-stitute President Austin Ruse put it, “There’s a new sheriff intown.” The U.S. delegation delivered a whopping statement to theU.N. General Assembly on this first day of February—a breath offresh air for pro-family advocates. It was a “signal to the develop-ing world,” said Ruse. “It strengthened small countries—put steelin their spines. This sea change in favour of the long-disregardedfamily is nothing short of earth-shattering.”81

As compared to all the above, Switzerland’s delegate pro-vided a different viewpoint. He called for gender equality for thegirl-child (aged 0 to 17), including access to contraceptions andfamily planning. He also called for support for “families in variousforms.”82 Pakistan’s delegate, however, upheld the key role of thefamily. “We believe the role of UNICEF is to help governmentsat their request.”83

78Id.79Michael Southwick, Deputy Assistant Secretary of State for International

Organisation Affairs.80A New Sheriff in Town: U.S. Delegation Delivers a Definitive Speech

to U.N. General Assembly (Highlights), February 1, 2001, http://www.cwfa.org/library/nation/children.htm (last visited February, 2002)

81Id.82Id.83Id. (emphasis in the original).


E. Understanding the Issues

In our view, some of the issues raised by the United States andgroups within the United States are important and need to beanalysed from the Islamic perspective by Muslim countries andMuslim scholars. It is not a question of “requesting help” alone.A country by ratifying a convention takes on many internationalobligations whether or not it has amended its laws, or adoptednew laws, in accordance with the requirements of a convention.Reservations to such conventions must be made, and made inspecific terms. Such reservations should not be withdrawn untilthe issues have been fully resolved. The religious, traditional andcultural norms of a country, as long as they are based on justice,are more important for it than “salvaging its diplomatic face,” asthe US is being asked to do.

III. Reports Submitted by Muslim Countries to theCommittee on the Rights of the Child

All countries that have ratified the Convention on the Rights ofthe Child (CRC) are required to submit periodic reports to theCommittee of the Rights of the Child, recording and explainingthe progress they have made to meet the requirements of theConvention.84 It is not our intention, nor is it possible in a shortpaper, to examine all the reports, or even a few, submitted byMuslim countries. Our purpose is to note the “Islamic content” ina few of these reports. Accordingly, we shall examine the reportsof Saudi Arabia, Egypt, Iran and Pakistan for such content. In thecase of Pakistan, we would like to go into a little more detail, byway of illustration, to shed light on the kind of questions that areasked in response to such reports and the issues that are raised.

We may mention here that all these reports, along with therecord of subsequent proceedings, are available at UN websites.As recorded above, the Convention requires transparency in theseproceedings and also wishes that the proceedings and the reportsbe widely publicised in the concerned country.85

84See supra note 54 and accompanying text.85See supra note 58 and accompanying text.


A. Report Submitted by Saudi Arabia

The report we refer to in the case of Saudi Arabia was due in 1998.The report86 mentions the date of the original report in Arabic as15th October, 1998, but the date on the original English versionis 29th March, 2000, which could be the date of consideration bythe Committee on the Rights of the Child. The report consists ofa preface, eight parts and a conclusion (87 pages in all).

Saudi Arabia made a reservation to the Convention that allthe articles of the Convention will be interpreted in the light ofIslamic law, which is the same thing, in our view, as “all articlesconflicting with the provisions of Islamic law.” This reservation,however, needs to be read in the light of paragraphs 27 and 28of the report for a better understanding of the meaning of thereservation:87

27. The Kingdom of Saudi Arabia agreed, under the termsof Royal Decree No. M/7 of 11 September 1995, to accedeto the Convention on the Rights of the Child, adopted bythe General Assembly of the United Nations on 20 Novem-ber 1989, with reservations concerning all articles conflict-ing with the provisions of Islamic law. This is because theKingdom pays considerable attention to child welfare andaims to strengthen its international cooperation throughthe United Nations and because the provisions set forthin this Convention are in conformity with the teachings ofIslamic law concerning the need to fully respect the hu-man rights of the child from the time when the child isan embryo in his or her mother’s womb until he or shereaches the age of majority.

28. In this respect, the Kingdom fully appreciates thewisdom and flexibility with which this Convention was for-mulated in order to encourage accession thereto by mostof the international community and, consequently, ensure

86Committee on the Rights of the Child, Consideration of Reports Sub-mitted by States Parties Under Article 44 of the Convention: Initial Reportof Saudi Arabia due in 1998, CRC/C/61/Add.2 29 March 2000

87Id., paras 27 and 28 (emphasis added). The emphasised text is apparentlysome kind of blanket approval for most of the provisions of the CRC. Thesecond para does note that the CRC is to be implemented in accordance withthe “capacities and the regulations of the States parties.”


that children all over the world enjoy the minimum rightsproclaimed in the Convention in a manner consistent withthe capacities and regulations of the States parties.

The report mentions the significance of the provisions of Is-lamic law for the Kingdom of Saudi Arabia, and even mentionshuman rights guaranteed by Islam. In this regard, the reportquotes a few verses of the Qur’an and the last sermon of theProphet (peace be on him). Thereafter, the report focuses on allmatters relevant to the CRC as they are implemented in the King-dom.

With respect to the age of the child, the report maintains (inparas 31 to 37) that a child is someone who has attained the age of18 years. The age of the child, up to 18 years, is divided into fourstages from 0–7, 7–10, 10–15, and 15–18. In the last two stages,that is, from 10–18 disciplining is undertaken by the guardian“without harming the child.” If punishment is required it takes theshape of “discipline, guidance, and admonishment” or “placementin a social surveillance centre” for children between 10–15 years ofage or “[i]f necessary, the child is placed in a social rehabilitationcentre,” for children between 15–18 years of age.88 According toparagraph 32, “A juvenile is defined, in the penal laws set forthin the Detention and Juvenile Homes Statues of 1975, as everyhuman being below the age of 18 years. The regulations stipulatethat a juvenile cannot be detained in a public prison but must bedelivered to a surveillance centre.”89

These appear to be very good provisions by any standards.Surprisingly, however, there is no indication of the issue of “pu-berty” (bulugh) that dominates the issue of majority in Islamiclaw. Further, the report does not indicate whether these are Is-lamic provisions, and if so what source or argument has been reliedupon to arrive at these ages and rules. The issue is evaded in thecase of minimum age of marriage by referring to the “flexibilityin Islamic law [, which] helps to close loopholes and safeguardthe interests of both parties.”90 The age for military service is 18,that for employment is 18 (but 13 with the consent of guardian),

88See id. paras 31–37.89Id. para 32.90Id. para 33.


and in certain cases for involvement in narcotics, the age is 20.91

Paragraph 57 states: “It is noteworthy that the Islamic law ap-plicable in the Kingdom of Saudi Arabia never sentences personsbelow the age of majority to capital punishment.”92

In the case of non-discrimination, the report relies on a numberof verses, traditions and the principle of al-amr bi-al-ma‘ruf wa-nahy ‘an al-munkar (justice) to say that Islamic law does notpermit any kind of discrimination. There is no discussion of anyspecific form of discrimination.93

Under the principle of the “best interests of the child,” thereport again begins with the sharı‘ah and states that “[t]hechild’s interests are furthered by his or her parents’ free choiceof spouse.”94 This appears to be for the child, because paragraph51 states: “It is a recognised principle in Saudi society that per-sons marry the spouse of their own choosing.” “Family cohesion”in terms of Islamic law is also mentioned.95 Paragraphs 53–54 dealwith the family in greater detail.96

There are separate courts for dealing with juveniles97 and pro-ceedings are held in camera.98 The system of kafalah (security) isemployed in place of adoption, which Islamic law does not per-mit.99 “[C]hildren normally follow their father’s religion,”100 butthe word “normally” is not explained even by paragraph 121,which says: “Under article 7 (b) of the Cairo Declaration of Hu-man Rights in Islam, ‘parents or legal guardians have the rightto choose the form of upbringing they want for their children ina manner consistent with their interests and their future in the

91Id. para 35.92Id. para 57.93See Id., paras 38–47. Cf. infra note 135 where a member of the Committee

on the Rights of the Child seems to imply that Islam does “discriminate.”94First Report of Saudi Arabia, supra note 86, at para 48.95Id. para 49.96Id.97Id. para 17.98Id. para 55.99Id. para 60.

100Id. para 120.


light of moral values and the regulations of Islamic law.’ ”101 Theissue of changing one’s religion is, therefore, evaded.

On the whole, the report is very well organised and well writ-ten. From our point of view, it does uphold the principles ofIslamic law wherever it deems them relevant. It is, perhaps, theonly report that refers to the Cairo Declaration on Human Rightsin Islam. One would like to know the legal reasoning behind cer-tain rules upheld by Saudi law, out of academic curiosity, but thatis a separate issue.

B. Report Submitted by Egypt

The Government of Egypt made a reservation upon signing theConvention and confirmed this reservation upon ratification. Thereservation is:

Since the Islamic Sharia is one of the fundamental sourcesof legislation in Egyptian positive law and because theSharia, in enjoining the provision of every means of protec-tion and care for children by numerous ways and means,does not include among those ways and means the systemof adoption existing in certain other bodies of positive law.

The Government of the Arab Republic of Egypt expressesits reservation with respect to all the clauses and provi-sions relating to adoption in the said Convention, and inparticular with respect to the provisions governing adop-tion in articles 20 and 21 of the Convention.102

In other words, after a general statement, the reservation wasnarrowed down to adoption alone.

The report for Egypt is actually a second report.103 Despitea thorough search on the Internet, we were unable to find thefirst report either on the UN websites or other websites, except

101Id.102See Status Sheet entitled “Convention on the Rights of the Child”

at http://www.un.org/Depts/Treaty/final/ ts2/part boo/iv boo/iv 11.htm(last vsited March 20, 2002).

103Committee on the Rights of the Child Consideration of Reports Submit-ted by States Parties Under Article 44 of the Convention: Periodic Reports ofStates Parties due in 1997 (Addendum) Egypt, CRC/C/65/Add.9 11 Novem-ber 1999.


a translation in Spanish,104 but that does not help us much. Theintroduction explains that the first report was submitted in 1992and material in that report has not been repeated in the secondreport.105

The report is divided into an introduction and nine chapters,which are further subdivided into various sections. The reportappears to be a translation of the original in French. It is verywell written. It does not, however, refer to Islam or Islamic law orthe sharı‘ah. Perhaps, the earlier 1992 report did, but we have noway of verifying this. Nevertheless, it can be noticed that some ofthe provisions of Egyptian law referred to are based upon Islamicpersonal law.

Chapter III is devoted to the definition of child in Egyptianlaw. Accordingly, the provisions have been summarised in fiveparagraphs (46–50), and these are reproduced below:

46. According to article 2 of the 1996 Children’s Code, achild is a person under the age of 18 years. Consequentlyanyone who has not reached that age is subject to theprovisions of the Code. Civil, legal and commercial rightshave been brought into line with one another by the legis-lature and accession thereto set at 21 years. Under article57 of Act No. 119 of 1952, any person over 18 years of

104Comite de los Derechos del Nino, Examen de los Informes Presentadospor los Estados Partes con Arreglo al Articulo 44 de la Convencion, Informesiniciales que los Estados Partes deben presentar en 1992 (Adicion): Egipto,CRC/C/3/Add.6 11 de diciembre de 1992; The reference on the second reportfor the first report is: For the initial report submitted by the Government ofEgypt, see CRC/C/3/Add.6; for consideration of the report by the Commit-tee, see CRC/C/SR.66-68.

105“Egypt has the honour to submit its second periodic report to the Com-mittee on the Rights of the Child in accordance with article 44, paragraph1, of the Convention on the Rights of the Child. It follows on the initial re-port (CRC/C/3/Add.6) submitted by Egypt in October 1992 and consideredby the Committee in January 1993 at its third session. In pursuance of thesecretariat guidelines regarding the length, form and content of periodic re-ports, adopted by the Committee at its thirteenth session in October 1996,and to avoid repetition, Egypt will confine itself, in respect of certain matterscovered by the report, to referring back to the corresponding sections in itsinitial report.” See Report Submitted by Egypt, supra note 103.


age may be authorised to undertake commercial activi-ties. The minimum age for marriage is set at 18 for malesand 16 for females.

47. A child under 18 years of age is subject to the provi-sions of Act No. 118 concerning parental authority overthe person and Act No. 119 concerning parental authorityover property; both instruments date from 1952.106 Thetwo texts govern the exercise of parental authority by thefather or by those replacing him, in order of importance(designation of the person exercising parental authority,withdrawal or suspension of parental authority). This sub-ject is discussed in greater detail in chapter VI, section B,below in connection with the observations concerning theimplementation of article 18 of the Convention (paras. 71-75).

48. Under the Children’s Code the minimum age for ad-mission to employment is 14 years. Subject to a decisionby the governor of the province concerned and with theagreement of the Minister of Education, it is legal to givechildren in the 12 to 14 age group training in seasonal em-ployment provided that their physical growth, health andregular attendance at school do not suffer thereby. Theminimum age for membership of a workers’ trade union is15 years.

49. The right of direct exercise of political rights, namely,the right to express an opinion during consultations orthe election of members of the People’s Assembly, is recog-nised for every person of 18 years or older.107 Every personaged 18 or over is eligible for compulsory military service.

50. A child under seven years of age is not regarded ascriminally responsible (article 94 of the Children’s Code).No criminal penalty may be inflicted on a child in the 7to 15 age group.108 Such children are subject to preven-tive or rehabilitation measures (article 101 of the Code).

106These two laws, we believe, pertain to wilayah in Islamic law. We do nothave access to these laws.

107This does not explain the right given by the CRC to children who areunder 18 years of age.

108In other words, a child aged 7 to 15 may be held criminally liable eventhough no penalty is awarded.


Reduced penalties are inflicted on children between ages15 and 18, who are not liable to capital punishment or toimprisonment with forced labour.109 In the case of a mi-nor offence, a period of probation or placement in a socialinstitution may be substituted for a prison sentence. Chil-dren aged 14 or over may bear witness in criminal trials.Younger children may be heard without taking an oath(article 283 of the Code of Criminal Procedure).

The meaning of “child” as it emerges through the various provi-sions referred to above is almost identical to that of Saudi Arabia.Again, like Saudi Arabia, there is no indication as to how theseprovisions are related to Islamic law, except the fact that a childover 7 years of age may have criminal liability even though nopenalties are applied up to the age of 15 and after that, upto theage of 18, no capital punishment or rigorous imprisonment is tobe awarded.110 The chances are that most other Arab states havesimilar provisions.111

The reference to Chapter VI, section B, above is about certainIslamic provisions of personal law. These are stated in paragraph73 as follows:

73. A child who has not reached majority (age 21) is sub-ject to the authority of the parents (wilaya) or guardians

109Thus, a child over 15 is held criminally liable, and is awarded a reducedpenalty.

110See Id., para 50 above.111The report submitted by Qatar, however, at paras 21–22, says: “(20).

Qatar’s legislation defines the child as any person below the age of 18 yearsand is therefore consistent with the provisions of the Convention.(21). The Penal Code sets the age of criminal responsibility as follows:1. There shall be no criminal responsibility for any act perpetrated by a mi-nor under seven years of age;2. If the minor is over seven but under 18 years of age, he shall not be heldcriminally responsible unless he is sufficiently mature in awareness to judgethe nature or consequences of the act which he perpetrates.The Penal Code makes no distinction between girls and boys in regard tothe age of criminal responsibility.” Committee on the Rights of the ChildConsideration of Reports Submitted by States Parties Under Article 44of the Convention: Initial Reports of States Parties due in 1997: Qatar,CRC/C/51/Add.5, 11 January 2001. The law of Qatar, on this point, issimilar to that of Pakistan, and is most probably the result of British influ-ence.


(wis. aya). Act No. 18 of 1952, which states the condi-tions under which parental authority over an individualmay be ended, defines the person exercising parental au-thority (walı) as being the father, the grandfather, themother, the guardian (was. ı) or any person in whose carethe child is placed by decision or judgement of the com-petent court.112

The best interests of the child are contained in a single para-graph: “53. Article 3 of the Children’s Code contains a generalprovision applicable to all decisions and procedures affecting orrelating to children. It reads: ‘all decisions and procedures relat-ing to children, by whomever initiated and enforced, must givepriority to the protection of the child and to the child’s best in-terests.’ All State authorities comply with this legal standard.”113

No further details are provided. As for adoption, paragraph 96says: “96. The information given in section E, subsections 7, 8, 9and 10, chapter IV, of the initial report (CRC/C/3/Add.6, paras.174-188) remains unchanged. The reader is requested to refer toit.” This was the point on which Egypt had recorded its reser-vation. We could not obtain this information due to the reasonsstated above. It is obvious, however, that it is the same systemof kafalah that has been mentioned in the report submitted bySaudi Arabia. Further, in our view, it is the Egyptian practiceof kafalah that is relied upon in Article 21(3) of the CRC, whichreads as follows: “Such care could include, inter alia, foster place-ment, kafalah of Islamic law, adoption or if necessary placementin suitable institutions for the care of children. When consideringsolutions, due regard shall be paid to the desirability of continuityin a child’s upbringing and to the child’s ethnic, religious, culturaland linguistic background.”114

112See Report Submitted by Egypt, supra note 103.113Id., para 21.114See Convention, supra note 4, art. 21(3).


C. Report Submitted by Iran

The report115 submitted by the Islamic Republic of Iran is briefand precise. It consists of seven chapters divided into various sec-tions. The position of the Republic is stated clearly and preciselyin the first paragraph:

1. The Convention on the Rights of the Child was signedby the representative of the Government of the IslamicRepublic of Iran on 5 September 1991 and was ratifiedin March 1994 by the Islamic Consultative Assembly ona “reservation” basis. Iran has reserved the right not toapply any provisions or articles of the Convention thatmay be in contravention with domestic laws and Islamicstandards. On 15 June 1994 the Islamic Republic of Iranacceded to the Convention on the Rights of the Child byexpressing this general “reservation,” and the Conventionhas become binding on Iran from 12 August 1994. In caseswhere domestic laws strongly differ from the articles of theConvention, they could be revised, provided that they donot contradict the principles of the Sharia (Holy Laws).116

In our view, the position of a Muslim state has been statedwith precision not only in its reservation, but also in its report.In particular, we would like to appreciate the last sentence: “Incases where domestic laws strongly differ from the articles of theConvention, they could be revised, provided that they do not con-tradict the principles of the Sharia (Holy Laws).” This position,we believe, must be appreciated by the United Nations and theCommittee on the Rights of the Child for all Muslim countries.

Again, as far as we have been able to discover, Iran is the onlycountry that has boldly stated the meaning of child in terms of

115Committee on the Rights of the Child, Consideration of Reports Sub-mitted by States Parties Under Article 44 of the Convention: Initial Re-ports of States Parties due in 1996 (Addendum): Islamic Republic of Iran,CRC/C/41/Add.5, 23 July 1998.

116Id. para 1. It would be highly instructive and interesting to study theproceedings of the Committee on the Rights of the Child following the sub-mission of Iran’s report, but we are unable to do so for fear of adding to thesize of this paper. The basis for the interest is the strong reservation andthe equally strong upholding of the sharı‘ah laws in the report. As far as weknow, Iran, unlike Pakistan, has not withdrawn its reservation.


Islamic law. In fact, it has referred to fiqh, which, in our view,should also be given due attention by the United Nations. Para-graph 2 is reproduced below:

2. According to figh117 (religious jurisprudence) and thelaw a child or minor is a male or female offspring thathas not attained maturity. Maturity is a natural and in-stinctive matter. One of the signs of attaining maturityis age. In figh and the law a person who has not reachedthe age of majority is called a minor. A minor cannot dis-pose of his/her property.118 Iranian law does not offer anydefinition of a child and only the age of maturity is de-fined. According to the provisions of article 1210 of theCivil Code, the age of maturity for male children is full15 lunar years. The legislator in Iran has stipulated that aperson has to prove his/her maturity before being able toexercise his legal rights. If two conditions, that is, physi-cal growth and mental development, are combined in anindividual then it could be said that the age of minorityhas ended.119

Paragraph 3, however, states: “Since in accordance with the CivilCode marriage before age of maturity is forbidden (art. 1041) andthe age of maturity, determined by law, is not compatible withthe realities of the society, some jurists have proposed revision ofthe Civil Code provisions relating to the age of maturity.” Para-graph 4(c) states: “In accordance with article 49 of the IslamicPenalties Act passed in 1982, “children shall be free from crimi-nal responsibility and the responsibility for correction, educationand disciplining is given to the guardian, and if necessary thecourt will instruct a correction house to carry out this task.”120

In particular, the words “children shall be free from criminal re-sponsibility” are to be noted by all Muslim countries that begin

117[Sic fiqh]118In H. anafı law, a minor can dispose of his property if he has attained

some form of “maturity” and he has been authorised by his guardian to doso, provided that the transaction does not cause a loss to the minor. Thetransaction is valid subject to ratification by the guardian.

119Id. para 2. This is a sound statement of the Islamic position that shouldbe acceptable to all schools of Islamic law.

120This too is sound view on the basis of fiqh. See infra note 175 and ac-companying text.


criminal responsibility after the age of 7, even when they are notimplementing penalties. Further, “Minimum age to vote in elec-tions in accordance with the Elections Act is 16 years.”121

For the principle of the best interests of the child, the followingis stated: “The parents have an obligation to respect the moraland material rights of children. In the Islamic Republic of Iranparents have the primary responsibility to secure the rights ofthe child. The Civil Code puts the responsibility for maintenanceand upbringing of the child on parents and the father has theresponsibility for expenses relating to the sustenance of the childbefore and after birth.”122 Other provisions have also been listedin the same paragraph (para 9).

The report is quite different from those submitted by otherMuslim countries. It has some novel and interesting provisions.The entire report needs to be read by those who may be interestedin this field.

D. Report Submitted by Pakistan

The reservation made by Pakistan with respect to the Conventionupon signature and confirmed upon ratification was as follows:“Provisions of the Convention shall be interpreted in the light ofthe principles of Islamic laws and values.”123 Pakistan submittedits first report under Article 144 of the Convention in 1993.124

Subsequently, the first issue, in the list of issues to be discussedprepared by the Committee on the Rights of the Child, stated asfollows:

Upon ratification, Pakistan made a reservation accordingto which the provisions of the Convention shall be inter-preted in the light of principles of Islamic laws and values.In para. 31 of the report, it is recognised that “practicallyno provision of the Convention comes into direct conflict

121Report Submitted by Iran, supra note 115, para 4(e).122Id. para 9.123See Status Sheet, supra, note 102.124Committee on the Rights of the Child, Consideration of Reports Sub-

mitted by States Parties Under Article 44 of the Convention, Initial Reportsof States Parties due in 1993 (Addendum): Pakistan, CRC/C/3/Add.13 28May 1993 [hereinafter referred to as First Report by Pakistan].


with any of the major precepts of Islam, barring the mat-ter of adoption for which an appropriate provision hasalready been made in the Convention” (See also para. 37of the report). Having this in mind and in the spirit of theWorld Conference on Human Rights, which encouragedStates to consider reviewing any reservation with a viewto withdrawing it, (A/CONF.157/23, II.para, 5) pleaseprovide information on whether the Government is con-sidering the need of maintaining such reservation or theintention of withdrawing it.125

In other words, it was pointed out that as Pakistan had nar-rowed down its reservation, for all practical purposes, to adoption,it would be better if the reservation were withdrawn altogether.During consideration of the first report, the following observation,recorded at paragraph 9, was made:

One such matter, referred to in issue No. 1 under “Generalmeasures of implementation,” was the question whetherthe Government of Pakistan felt the need to maintain thereservation made on account of the application of Islamiclaw in that country or whether it felt that the reservationcould be withdrawn. The Committee had been informedthat the Government was reconsidering the reservation;she wondered whether the intention was to signify an of-ficial withdrawal in accordance with article 51, paragraph3, of the Convention on the Rights of the Child.126

In addition to this, three of the members of the Committee,Mrs. Santos Pais, Mr. Hammarberg and Mr. Kolosov, made spe-cific comments. These comments throw light on the nature ofreservations and the concern the members have on account of

125Committee on the Rights of the Child, Fifth session, Pre-sessional Work-ing Group 15-19 November 1993, Implementation of the Convention on theRights of the Child (List of issues to be taken up in connection with the con-sideration of the initial report of Pakistan (CRC/C/3/Add.13)). Availableat http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.5.WP.1.En? Opendocument.

126Committee on the Rights of the Child, Sixth session, Summary Recordof the 132nd Meeting (Held at the Palais des Nations, Geneva, on Tuesday,5 April 1994, at 3 p.m.), General CRC/C/SR.132, 12 April 1994, para 9.Available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/Pakistan2.htm.


such reservations. The excerpts from the summary record of ob-servations by the learned members and response by Mr. Hashmi ofPakistan (with the original paragraph numbers) are as follows:127

11. Mrs. SANTOS PAIS said that the Committee con-sidered the matters covered by the first section of thelist of issues to be crucial, since they reflected a Gov-ernment’s true commitment, in legislation and practicalapplication, to the cause of children. . . . She recalled that,at the World Conference on Human Rights, all Stateswhich had entered reservations in respect of the Con-vention on the Rights of the Child had been encouragedto withdraw them. In the case of Pakistan, moreover, itwas difficult for the Committee to judge whether the Con-vention’s provisions were to be interpreted in the light ofIslamic principles rather than in the light of that instru-ment itself.128

12. Mr. HAMMARBERG said that it was not by chancethat, both at the World Conference and in the Convention,it had been stressed that any reservations made must bespecific.129 It seemed to him, however, that the reservationmade by Pakistan was of a sweeping nature, and that itcould undermine the force of the Convention in Pakistanand in the region concerned. If, as stated in the report,there was felt to be no conflict between the Convention’sprovisions and those of Islamic law as applied within thecountry, it seemed that the only impact of the reservationwas on the spirit of the Convention, thus undermining thelatter’s force—an unfortunate situation.

13. Mr. KOLOSOV said it was a principle of interna-tional treaty law that no reservation could be acceptedif it undermined the purpose of the treaty concerned.A reservation of the sort made by Pakistan did, how-ever, undermine one purpose of the Convention on theRights of the Child, which was to uphold the principle of

127Id. paras 11–15, 18.128Id. (emphasis added).129Id. (emphasis added). The truth is that objections have been raised by

Western States parties even where specific reservations have been made byMuslim States parties. This is obvious in the Status Sheet, supra note 102.


non-discrimination.130 He hoped, therefore, that the rep-resentative of Pakistan would be able to signify to hisauthorities that the reservation was unacceptable and thatthe matter required urgent attention.

14. The CHAIRPERSON invited the representative ofPakistan to respond to the comments made by membersof the Committee.

15. Mr. HASHMI (Pakistan) said that he had taken noteof the points raised, especially with regard to the reser-vation, and would have them forwarded to his authoritiesif they represented the unanimous views of the Commit-tee. With regard to the reservation, some religious andcultural differences prevailed, as everyone was aware, andit was very difficult to accept anything tantamount to achallenge to the basic ethos of a people131 . . .

18. Mrs. SANTOS PAIS agreed that the question of reser-vations was one to which every member of the Committeeattached great importance in all cases, not simply thatof Pakistan. Likewise, they all agreed that priority shouldbe accorded to the rights of children; the Committee wasencouraged to note the recognition of that priority in thereport of Pakistan and, in particular, in the commitmentthat the Prime Minister showed to the cause of children.It was no accident that the Vienna Declaration and Pro-gramme of Action unanimously adopted at the WorldConference on Human Rights recognised that, while thesignificance of a country’s national ethos should be bornein mind, every State had a duty to protect all human rightsand fundamental freedoms.132 In that spirit, the Com-mittee urged the Government of Pakistan to pay specialattention to the possibility of withdrawing the reserva-tion. Such was the view of the Committee, which wouldbe reflected in its documentation.

130Summary Record of the 132nd Meeting, supra note 126 (emphasis added).Pakistan had made the general observation that the Convention would beinterpreted in the light of the sharı‘ah. A reservation of this sort works againstthe objectives of the Convention, according to the learned member.

131The reservation was withdrawn despite this statement.132(Emphasis added). This is the crux of the problem. Ratifying interna-

tional instruments is a very serious matter.


Accordingly, Pakistan could not withstand this onslaught andwithdrew its reservation. The statement recorded in UN docu-ments is: “Subsequently, on 23 July 1997, the Government of Pak-istan informed the Secretary-General that it had decided to with-draw its reservation made upon signature and confirmed uponratification.”133 Paragraph 31 of Pakistan’s first report states:

31. Pakistan ratified the Convention on 12 November1990, with a general reservation that its provisions shallbe interpreted in the light of principles of Islamic lawsand values. Practically no provision of the Conventioncomes into direct conflict with any of the major precepts ofIslam, barring the matter of adoption for which an appro-priate provision has already been made in the Convention.Pakistan has, therefore, committed itself to achieving therights of the child–rather of the ‘whole child’ and of ‘allchildren’ in the development perspective.”134

Is there really nothing else in the Convention besides “adoption”that may be against the principles of Islamic law? Is this the opin-ion of the Council of Islamic Ideology? Is this merely a questionof “domestic factors, especially religion,” as Mr. Hashmi stated,or is it the question of the legal system of Pakistan in the light ofArticle 2A of the Constitution?

A major point that emerges from the comments by the learnedmembers of the Committee on the Rights of the Child is: A generalreservation with respect to Islamic law “undermine[s] the purposeof the treaty concerned. A [general] reservation of the sort made byPakistan did, however, undermine one purpose of the Conventionon the Rights of the Child, which was to uphold the principle ofnon-discrimination.” In other words, Islamic law “discriminates”and is against the principle of “non-discrimination” upheld byArticle 2 of the Convention.135 In our view, this comment, read

133See Status Sheet, supra, note 102.134See First Report by Pakistan, supra, note 124 (emphasis added).135The two subsections of Article 2 of the Convention read as follows:

1. States Parties shall respect and ensure the rights set forth in the presentConvention to each child within their jurisdiction without discrimination ofany kind, irrespective of the child’s or his or her parent’s or legal guardian’srace, colour, sex, language, religion, political or other opinion, national, ethnic


in the light of Article 2 of the Convention, amounts to keepingreligion out of matters of state and the legal system.136

We would have liked to go into all the details of the issuesraised by the learned members of the Committee and the responseof Pakistan, but space does not permit us to do so. Further, ourpurpose in this paper is not to see how the CRC is being im-plemented,137 but to identify with a broad brush the relationshipof the CRC and Islamic law. The documents that give all thesedetails are available on the UN websites. The Convention, as wellthe directives of the Committee, require that all this material,including the reports submitted, be published and be made avail-able to the public in each state party. At the moment, nothing ofthe kind is witnessed in Pakistan.

or social origin, property, disability, birth or other status.2. States Parties shall take all appropriate measures to ensure that the childis protected against all forms of discrimination or punishment on the basisof the status, activities, expressed opinions, or beliefs of the child’s parents,legal guardians, or family members.

136We shall have a little more to say about this in what follows.137Pakistan has changed some laws in the light of the provisions of the

Convention. Notable among these are the Whipping Ordinance, 1996 andthe The Juvenile Justice System Ordinance, 2000. As far as we know, workon the Jails Manual is also being undertaken. A concluding remark of theCommittee on the Rights of the Child, on completing the examination ofPakistan’s first report, was: “While noting the information contained in thereport that a review of the conformity of national legislation with the Con-vention has been undertaken, the Committee encourages the State party tocontinue to scrutinize carefully legislative and other measures at both thefederal and provincial levels to ensure their full conformity with the prin-ciples and provisions of the Convention, in a comprehensive and holisticmanner. The hope is also expressed that in this endeavour, the State partywill take into account the Committee’s concerns, particularly its recommen-dations with regard to the abolition of flogging and capital punishment forchildren under the age of 18, and that deprivation of liberty should onlybe used as a measure of last resort and for the shortest period of time, aswell as the suggestions made in respect of the definition of the child, forinstance concerning the age of criminal responsibility.” Committee on theRights of the Child, Sixth Session, Concluding observations of the Commit-tee on the Rights of the Child: Pakistan, GENERAL CRC/C/15/Add.18, 25April 1994, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.5.WP.1.En?Opendocument. An advertisement in The News Int’l, October 27, 2002is now inviting consultants to study the laws of Pakistan in the light of theConvention.


The details about the steps taken by Pakistan and future plansfor the implementation of the Convention may be seen at theNational Commission for Child Welfare & Development website,under the heading “Achievements of NCCWD.”138

Pakistan’s second report under Article 144 of the Conventionwas due in 1996. The report was submitted to the Committee onthe Rights of the Child in early 2001, after a delay of five years.The report is not available on the websites of the United Nationsas it has not been considered as yet. The Agenda for the Commit-tee on the Rights of the Child, as found on UN websites, showsthat Pakistan’s second report will come up for consideration inMay-June 2003.139 After delaying the report for five years, Pak-istan appears to be anxious that the second report be consideredsoon.140 Let us hope that Pakistan has submitted a good reportthat will be published by the authorities.

IV. Examining a Few Principles

A. Methodology for Interpreting U. N. Conventions in the Lightof the Sharı‘ah

The first issue that arises whenever we attempt to analyse orexamine the rules, prescriptions and principles of modern legalsystems in the light of Islamic law is that of methodology. Howare we to judge these rules and principles and pass judgementas to whether they are or are not in conformity with the Islamicsharı‘ah? In the Islamic legal system, there is a whole system, ahighly developed methodology, for undertaking this exercise, just

138http://mowd.gov/pk/social welafare/nccwd achievements.htm.139May-June, 2003: Pakistan 2nd periodic report CRC/C/65/Add.20 as

listed on http://www.hri.ca/fortherecord2001/index.htm140“We also feel that the reference on reporting to the Committee on the

Rights of the Child needs to be reviewed because the Committee with itsexisting membership is already over burdened. Resultantly, it is currently 12-18 months behind schedule in considering reports submitted to it by the StateParties.” Statement by Dr. Attiya Inayatullah, Federal Minister for WomenDevelopment, Social Welfare & Special Education, at the 3rd SubstantiveSession of the Preparatory Committee for UNGA Special Session on Children,11 June 2001. http://www.un.int/pakistan/oohome00.htm


as there is a highly developed technique of the law in Westernlegal systems.

Today, many people, including Muslim scholars, do not re-fer to this system or methodology. This is unfortunate. Instead,they have developed shorthand methods of undertaking analysisand examination of laws from other systems, and here we speakespecially with reference to Pakistan.

The burden is usually placed on words borrowed from the En-glish language. One such word used in most legal documents ofthe Pakistani legal system is “injunctions.” Thus, it is stated, forexample, that “In the interpretation and application of the provi-sions of this Chapter, and in respect of matters ancillary or akinthereto, the Court shall be guided by the Injunctions of Islam aslaid down in the Holy Qur’an and Sunnah.”141 The question is:What is the meaning of the word “injunction”? It is obvious thatthe narrow sense in which it is used in the law in the meaning of“court order”142 is not intended here. The literal meaning in thedictionary is: “The act or the instance of enjoining; a commandor directive, or an order.”143 The word has not been judiciallydefined in terms of Islamic law in Pakistan.144 Is this word theequivalent of h. ukm in Islamic law? In that case, could it meanthe commands emerging from the “strict literal meaning” of thetexts of the Qur’an and the Sunnah? If it does, it would be theequivalent of the words “expressly mentioned in the texts,” whichmay in turn be deemed equivalent to the word sarıh. , which re-stricts meanings to the expressly stated meanings according to theconnotation of words employed in the texts, as against allegoricalor figurative meanings (kinayah). If a strict literal interpreta-tion is implied in this word, the injunctions of Islam would berestricted to expressed literal meanings, and the rules emergingfrom them. In other words, if the words “hijacking,” “terrorism,”“claim-swapping,” “stock options,” “insider trading,” “mergersand takeovers” and the like are not expressly mentioned in the

141Pakistan Penal Code (Act XLV of 1860), § 338F.142Black’s Law Dictionary, s.v. “injunction”: “A court order prohibit-

ing someone from doing some specified act or commanding someone to undosome wrong or injury.”

143American Heritage College Dictionary (3d ed. 1993)144Insofar as we know.


texts of the Qur’an and the Sunnah, they would all be legal andcannot be termed illegal, unless an express, literal meaning of thetext says so.

Is this the sense, then, in which paragraph 31 of Pakistan’sfirst report submitted to the Committee on the Rights of theChild says: “Practically no provision of the Convention comes intodirect conflict with any of the major precepts of Islam, barringthe matter of adoption for which an appropriate provision hasalready been made in the Convention?” Further, is this the sensein which the Council of Islamic Ideology maintains that it hasexamined many of the existing laws of Pakistan (based on Britishand Pakistani legislation)?

The CII in its final report stated that upon carefulscrutiny it was revealed that a large number of federal andprovincial laws were not contrary to any Nas.s. (express in-junction of the Holy Quran or Sunnah of the Prophet).145

We are confident that neither paragraph 31 of Pakistan’s reportto the Committee on the Rights of the Child nor the Final Reportof the CII bear the meaning of the narrow and literal approachreferred to above with reference to the word “injunction.” We arealso sure that the Council’s statement means that the laws havebeen examined in the light of all “the texts of the Qur’an and theSunnah, the principles and rules emerging therefrom and in thelight of the maqas. id al-sharı‘ah (the purposes of Islamic law),” orin other terms the “principles and philosophy of Islam.”

The Constitution of Pakistan does use the word “Injunctionsof Islam”146 wherever the examination, making and alteration oflaws is concerned and this means “Injunctions of Islam as laiddown in the Holy Quran and Sunnah.”147 These words occur inthe Constitution mostly with respect to the constitution and func-tions of the Council of Islamic Ideology and with respect to theFederal Shariat Court.148

145Rafaqat Ali, Hand-cuffing, Shackling may go Under CII Advice, Dawn,October 19, 2002, at 3, col. 2. We rely on this newspaper report as the FinalReport of the CII is not available to us.

146Pakistan Const. arts. 227, 230(1)(b), 230(1)(c), 230(1)(d)), 230(3), &203D.

147Id. arts. 227, 203D.148Id. art. 203D.


We could not find a provision in the Constitution that restrictsthe meaning of the word “Injunction” as used in the Constitutionto nas.s. (express injunction), sarıh. (express literal connotation) orany other narrow meaning. In fact, there is an attempt to widenthe meaning. Insofar as law is part of life and Islamic law or thesharı‘ah are part of the lives of the Muslims, the Constitutionwidens the meaning to the “teachings and requirements of Is-lam,”149 or to “the basic principles and concepts of Islam,”150 oreven to the “principles and philosophy of Islam as enunciated inthe Holy Qur’an and Sunnah.”151 Accordingly, the word “Injunc-tions” must be given the widest meaning possible in the light ofall the articles of the Constitution and it cannot be restricted toa narrow meaning.

If, by any chance, the word is assigned a very narrow meaning,in the sense of an express nas.s. , it will affect all laws implementedin the country, both from the aspect of examination of the existinglaws, the legislation and implementation of new laws, and eventhe enforcement and interpretation of the existing laws. Whatwe mean by this is that many of the details with which someof the new Islamic laws have been implemented will be difficultto justify, except the barest penalties mentioned in the Qur’anand the Sunnah, that is, new laws like the h. udud, qis. as. , zakat,riba and many other provisions. In addition, the interpretation ofthe existing personal laws of the Muslims will be affected.152 Thereality is that all these laws have been implemented on the basisof the legal literature available in fiqh manuals, which in turn relyon the Qur’an and the Sunnah, so why not examine all existingor new laws in the light of this literature as well. Finally, as alllaws have to conform to the injunctions of the Qur’an and theSunnah, assigning a narrow meaning to the term “injunction” willdiminish the base from where justifications are drawn to justifynew legislation as Islamic.

149Id. annex. art 2A.150Id. arts. 31, 230(1)(a).151Id. art. 228(2).152Even though the Constitution states in the explanation of Article 227(1):

“[Explanation:—In the application of this clause to the personal law of anyMuslim sect, the expression ‘Qur’an and Sunnah’ shall mean the Qur’an andSunnah as interpreted by that sect.”


In addition to the above, the work of our judges will be-come difficult with the assigning of a narrow meaning to the term“Injunctions.” With no “philosophical” basis for the bulk of thecorpus of the law, our judges will have to rely on Western legalconcepts to interpret our statutes and precedents. They will relyon the vague and discretion oriented Austinian idea of “justice,equity and good conscience,” which in our opinion should now becalled “justice, equity and good conscience as enunciated by theQur’an and the Sunnah” so as to comply with the requirementsof the Constitution of Pakistan.

It is, therefore, obvious that the words “Injunctions of Islam”must be given a very wide meaning in the light of all the “texts,rules, principles, qawa‘id, maqas. id, and philosophy” of Islam. Allthese terms, in turn, will have to draw upon the entire magnificentlegal heritage of the ummah including the work of its earlier ju-rists. It is this comprehensive heritage that provides our “sharedideals and beliefs.”

And, why should we be reluctant to adopt such an approachwhen the Western world does it with confidence and insistence.What, after all, are the concepts behind the idea of legal rightsthat the United Nations seeks to enforce other than the sharedideals and rights that emerge from the Anglo-European-Americancivilisation for which terms like “universal” and “universalists”are used.153 In fact, the entire corpus of international law is basedupon the European international practices. Judge Ammoun hasthe following to say:

The discrimination between civilised and uncivilised na-tions, which was unknown to the founding fathers ofinternational law, the protagonists of a universal law ofnations, Vittoria, Suarez, Gentilis, Pfufendorf, Vattel, isthe legacy of the period, now passed away, of colonialism,and of the time long-past when a limited number of Pow-ers established the rules, of custom or of treaty-law, of aEuropean law applied to the whole community of nations.Maintained and sometimes reinforced at the time of the

153Those who believe that these rights are universally accepted and rep-resent universal principles as against those who believe that they mustaccommodate other influences from religion, culture and so on, for whomterms like “cultural relativists” are employed.


great historical settlements—Vienna 1815, Berlin 1885,Versailles 1920, Lausanne 1923, Yalta 1945—Europeaninternational law had been defended by jurists of indis-putable authority in the majority of branches of interna-tional law, such as Kent, Wheaton, Phillimore, Anzilotti,Fauchille, F. de Markas, Westlake, Hall, Oppenheim, Poli-tis.154

It is time for the Muslim world to assert itself in the area of inter-national law, so that its norms are acknowledged and act towardsthe creation of new universal principles in this field. We cannotdo this, however, if we put a stranglehold on our process of inter-pretation at the domestic plane by assigning a narrow meaningto the word “injunction.” We have to be far-sighted and forwardlooking, resisting the temptation to succumb to immediate pres-sures.

We may now examine some basic ideas that are relevant tothe CRC as the examination of all the individual articles of theCRC are beyond the scope of this paper. Nevertheless, when welook at the individual articles of the Convention on the Rightsof the Child, we find that most of the articles should be accept-able to Islamic law and to all reasonable men. This can be seenfrom the description of the CRC provided above including thehighlights.155 The main problems that arise are: do children re-ally have rights? who is a child or what is the minimum age ofcriminal and civil liability? is the principle of “best interests ofthe child” being observed? is the principle of non-discriminationobserved? is adoption being forced on Muslim nations?

B. Do Children Really Have Rights?

It has been suggested by some opponents of the CRC, particularlyin the United States, that children have no rights and insteadthere is a duty on the family and parents to take care of them.

154North Sea Continental Shelf Cases (Fed. Rep. of Germany v. Denmark;Fed. Rep. of Germany v. The Netherlands) 1969 I.C.J. 3 (separate opinionof J. Ammoun).

155See page 76 for a description of the articles and highlights.


The idea of vesting children with rights is seen as some kind of“institutionalised rebellion.”156

It is obvious that this issue is not discussed directly in thenas.s. of the Qur’an or the Sunnah. A well known tradition saysthe following:

Isma‘ıl ibn Ja‘far al-Madını related to us from ‘Abd Allahibn Dınar from Ibn ‘Umar that he said: “The Messengerof God (peace be on him) said: ‘Each one of you is a shep-herd and each is responsible for his flock. The ruler overmankind is a shepherd over them and as such is responsi-ble for them. Each man is a shepherd for the members ofhis family, and is responsible for them. A man’s wife is ashepherdess for her husband’s house and her children, andshe is responsible for them. A man’s servant is a shepherdfor his master’s property and he is responsible for it. Be-ware, each one of you, then, is a shepherd and each oneof you will be questioned about his flock’ ”.157

This tradition does not speak in terms of rights, but in termsof duties. Even if it did, or some other tradition does, it is notproper, according to the methodology called us. ul al-fiqh, that weproceed to draw final conclusions from a single tradition in termsof duties or even in terms of rights.158 We must turn to our legalheritage first and see how our ancestors, after centuries of labour,and the consideration of all available sources, rules and principlesof Islamic law have come to understand this issue.

The issue of rights in Islamic law is addressed specifically un-der two topics in us. ul al-fiqh. The first is called mah. kum fıh, whichdeals with the acts of the subject and associated rights, while thesecond called mah. kum ‘alayh deals with the subject and his legalcapacity. Both topics are deemed the essential elements (arkan)of the h. ukm shar‘ı or the injunction of the sharı‘ah based on theQur’an and the Sunnah. Our purpose here is not to discuss these

156See supra, note 65 and accompanying text.157Abu ‘Ubayd ibn Sallam al-Azdı, Kitab al-Amwal 3 (1985) (Trad.

No. 3) (The Book of Revenue (Imran Ahsan Khan Nyazee trans. 2002)).158The very term ijtihad implies that the jurist seek out all possible evi-

dences that may apply to, or govern, an issue. The jurist has to continue hiseffort till he cannot find more evidences related to the subject.


two topics, but to focus on the rights of the child to see whatIslamic law has to say about their existence.

Legal capacity is called ahliyyah in Islamic law. Literally, themeaning is that of “ability” to undertake an act. It is seen as acompact between the subject or ‘abd (servant) and the Almighty.According to the jurists it hangs around the neck of every indi-vidual.159 It is also connected with the word dhimmah (zimmahin Urdu), which gives the meaning of liability, but has anothertechnical meaning within us. ul al-fiqh. In Islamic law, dhimmahis deemed a requisite condition for the existence of ahliyyah. Ac-cording to al-Sarakhsı, dhimmah is the “trust” that was offeredto the mountains, but they refused; Man accepted it.160 Thus,dhimmah is an attribute conferred by the Lawgiver. It is a trustresulting from a covenant (‘ahd).161 The fact that dhimmah isa covenant between the Lawgiver and the ‘abd (subject) meansthat dhimmah can be assigned to a natural person alone. In West-ern law, the term dhimmah conforms with “personality,” whichis an attribute conferred on a natural person.162 It follows thatdhimmah is a restricted form of legal personality granted to thedhimmı, as well as an artificial person.

As indicated, the literal meaning of the word ahliyyah is abso-lute fitness or ability.163 In law, ahliyyah is defined as “the abilityor fitness to acquire rights and exercise them and to accept duties

159 é��®��J �« ú

�

�è �Q K��A£ �èA

�J Ó �Q Ë� @ à

�A �� @ �

��É�¿�ð — “Every man’s bird (liability) We have

fastened on his own neck.” Qur’an 17 : 131602 Al-Sarakhsı, Kitab al-Us.ul 333 (Ed. Abu al-Wafa’ al-Afghanı,

1973); 4 ‘Abd al-‘Azız al-Bukharı, Kashf al-Asrar, 335–38 (1997).161Al-Sarakhsı, supra note 160, at 333; 2 S.adr al-Sharı‘ah, al-

Tawd. ıh. 751–53 (1956).162This is the position according to positivists like John Salmond. For a

detailed discussion of this issue, see Imran Ahsan Khan Nyazee, IslamicLaw of Business Organisation: Corporations (1997). ‘Abd al-‘Azızal-Bukharı says something similar: “If we enter into a compact with thosewho do not believe and grant them a dhimmah, they can have rights andduties like those of the Muslims.” Thus, the term Ahl al-Dhimmah is appliedto the non-Muslim citizens who have an agreement with the Muslims. Al-Bukharı, supra note 160, at 336.

163For a lucid discussion of legal capacity see al-Sarakhsı, supra note 160,at 232 passim; see also S.adr al-Sharı‘ah, supra note 161, at 751 passim;1 al-Ghazalı, al-Mustas.fa min ‘Ilm al-Us.ul 53–54 (1877).


and perform them.”164 This meaning indicates two types of capac-ity: the first is based on the acceptance or acquisition of rights andthe other on the performance of duties. These are called ahliyyatal-wujub and ahliyyat al-ada’ or the capacity for acquisition (ofrights) and the capacity for execution or performance of duties.165

Capacity for acquisition enables a person to acquire both rightsand obligations, while capacity for execution gives him the abilityto exercise such rights and perform his duties.

The basis (manat.) for the existence of the capacity for ac-quisition is the attribute of being a human or natural person(insaniyyah).166 There is complete agreement among jurists thatthis form of capacity is possessed by each human being irrespec-tive of his being a mukallaf (subject with full liability). A childpossesses this attribute as does the adult. Every child has thiscapacity and the ensuing rights from the moment she is born.Islamic law cannot, therefore, agree with the position taken bysome opponents of the CRC that children have no rights; theydo.167

Children do have rights, but that does not mean that theyare now free to do as they like in the exercise of these rights,whatever their age. The reason is that they do not, yet, possesscapacity for execution (ahliyyat al-ada’ ). Capacity for executionis defined as the “capability of a human being to issue statementsand perform acts to which the Lawgiver has assigned certain legaleffects.”168 The manat. or basis of capacity for execution are ‘aql(intellect) and (rushd) discretion. ‘Aql here implies the full de-velopment of the mental faculty. As there is no definitive methodfor checking whether this faculty is fully developed, the Lawgiverhas associated it with bulugh or puberty. Thus, the presumptionis that a pubescent person is assumed to possess ‘aql necessaryfor the existence of the capacity for execution. This presumption,however, is rebuttable, and if it is proved that though a person

164Al-Bukharı, supra note 160, at 335.165Id.; al-Sarakhsı, supra note 160, at 233; S.adr al-Sharı‘ah, supra

note 161, at 751.166Al-Sarakhsı, supra note 160, at 333; S.adr al-Sharı‘ah, supra note

161, at 751.167See supra section C. at page 85.168S.adr al-Sharı‘ah, supra note 161, at 755.


has attained puberty, he does not yet possess ‘aql, capacity for ex-ecution cannot be assigned to such a person.169 This is the viewof the majority of the jurists.

How does a child, then, exercise his rights? He exerciseshis rights through the institutions of wilayah (authority: fa-ther/grandfather having authority over the child) and wis. ayah(guardian appointed by the walı). In the absence of the walı orthe was. ı, the court may appoint a guardian. This is based on theprinciple that “the sult.an (ruler) is the guardian of one who doesnot have a guardian.” In other words, ultimate guardianship restswith the ruler, or the state if you like. Thus, where the state orthe ultimate guardian of the child feels that the walı or the was. ıis not taking care of the child as required by the provisions of thesharı‘ah, the state has the right to protect the interests of thechild. In other words, the state has the right to lay down rules forthe treatment of children and the management of their affairs inthe light of Islamic law. On the other hand, the primary author-ity over the child is that of the parent, and it is for the parentto decide what is best for the child with the condition that hisactions do not violate the norms of Islam. State intervention is,therefore, possible only where the norms of the sharı‘ah are beingviolated by the parent/guardian.

The idea, then, that children do not have rights is not com-patible with Islamic law. Children do have rights, but these rightsare exercised through the parents or guardians, as the case maybe, and in certain cases in the supervision of guardians. Thisidea is also compatible with the Universal Declaration of HumanRights,170 the United Nations Declaration of the Rights of theChild171 and the Convention on the Rights of the Child.172

169This is the meaning of the statement in the Report Submitted by Iran.See supra note 119 and accompanying text.

170Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N.Doc. A/810 at 71 (1948), Adopted on December 10, 1948 by the GeneralAssembly of the United Nations (without dissent).

171See supra note 26.172See Convention supra note 4.


C. Who is a Child?

The meaning of “child” is determined in terms of ages at whicha child has the “right” to undertake certain acts or where he willbe held fully accountable for his acts. In all these cases, it is thesecond type of capacity or the capacity of execution we are talkingabout. As this type of capacity is dependent on mental maturityand the ability to fully comprehend the meaning of rules, thecapacity is divided into three kinds on the basis of the type ofliability associated with an act:

1. Capacity for the khit.ab jina’ı or legal capacity for criminalliability. It is based on the ability to comprehend the khit.abjina’ı, i.e., the communication pertaining to criminal acts.

2. Capacity for the khit.ab of ‘ibadat or legal capacity for‘ibadat. It is based on the ability to understand the khit.abof ‘ibadat, i.e., the communication from the Lawgiver per-taining to acts of worship.

3. Capacity for the khit.ab of mu‘amalat or legal capacity fortransactions. It is based on the ability to understand thekhit.ab of mu‘amalat, i.e., the communication from the Law-giver pertaining to the mu‘amalat.

Two of these are civil and criminal liability, while the thirdis an addition because of religious law. The reason for separatingthe capacity for execution into these three types is to indicatethat a person may, for example, be in possession of the capacityfor transactions, but not the capacity for punishments or he maynot have criminal liability, but may be liable for the associatedcivil liability. To put it differently, all three kinds of capacity maybe found in the person who is sane and a major, but one or moreof these may be lacking in other persons.

(1) Criminal Liability.—A child, as long as he is a child, thatis, as long as he has not attained puberty, has no criminal lia-bility. Criminal liability in Islamic law, prior to the attainmentof puberty, has nothing to do with mental maturity.173 Thus, he

173The Report Submitted by Iran to the Committee on the Rights of theChild has upheld this position. See supra note 115 and accompanying text.


cannot be accused of a crime or be subjected to criminal proceed-ings. Disciplining may be undertaken by the guardian or by thestate or even by a teacher, but in a manner that is similar to thatof a parent observing the norms of the sharı‘ah.

Once puberty has been attained, the child is no longer a child,and is a full adult, even if he is below the age of 15 years. Inpractice, however, puberty is difficult to prove primarily becausethis is done after the fact, that is, at the time of trial the defencecan always deny the child had attained puberty at the time ofcommission of the crime.174 Accordingly, Muslim jurists fixed agesfor the presumption of puberty. In the absence of proof of puberty,the majority of the jurists determined the age to be 15 years forboth girls and boys. This is the view followed in Pakistan’s h. ududlaws. It is also the view upheld by the report submitted by Iranto the Committee on the rights of the child.175 According to AbuH. anıfah, the founder of the H. anafı school, the age of presumptionof puberty is 18 for boys and 17 for girls. These ages are basedprimarily on rational arguments. It is strongly recommended thatAbu H. anıfah’s view be adopted by all Muslim countries so thatthe age of the child for purposes of criminal liability is fixed at 18for both girls and boys.176

The question may be raised as to why does the Pakistan PenalCode,177 then, say the following:

§ 82: Act of child under seven years of age.—Nothing isan offence which is done by a child under seven years ofage.

§ 83: Act of child above seven and under twelve of imma-ture understanding.—Nothing is an offence which is done

174There are other strange problems too. See, e.g., Waseem Ahmad Shah,Boy on Death Row as Age not Recorded Dawn, October 28, 2002, at 22, col.4 (stating that the “trial Court had not recorded his [the child’s] age at thetime of framing of charge against him [and] the Court had not mentionedhis age in the judgement whereby he was sentenced to death”). If this canhappen, the issue of puberty can pose greater problems and it is safer to fixthe age at 18.

175See supra note 115 and accompanying text.176Egypt and Saudi Arabia have done this already, although we could not

determine their reasoning, based on Islamic law, for doing so.177Pakistan Penal Code (1860), §§82–83.


by a child above seven years of age and under twelve, whohas not attained sufficient maturity of understanding tojudge of the nature and consequences of his conduct onthat occasion.178

This should also explain why children have been awarded thedeath penalty in Pakistan. These rules are the legacy of the BritishRaj and their brutal ways followed in the factories established atSurat and other places reminding one of “Mutiny on the Bounty.”The way whipping has been carried out in the days of a formerregime, the basis for which may be found in High Court Rules, isalso a gift from the British. It is well known that in Islamic law,stripes or whipping is merely symbolic. The person undertakingit is required not to raise his arm above his shoulder. In sometraditions from the Prophet (peace be on him), it was carried outwith a palm stick (which is flat), or with sandals or even with asheet of cloth that is swung around the shoulders by men. Thus, itis milder than caning that was carried out in British schools. TheWhipping Act, 1996 has now altered the position on whippingfor children. In any case, it is recommended that all the penalprovisions in Pakistan be altered and brought in line with thedictates of the sharı‘ah, thus, raising the age of criminal liabilityto 18 years.

(2) Civil Liability.—As regards civil liability, a child is heldfully liable for destroying another’s property or even for injuringsomeone. In all these cases, he is liable for the compensation de-termined by the sharı‘ah. The guardian pays this from the child’sproperty, if any, or it is paid through the ‘aqilah, which is yet tobe defined for the present times in Muslim countries.179 It is alsoto be noted that even when compensation is being awarded underqis. as. and diyat provisions, the child is not criminally liable norshould he be subjected to criminal proceedings.

We would request the Council of Islamic Ideology throughthese pages to take notice of these provisions and issue clear rul-ings that would determine the meaning of “child” for purposes ofcriminal as well as civil liability.

178Id. (emphasis added).179Possibly, some valid form of insurance can act as a substitute.


In our view, the position taken by Islamic law on the meaningof “child,” and the ages for various kinds of liability, goes muchfurther than the Convention of the Rights of the Child, whichis willing to acknowledge criminal liability for a child where thelaws of the States parties do so. The Convention, therefore, laysdown detailed rules for children deprived of their liberty due tocriminal or other proceedings. Islamic law does not acknowledgesuch a state for a child, because it does not assign any criminalliability to a child. Yes, Muslim states are not abiding by theprovisions of Islamic law and their laws will need amendment toconform not only with Islamic law, but also with the Convention.

D. The Best Interests of the Child

Islamic law always takes the best interest of the child into consid-eration. The two institutions of wilayah (parent’s authority) andwis. ayah (guardianship) are based on the principle of “affection”for the child. Such an affection is only possible in the case of par-ents, grandparents and those who are appointed as guardians bythem. In addition to this, in the cases of divorce and child custody,it is always the best interest of the child that is supreme. Theseprovisions are well known, and here we would like to focus on theright of the child to undertake transactions in his own wealth.

Western law does not permit such transactions, except in thecases of “necessaries” and a contract with a child may be set aside.In Islamic law, the H. anafıs acknowledge a deficient capacity forexecution for purposes of some transactions for a person who hasattained a degree of discretion, even if his mental faculties are notyet fully developed. Thus, a minor (s.abı) who possesses discretion,or exhibits “mental maturity” may be assigned such a capacity,for the khit.ab of mu‘amalat.

Again, there is no way here of determining whether the minorhas actually attained discretion. The H. anafı jurists have, there-fore, fixed the minimum age of seven years for assigning such acapacity; anyone over seven years of age who has not yet attainedpuberty may be assigned such a capacity, but the law makes thisdependent on the guardian’s will and discretion, who is to ratifya transaction undertaken by a child if it was not harmful for him.We should repeat here that this type of “mental maturity” is only


intended for commercial transactions and cannot be extended byanalogy or otherwise to the criminal field.

Muslim jurists divide legal capacity into three types: complete,deficient and imperfect. The terms kamilah, naqis.ah and qas. irahare used to distinguish between such capacities.180 Complete ca-pacity for acquisition is found in a human being after his birth.This makes him eligible for the acquisition of all kinds of rightsand obligations. Complete capacity for execution is established fora human being when he or she attains full mental development,and acquires the ability to discriminate. This stage is associatedwith the external standard of puberty.181 On attaining complete

180S.adr al-Sharı‘ah, supra note 161, at 755; al-Bukharı, supra note160, at 335.

181The physical signs indicating the attainment of puberty are the com-mencement of ejaculation in a male and menstruation in a female. In theabsence of these signs, puberty is presumed at the age of fifteen in bothmales and females according to the majority of the jurists, and at the age ofeighteen for males and seventeen for females according to Abu H. anıfah. Thishas already been stated. Attaining bulugh (puberty) alone is not sufficient,however. For a person to acquire complete capacity for execution, in additionto puberty, the possession of rushd (discrimination; maturity of actions) isstipulated as well. The dalıl, or legal evidence, for this is the verse of theQur’an: “Make trial of orphans until they reach the age of marriage; then ifye find sound judgement in them, release their property to them; but con-sume it not wastefully, nor in haste against their growing up.” [Qur’an 4 :6] This verse lays down clearly that there are two conditions that must befulfilled before the wealth of orphans can be handed over to them. These arebulugh al-nikah. (age of marriage) and rushd. The term rushd, according tothe majority, signifies the handling of financial matters in accordance withthe dictates of reason. The rashıd is a person who can identify avenues ofprofit as well as loss, and act accordingly to preserve his wealth. Rushd is theopposite of safah (foolishness, rashness), which implies waste and prodigal-ity. Shafi‘ı jurists define rushd as maturity of actions in matters of finance aswell as of dın. In their view, a person who has attained puberty and is adeptin dealing with financial matters cannot be called rashıd, unless he obeysthe ah. kam of the sharı‘ah in matters of ‘ibadat as well. A person, then, iseligible for taking over his wealth if he is both a baligh and a rashıd. This isthe general view. Abu H. anıfah, however, maintains that a person who attainsthe age of twenty-five years, must be delivered his property irrespective ofhis attaining rushd. In addition to this, he maintains that if a person attainsbulugh and rushd and is given his property, but subsequently loses his rushd,while yet under twenty-five, he cannot be subjected to interdiction (h. ajr).Abu H. anıfah appears to be giving preference to life and freedom of the in-dividual over his wealth in these cases. This view appears to be in line with


capacity, an individual comes within the purview of all the differ-ent kinds of khit.ab (communication from the Lawgiver implyingliability). He, therefore, becomes liable to punishments because ofthe khit.ab jina’ı being directed towards him, just as he becomesliable because of the khit.ab of transactions and ibadat.

Islamic law recognises the need of the child to deal in his ownwealth even before he attains majority. Keeping him deprived en-tirely of his wealth is not considered to be in the best interestsof the child. Accordingly, any child who has attained a degree ofmaturity of mind may be permitted to undertake those transac-tions that are beneficial for him. For all other transactions, his actwill be subject to ratification by the guardian. These provisionsare deemed essential for the growth of the potential of the childand for the preservation and growth of his property as well, whichmay go waste due to neglect while waiting for the child to growup.

E. Non-Discrimination and Islamic Law

This is, perhaps, the most problematic area out of all the articlesof the Convention. There is no separation between the churchand state in Islam, and this is true for certain Muslim countriesin the modern world. There are others that are declared secularstates, but they cannot avoid the main provisions of Islamic law.Accordingly, in certain cases, like education and some other areas,there may be occasions where a Muslim child and a child fromminority communities may be made to feel different. There isno escape from such situations, unless Muslim countries adopt“establishment” and “religion” clauses in their constitutions, asis the case with the United States Constitution. This would beagainst the purposes of the sharı‘ah.

F. Adoption

We believe that the objections raised by Muslim countries withrespect to adoption are unfounded. The Convention on the Rights

the priorities determined within the maqas. id al-sharı‘ah. The majority of thejurists (jumhur) subject a person to interdiction if he has not attained rushdor even when he loses it subsequently, irrespective of his age.


of the Child recognises the rules of adoption that exist in Islamiclaw. Article 20(3) specifically mentions the institution of kafalah,which may be adopted in place of adoption.182 Article 21 impliesthat there are certain states that do not accept adoption as avalid option.183 Further, adoption in Muslim countries in the caseof minorities is valid.

We are, therefore, surprised as to why Muslim states in theirreservations and later in their reports have highlighted this issue.In our view, this is a non-issue, because the Convention has al-ready recognised the Islamic position on adoption. Several statesin their reservations have taken the position that the Conventionwill be interpreted in the light of the sharı‘ah. Thereafter, mostof these states narrowed down their broad reservation to the issueof adoption, a non-issue. One wonders why?

V. Conclusion

The Convention on the Rights of the Child (CRC) is, withoutdoubt, a historic document. It is part of an integrated system ofrights designed and implemented by the United Nations through avariety of instruments. The implementation of the principles andarticles of the Convention can go a long way in ameliorating thecondition of children, especailly in underdeveloped countries. Ina country like Pakistan, it can provide a foundation for the muchneeded and long-awaited legal reform that can radically alter theway children are treated by the law and nourished by society.A number of steps have already been taken in Pakistan in thisdirection.

The acceptance, signing and ratification of the Conventiondoes not mean, however, that all the articles have to be acceptedwithout question as finally true. The concerns of the critics ofthe Convention, like the concerns of critics in the United States,must be given due attention. The interpretation of the Conven-tion in the light of the principles and norms of the sharı‘ah doesnot in any way work against the objectives of the instrument. In

182See Convention, supra note 4 (see also documents section in this issue).183Id.


fact, many of the provisions of the sharı‘ah may facilitate the im-plementation of the articles of the Convention and are likely togo beyond what the Convention requires. If some of the articlesof the Convention happen to clash with the fundamental prin-ciples of the sharı‘ah, such articles of the Convention cannot beimplemented by Muslim countries. It is obvious that the UnitedNations through its instruments is not asking these countries toalter the fundamentals of their religion. This basic fact cannotbe altered irrespective of the reservations made by Muslim Statesparties at the time of signing or ratification of the Convention.This position cannot be altered even where a Muslim state haswithdrawn its reservation or has not expressed a reservation inthe first place.

In most Muslim countries, ratification of a convention doesnot make it self-executing and laws have to be made or amendedto give effect to the provisions of the relevant instrument. Thisis where the real rest lies for these countries. In a country likePakistan, the duty lies on the shoulders of the Council of IslamicIdeology and the Federal Shari‘at Court of Pakistan to ensure thatall new laws or amendments are compatible with the provisions ofthe sharı‘ah, reflect the teachings of Islam and take into accountthe views of families and critics of the CRC.

Accordingly, the study of the laws of Pakistan for purposesof the Convention on the Rights of the Child (as advertised onOctober 27, 2002) must be undertaken in collaboration with, andthe approval of, the Council of Islamic Ideology. The Council ofIslamic Ideology, it is recommended, must broaden its method-ology for the study of such laws and not restrict it, as discussedin this paper. In particular, the priorities among rights and theprocess of reconciliation of conflicting rights as depicted by themaqas. id al-sharı‘ah (purposes of Islamic law) must be kept in theforefront.

We believe that the provisions of Islamic law have much tocontribute to the area of human rights, especially to the areaof the rights of the child, as shown in the discussion of a fewprinciples in this paper. All we need is a positive attitude towards,and confidence in, our own legal heritage.

Islamic Law and the CRC

Documents

Transcript of Islamic Law and the CRC