Saturday, April 30, 2011

"Indeed, those who swear by the immutability of God’s law, ignore the fact that Shariah has been compiled, polished, amended and refined by Islamic jurists for centuries after the Prophet’s death."

A prescient observation and one which could be used to pry open the gate of ijtihad to enable Islam to modernize and reform itself into that vaunted "religion of peace" so ardently claimed today.  Until and unless Islam is willing to explore the option of change, nothing will change.

Here is a great observation on sharia in the Maldives.  Change Maldives to any country of choice, and the meaning and future outlook remains the same.

From MiniVan News April 30 by Yameen Rasheed

Comment: Shariah not a solution 

Yesterday, the Adhaalath party organised a large rally at the tsunami monument in Male’, to demand the implementation of Islamic Shariah in the Maldives.

The party was joined by “hundreds” of pseudo-religious NGOs whi lent their collective voice to the clamour for Shariah, supposedly an antidote to ‘murder, violent assaults, robbery, rape and drug abuse’ in the country.

“The whole nation is threatened and institutions have failed,” the party said in a statement. The ‘only solution’, according to large banners put up across Male’, is Islamic Shariah.

What the Adhaalath Party and its friends fail to mention here is that by ‘Islamic Shariah’, they’re referring to a single interpretation of Shariah suitable to their rigid world-view – a minority opinion among the world’s many Muslim schools of thought that all hold different views of Shariah.

Lady Injustice

One common criticism of clergy-controlled Shariah is the perceived injustice towards women. While these concerns are often met with heated denial, they’re also backed up by cold statistics.

In 2009, then Minivan News Editor, Mariyam Omidi, wrote a damning report highlighting the strong gender discrepancy in the meting out of punishment for ‘fornication’ in the Maldives. According to government statistics cited in the report, out of 184 people sentenced to lashing for ‘fornication’ under Shariah law, 146 were women.

Following his verdict in June 2005, a judge in the criminal court, helpfully offered his opinion that women were ‘deceptive creatures’ according to the scriptures.

Almost exactly two years later, another judge ruled that the gang-rape of a 12 year old girl by four axe-wielding men who’d broken in through her bedroom window, was ‘consensual sex’, because the child didn’t scream audibly enough.

Last week, Mukhtar Mai, a woman who was gang-raped and dragged out naked in front of 200 higher-caste men in her village in Pakistan, had her hopes dashed when the courts upheld a ruling by semi-literate, tribal judges against her.

Given these realities, and a long series of cases where Muslim women have been punished for the crime of getting raped, one awaits an answer from the proponents of Sharia as to why a woman should ever step into their courts expecting justice.

Judge, Jury and Executioner

In Islamic Shariah, there is no jury, no defense lawyers, no prosecutors, no pre-trial discovery process, no courts of appeal, no cross-examination of witnesses, no legal precedents, and perhaps most damaging of all, little room for modern evidence.

Former State Minister of Islamic Affairs, Mohamed Shaheem Ali Saeed, while graciously acknowledging the validity of long established forensic methods of DNA profiling, stated that such evidence could only be used as ‘supplementary’ evidence, presumably while relying primarily on eye-witness testimonies, as practised in Arabia 1400 years ago.

Furthermore, due to the lack of separation of powers in Islamic Shariah, the Mullah is literally the judge, jury and executioner on whose shaky whims the mortal life of the accused rests.

Coupled with the severe lack of capable judges, this is often a recipe for disaster.

Dr. Tarek Al-Suwaidan, a prominent Muslim scholar, blamed the poor quality of modern Islamic jurists on a curriculum that is limited to only subjects related to traditional Islamic jurisprudence.

Highlighting the necessity of familiarity with international law, and current commercial, copyright and cyber-crime laws, he prescribed a minimum requirement of at least a bachelor’s degree in business, law or other specialized field before candidates enrolled for Shariah studies.

Maldivian courts, on the other hand, are plagued by severely under-qualified judges with barely primary level schooling who, according to a February 2011 report by the ICJ (International Commission of Jurists), have also failed to act in an impartial manner.

Political farce

The ‘absolute Shariah’ practised in Saudi Arabia and Afghanistan gives credence to Syrian Scholar Muhammad Shahrur’s theory that jurisprudence in the name of God is a farce by those wanting to maintain political power.

Photographs available in the public domain show the former Taliban government in Afghanistan showing off dead bodies of dissenters hung from poles in public, with their severed penises stuffed in their mouths.

In 2007 alone, at least six cases of torture and custodial death were brought against the muttaween, the Saudi Arabian religious police entrusted with enforcing a rigid Shariah state. In one case, a man was beaten to death for being in ‘illegal seclusion’ with an unrelated woman.

In May 2002, the religious police in Mecca prevented school girls from escaping a burning building as they were not wearing the ‘correct Islamic dress’, and to prevent physical contact between the girls and civil firefighters, which they feared might have caused ‘sexual enticement’.

Over forty people suffered severe burns that day, and 14 girls burned to death.
In the Islamic Republic of Iran, the basij militia brutally cracks down on pro-democracy activists in Universities and streets of Tehran, thereby prolonging the Ayatollah’s political reign in the guise of ‘upholding Islamic Shariah’.

The lack of judicial oversight or accountability, coupled with the promise of absolute power, has made Shariah an irresistible proposition for the Islamist political movement.

The political implications of a ‘Shariah’ legal system was painfully obvious in the original draft of the Maldivian Religious Unity Regulations of 2010, which forbade, among several other things, the criticism of ‘religious scholars’, and airing of any views on religion that contradicted the views of a select few who, very conveniently, happened to be the ones drafting the regulation.

Uncodified Law

When a Maldivian man publicly declared his lack of faith to a visiting preacher last year – he was met with a curious reaction.

On the one hand, the preacher on stage, in a long-winded response, ruled that Islam didn’t demand the death of all apostates. On the other hand, by day break, another set of preachers from a local NGO had issued an outright demand for his state sanctioned murder, failing an immediate repentance and conversion.

The dramatic contrast in judgement between the self-declared experts that – under a Shariah law system -  would’ve literally meant the difference between the man’s life and death, brings to the forefront the problem of Shariah not being a codified system of law.

There have been several attempts within the Islamic community to correct this grievous flaw, by compiling Shariah laws into a standard code. But observers note that since Islam has no central authority to universally  enforce such a codified law, it would depend on compliance, rather than enforcement.

Until such day, the law literally is whatever the Mullah with the gavel says it is.

The deterrence argument

Citing Islamic Shariah, the Maldivian Parliament recently introduced a proposed amendment to the Clemency Act, which would uphold a death sentence passed by the Supreme Court.

The proponents of the death penalty claim that it would act as a deterrent against violent crimes.

As it happens, a New York Times survey in 2000 revealed that American states which practise the death penalty have for decades shown consistently higher homicide rates than states that didn’t. FBI data for 2008 shows that murder rates were up to 101% higher in states that implemented capital punishment than those that didn’t.

According to Amnesty International, evidence shows that the faint threat of a possible future execution does not, in fact, enter the mind of a potential murderer in the throes of violent rage, mental illness, calm cold-bloodedness, or sheer panic.

Human Law

A vast majority of the world’s Muslims live under secular, constitutional law.
Even though laws in Pakistan and Malaysia are influenced by Shariah,  they have regular courts and cede ultimately authority unto the constitution, rather than the clergy.

Many secular countries like Britain, India and the Philippines allow religious discretion in civil and domestic affairs governing marriages, divorce and inheritance, but for criminal cases, they all employ modern law – with constitutional remedies, inviolable rights, principles of equality before law, provisions for appeals and the benefit of forensic evidences that has helped ensured justice for rape and murder victims even several years after a crime is committed.

A new thinking

In a sermon at the American Centre of the National Library last year, Imam Khalid Latif said that even non Muslims and people guilty of various sins felt free to openly speak their minds to the Prophet, without fear or hesitation, and fully expecting a patient hearing.

Times have clearly changed, as Islamist resentment against differing opinions has increasingly expressed itself as violent attacks on intellectuals and liberal reformists, further expanding the shadow of fear and intimidation under which Islamists operate.

Ibn Rushd, the celebrated philosopher from the Islamic Golden Age, also said that revelation and reason are not contradictory, but complementary.

Swiss born intellectual Professor Tariq Ramadan, one of Foreign Policy magazine’s Top 100 Global Thinkers of 2009, argues that the Qur’an should be interpreted in the changed historical context of modern times.

Citing a German law demanding equal treatment of sexes as an example of  proper Shariah, Ramadan asserted that “There are laws coming from non-Muslim minds that are more Islamic than laws coming from Muslim minds in Islamic countries.”

Indeed, those who swear by the immutability of God’s law, ignore the fact that Shariah has been compiled, polished, amended and refined by Islamic jurists for centuries after the Prophet’s death.

Dr. Abdul Fatah Idris, Head of Comparative Jurisprudence at Al-Azhar University agrees that with changing times, the traditional classical jurisprudence is no longer sufficient, and a ‘new thinking’ is required to deal with a changing society.

The failure of Islamic Shariah in modern times reflects this failure of the clergy class to adapt to changing times.

As with others before them, politicians in the Maldives are projecting an alluring vision of an idealistic sin free society to a disgruntled public as ‘Shariah’ – ignoring the fact that it has been a staggering, disastrous failure in every other modern nation that has experimented with clergy justice.

While loudly touted by vested interests as ‘the only solution’, Shariah is unfortunately ill-equipped to solve the average modern Muslim’s daily problems, and unlike modern law, has demonstrably failed to ensure justice and security for men and women in every part of the Muslim world.

No comments: