Summary of the Speech of Dr. Kamal Aboulmagd of Egypt on Non-Discrimination , at the opening of the seminar on "Enriching the universality of human rights: Islamic perspectives on the Universal Declaration of Human Rights





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    We cannot merely juxtapose the list of Rights in UDHR and compare them to others or to other international and country declarations. We must contextualise within time. In contemporary cultural disputes, it is imperative to study disciplines of non-discrimination with brief historical references. 
    At present we live in a time of growing globalisation coupled with a claim of respect of diversity and pluralism. We live in a century where cultures and peoples are experiencing each other first hand for the first time .This has created a certain ammount of confusion, but has also lead to genuine dialogues which have extended far beyond Human Rights which is only a single component of cultures. 
Another important fact is the politicisation of human rights by some in order to serve their own economic, ideological and national interests. We need to be conscious of the negative impact of such an approach . 
     Certain questions have to be raised: 
1 - Do we really believe in cultural diversity and pluralism? Is there a need to accomodate real differences in the field of Human Rights? 
If the answer is affirmative, then we need to seek  consensus on minimum  standards for  Human Rights - this is the  only meaning of accepting cultural diversity. Such a global participation is the only acceptable basis for the acceptance of norms - giving them legitimacy. 
2 - Are we aware of the need to distinguish between substance and form in legal  matters and different cultural entities? 
We should not attempt to compare contemporary legal systems with those that evolved 1400 yrs ago. It is enough to find the origin or embryonic existence of a value. It is expected that coming generations  will develop and structure these systems and make them effective in real life, which explains many misunderstandings. 
3 - Are we aware of the discrepancy between announced principles and real or actual practices in the field of Human Rights? 
If  a  wide gap exists between Quran and Sunna, on the one hand,  and the actual state of affairs in some countries on the other hand, we should not allow this to confuse our understanding of the original values of Islam.. There is always a difference between what is declared and what is practiced. It is a universal phenomenon. For example, in the U.S.,  racial and other discrimination continued despite the  U.S. constitution's  5th ammendment which called for equality. The function of the UN is to try to fill this gap. 
4-Are we aware that contemporary  cultures are not self contained? 
Cultures are not rigid entities. All cultures without exception try to adapt principles to everchanging challenges.Everywhere, there is  soul searching and self criticism in attempts to adapt to everchanging conditions. This self  criticism  is very favorable to Human rights. This self adaptation provides the necessary flexibility  to promote and advance human rights in different cultures. 
5 - What about the complexity of non discrimination ? 
Even in just one culture, equality is never absolute or mechanical.  What is the margin or scope of possible departure from absolute equality, and what is the essence of equality that is inviolable? Equal treatment for equal people in equal situations. But what are equal situations? This is a subjective element usually decided by courts. 
In cross cultural  issues, one must not impose one's own cultural understanding of equality on others. One should try to attain a deeper understanding of the philosophy behind each culture. 
    This soul searching  is more vital and necessary today because of globalisation.  I refer to the book entitled "golden rules" by Amitai Itizioni and Hans Kung who called for "global ethics for a global society". 
A search for a kind of Universality is needed where common factors are recognised. We need to face our common challenges. A global effort is needed to engage in this dialogue. 

    My contention is that Islam presents no contradiction with the modern concept of human rights if one conceives of Islam in a proper way. I was greatly astonished some time ago when  I was asked to draft a contract for a multinational enterprise that would include an article for protection against ‘Shariah risk’. That was a business man making sure not to lose his money, but I felt sad on a cultural level . Another example is the 3rd edition of  Anne-Elizabeth Mayer’s book which will be out in 1999. She assumes throughout the book that pre-modern Shariah is the antithesis of Human Rights because of restrictions on women and non-Muslims. 
    Shariah is not another name for Islamic law. An american jurist whom I came to know, was surprised during his research on law in the Middle East to discover that Shariah  is a highly developed, sophisticated and structured human system. To assume that it is an impediment to Human Rights is a very  serious misunderstanding. Shariah is conducive to create the psychological, political and social atmosphere for promoting Human Rights even at the level of  implementation. 
Regarding  freedom of expression for example, three to four verses in the Quran  encourage people to express themselves by saying  what is right. We can't ask them to speak out their minds and  then punish them! The Quran states that  no scribe and no witness should incur harm or injury for expressing their views. 
 Non-discrimination regarding  Non-Muslims and Women 
    Islam was revealed in the tribal context of Saudi Arabia at a time of great  discrimination.Women were buried alive. Islam proclaimed that  women are  the equals of men, that they have rights as much as responsibilities. In Islam rights and responsiblities go hand in hand. 

    We must never be discouraged from exercising reasoning "Ijtihad" because this is only way of adapting to the needs of time and place without departing from Shariah. We must not follow the calls for the abdication of Shariah made by a number of moderrn day authors such as Abdulla An-Na’im and Bassam Taibi. While this might seem interesting on an intellectual level, it is not practical and is culturally impossible. 


    There is a misinterpretation of  the issue of Dhimma to somehow imply that non-muslims are considered as  2nd class citizens. Dhimma means pledge or obligation. It only refers to the legal instrument by which non-muslims acquire their status in a non-muslim community. The basis for this status is that " They should enjoy our rights and bear our responsibilities." 

    A real issue facing Islamic jurists is to accept declarations that emanate from outside Islam. However, the Prophet Muhammad accepted to implement a declaration of rights developed before Islam called " Elfodool pact" . As long as it was humane and did not contradict the principles of Islam it was accepted by the prophet.. Also Muhammad Abdu the muslim reformer, said that there is nothing worse than injustice.      A pact encouraging Human Rights is acceptable from the Islamic point of view. Non-Muslims who write of Islam and Human Rights should understand that Muslims are involved in a soul-searching process. They will be on the defensive if called to renounce their identity. On the other hand,  muslims should understand that globalisation is not an attempt to abdicate their identity. They must find practical ways of adapting their own culture to changing times and circumstances. 

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