As stated earlier, Islam makes it clear in both the Qur’an and Sunnah, that men and women are equal. Muslims, however, have not always maintained this essential rule. They upheld it at times and violated it in practice in certain periods. One of the areas in which we frequently see violations of this principle of equality is that the legislation governing citizenship in most if not all Muslim countries grant such citizenship to the offspring of men citizens while denying it to women’s offspring.
It may well be that this discrimination starts at the source from which our legislations have been derived. That source is Western nationality laws which have been the model for nationality laws in Muslim countries. If this is so, there is no reason for retaining such unfair discrimination against women citizens. Indeed, its retention is seriously harmful.
To the best of my knowledge, written Islamic legal views do not include any treatment of this subject. During the flourish of Islamic scholarship, faith was the criterion to determine whether a person belonged to an Islamic political entity. Religious affiliation was synonymous to what we call today, “nationality”, even though people may come from areas wide apart. Hence, we do not find in legal references of old any reliable views that we may consider with regard to this question.
But this means that Muslim intellectuals and jurists should refer to the original sources of Islamic law and its basic rules to arrive at rulings addressing this area of the nationality law in Muslim countries and are in line with Islamic principles. Such an intellectual and legal effort, in every area which requires fresh rulings, is the only way to ensure that Islamic Fiqh will respond to new challenges and cater for people’s needs.
When we consider the question of the relationship between a woman’s children and their mother’s nationality we are bound to conclude that the provisions and rules of Islamic law support the granting of citizenship to the children of a woman citizen in the same way as it is granted to the children of a man citizen.
The Qur’an establishes clear equality between men and women, except in a small number of situations which do not include our present subject. God states in the Qur’an: “Women shall, in all fairness, enjoy rights similar to those exercised against them.” (2: 228) This statement provides a basic principle of equal rights and obligations. Hence, it may not be contradicted by a man-made law.
In the Qur’an we read: “Men shall have a benefit of what they earn and women shall have a benefit of what they earn.” (4: 32) A person’s children are part of what that person earns. Thus, if it is the right of the father to pass on his nationality to his children on the basis of his blood relationship with them, the same right applies to a woman on the basis of the same relationship. This is confirmed by the Qur’anic verse stating: “Neither shall a mother be allowed to cause her child to suffer, nor shall a father cause suffering to his child.” (2: 233) This statement makes the relationship between either parent and a child the same, which means that any man-made law based on this relationship must treat man and woman equally. Otherwise, it will violate this Qur’anic statement that makes them equal.
The Qur’an gives both parents the same rights against their children. On the question of an infant’s weaning, the Qur’an makes this permissible after consultation and agreement between the two parents: “If, by mutual consent and after due consultation, the parents choose to wean the child, they shall incur no sin thereby.” (2: 233) The fact that mutual consent based on consultation is required indicates total equality between two persons enjoying equal rights and duties toward their child. How can we, then, justify discrimination between them with regard to passing the nationality that either of them has to their children?
The Sunnah carries many applications of these Qur’anic rules, but I will quote only the Hadith stating: “Women are perfect equals of men.” (Related by Abu Dawood and Al-Tirmithi). The Arabic term used in the Hadith indicates total and perfect equality that leaves neither having any privilege over the other. Like the Qur’anic verses quoted above, this Hadith lays a principle of equality which may not be contravened by any legislation adopted in any Muslim country.
The rules of Islamic Fiqh sum up the rulings arrived at by scholars in different periods of legal flourish. These rulings have been phrased in the form of general rules covering wide areas. In all schools of law, they are treated as legal provisions to which scholars and judges refer before deducing any ruling on a question they have in hand.
When considering this subject, I referred to the Fiqh rules stated at the beginning of Majallat Al-Ahkam Al-Adliyah, or Majallah for short, which incorporates a complete civil law based on the Hanafi school. It continued to be implemented until recently in a number of Arab countries. Indeed, the new civil laws of Jordan, Kuwait, and the UAE, and the draft unified Arab civil law, have borrowed most of these rules, stating them in the preamble in each case. I looked at these rules and found that no less than 15 of them require that a child of a woman citizen should be given her nationality. If this is not adopted as an original right implementing the principle of equality stated in Islamic texts, then it should at least be provided for in cases where the child is unable to have its father’s nationality.
Since these rules reflect principles of Islamic law that no legislative authority in any Muslim country may contravene, I will briefly highlight over the next two weeks how some of these rules support the view I have expressed.
