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 . 69

A. Brief History of the Convention . . . . . . . . 71
B. The Drafting, Adoption and Ratification of the
Convention . . . . . . . . . . . . . . . . . 73
C. 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. 80
A. Global Parenthood: Attack on Parental Authority. 81
B. The CRC Violates the Fundamental Idea of Child
Protection . . . . . . . . . . . . . . . . . 83
C. Children Have no Rights . . . . . . . . . . . 85
D. Support for the United States . . . . . . . . . 85
E. Understanding the Issues . . . . . . . . . . . 87
III. Reports Submitted by Muslim Countries to
the Committee on the Rights of the Child . . 87
A. Report Submitted by Saudi Arabia . . . . . . . 88
B. Report Submitted by Egypt . . . . . . . . . . 91
C. Report Submitted by Iran . . . . . . . . . . . 96
D. Report Submitted by Pakistan . . . . . . . . . 98
∗
The Author is Chief Editor, Faculty of Sharı̄‘ah and Law, International
Islamic University.
65
66 ISLAMABAD LAW REVIEW [Vol. 1 : 1 & 2,
IV. Examining a Few Principles . . . . . . . . . 104

A. Methodology for Interpreting U. N. Conventions in
the Light of the Sharı̄‘ah . . . . . . . . . . . 104
B. Do Children Really Have Rights? . . . . . . . 109
C. Who is a Child?. . . . . . . . . . . . . . . 114
(1) Criminal Liability . . . . . . . . . . . . 114
(2) Civil Liability . . . . . . . . . . . . . . 116
D. The Best Interests of the Child . . . . . . . . 117
E. Non-Discrimination and Islamic Law. . . . . . 119
F. Adoption . . . . . . . . . . . . . . . . . . 119
V. Conclusion . . . . . . . . . . . . . . . . . . 120
Comparative lawyers identify three legal families in the present

day world. The two most widely distributed families are Romano-
Germanic civil law and the the Anglo-American common law. The
third family that is gradually gaining significance is Islamic law,
which is practised by one-fourth of humanity. This third family is
not being permitted to play a positive role in international law,
especially in the area of human rights. In fact, an impression has
been created that Islamic law is against human rights and is not
prepared to support them. Many non-governmental organisations
(NGOs) working in the area of human rights, in particular the
rights 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 levelled
freely against this law.1
Part of the problem lies with the attitude of the Muslims
towards their own legal system. As the bulk of this law is not
implemented, they discuss it in vague terms. Thus, they discuss
1
One such campaign is against the h.udūd laws implemented in Pakistan.
These laws, it has to be admitted, were implemented in haste by a former
military regime. The solution is to examine these laws and remove the pro-
cedural or other defects that are creating problems. The NGOs, however, do
not wish to pursue this solution and it appears that their main goal is to
remove these laws from the statute book by claiming again and again that
these are “discriminatory laws.” It is suggested that the solution can only be
found within Islamic law not outside it. The major target is the the Offence
of 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 be

showing how these rights are actually enforced and made justicia-
ble within the Islamic legal system after reconciling the priorities
among conflicting rights. The maximum that they do is quote
some relevant verses and traditions, believing that the problems
of implementation will take care of themeselves.
The combined result of the above is that the positive aspects
of this legal system are being ignored completely. A legal system
that is followed by one-fourth of humanity (likely to become one-
half of humanity in fifty years or more) cannot be wished away nor
can it be ignored. If it is neglected without appropriate action, it
is likely to cause more problems than it will solve. It is, therefore,
time to focus on the positive contributions that the Islamic legal
system can, and will, make both inside the Muslim countries and
outside them.
One area in which such potential contribution may be appre-
ciated is that of the rights of the child. Perhaps, no legal system
in history has been as strong on the protection of the family and
children as Islamic law. In the recent “PrepComs” prior to the
2002 summit for the rights of the child, two kinds of views were
expressed about Islamic law in relation to these rights. The views
were reported in Newsletter No. 5 issued by the NGO Commit-
tee on UNICEF under the heading: Religious Groups Square off
Around the Outcome Document: Two Islamic Views at Odds.2
Part of the text is reproduced below:
Religious groups are engaged in a rugged skirmish over

whether the Outcome document undermines or reinforces
the 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 condemned
what she referred to as the document’s “deliberate negli-
gence” of abortion. “A foetus is a child,” she said.
2
For this and other informative newsletters see the UNICEF website, at
http://www.ngosatunicef.org/Special Session/newsletters/newsletter6.html
(last visited Mar. 15 2002).
Dr. Amani Faraj also said that the document reflected a

Western bias. “Why is the UN trying to impose (its) own
Western 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 the
Child. Mr. Ali pointed out that all Muslim countries ex-
cept Somalia have ratified the Convention on the Rights of
the Child (CRC).4 Mr. Ali agreed that the North African
caucus, which met Wednesday, had raised concerns about
the Outcome document. But, he said, these were about
environmental health, social and economic policies, child
labour as well as the effect of sanctions and conflict in the
Middle East. They were not about the family.
We feel that the first view is somewhat emotional and is not likely
to prove very constructive, while the second is not really a reply
to the first: ratification does not mean that Muslims, or Muslim
states, should forever remain silent on these issues now that they
have ratified the Convention. The Convention itself provides a
procedure 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 primary
document for the protection of children. Considerable criticism
of 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 criticism
levelled against the Convention under the heading “United States
and Criticism of the CRC.”6 The discussion of the criticism will
be followed by a description of the position taken by countries
with 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. You
are not alone. We’ll support your recommendations.’ ” Id.
4
Convention 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 into
force Sept. 2 1990 [hereinafter referred to as Convention].
5
See id. arts. 50 & 52.
6
See infra notes 59–83 and accompanying text.
or its provisions, while appreciating and accepting the principles

laid down in the Convention. For doing so we shall be relying es-
sentially on reports submitted by some of these countries,7 as is
required under the Convention. This description is also intended
to show that the follow up procedures have been designed in such
a way that, after ratification, the monitoring Committee formed
under the Convention continues to question the actions taken by
Muslim or other States. We shall go into a little more detail about
the position of Pakistan to elaborate this. The Convention is de-
tailed and complex and each of its provisions cannot be analysed
here in terms of Islamic law, however, we shall identify some of
the basic principles of this document to show that Islamic law
can make a significant contribution in this area, and should be
treated as a powerful tool for the implementation of these and
other rights. Finally, the conclusion will summarise the recom-
mendations we wish to make in the light of the findings in this
paper.
I. The Convention on the Rights of the Child

“To look into some aspects of the future, we do not need projections by
supercomputers. Much of the next millennium can be seen in how we care
for our children today. Tomorrow’s world may be influenced by science and
technology, 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 statement

about these rights may provide guidance for understanding the
implications of the CRC. Laura Barnitz, a programme associate
with YAP International, explains:
Rights are usually written as either descriptive or pre-

scriptive statements. Descriptive statements specify those
enforceable claims or legal safeguards an individual is
currently entitled to in a particular legal system. Prescrip-
tive statements are what rights, responsibilities and duties
should apply to a defined group of people. UN declarations
are prescriptive statements referring to what ought to be
7
We will examine the reports submitted by Saudi Arabia, Egypt, Iran and
Pakistan. See infra notes 84–140 and accompanying text.
the case for human beings, and the CRC is a prescriptive

statement specifically aimed at children.8
The “ought” in these prescriptive statements becomes a direc-

tive for the legislatures and courts of States parties. The existing
laws may be criticised as bad law in the light of these “oughts.”
She goes on to explain that the rights of the child include both
participation rights and protection rights:
• Participation rights are primarily social and political in

nature, and include, for example, the right to freedom of
religion, association, education, and expression.9
• Protective rights are rights to be protected from something.
These rights include protection from abusive or degrading
treatment, 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 some

states ratification will automatically turn the Convention into law
and rights become enforceable, that is, the Convention becomes
self-executing. In such states, ratification is undertaken with the
approval of the legislature.11 In other states, ratification is under-
taken through an executive act and the prescriptive norms of the
Convention have to be converted into a system of rules, that is,
into laws passed by the legislative authority before they can be
implemented.12 In United States, the approval of the Congress is
necessary, whereas in Pakistan it is an executive act and laws are
8
Laura Barnitz, International Treaty Advances the Rights of Children,
Youth Advocate Program International Resource Paper 1 (YAP International
at 4545 42nd St., NW, Suite 209, Washington, DC 20016; tel: 202/244-1986;
email: yapi@igc.org; web: www.yapi.org), http://www.yapi.org (last visited
Feb. 2002).
9
Id. These are personal rights that can become the bases of “claims” in
the narrower sense of the generic term “right.”
10
Id. Protective rights, in general, impose duties on States parties to un-
dertake and implement measures for the protection of various rights.
11
In such states, laws are brought into conformity with the ratified Con-
vention before it is ratified, and it is for this reason that ratification takes
longer.
12
The two approaches are sometimes explained in terms of the theories of
Dualism and Monism.
made later to meet the standard of the conventions ratified.13 A

failure on the part of a state to make, or amend, laws to meet the
standard of a convention is likely to draw criticism.14
A. Brief History of the Convention

The Convention15 is the most universally accepted human rights
instrument in history16 —it has been ratified by every country in
13
Ms. 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 an
executive act, which means that the provisions of a ratified convention are
implemented by law-making in the ratifying state). The practice in Pakistan
comes from Britain, and is elaborated by Lord Atkin in the following words:
“Within the British Empire, there is a well established rule that the making
of a Treaty is an executive Act, while the performance of obligations, if they
entail alteration of the existing domestic law, requires legislative action. The
stipulations of a Treaty do not, by virtue of Treaty alone, have the force of
law, 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 the
assent of Parliament to the necessary statute or statutes.” Attorney-General
for 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).
14
According to one writer, “International law does not therefore in any
way purport to govern the content of national law in the national field—nor
does it need to. It simply says—and this is all it needs to say—that certain
things are not valid according to international law, and that if a state in the
application of its domestic law acts contrary to international law in these
respects, it will commit a breach of its international obligations.” Gerald
Fitzmaurice, The General Principles of International Law Considered from
the Standpoint of the Rule of Law 92 Recueil des cours de l’Acadèmie
de droit international 70 (1957).
15
The CRC-Guide made available by UNICEF on its website states that
“[i]n general terms, any form of intentional agreement that formally creates
legal obligations for the parties thereto is considered a treaty. Treaties take
many 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,’ which
represents only a moral commitment and is not legally binding and a ‘conven-
tion,’ which, by definition, is legally binding.” UNICEF, The Convention on
the Rights of the Child, http://www.unicef.org/crc/introduction.html (last
visited March 10, 2002) [hereinafter referred to as CRC-Guide].
16
Id. The Convention has been ratified by 191 nations leaving behind
United 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 legally
binding international instrument to incorporate the full range of
human rights—civil and political rights as well as economic, social
and cultural rights. Two Optional Protocols, on the involvement
of children in armed conflict and on the sale of children, child
prostitution and child pornography, were adopted to strengthen
the provisions of the Convention in these areas. They entered
into force, respectively on 12 February and 18 January 2002.19
The Convention also operates as an umbrella for a set of three
rules concerning child justice; the UN Guidelines for the Admin-
istration of Juvenile Delinquency (the Riyadh Guidelines),20 the
UN Standard Minimum Rules for the Protection of Juvenile Jus-
tice (the Beijing Rules),21 and the UN Rules for the Protection of
Juveniles Deprived of their Liberty.22
The details about the Convention and the principles under-
lying its adoption can best be understood through two excellent
17
On February 16, 1995, the United States (President Clinton) signed
the Convention indicating the nation’s intent to consider ratification. The
next step is for the President and his advisors to draft a Statement of
Reservations, Understandings and Declarations which will be presented with
the Convention to the Senate for its “advice and consent.” Once Senate
consideration is completed in the affirmative, the President will ratify the
Convention. As of April 1, 1997, the Convention has not been presented to
the 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 reminded
daily that it is an agreement that works—and its utility can be seen in the
everyday use to which I have seen it increasingly being put by country after
country, in policy, in practice and in law.” Carol Bellamy, UNICEF Executive
Director, Statement to the UNICEF Executive Board, September 1998. See
CRC-Guide supra note 15.
19
Id.
20
United Nations Guidelines for the Prevention of Juvenile Delinquency,
Riyadh Guidelines, Res. 45/112, 14 December 1990, 68th plenary session.
21
United Nations Standard Minimum Rules for the Administration of Ju-
venile Justice, Beijing Rules, Res. 40/33, 29 November 1985, 96th plenary
session.
22
United Nations Rules for the Protection of Juveniles Deprived of Their
Liberty, 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-Guide 23 and Fact Sheet
No. 7.24 It is on these two documents that we rely for the brief
description on the Convention that follows.
B. The Drafting, Adoption and Ratification of the Convention

The Convention was adopted by the General Assembly of the
United Nations by its resolution 44/25 of 20 November 1989.25
The process had begun much earlier. A declaration on the rights of
the child was adopted by the League of Nations in 1924 and then
another declaration was adopted by the United Nations in 1959.26
In addition, provisions regarding children had been incorporated
in a number of human rights and humanitarian law treaties. These
declarations and provisions were not binding on the states, and a
need was felt for a comprehensive statement on children’s rights
that is binding under international law.27
In 1979, the International Year of the Child, a draft convention
was submitted by the Government of Poland taking into account
the worsening situation of children in the world.28 A working
group was set up by the United Nations Commission on Human
Rights for drafting the Convention.29 The core of the drafting
group was formed out of Government delegates, but representa-
tives of United Nations bodies and specialised agencies, including
the Office of the United Nations High Commissioner for Refugees
(UNHCR), the International Labour Organisation (ILO), the
United Nations Children’s Fund (UNICEF) and the World Health
23
The CRC-Guide, supra note 15, is a comprehensive document dealing
with almost all the aspects of the Convention on the Rights of the Child, and
in a language that is free of jargon.
24
http:/www.unhcr.ch/html/menu6/2/fs7.htm (last visited Mar. 2002)
[hereinafter referred to as Fact Sheet]
25
Id.; see also CRC-Guide: The Convention on the Rights of the Child,
supra note 15.
26
Declaration 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 on
documents in this issue.
27
Fact Sheet, supra, note 24.
28
Id.
29
Id.
Organisation (WHO), as well as a number of non-governmental

organisations, took part in the deliberations.30 The draft sub-
mitted by the Polish Government was extensively amended and
expanded.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 States
had legally endorsed the Convention, which thereby entered into
force.”32 On the initiative of UNICEF, Canada, Egypt, Mali, Mex-
ico, Pakistan and Sweden, the World Summit for Children was
held in New York encouraging all States to ratify the Conven-
tion.33 “By the end of 1990, 57 had done so, thereby becoming
States parties. In 1993, the World Conference on Human Rights
held at Vienna declared that the goal was universal ratification by
the end of 1995. By 31 December 1995, no less than 185 countries
had ratified the Convention. This number is unprecedented in the
field of human rights.”34
C. The Basic Principles and Features of the CRC

The section on the basic principles and features of the Convention
has been excerpted entirely from the excellent Fact Sheet No. 7
of the United Nations. In addition to this useful, information is
to be found in the Unicef-CRC Guide.
(1) Universal Principles.—It is claimed that the CRC has
the same meaning for people in all parts of the world.35 These
principles provide common standards that take into account the
30
Id.
31
Id.
32
Id.
33
Id. 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 was
held in 2002.
34
Id.
35
Id. 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 is
that of the “Cultural Relativists.” The basic idea is that the principles are
universally “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 to
implement the rights common to all.36 Four general principles
govern and guide the interpretation and implementation of the
Convention. The four principles are formulated, in particular, in
articles 2, 3, 6 and 12.37
• Non-discrimination (art. 2): States parties must ensure that all

children within their jurisdiction enjoy their rights. No child
should suffer discrimination. This applies to every child, “irre-
spective of the child’s or his or her parent’s or legal guardian’s
race, colour, sex, language, religion, political or other opinion,
national, ethnic or social origin, property, disability, birth or
other status.”38
The essential message is equality of opportunity. Girls should
be given the same opportunities as boys. Refugee children, chil-
dren of foreign origin, children of indigenous or minority groups
should have the same rights as all others. Children with disabil-
ities should be given the same opportunity to enjoy an adequate
standard of living.39
• Best interests of the child (art. 3): When the authorities of a

State take decisions which affect children, the best interests of
children 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
36
This statement favours the position of the Cultural Relativists, but it
does not acknowledge religion as a basis, unless the word “cultural” can be
interpreted in a wider sense to include religion.
37
Id. For the actual text of these articles, see the documents section in this
issue.
38
Id. See also infra note 135 and accompanying text for a statement of a
learned member of the Committee on the Rights of the Child with respect
to the objectives of the Convention, discrimination and Islam.
39
Fact Sheet, supra note 24.
40
Id. 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 in
a broad sense so as to include not only physical health, but also
mental, emotional, cognitive, social and cultural development.41
• The views of the child (art 12): Children should be free to have
opinions in all matters affecting them, and those views should
be given due weight “in accordance with the age and maturity
of the child.” The underlying idea is that children have the right
to be heard and to have their views taken seriously, including in
any judicial or administrative proceedings affecting them.42
(2) Highlights of the Convention.—Fact Sheet No. 7 lists the
highlights of the Convention as follows:
• Every child has the inherent right to life, and States shall ensure
to 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 by
competent authorities for their well-being.
• States shall facilitate reunification of families by permitting
travel into, or out of, their territories.
• Parents have the primary responsibility for a child’s upbringing,
but States shall provide them with appropriate assistance and
develop child-care institutions.43
• States shall protect children from physical or mental harm and
neglect, including sexual abuse or exploitation.
• States shall provide parentless children with suitable alternative
care. The adoption process shall be carefully regulated and in-
ternational agreements should be sought to provide safeguards
and assure legal validity if and when adoptive parents intend to
move a child from his or her country of birth.44
41
42
Id. This article presents some problems, especially due to the words “to
have opinions on all matters.”
43
The “responsibilities” of parents are emphasised here without reference
to the rights of parents in the context of their family values and religion.
44
The CRC does recognise that adoption is not permitted in Islamic law.
The system of kafālah 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 of
health. States shall ensure that health care is provided to all
children, placing emphasis on preventive measures, health edu-
cation and reduction of infant mortality.
• Primary education shall be free and compulsory. Discipline in
schools shall respect the child’s dignity. Education should pre-
pare the child for life in a spirit of understanding, peace and
tolerance.45
• Children shall have time to rest and play and equal opportunities
for cultural and artistic activities.
• States shall protect children from economic exploitation and
from work that may interfere with their education or be harmful
to their health or well-being.46
• States shall protect children from the illegal use of drugs and
involvement 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 imposed
for crimes committed before the age of 18.47
• Children in detention shall be separated from adults; they must
not be tortured or suffer cruel or degrading treatment.
• No child under 15 shall take any part in hostilities; children
exposed 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 recovery
and rehabilitation.
45
The words “spirit of understanding, peace and tolerance” need special
emphasis, especially when it is claimed that the sharı̄‘ah is somehow against
the principle of non-discrimination.
46
See infra note 168 and accompanying text.
47
See infra note 175 and accompanyiing text for the Islamic perspective.
• Children involved in infringements of the penal law shall be

treated in a way that promotes their sense of dignity and worth
and aims at reintegrating them into society.
• States shall make the rights set out in the Convention widely
known 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 every
child under the age of 18 years and requires that these rights be
implemented in the light of the Convention’s guiding principles.49
(3) Monitoring.—Articles 42–45 cover the obligation of States
parties to disseminate the Convention’s principles and provisions
to adults and children; the implementation of the Convention
and monitoring of progress towards the realization of child rights
through States parties’ obligations; and the reporting responsi-
bilities of States parties.50 The final clauses (articles 46-54) cover
the processes of accession and ratification by States parties; the
Convention’s entry into force; and the depositary function of the
Secretary-General of the United Nations.51
The Committee on the Rights of the Child, the monitoring
body of the CRC, was first elected in 1991 (six women and four
men). The Committee holds three sessions a year, each of four
weeks’ duration. The last week is always devoted to preparation
for the next session. The Committee is serviced by the United
Nations Centre for Human Rights in Geneva. 52 “Under article 44
of the Convention, States parties accept the duty to submit regu-
lar reports to the Committee on the steps they have taken to put
the Convention into effect and on progress in the enjoyment of
children’s rights in their territories. First implementation reports
are to be submitted within two years of ratification of or acces-
sion to the Convention and thereafter every five years. The first
initial reports were due in September 1992. More than 70 State
48
49
CRC-Guide, supra note 15.
50
Id.
51
Id.
52
Id.
reports had reached the Committee by December 1995.”53 The

Committee has adopted guidelines for the submission of reports
and there is a detailed working procedure for their examination.54
A working group of the Committee meets prior to each of
its sessions for a preliminary examination of reports. In addition
to State reports, the working group considers information pro-
vided by other human rights treaty bodies, especially through
mechanisms established by the Commission on Human Rights to
investigate human rights problems in specific countries or on the-
matic issues.55 The end result of the pre-sessional working group’s
discussion on a State report is a “list of issues.”56 This list, which
gives a preliminary indication of the issues which the Committee
considers to be priorities for discussion, is sent to the Govern-
ment concerned with an invitation to participate in a forthcoming
plenary session of the Committee at which its report will be con-
sidered. The Government is invited to respond to the issues in
writing, before the session.57
Discussions with States parties are concrete and detailed, and
tend to deal with both results and processes. Although all Com-
mittee members usually take part in the deliberations, in most
cases 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 to
be widely publicised in the State party and to serve as the ba-
sis for a national debate on how to improve the enforcement of
the provisions of the Convention.58 They therefore constitute an
53
Id. Pakistan felt that the Committee is overburdened and is lagging be-
hind in its schedule. See infra note 140.
54
Id. The guidelines are available on UN websites, including proposals for
improving the procedure.
55
Id.
56
The list of issues for each country and the subsequent proceedings for
consideration of reports are available on UN websites.
57
Id.
58
It could not be determined, at least with respect to Muslim countries,
whether they publish and distribute their reports that are submitted to the
Committee on the Rights of the Child.
essential document: governments are expected to implement the

recommendations contained therein.
The whole process of discussion of States parties’ reports is
designed to promote public debate. The Committee also requires
that 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 is
to define problems and discuss what corrective measures should
be taken. The Committee can also transmit requests for assistance
to the specialised United Nations bodies and agencies, including
UNHCR, 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.” This
statement refers to the issues that have been taken up by various
groups in the United States to level criticism against the CRC.
The CRC-Guide says:
The Convention on the Rights of the Child reflects a new

vision of the child. Children are neither the property of
their parents nor are they helpless objects of charity. They
are human beings and are the subject of their own rights.
The Convention offers a vision of the child as an individual
and as a member of a family and community, with rights
and responsibilities appropriate to his or her age and stage
of development. By recognising children’s rights in this
way, the Convention firmly sets the focus on the whole
child.59
For purposes of describing the main arguments offered by

those who criticise the CRC in the United States, we shall rely
mainly on an excellent article by Susan Kilbourne and thereafter
59
CRC-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 for
America (CWFA).
A. Global Parenthood: Attack on Parental Authority

It has been stated above that the United States has not ratified
the Convention on the Rights of the Child as yet. This appears to
be surprising for some, because the U.S. State Department under
the Reagan and Bush administrations was active in the draft-
ing process. In fact, under U.S. pressure several articles based on
American law were included in the Convention. In addition, the
U.S. Ambassador to the United Nations did not object during dis-
cussion of the Convention by the General Assembly, and President
Bush attended the United Nations World Summit for Children
in 1990.60 Thereafter, a well-organised legislative and grassroots
campaign was launched to support ratification of the Conven-
tion.61 At the same time as public support for ratification of the
60
See http://www.geocities.com/r traer/Ratification/ushr.fight.child.htm
(relying on an informative article by Susan Kilbourne published in the Fall
of 1996).
61
Id. Senator Bradley and Senator Lugar co-chaired a National Advisory
Council on the Rights of the Child. Letters were sent to President Bush
and members of Congress, nine governors and states issued proclamations or
passed resolutions supporting the Convention, and House and Senate res-
olutions were approved in the 101st Congress with eighty-five and sixty
cosponsors respectively. Id. In 1993 the Senate passed a resolution urging
the President to transmit the treaty to the Senate for advice and consent.
Id. Despite these efforts and the personal support of the First Lady, Hillary
Rodham Clinton, the United States did not even sign the Convention until
early 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, Madelaine
Albright, rather than by the President. Two months later Ambassador Al-
bright announced in a speech that the administration had decided to seek
ratification of the Convention on the Rights of the Child. Id. The beginning
of 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 no
progress 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 mounting
a vigorous campaign in opposition to ratification. This coalition
included 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 grassroots
campaign of these NGOs generated a flood of mail to Senators
and Representatives. Senator Jesse Helms claimed to have re-
ceived 5,000 letters opposing the Convention and only a single
letter favouring it. On June 14, 1995 he introduced a resolution
“expressing the sense of the Senate . . . that, because the United
Nations Convention on the Rights of the Child could undermine
the 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 the
CRC undermines families and the authority of parents and pro-
motes some kind of “global parenthood” considering children the
property of the United Nations rather than the parents. Some
even state that, contrary to the claims of the CRC, children have
no rights and it is the parents who have duties. These points are
best explained in the arguments advanced by the National As-
sociation for Home Education. Insofar as the Convention poses
threats 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 “United
Nations Convention on the Rights of the Child is incompat-
ible with the God-given right and responsibility of parents
to raise their children.”64
62
In the US, such esteemed organisations as the Albert Schweitzer Foun-
dation, the American Bar Association, the American Academy of Child
and Adolescent Psychiatry, the American Federation of Teachers, the
American Psychological Association, Amnesty International, Child Welfare
League of America, the International Federation of Social Workers, the
National 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.
63
http://www.geocities.com/r traer/Ratification/ushr.fight.child.htm
64
Id.
2. The institutionalisation of rebellion by vesting children with

various fundamental rights which advance notions of the
child’s autonomy and freedom from parental guidance. The
notion of “children’s rights” raises difficult questions about
the relationship between children and their parents that
even trouble some feminists. Instead of the traditional con-
cept that children are “minors” in need of protection by
parents, the U.N. treaty embraces the radical view that chil-
dren are autonomous agents capable, across the board, of
making 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 the
statutory rape laws that prohibit adults from engaging in
sexual relations with minors.65
3. The establishment of bureaucracies and institutions of a na-

tional and international nature designed to promote “the
ideas proclaimed in the Charter of the United Nations” and
to 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 a
need for legal intervention in some countries to ensure the welfare
of children, but argued that such intervention was both unneces-
sary in the United States and undermined the rights of parents
as well. “To be charitable, we may assume that this treaty was
drafted to get at practices such as sexual and industrial child slav-
ery in the Third World. However, great danger lies in applying
it to nations where these abuses are already illegal, but where
65
Kilbourne notes that opponents of the Convention on the Rights of the
Child object particularly to the following articles: Article 13, concerning free-
dom of expression; Article 14, protecting freedom of thought, conscience, and
religion; Article 15, asserting freedom of association and peaceful assembly;
Article 16, affirming the right of privacy; Article 17, providing for access to
information; and Article 18, recognising the responsibility of both parents to
care for the child. The argument is that these civil rights are adult rights,
which are not properly granted to children. Id.
66
Id.
violations of parents’ rights are multiplying.”67 In other words,

the CRC has gone beyond the original idea behind it; namely, the
curbing of “sexual and industrial child slavery.”
Those who support the Convention concede that there are
areas 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 does
affirm the right to family planning education and services under
Article 24(2)(f) as well as the right to privacy under Article 16,
which critics suggest could be used to justify abortion. Due to
the language in Article 29(1)(b) asserting that school curricula
should include attention to the “principles enshrined in the Char-
ter of the United Nations,”68 opponents of the Convention are
concerned that children may be required to study humanist or
secular materials contrary to the beliefs of their parents.69
The issue of discipline concerns the right of parents to spank
their children and measures used by schools to control children.
Article 19(1) of the Convention requires that States parties take
all appropriate measures to protect the child from abuse “while
in the care of parents(s), legal guardian(s) or any other person
who has the care of the child.” Article 28 of the Convention says
that States parties should “take all appropriate measures to en-
sure that school discipline is administered in a manner consistent
with the child’s human dignity and in conformity with the present
Convention.” The Convention does not explicitly prohibit corpo-
ral punishment, but the Committee on the Rights of the Child has
encouraged States parties to ban corporal punishment in schools
and within the family.70
67
Id.
68
U. N. Charter pmbl. In Pakistan, such information is now being dis-
seminated in schools.
69
Id. In response to the latter concern the American Bar Association Work-
ing Group on the Convention recommended that Senate ratification include
an understanding that Article 29 does not require the regulation of any “pri-
vate educational institutions beyond that which is permitted by the First
Amendment.” Id.
70
Id.
C. Children Have no Rights

Concerned Women for America believe that at the heart of much
of the conflict is an ideological approach to family and children’s
issues, enunciated particularly by the current U.S. administration.
According to its views, children do not need rights, they are not
subjects of rights. On the contrary, children’s rights undermine
parents’ 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” of
children.71
D. Support for the United States

At the PrepComs, mentioned above, the U.S. received support
from some Islamic countries. On the issue of the reproductive
rights of adolescents, some Muslim countries and especially two
old enemies—Iran and Libya—have been U.S. supporters.72 Ac-
cording to them, adolescents should not even have the right to
information on sexuality.73 On the issue of children in armed con-
flict, Israel is the U.S. ally, against Arab countries that would like
more protection of children living under military occupation.74
The juvenile justice debates centre on capital punishment and
life imprisonment for those under the age of 18, which is defended
by the U.S.75 Here, Iran is the strongest ally, opposing the Euro-
pean Union (EU) and Latin American countries.76 On the issue
of child labour, the U.S. position undermines the ILO conven-
tions and faces strong opposition from the EU.77 It remains to be
seen how far the U.S. administration will go with this diplomatic
manoeuvring in order to satisfy its most conservative supporters.
71
http://www.maryknoll.org/global/newsnotes/xnewsnotes/newsnote11 01/
un child01.htm (last visited Mar. 2002).
72
Id.
73
Id.
74
Id.
75
Id.
76
Id. 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.
77
http://www.maryknoll.org/global/newsnotes/xnewsnotes/newsnote11 01/
un child01.htm (last visited Mar. 2002).
In the process, Europeans have become the strongest ideological

opponents of the U.S., followed by the Latin Americans. African
and Asian representatives are under pressure from either their
devastating economic situations or their own heavily patriarchal
structures, or both.78
Ambassador Southwick79 of the United States shocked some
at the PrepComs. “ ‘[I]t is misleading and inappropriate to use the
Convention as a litmus test to measure a nation’s commitment to
children,’ said Ambassador Southwick. The United States does
not ‘accept that it is the best or only framework for develop-
ing programs and policies to benefit children. . . . The text goes
too far when it asserts entitlements based on the economic, so-
cial and cultural rights contained in the Convention and other
instruments.’ ”80
This was interpreted as some kind of support for poor and
Third-World countries. As Catholic Family & Human Rights In-
stitute President Austin Ruse put it, “There’s a new sheriff in
town.” The U.S. delegation delivered a whopping statement to the
U.N. General Assembly on this first day of February—a breath of
fresh air for pro-family advocates. It was a “signal to the develop-
ing world,” said Ruse. “It strengthened small countries—put steel
in their spines. This sea change in favour of the long-disregarded
family 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 the
girl-child (aged 0 to 17), including access to contraceptions and
family planning. He also called for support for “families in various
forms.”82 Pakistan’s delegate, however, upheld the key role of the
family. “We believe the role of UNICEF is to help governments
at their request.”83
78
Id.
79
Michael Southwick, Deputy Assistant Secretary of State for International
Organisation Affairs.
80
A 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)
81
Id.
82
Id.
83
Id. (emphasis in the original).
E. Understanding the Issues

In our view, some of the issues raised by the United States and
groups within the United States are important and need to be
analysed from the Islamic perspective by Muslim countries and
Muslim scholars. It is not a question of “requesting help” alone.
A country by ratifying a convention takes on many international
obligations whether or not it has amended its laws, or adopted
new laws, in accordance with the requirements of a convention.
Reservations to such conventions must be made, and made in
specific terms. Such reservations should not be withdrawn until
the issues have been fully resolved. The religious, traditional and
cultural norms of a country, as long as they are based on justice,
are more important for it than “salvaging its diplomatic face,” as
the US is being asked to do.
III. Reports Submitted by Muslim Countries to the

Committee on the Rights of the Child
All countries that have ratified the Convention on the Rights of

the Child (CRC) are required to submit periodic reports to the
Committee of the Rights of the Child, recording and explaining
the progress they have made to meet the requirements of the
Convention.84 It is not our intention, nor is it possible in a short
paper, to examine all the reports, or even a few, submitted by
Muslim countries. Our purpose is to note the “Islamic content” in
a few of these reports. Accordingly, we shall examine the reports
of Saudi Arabia, Egypt, Iran and Pakistan for such content. In the
case of Pakistan, we would like to go into a little more detail, by
way of illustration, to shed light on the kind of questions that are
asked in response to such reports and the issues that are raised.
We may mention here that all these reports, along with the
record of subsequent proceedings, are available at UN websites.
As recorded above, the Convention requires transparency in these
proceedings and also wishes that the proceedings and the reports
be widely publicised in the concerned country.85
84
See supra note 54 and accompanying text.
85
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 as
15th October, 1998, but the date on the original English version
is 29th March, 2000, which could be the date of consideration by
the Committee on the Rights of the Child. The report consists of
a preface, eight parts and a conclusion (87 pages in all).
Saudi Arabia made a reservation to the Convention that all
the articles of the Convention will be interpreted in the light of
Islamic law, which is the same thing, in our view, as “all articles
conflicting with the provisions of Islamic law.” This reservation,
however, needs to be read in the light of paragraphs 27 and 28
of the report for a better understanding of the meaning of the
reservation:87
27. The Kingdom of Saudi Arabia agreed, under the terms

of Royal Decree No. M/7 of 11 September 1995, to accede
to the Convention on the Rights of the Child, adopted by
the 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 the
Kingdom pays considerable attention to child welfare and
aims to strengthen its international cooperation through
the United Nations and because the provisions set forth
in this Convention are in conformity with the teachings of
Islamic law concerning the need to fully respect the hu-
man rights of the child from the time when the child is
an embryo in his or her mother’s womb until he or she
reaches the age of majority.
28. In this respect, the Kingdom fully appreciates the
wisdom and flexibility with which this Convention was for-
mulated in order to encourage accession thereto by most
of the international community and, consequently, ensure
86
Committee on the Rights of the Child, Consideration of Reports Sub-
mitted by States Parties Under Article 44 of the Convention: Initial Report
of Saudi Arabia due in 1998, CRC/C/61/Add.2 29 March 2000
87
Id., paras 27 and 28 (emphasis added). The emphasised text is apparently
some kind of blanket approval for most of the provisions of the CRC. The
second para does note that the CRC is to be implemented in accordance with
the “capacities and the regulations of the States parties.”
that children all over the world enjoy the minimum rights
proclaimed in the Convention in a manner consistent with
the 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 mentions
human rights guaranteed by Islam. In this regard, the report
quotes a few verses of the Qur’ān and the last sermon of the
Prophet (peace be on him). Thereafter, the report focuses on all
matters relevant to the CRC as they are implemented in the King-
dom.
With respect to the age of the child, the report maintains (in
paras 31 to 37) that a child is someone who has attained the age of
18 years. The age of the child, up to 18 years, is divided into four
stages 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 the
shape of “discipline, guidance, and admonishment” or “placement
in a social surveillance centre” for children between 10–15 years of
age or “[i]f necessary, the child is placed in a social rehabilitation
centre,” for children between 15–18 years of age.88 According to
paragraph 32, “A juvenile is defined, in the penal laws set forth
in the Detention and Juvenile Homes Statues of 1975, as every
human being below the age of 18 years. The regulations stipulate
that a juvenile cannot be detained in a public prison but must be
delivered 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” (bulūgh) that dominates the issue of majority in Islamic
law. Further, the report does not indicate whether these are Is-
lamic provisions, and if so what source or argument has been relied
upon to arrive at these ages and rules. The issue is evaded in the
case of minimum age of marriage by referring to the “flexibility
in Islamic law [, which] helps to close loopholes and safeguard
the interests of both parties.”90 The age for military service is 18,
that for employment is 18 (but 13 with the consent of guardian),
88
See id. paras 31–37.
89
Id. para 32.
90
Id. 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 persons
below the age of majority to capital punishment.”92
In the case of non-discrimination, the report relies on a number
of verses, traditions and the principle of al-amr bi-al-ma‘rūf wa-
nahy ‘an al-munkar (justice) to say that Islamic law does not
permit any kind of discrimination. There is no discussion of any
specific form of discrimination.93
Under the principle of the “best interests of the child,” the
report again begins with the sharı̄‘ah and states that “[t]he
child’s interests are furthered by his or her parents’ free choice
of spouse.”94 This appears to be for the child, because paragraph
51 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 deal
with 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 kafālah (security) is
employed in place of adoption, which Islamic law does not per-
mit.99 “[C]hildren normally follow their father’s religion,”100 but
the 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 right
to choose the form of upbringing they want for their children in
a manner consistent with their interests and their future in the
91
Id. para 35.
92
Id. para 57.
93
See 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.”
94
First Report of Saudi Arabia, supra note 86, at para 48.
95
Id. para 49.
96
Id.
97
Id. para 17.
98
Id. para 55.
99
Id. para 60.
100
Id. para 120.
light of moral values and the regulations of Islamic law.’ ”101 The
issue 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 of
Islamic law wherever it deems them relevant. It is, perhaps, the
only report that refers to the Cairo Declaration on Human Rights
in Islam. One would like to know the legal reasoning behind cer-
tain rules upheld by Saudi law, out of academic curiosity, but that
is a separate issue.
B. Report Submitted by Egypt

The Government of Egypt made a reservation upon signing the
Convention and confirmed this reservation upon ratification. The
reservation is:
Since the Islamic Sharia is one of the fundamental sources
of legislation in Egyptian positive law and because the
Sharia, 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 system
of adoption existing in certain other bodies of positive law.
The Government of the Arab Republic of Egypt expresses
its reservation with respect to all the clauses and provi-
sions relating to adoption in the said Convention, and in
particular 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 was

narrowed down to adoption alone.
The report for Egypt is actually a second report.103 Despite
a thorough search on the Internet, we were unable to find the
first report either on the UN websites or other websites, except
101
Id.
102
See 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).
103
Committee on the Rights of the Child Consideration of Reports Submit-
ted by States Parties Under Article 44 of the Convention: Periodic Reports of
States 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. The

introduction explains that the first report was submitted in 1992
and material in that report has not been repeated in the second
report.105
The report is divided into an introduction and nine chapters,
which are further subdivided into various sections. The report
appears to be a translation of the original in French. It is very
well written. It does not, however, refer to Islam or Islamic law or
the sharı̄‘ah. Perhaps, the earlier 1992 report did, but we have no
way of verifying this. Nevertheless, it can be noticed that some of
the provisions of Egyptian law referred to are based upon Islamic
personal law.
Chapter III is devoted to the definition of child in Egyptian
law. Accordingly, the provisions have been summarised in five
paragraphs (46–50), and these are reproduced below:
46. According to article 2 of the 1996 Children’s Code, a

child is a person under the age of 18 years. Consequently
anyone who has not reached that age is subject to the
provisions of the Code. Civil, legal and commercial rights
have been brought into line with one another by the legis-
lature and accession thereto set at 21 years. Under article
57 of Act No. 119 of 1952, any person over 18 years of
104
Comite de los Derechos del Niño, Examen de los Informes Presentados
por los Estados Partes con Arreglo al Articulo 44 de la Convencion, Informes
iniciales que los Estados Partes deben presentar en 1992 (Adición): Egipto,
CRC/C/3/Add.6 11 de diciembre de 1992; The reference on the second report
for the first report is: For the initial report submitted by the Government of
Egypt, 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, paragraph
1, 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 considered
by the Committee in January 1993 at its third session. In pursuance of the
secretariat 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 matters
covered by the report, to referring back to the corresponding sections in its
initial 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 males
and 16 for females.
47. A child under 18 years of age is subject to the provi-
sions of Act No. 118 concerning parental authority over
the person and Act No. 119 concerning parental authority
over property; both instruments date from 1952.106 The
two texts govern the exercise of parental authority by the
father 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 the
implementation 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 decision
by the governor of the province concerned and with the
agreement of the Minister of Education, it is legal to give
children in the 12 to 14 age group training in seasonal em-
ployment provided that their physical growth, health and
regular attendance at school do not suffer thereby. The
minimum age for membership of a workers’ trade union is
15 years.
49. The right of direct exercise of political rights, namely,
the right to express an opinion during consultations or
the election of members of the People’s Assembly, is recog-
nised for every person of 18 years or older.107 Every person
aged 18 or over is eligible for compulsory military service.
50. A child under seven years of age is not regarded as
criminally responsible (article 94 of the Children’s Code).
No criminal penalty may be inflicted on a child in the 7
to 15 age group.108 Such children are subject to preven-
tive or rehabilitation measures (article 101 of the Code).
106
These two laws, we believe, pertain to wilāyah in Islamic law. We do not
have access to these laws.
107
This does not explain the right given by the CRC to children who are
under 18 years of age.
108
In other words, a child aged 7 to 15 may be held criminally liable even
though no penalty is awarded.
Reduced penalties are inflicted on children between ages

15 and 18, who are not liable to capital punishment or to
imprisonment with forced labour.109 In the case of a mi-
nor offence, a period of probation or placement in a social
institution 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 these
provisions are related to Islamic law, except the fact that a child
over 7 years of age may have criminal liability even though no
penalties are applied up to the age of 15 and after that, upto the
age of 18, no capital punishment or rigorous imprisonment is to
be awarded.110 The chances are that most other Arab states have
similar provisions.111
The reference to Chapter VI, section B, above is about certain
Islamic provisions of personal law. These are stated in paragraph
73 as follows:
73. A child who has not reached majority (age 21) is sub-
ject to the authority of the parents (wilāya) or guardians
109
Thus, a child over 15 is held criminally liable, and is awarded a reduced
penalty.
110
See Id., para 50 above.
111
The 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 years
and 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 held
criminally responsible unless he is sufficiently mature in awareness to judge
the nature or consequences of the act which he perpetrates.
The Penal Code makes no distinction between girls and boys in regard to
the age of criminal responsibility.” Committee on the Rights of the Child
Consideration of Reports Submitted by States Parties Under Article 44
of 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, is
similar to that of Pakistan, and is most probably the result of British influ-
ence.
(wis.āya). Act No. 18 of 1952, which states the condi-

tions under which parental authority over an individual
may be ended, defines the person exercising parental au-
thority (walı̄) as being the father, the grandfather, the
mother, the guardian (was.ı̄) or any person in whose care
the 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 general
provision applicable to all decisions and procedures affecting or
relating to children. It reads: ‘all decisions and procedures relat-
ing to children, by whomever initiated and enforced, must give
priority 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 96
says: “96. The information given in section E, subsections 7, 8, 9
and 10, chapter IV, of the initial report (CRC/C/3/Add.6, paras.
174-188) remains unchanged. The reader is requested to refer to
it.” This was the point on which Egypt had recorded its reser-
vation. We could not obtain this information due to the reasons
stated above. It is obvious, however, that it is the same system
of kafālah that has been mentioned in the report submitted by
Saudi Arabia. Further, in our view, it is the Egyptian practice
of kafālah that is relied upon in Article 21(3) of the CRC, which
reads as follows: “Such care could include, inter alia, foster place-
ment, kafālah of Islamic law, adoption or if necessary placement
in suitable institutions for the care of children. When considering
solutions, due regard shall be paid to the desirability of continuity
in a child’s upbringing and to the child’s ethnic, religious, cultural
and linguistic background.”114
112
See Report Submitted by Egypt, supra note 103.
113
Id., para 21.
114
See Convention, supra note 4, art. 21(3).
C. Report Submitted by Iran

The report115 submitted by the Islamic Republic of Iran is brief
and precise. It consists of seven chapters divided into various sec-
tions. The position of the Republic is stated clearly and precisely
in the first paragraph:
1. The Convention on the Rights of the Child was signed

by the representative of the Government of the Islamic
Republic of Iran on 5 September 1991 and was ratified
in March 1994 by the Islamic Consultative Assembly on
a “reservation” basis. Iran has reserved the right not to
apply any provisions or articles of the Convention that
may be in contravention with domestic laws and Islamic
standards. On 15 June 1994 the Islamic Republic of Iran
acceded to the Convention on the Rights of the Child by
expressing this general “reservation,” and the Convention
has become binding on Iran from 12 August 1994. In cases
where domestic laws strongly differ from the articles of the
Convention, they could be revised, provided that they do
not contradict the principles of the Sharia (Holy Laws).116
In our view, the position of a Muslim state has been stated

with precision not only in its reservation, but also in its report.
In particular, we would like to appreciate the last sentence: “In
cases where domestic laws strongly differ from the articles of the
Convention, 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 the
Committee on the Rights of the Child for all Muslim countries.
Again, as far as we have been able to discover, Iran is the only
country that has boldly stated the meaning of child in terms of
115
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.
116
Id. para 1. It would be highly instructive and interesting to study the
proceedings 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 the
size of this paper. The basis for the interest is the strong reservation and
the equally strong upholding of the sharı̄‘ah laws in the report. As far as we
know, 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 the
law a child or minor is a male or female offspring that
has not attained maturity. Maturity is a natural and in-
stinctive matter. One of the signs of attaining maturity
is age. In figh and the law a person who has not reached
the age of majority is called a minor. A minor cannot dis-
pose of his/her property.118 Iranian law does not offer any
definition of a child and only the age of maturity is de-
fined. According to the provisions of article 1210 of the
Civil Code, the age of maturity for male children is full
15 lunar years. The legislator in Iran has stipulated that a
person has to prove his/her maturity before being able to
exercise his legal rights. If two conditions, that is, physi-
cal growth and mental development, are combined in an
individual then it could be said that the age of minority
has ended.119
Paragraph 3, however, states: “Since in accordance with the Civil
Code marriage before age of maturity is forbidden (art. 1041) and
the age of maturity, determined by law, is not compatible with
the realities of the society, some jurists have proposed revision of
the Civil Code provisions relating to the age of maturity.” Para-
graph 4(c) states: “In accordance with article 49 of the Islamic
Penalties Act passed in 1982, “children shall be free from crimi-
nal responsibility and the responsibility for correction, education
and disciplining is given to the guardian, and if necessary the
court 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]
118
In H. anafı̄ 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 do
so, provided that the transaction does not cause a loss to the minor. The
transaction is valid subject to ratification by the guardian.
119
Id. para 2. This is a sound statement of the Islamic position that should
be acceptable to all schools of Islamic law.
120
This 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 not
implementing 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 following
is stated: “The parents have an obligation to respect the moral
and material rights of children. In the Islamic Republic of Iran
parents have the primary responsibility to secure the rights of
the child. The Civil Code puts the responsibility for maintenance
and upbringing of the child on parents and the father has the
responsibility for expenses relating to the sustenance of the child
before and after birth.”122 Other provisions have also been listed
in the same paragraph (para 9).
The report is quite different from those submitted by other
Muslim countries. It has some novel and interesting provisions.
The entire report needs to be read by those who may be interested
in this field.
D. Report Submitted by Pakistan

The reservation made by Pakistan with respect to the Convention
upon signature and confirmed upon ratification was as follows:
“Provisions of the Convention shall be interpreted in the light of
the principles of Islamic laws and values.”123 Pakistan submitted
its first report under Article 144 of the Convention in 1993.124
Subsequently, the first issue, in the list of issues to be discussed
prepared by the Committee on the Rights of the Child, stated as
follows:
Upon ratification, Pakistan made a reservation according

to 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 “practically
no provision of the Convention comes into direct conflict
121
Report Submitted by Iran, supra note 115, para 4(e).
122
Id. para 9.
123
See Status Sheet, supra, note 102.
124
mitted by States Parties Under Article 44 of the Convention, Initial Reports
of States Parties due in 1993 (Addendum): Pakistan, CRC/C/3/Add.13 28
May 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 has
already been made in the Convention” (See also para. 37
of the report). Having this in mind and in the spirit of the
World Conference on Human Rights, which encouraged
States to consider reviewing any reservation with a view
to withdrawing it, (A/CONF.157/23, II.para, 5) please
provide information on whether the Government is con-
sidering the need of maintaining such reservation or the
intention 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 “General

measures of implementation,” was the question whether
the Government of Pakistan felt the need to maintain the
reservation made on account of the application of Islamic
law in that country or whether it felt that the reservation
could be withdrawn. The Committee had been informed
that the Government was reconsidering the reservation;
she wondered whether the intention was to signify an of-
ficial withdrawal in accordance with article 51, paragraph
3, 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 of
reservations and the concern the members have on account of
125
Committee on the Rights of the Child, Fifth session, Pre-sessional Work-
ing Group 15-19 November 1993, Implementation of the Convention on the
Rights 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)). Available
at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.5.WP.1.En? Open
document.
126
Committee on the Rights of the Child, Sixth session, Summary Record
of 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 of
Pakistan (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 the
list of issues to be crucial, since they reflected a Gov-
ernment’s true commitment, in legislation and practical
application, to the cause of children. . . . She recalled that,
at the World Conference on Human Rights, all States
which had entered reservations in respect of the Con-
vention on the Rights of the Child had been encouraged
to withdraw them. In the case of Pakistan, moreover, it
was difficult for the Committee to judge whether the Con-
vention’s provisions were to be interpreted in the light of
Islamic principles rather than in the light of that instru-
ment itself.128
12. Mr. HAMMARBERG said that it was not by chance
that, both at the World Conference and in the Convention,
it had been stressed that any reservations made must be
specific.129 It seemed to him, however, that the reservation
made by Pakistan was of a sweeping nature, and that it
could undermine the force of the Convention in Pakistan
and in the region concerned. If, as stated in the report,
there was felt to be no conflict between the Convention’s
provisions and those of Islamic law as applied within the
country, it seemed that the only impact of the reservation
was on the spirit of the Convention, thus undermining the
latter’s force—an unfortunate situation.
13. Mr. KOLOSOV said it was a principle of interna-
tional treaty law that no reservation could be accepted
if 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 the
Rights of the Child, which was to uphold the principle of
127
Id. paras 11–15, 18.
128
Id. (emphasis added).
129
Id. (emphasis added). The truth is that objections have been raised by
Western States parties even where specific reservations have been made by
Muslim 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 his
authorities that the reservation was unacceptable and that
the matter required urgent attention.
14. The CHAIRPERSON invited the representative of
Pakistan to respond to the comments made by members
of the Committee.
15. Mr. HASHMI (Pakistan) said that he had taken note
of the points raised, especially with regard to the reser-
vation, and would have them forwarded to his authorities
if they represented the unanimous views of the Commit-
tee. With regard to the reservation, some religious and
cultural differences prevailed, as everyone was aware, and
it was very difficult to accept anything tantamount to a
challenge 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 Committee
attached great importance in all cases, not simply that
of Pakistan. Likewise, they all agreed that priority should
be accorded to the rights of children; the Committee was
encouraged to note the recognition of that priority in the
report of Pakistan and, in particular, in the commitment
that 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 World
Conference on Human Rights recognised that, while the
significance of a country’s national ethos should be borne
in mind, every State had a duty to protect all human rights
and fundamental freedoms.132 In that spirit, the Com-
mittee urged the Government of Pakistan to pay special
attention to the possibility of withdrawing the reserva-
tion. Such was the view of the Committee, which would
be reflected in its documentation.
130
Summary Record of the 132nd Meeting, supra note 126 (emphasis added).
Pakistan had made the general observation that the Convention would be
interpreted in the light of the sharı̄‘ah. A reservation of this sort works against
the objectives of the Convention, according to the learned member.
131
The 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 and

withdrew 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 upon
ratification.”133 Paragraph 31 of Pakistan’s first report states:
31. Pakistan ratified the Convention on 12 November

1990, with a general reservation that its provisions shall
be interpreted in the light of principles of Islamic laws
and values. Practically no provision of the Convention
comes into direct conflict with any of the major precepts of
Islam, 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 the
rights of the child–rather of the ‘whole child’ and of ‘all
children’ 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 question
of “domestic factors, especially religion,” as Mr. Hashmi stated,
or is it the question of the legal system of Pakistan in the light of
Article 2A of the Constitution?
A major point that emerges from the comments by the learned
members of the Committee on the Rights of the Child is: A general
reservation with respect to Islamic law “undermine[s] the purpose
of the treaty concerned. A [general] reservation of the sort made by
Pakistan did, however, undermine one purpose of the Convention
on the Rights of the Child, which was to uphold the principle of
non-discrimination.” In other words, Islamic law “discriminates”
and is against the principle of “non-discrimination” upheld by
Article 2 of the Convention.135 In our view, this comment, read
133
See Status Sheet, supra, note 102.
134
See First Report by Pakistan, supra, note 124 (emphasis added).
135
The two subsections of Article 2 of the Convention read as follows:
1. States Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination of
any kind, irrespective of the child’s or his or her parent’s or legal guardian’s
race, colour, sex, language, religion, political or other opinion, national, ethnic
in the light of Article 2 of the Convention, amounts to keeping

religion out of matters of state and the legal system.136
We would have liked to go into all the details of the issues
raised by the learned members of the Committee and the response
of Pakistan, but space does not permit us to do so. Further, our
purpose in this paper is not to see how the CRC is being im-
plemented,137 but to identify with a broad brush the relationship
of the CRC and Islamic law. The documents that give all these
details are available on the UN websites. The Convention, as well
the 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 of
the 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 child
is protected against all forms of discrimination or punishment on the basis
of the status, activities, expressed opinions, or beliefs of the child’s parents,
legal guardians, or family members.
136
We shall have a little more to say about this in what follows.
137
Pakistan has changed some laws in the light of the provisions of the
Convention. Notable among these are the Whipping Ordinance, 1996 and
the The Juvenile Justice System Ordinance, 2000. As far as we know, work
on the Jails Manual is also being undertaken. A concluding remark of the
Committee on the Rights of the Child, on completing the examination of
Pakistan’s first report, was: “While noting the information contained in the
report that a review of the conformity of national legislation with the Con-
vention has been undertaken, the Committee encourages the State party to
continue to scrutinize carefully legislative and other measures at both the
federal and provincial levels to ensure their full conformity with the prin-
ciples and provisions of the Convention, in a comprehensive and holistic
manner. The hope is also expressed that in this endeavour, the State party
will take into account the Committee’s concerns, particularly its recommen-
dations with regard to the abolition of flogging and capital punishment for
children under the age of 18, and that deprivation of liberty should only
be used as a measure of last resort and for the shortest period of time, as
well as the suggestions made in respect of the definition of the child, for
instance concerning the age of criminal responsibility.” Committee on the
Rights of the Child, Sixth Session, Concluding observations of the Commit-
tee on the Rights of the Child: Pakistan, GENERAL CRC/C/15/Add.18, 25
April 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, 2002
is now inviting consultants to study the laws of Pakistan in the light of the
Convention.
The details about the steps taken by Pakistan and future plans
for the implementation of the Convention may be seen at the
National Commission for Child Welfare & Development website,
under the heading “Achievements of NCCWD.”138
Pakistan’s second report under Article 144 of the Convention
was due in 1996. The report was submitted to the Committee on
the Rights of the Child in early 2001, after a delay of five years.
The report is not available on the websites of the United Nations
as it has not been considered as yet. The Agenda for the Commit-
tee on the Rights of the Child, as found on UN websites, shows
that Pakistan’s second report will come up for consideration in
May-June 2003.139 After delaying the report for five years, Pak-
istan appears to be anxious that the second report be considered
soon.140 Let us hope that Pakistan has submitted a good report
that will be published by the authorities.
IV. Examining a Few Principles
A. Methodology for Interpreting U. N. Conventions in the Light

of the Sharı̄‘ah
The first issue that arises whenever we attempt to analyse or
examine the rules, prescriptions and principles of modern legal
systems in the light of Islamic law is that of methodology. How
are we to judge these rules and principles and pass judgement
as to whether they are or are not in conformity with the Islamic
sharı̄‘ah? In the Islamic legal system, there is a whole system, a
highly developed methodology, for undertaking this exercise, just
138
http://mowd.gov/pk/social welafare/nccwd achievements.htm.
139
May-June, 2003: Pakistan 2nd periodic report CRC/C/65/Add.20 as
listed on http://www.hri.ca/fortherecord2001/index.htm
140
“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 its
existing membership is already over burdened. Resultantly, it is currently 12-
18 months behind schedule in considering reports submitted to it by the State
Parties.” Statement by Dr. Attiya Inayatullah, Federal Minister for Women
Development, Social Welfare & Special Education, at the 3rd Substantive
Session 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 Western

legal 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 analysis
and examination of laws from other systems, and here we speak
especially 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 of
the Pakistani legal system is “injunctions.” Thus, it is stated, for
example, that “In the interpretation and application of the provi-
sions of this Chapter, and in respect of matters ancillary or akin
thereto, the Court shall be guided by the Injunctions of Islam as
laid down in the Holy Qur’an and Sunnah.”141 The question is:
What is the meaning of the word “injunction”? It is obvious that
the 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 the
dictionary is: “The act or the instance of enjoining; a command
or directive, or an order.”143 The word has not been judicially
defined in terms of Islamic law in Pakistan.144 Is this word the
equivalent of h.ukm in Islamic law? In that case, could it mean
the commands emerging from the “strict literal meaning” of the
texts of the Qur’ān and the Sunnah? If it does, it would be the
equivalent of the words “expressly mentioned in the texts,” which
may in turn be deemed equivalent to the word sarı̄h., which re-
stricts meanings to the expressly stated meanings according to the
connotation of words employed in the texts, as against allegorical
or figurative meanings (kināyah). If a strict literal interpreta-
tion is implied in this word, the injunctions of Islam would be
restricted to expressed literal meanings, and the rules emerging
from them. In other words, if the words “hijacking,” “terrorism,”
“claim-swapping,” “stock options,” “insider trading,” “mergers
and takeovers” and the like are not expressly mentioned in the
141
Pakistan Penal Code (Act XLV of 1860), § 338F.
142
Black’s Law Dictionary, s.v. “injunction”: “A court order prohibit-
ing someone from doing some specified act or commanding someone to undo
some wrong or injury.”
143
American Heritage College Dictionary (3d ed. 1993)
144
Insofar as we know.
texts of the Qur’an and the Sunnah, they would all be legal and
cannot be termed illegal, unless an express, literal meaning of the
text says so.
Is this the sense, then, in which paragraph 31 of Pakistan’s
first report submitted to the Committee on the Rights of the
Child says: “Practically no provision of the Convention comes into
direct conflict with any of the major precepts of Islam, barring
the matter of adoption for which an appropriate provision has
already been made in the Convention?” Further, is this the sense
in which the Council of Islamic Ideology maintains that it has
examined many of the existing laws of Pakistan (based on British
and Pakistani legislation)?
The CII in its final report stated that upon careful
scrutiny it was revealed that a large number of federal and
provincial 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 report
to the Committee on the Rights of the Child nor the Final Report
of the CII bear the meaning of the narrow and literal approach
referred to above with reference to the word “injunction.” We are
also sure that the Council’s statement means that the laws have
been examined in the light of all “the texts of the Qur’ān and the
Sunnah, the principles and rules emerging therefrom and in the
light of the maqās.id al-sharı̄‘ah (the purposes of Islamic law),” or
in other terms the “principles and philosophy of Islam.”
The Constitution of Pakistan does use the word “Injunctions
of Islam”146 wherever the examination, making and alteration of
laws is concerned and this means “Injunctions of Islam as laid
down in the Holy Quran and Sunnah.”147 These words occur in
the Constitution mostly with respect to the constitution and func-
tions of the Council of Islamic Ideology and with respect to the
Federal Shariat Court.148
145
Rafaqat 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 Final
Report of the CII is not available to us.
146
Pakistan Const. arts. 227, 230(1)(b), 230(1)(c), 230(1)(d)), 230(3), &
203D.
147
Id. arts. 227, 203D.
148
Id. art. 203D.
We could not find a provision in the Constitution that restricts

the meaning of the word “Injunction” as used in the Constitution
to nas..s (express injunction), sarı̄h. (express literal connotation) or
any other narrow meaning. In fact, there is an attempt to widen
the meaning. Insofar as law is part of life and Islamic law or the
sharı̄‘ah are part of the lives of the Muslims, the Constitution
widens the meaning to the “teachings and requirements of Is-
lam,”149 or to “the basic principles and concepts of Islam,”150 or
even to the “principles and philosophy of Islam as enunciated in
the Holy Qur’ān and Sunnah.”151 Accordingly, the word “Injunc-
tions” must be given the widest meaning possible in the light of
all the articles of the Constitution and it cannot be restricted to
a 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 implemented
in the country, both from the aspect of examination of the existing
laws, the legislation and implementation of new laws, and even
the enforcement and interpretation of the existing laws. What
we mean by this is that many of the details with which some
of the new Islamic laws have been implemented will be difficult
to justify, except the barest penalties mentioned in the Qur’ān
and the Sunnah, that is, new laws like the h.udūd, qis.ās., zakāt,
ribā and many other provisions. In addition, the interpretation of
the existing personal laws of the Muslims will be affected.152 The
reality is that all these laws have been implemented on the basis
of the legal literature available in fiqh manuals, which in turn rely
on the Qur’ān and the Sunnah, so why not examine all existing
or new laws in the light of this literature as well. Finally, as all
laws have to conform to the injunctions of the Qur’ān and the
Sunnah, assigning a narrow meaning to the term “injunction” will
diminish the base from where justifications are drawn to justify
new legislation as Islamic.
149
Id. annex. art 2A.
150
Id. arts. 31, 230(1)(a).
151
Id. art. 228(2).
152
Even though the Constitution states in the explanation of Article 227(1):
“[Explanation:—In the application of this clause to the personal law of any
Muslim sect, the expression ‘Qur’ān and Sunnah’ shall mean the Qur’ān and
Sunnah 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 the
corpus of the law, our judges will have to rely on Western legal
concepts to interpret our statutes and precedents. They will rely
on the vague and discretion oriented Austinian idea of “justice,
equity and good conscience,” which in our opinion should now be
called “justice, equity and good conscience as enunciated by the
Qur’ān and the Sunnah” so as to comply with the requirements
of 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, qawā‘id, maqās.id, and philosophy” of Islam. All
these terms, in turn, will have to draw upon the entire magnificent
legal heritage of the ummah including the work of its earlier ju-
rists. It is this comprehensive heritage that provides our “shared
ideals and beliefs.”
And, why should we be reluctant to adopt such an approach
when the Western world does it with confidence and insistence.
What, after all, are the concepts behind the idea of legal rights
that the United Nations seeks to enforce other than the shared
ideals and rights that emerge from the Anglo-European-American
civilisation for which terms like “universal” and “universalists”
are used.153 In fact, the entire corpus of international law is based
upon the European international practices. Judge Ammoun has
the following to say:
The discrimination between civilised and uncivilised na-

tions, which was unknown to the founding fathers of
international law, the protagonists of a universal law of
nations, Vittoria, Suarez, Gentilis, Pfufendorf, Vattel, is
the 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 a
European law applied to the whole community of nations.
Maintained and sometimes reinforced at the time of the
153
Those who believe that these rights are universally accepted and rep-
resent universal principles as against those who believe that they must
accommodate other influences from religion, culture and so on, for whom
terms like “cultural relativists” are employed.
great historical settlements—Vienna 1815, Berlin 1885,

Versailles 1920, Lausanne 1923, Yalta 1945—European
international 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 towards
the creation of new universal principles in this field. We cannot
do this, however, if we put a stranglehold on our process of inter-
pretation at the domestic plane by assigning a narrow meaning
to the word “injunction.” We have to be far-sighted and forward
looking, resisting the temptation to succumb to immediate pres-
sures.
We may now examine some basic ideas that are relevant to
the CRC as the examination of all the individual articles of the
CRC are beyond the scope of this paper. Nevertheless, when we
look at the individual articles of the Convention on the Rights
of the Child, we find that most of the articles should be accept-
able to Islamic law and to all reasonable men. This can be seen
from the description of the CRC provided above including the
highlights.155 The main problems that arise are: do children re-
ally have rights? who is a child or what is the minimum age of
criminal and civil liability? is the principle of “best interests of
the child” being observed? is the principle of non-discrimination
observed? is adoption being forced on Muslim nations?
B. Do Children Really Have Rights?

It has been suggested by some opponents of the CRC, particularly
in the United States, that children have no rights and instead
there is a duty on the family and parents to take care of them.
154
North Sea Continental Shelf Cases (Fed. Rep. of Germany v. Denmark;
Fed. Rep. of Germany v. The Netherlands) 1969 I.C.J. 3 (separate opinion
of J. Ammoun).
155
See 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 the
nas..s of the Qur’ān or the Sunnah. A well known tradition says
the following:
Ismā‘ı̄l ibn Ja‘far al-Madı̄nı̄ related to us from ‘Abd Allāh

ibn Dı̄nār from Ibn ‘Umar that he said: “The Messenger
of God (peace be on him) said: ‘Each one of you is a shep-
herd and each is responsible for his flock. The ruler over
mankind is a shepherd over them and as such is responsi-
ble for them. Each man is a shepherd for the members of
his family, and is responsible for them. A man’s wife is a
shepherdess for her husband’s house and her children, and
she is responsible for them. A man’s servant is a shepherd
for his master’s property and he is responsible for it. Be-
ware, each one of you, then, is a shepherd and each one
of you will be questioned about his flock’ ”.157
This tradition does not speak in terms of rights, but in terms

of duties. Even if it did, or some other tradition does, it is not
proper, according to the methodology called us.ūl al-fiqh, that we
proceed to draw final conclusions from a single tradition in terms
of duties or even in terms of rights.158 We must turn to our legal
heritage first and see how our ancestors, after centuries of labour,
and the consideration of all available sources, rules and principles
of Islamic law have come to understand this issue.
The issue of rights in Islamic law is addressed specifically un-
der two topics in us.ūl al-fiqh. The first is called mah.kūm fı̄h, which
deals with the acts of the subject and associated rights, while the
second called mah.kūm ‘alayh deals with the subject and his legal
capacity. Both topics are deemed the essential elements (arkān)
of the h.ukm shar‘ı̄ or the injunction of the sharı̄‘ah based on the
Qur’ān and the Sunnah. Our purpose here is not to discuss these
156
See supra, note 65 and accompanying text.
157
Abū ‘Ubayd ibn Sallām al-Azdı̄, Kitāb al-Amwāl 3 (1985) (Trad.
No. 3) (The Book of Revenue (Imran Ahsan Khan Nyazee trans. 2002)).
158
The very term ijtihād implies that the jurist seek out all possible evi-
dences that may apply to, or govern, an issue. The jurist has to continue his
effort till he cannot find more evidences related to the subject.
two topics, but to focus on the rights of the child to see what
Islamic law has to say about their existence.
Legal capacity is called ahliyyah in Islamic law. Literally, the
meaning is that of “ability” to undertake an act. It is seen as a
compact 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 (zimmah
in Urdu), which gives the meaning of liability, but has another
technical meaning within us.ūl al-fiqh. In Islamic law, dhimmah
is deemed a requisite condition for the existence of ahliyyah. Ac-
cording to al-Sarakhsı̄, dhimmah is the “trust” that was offered
to the mountains, but they refused; Man accepted it.160 Thus,
dhimmah is an attribute conferred by the Lawgiver. It is a trust
resulting from a covenant (‘ahd ).161 The fact that dhimmah is
a covenant between the Lawgiver and the ‘abd (subject) means
that dhimmah can be assigned to a natural person alone. In West-
ern law, the term dhimmah conforms with “personality,” which
is an attribute conferred on a natural person.162 It follows that
dhimmah is a restricted form of legal personality granted to the
dhimmı̄, 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 ability
or fitness to acquire rights and exercise them and to accept duties

159

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— “Every man’s bird (liability) We have

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fastened on his own neck.” Qur’ān 17 : 13

160
2 Al-Sarakhsı̄, Kitāb al-Us.ūl 333 (Ed. Abū al-Wafā’ al-Afghānı̄,
1973); 4 ‘Abd al-‘Azı̄z al-Bukhārı̄, Kashf al-Asrār, 335–38 (1997).
161
Al-Sarakhsı̄, supra note 160, at 333; 2 S.adr al-Sharı̄‘ah, al-
Tawd.ı̄h. 751–53 (1956).
162
This is the position according to positivists like John Salmond. For a
detailed discussion of this issue, see Imran Ahsan Khan Nyazee, Islamic
Law of Business Organisation: Corporations (1997). ‘Abd al-‘Azı̄z
al-Bukhārı̄ says something similar: “If we enter into a compact with those
who do not believe and grant them a dhimmah, they can have rights and
duties like those of the Muslims.” Thus, the term Ahl al-Dhimmah is applied
to the non-Muslim citizens who have an agreement with the Muslims. Al-
Bukhārı̄, supra note 160, at 336.
163
For a lucid discussion of legal capacity see al-Sarakhsı̄, supra note 160,
at 232 passim; see also S.adr al-Sharı̄‘ah, supra note 161, at 751 passim;
1 al-Ghazālı̄, al-Mustas.fā min ‘Ilm al-Us.ūl 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 and
the other on the performance of duties. These are called ahliyyat
al-wujūb and ahliyyat al-adā’ or the capacity for acquisition (of
rights) and the capacity for execution or performance of duties.165
Capacity for acquisition enables a person to acquire both rights
and obligations, while capacity for execution gives him the ability
to exercise such rights and perform his duties.
The basis (manāt.) for the existence of the capacity for ac-
quisition is the attribute of being a human or natural person
(insāniyyah).166 There is complete agreement among jurists that
this form of capacity is possessed by each human being irrespec-
tive of his being a mukallaf (subject with full liability). A child
possesses this attribute as does the adult. Every child has this
capacity and the ensuing rights from the moment she is born.
Islamic law cannot, therefore, agree with the position taken by
some opponents of the CRC that children have no rights; they
do.167
Children do have rights, but that does not mean that they
are now free to do as they like in the exercise of these rights,
whatever their age. The reason is that they do not, yet, possess
capacity for execution (ahliyyat al-adā’ ). Capacity for execution
is defined as the “capability of a human being to issue statements
and perform acts to which the Lawgiver has assigned certain legal
effects.”168 The manāt. 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 method
for checking whether this faculty is fully developed, the Lawgiver
has associated it with bulūgh or puberty. Thus, the presumption
is that a pubescent person is assumed to possess ‘aql necessary
for the existence of the capacity for execution. This presumption,
however, is rebuttable, and if it is proved that though a person
164
Al-Bukhārı̄, supra note 160, at 335.
165
Id.; al-Sarakhsı̄, supra note 160, at 233; S.adr al-Sharı̄‘ah, supra
note 161, at 751.
166
Al-Sarakhsı̄, supra note 160, at 333; S.adr al-Sharı̄‘ah, supra note
161, at 751.
167
See supra section C. at page 85.
168
S.adr al-Sharı̄‘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 view
of the majority of the jurists.
How does a child, then, exercise his rights? He exercises
his rights through the institutions of wilāyah (authority: fa-
ther/grandfather having authority over the child) and wis.āyah
(guardian appointed by the walı̄). In the absence of the walı̄ or
the was.ı̄, the court may appoint a guardian. This is based on the
principle that “the sult.ān (ruler) is the guardian of one who does
not have a guardian.” In other words, ultimate guardianship rests
with the ruler, or the state if you like. Thus, where the state or
the ultimate guardian of the child feels that the walı̄ or the was.ı̄
is not taking care of the child as required by the provisions of the
sharı̄‘ah, the state has the right to protect the interests of the
child. In other words, the state has the right to lay down rules for
the treatment of children and the management of their affairs in
the 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 parent
to decide what is best for the child with the condition that his
actions do not violate the norms of Islam. State intervention is,
therefore, possible only where the norms of the sharı̄‘ah are being
violated 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 rights
are exercised through the parents or guardians, as the case may
be, and in certain cases in the supervision of guardians. This
idea is also compatible with the Universal Declaration of Human
Rights,170 the United Nations Declaration of the Rights of the
Child171 and the Convention on the Rights of the Child.172
169
This is the meaning of the statement in the Report Submitted by Iran.
170
Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N.
Doc. A/810 at 71 (1948), Adopted on December 10, 1948 by the General
Assembly of the United Nations (without dissent).
171
See supra note 26.
172
See Convention supra note 4.
C. Who is a Child?
The meaning of “child” is determined in terms of ages at which
a child has the “right” to undertake certain acts or where he will
be held fully accountable for his acts. In all these cases, it is the
second type of capacity or the capacity of execution we are talking
about. As this type of capacity is dependent on mental maturity
and the ability to fully comprehend the meaning of rules, the
capacity is divided into three kinds on the basis of the type of
liability associated with an act:
1. Capacity for the khit.āb jinā’ı̄ or legal capacity for criminal

liability. It is based on the ability to comprehend the khit.āb
jinā’ı̄, i.e., the communication pertaining to criminal acts.
2. Capacity for the khit.āb of ‘ibādāt or legal capacity for

‘ibādāt. It is based on the ability to understand the khit.āb
of ‘ibādāt, i.e., the communication from the Lawgiver per-
taining to acts of worship.
3. Capacity for the khit.āb of mu‘āmalāt or legal capacity for

transactions. It is based on the ability to understand the
khit.āb of mu‘āmalāt, i.e., the communication from the Law-
giver pertaining to the mu‘āmalāt.
Two of these are civil and criminal liability, while the third
is an addition because of religious law. The reason for separating
the capacity for execution into these three types is to indicate
that a person may, for example, be in possession of the capacity
for transactions, but not the capacity for punishments or he may
not have criminal liability, but may be liable for the associated
civil liability. To put it differently, all three kinds of capacity may
be found in the person who is sane and a major, but one or more
of these may be lacking in other persons.
(1) Criminal Liability.—A child, as long as he is a child, that
is, as long as he has not attained puberty, has no criminal lia-
bility. Criminal liability in Islamic law, prior to the attainment
of puberty, has nothing to do with mental maturity.173 Thus, he
173
The Report Submitted by Iran to the Committee on the Rights of the
Child 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 the
state or even by a teacher, but in a manner that is similar to that
of a parent observing the norms of the sharı̄‘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. In
practice, however, puberty is difficult to prove primarily because
this is done after the fact, that is, at the time of trial the defence
can always deny the child had attained puberty at the time of
commission of the crime.174 Accordingly, Muslim jurists fixed ages
for the presumption of puberty. In the absence of proof of puberty,
the majority of the jurists determined the age to be 15 years for
both girls and boys. This is the view followed in Pakistan’s h.udūd
laws. It is also the view upheld by the report submitted by Iran
to the Committee on the rights of the child.175 According to Abū
H. anı̄fah, the founder of the H
. anafı̄ school, the age of presumption
of puberty is 18 for boys and 17 for girls. These ages are based
primarily on rational arguments. It is strongly recommended that
Abū H . anı̄fah’s view be adopted by all Muslim countries so that
the age of the child for purposes of criminal liability is fixed at 18
for both girls and boys.176
The question may be raised as to why does the Pakistan Penal
Code,177 then, say the following:
§ 82: Act of child under seven years of age.—Nothing is

an offence which is done by a child under seven years of
age.
§ 83: Act of child above seven and under twelve of imma-
ture understanding.—Nothing is an offence which is done
174
There 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 the
time of framing of charge against him [and] the Court had not mentioned
his age in the judgement whereby he was sentenced to death”). If this can
happen, the issue of puberty can pose greater problems and it is safer to fix
the age at 18.
175
176
Egypt and Saudi Arabia have done this already, although we could not
determine their reasoning, based on Islamic law, for doing so.
177
Pakistan Penal Code (1860), §§82–83.
by a child above seven years of age and under twelve, who

has not attained sufficient maturity of understanding to
judge of the nature and consequences of his conduct on
that occasion.178
This should also explain why children have been awarded the
death penalty in Pakistan. These rules are the legacy of the British
Raj and their brutal ways followed in the factories established at
Surat and other places reminding one of “Mutiny on the Bounty.”
The way whipping has been carried out in the days of a former
regime, the basis for which may be found in High Court Rules, is
also a gift from the British. It is well known that in Islamic law,
stripes or whipping is merely symbolic. The person undertaking
it is required not to raise his arm above his shoulder. In some
traditions from the Prophet (peace be on him), it was carried out
with a palm stick (which is flat), or with sandals or even with a
sheet of cloth that is swung around the shoulders by men. Thus, it
is milder than caning that was carried out in British schools. The
Whipping Act, 1996 has now altered the position on whipping
for children. In any case, it is recommended that all the penal
provisions in Pakistan be altered and brought in line with the
dictates of the sharı̄‘ah, thus, raising the age of criminal liability
to 18 years.
(2) Civil Liability.—As regards civil liability, a child is held
fully liable for destroying another’s property or even for injuring
someone. In all these cases, he is liable for the compensation de-
termined by the sharı̄‘ah. The guardian pays this from the child’s
property, if any, or it is paid through the ‘āqilah, which is yet to
be defined for the present times in Muslim countries.179 It is also
to be noted that even when compensation is being awarded under
qis.ās. and diyat provisions, the child is not criminally liable nor
should he be subjected to criminal proceedings.
We would request the Council of Islamic Ideology through
these pages to take notice of these provisions and issue clear rul-
ings that would determine the meaning of “child” for purposes of
criminal as well as civil liability.
178
Id. (emphasis added).
179
Possibly, some valid form of insurance can act as a substitute.
In our view, the position taken by Islamic law on the meaning

of “child,” and the ages for various kinds of liability, goes much
further than the Convention of the Rights of the Child, which
is willing to acknowledge criminal liability for a child where the
laws of the States parties do so. The Convention, therefore, lays
down detailed rules for children deprived of their liberty due to
criminal or other proceedings. Islamic law does not acknowledge
such a state for a child, because it does not assign any criminal
liability to a child. Yes, Muslim states are not abiding by the
provisions of Islamic law and their laws will need amendment to
conform 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 wilāyah (parent’s authority) and
wis.āyah (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 by
them. In addition to this, in the cases of divorce and child custody,
it is always the best interest of the child that is supreme. These
provisions are well known, and here we would like to focus on the
right of the child to undertake transactions in his own wealth.
Western law does not permit such transactions, except in the
cases of “necessaries” and a contract with a child may be set aside.
In Islamic law, the H . anafı̄s acknowledge a deficient capacity for
execution for purposes of some transactions for a person who has
attained a degree of discretion, even if his mental faculties are not
yet fully developed. Thus, a minor (s.abı̄) who possesses discretion,
or exhibits “mental maturity” may be assigned such a capacity,
for the khit.āb of mu‘āmalāt.
Again, there is no way here of determining whether the minor
has actually attained discretion. The H . anafı̄ jurists have, there-
fore, fixed the minimum age of seven years for assigning such a
capacity; anyone over seven years of age who has not yet attained
puberty may be assigned such a capacity, but the law makes this
dependent on the guardian’s will and discretion, who is to ratify
a 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 by

analogy or otherwise to the criminal field.
Muslim jurists divide legal capacity into three types: complete,
deficient and imperfect. The terms kāmilah, nāqis.ah and qās.irah
are 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 rights
and obligations. Complete capacity for execution is established for
a human being when he or she attains full mental development,
and acquires the ability to discriminate. This stage is associated
with the external standard of puberty.181 On attaining complete
180
S.adr al-Sharı̄‘ah, supra note 161, at 755; al-Bukhārı̄, supra note
160, at 335.
181
The physical signs indicating the attainment of puberty are the com-
mencement of ejaculation in a male and menstruation in a female. In the
absence of these signs, puberty is presumed at the age of fifteen in both
males and females according to the majority of the jurists, and at the age of
eighteen for males and seventeen for females according to Abū H . anı̄fah. This
has already been stated. Attaining bulūgh (puberty) alone is not sufficient,
however. For a person to acquire complete capacity for execution, in addition
to puberty, the possession of rushd (discrimination; maturity of actions) is
stipulated as well. The dalı̄l, or legal evidence, for this is the verse of the
Qur’ān: “Make trial of orphans until they reach the age of marriage; then if
ye find sound judgement in them, release their property to them; but con-
sume it not wastefully, nor in haste against their growing up.” [Qur’ān 4 :
6] This verse lays down clearly that there are two conditions that must be
fulfilled before the wealth of orphans can be handed over to them. These are
bulūgh al-nikāh. (age of marriage) and rushd. The term rushd, according to
the majority, signifies the handling of financial matters in accordance with
the dictates of reason. The rashı̄d is a person who can identify avenues of
profit as well as loss, and act accordingly to preserve his wealth. Rushd is the
opposite of safah (foolishness, rashness), which implies waste and prodigal-
ity. Shāfi‘ı̄ jurists define rushd as maturity of actions in matters of finance as
well as of dı̄n. In their view, a person who has attained puberty and is adept
in dealing with financial matters cannot be called rashı̄d, unless he obeys
the ah.kām of the sharı̄‘ah in matters of ‘ibādāt as well. A person, then, is
eligible for taking over his wealth if he is both a bāligh and a rashı̄d. This is
the general view. Abū H . anı̄fah, however, maintains that a person who attains
the age of twenty-five years, must be delivered his property irrespective of
his attaining rushd. In addition to this, he maintains that if a person attains
bulūgh 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 ).
Abū H . anı̄fah 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.āb (communication from the Lawgiver implying
liability). He, therefore, becomes liable to punishments because of
the khit.āb jinā’ı̄ being directed towards him, just as he becomes
liable because of the khit.āb of transactions and ibādāt.
Islamic law recognises the need of the child to deal in his own
wealth even before he attains majority. Keeping him deprived en-
tirely of his wealth is not considered to be in the best interests
of the child. Accordingly, any child who has attained a degree of
maturity of mind may be permitted to undertake those transac-
tions that are beneficial for him. For all other transactions, his act
will be subject to ratification by the guardian. These provisions
are deemed essential for the growth of the potential of the child
and for the preservation and growth of his property as well, which
may go waste due to neglect while waiting for the child to grow
up.
E. Non-Discrimination and Islamic Law

This is, perhaps, the most problematic area out of all the articles
of the Convention. There is no separation between the church
and state in Islam, and this is true for certain Muslim countries
in the modern world. There are others that are declared secular
states, 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 from
minority communities may be made to feel different. There is
no escape from such situations, unless Muslim countries adopt
“establishment” and “religion” clauses in their constitutions, as
is the case with the United States Constitution. This would be
against the purposes of the sharı̄‘ah.
F. Adoption
We believe that the objections raised by Muslim countries with
respect to adoption are unfounded. The Convention on the Rights
the priorities determined within the maqās.id al-sharı̄‘ah. The majority of the
jurists (jumhūr ) subject a person to interdiction if he has not attained rushd
or even when he loses it subsequently, irrespective of his age.
of the Child recognises the rules of adoption that exist in Islamic

law. Article 20(3) specifically mentions the institution of kafālah,
which may be adopted in place of adoption.182 Article 21 implies
that there are certain states that do not accept adoption as a
valid option.183 Further, adoption in Muslim countries in the case
of minorities is valid.
We are, therefore, surprised as to why Muslim states in their
reservations 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 states
in their reservations have taken the position that the Convention
will be interpreted in the light of the sharı̄‘ah. Thereafter, most
of these states narrowed down their broad reservation to the issue
of adoption, a non-issue. One wonders why?
V. Conclusion
The Convention on the Rights of the Child (CRC) is, without

doubt, a historic document. It is part of an integrated system of
rights designed and implemented by the United Nations through a
variety of instruments. The implementation of the principles and
articles of the Convention can go a long way in ameliorating the
condition of children, especailly in underdeveloped countries. In
a country like Pakistan, it can provide a foundation for the much
needed and long-awaited legal reform that can radically alter the
way children are treated by the law and nourished by society.
A number of steps have already been taken in Pakistan in this
direction.
The acceptance, signing and ratification of the Convention
does not mean, however, that all the articles have to be accepted
without question as finally true. The concerns of the critics of
the 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 sharı̄‘ah does
not in any way work against the objectives of the instrument. In
182
See Convention, supra note 4 (see also documents section in this issue).
183
Id.
fact, many of the provisions of the sharı̄‘ah may facilitate the im-
plementation of the articles of the Convention and are likely to
go beyond what the Convention requires. If some of the articles
of the Convention happen to clash with the fundamental prin-
ciples of the sharı̄‘ah, such articles of the Convention cannot be
implemented by Muslim countries. It is obvious that the United
Nations through its instruments is not asking these countries to
alter the fundamentals of their religion. This basic fact cannot
be altered irrespective of the reservations made by Muslim States
parties at the time of signing or ratification of the Convention.
This position cannot be altered even where a Muslim state has
withdrawn its reservation or has not expressed a reservation in
the first place.
In most Muslim countries, ratification of a convention does
not make it self-executing and laws have to be made or amended
to give effect to the provisions of the relevant instrument. This
is where the real rest lies for these countries. In a country like
Pakistan, the duty lies on the shoulders of the Council of Islamic
Ideology and the Federal Shari‘at Court of Pakistan to ensure that
all new laws or amendments are compatible with the provisions of
the sharı̄‘ah, reflect the teachings of Islam and take into account
the views of families and critics of the CRC.
Accordingly, the study of the laws of Pakistan for purposes
of the Convention on the Rights of the Child (as advertised on
October 27, 2002) must be undertaken in collaboration with, and
the approval of, the Council of Islamic Ideology. The Council of
Islamic Ideology, it is recommended, must broaden its method-
ology for the study of such laws and not restrict it, as discussed
in this paper. In particular, the priorities among rights and the
process of reconciliation of conflicting rights as depicted by the
maqās.id al-sharı̄‘ah (purposes of Islamic law) must be kept in the
forefront.
We believe that the provisions of Islamic law have much to
contribute to the area of human rights, especially to the area
of the rights of the child, as shown in the discussion of a few
principles in this paper. All we need is a positive attitude towards,
and confidence in, our own legal heritage.

Islamic Law and The CRC

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Islamic Law and The CRC

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Islamic Law and the CRC

(Convention on the Rights of the Child)

Imran Ahsan Nyazee∗

I. The Convention on the Rights of the Child . 69

IV. Examining a Few Principles . . . . . . . . . 104

Comparative lawyers identify three legal families in the present

human rights in the most superficial manner, when they should be

Religious groups are engaged in a rugged skirmish over

Dr. Amani Faraj also said that the document reflected a

or its provisions, while appreciating and accepting the principles

I. The Convention on the Rights of the Child

The Convention deals with rights, therefore, a brief statement

Rights are usually written as either descriptive or pre-

the case for human beings, and the CRC is a prescriptive

The “ought” in these prescriptive statements becomes a direc-

• Participation rights are primarily social and political in

One point that needs to be mentioned here is that for some

made later to meet the standard of the conventions ratified.13 A

A. Brief History of the Convention

documents, besides a host of others, published by the United Na-

B. The Drafting, Adoption and Ratification of the Convention

Organisation (WHO), as well as a number of non-governmental

C. The Basic Principles and Features of the CRC

different cultural, social, economic and political realities of in-

• Non-discrimination (art. 2): States parties must ensure that all

• Best interests of the child (art. 3): When the authorities of a

development, which should be ensured “to the maximum ex-

• Disabled children shall have the right to special treatment, ed-

• Children involved in infringements of the penal law shall be

The Convention on the Rights of the Child outlines in 41 ar-

reports had reached the Committee by December 1995.”53 The

essential document: governments are expected to implement the

II. The United States and Criticism of the CRC

We begin this section with a quotation from the CRC-Guide.

The Convention on the Rights of the Child reflects a new

For purposes of describing the main arguments offered by

on material available on various websites summarising the argu-

A. Global Parenthood: Attack on Parental Authority

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

1. The transfer of God-given parental rights and responsibili-

2. The institutionalisation of rebellion by vesting children with

3. The establishment of bureaucracies and institutions of a na-

B. The CRC Violates the Fundamental Idea of Child Protection

violations of parents’ rights are multiplying.”67 In other words,

C. Children Have no Rights

D. Support for the United States

In the process, Europeans have become the strongest ideological

E. Understanding the Issues

III. Reports Submitted by Muslim Countries to the

All countries that have ratified the Convention on the Rights of

A. Report Submitted by Saudi Arabia

27. The Kingdom of Saudi Arabia agreed, under the terms

The report mentions the significance of the provisions of Is-

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

B. Report Submitted by Egypt

In other words, after a general statement, the reservation was

a translation in Spanish,104 but that does not help us much. The

46. According to article 2 of the 1996 Children’s Code, a

age may be authorised to undertake commercial activi-

Reduced penalties are inflicted on children between ages

The meaning of “child” as it emerges through the various provi-

(wis.āya). Act No. 18 of 1952, which states the condi-

The best interests of the child are contained in a single para-