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Friday, 3 April 2009

Ayesha Siddiqa: Many readings of Sharia

Many readings of Sharia
By Ayesha Siddiqa
Friday, 03 Apr, 2009

Sufi Mohammed and the Nizam-i-adl supporters want Sharia imposed on the entire country - Reuters/File photo.

THE students of Jamia Hafsa want nizam-i-adl implemented in the entire country as a way out of the current crisis. They also want Taqi Usmani, their mufti, as chief qazi.

Their demands must have attracted plenty of attention and support, especially from those who feel that the new legal system in Swat is the best possible solution to the conflict there.

Some people support the Sharia in Swat for at least three reasons. First, it is believed that the Sharia alone will give ordinary people in Swat the speedy system of justice that they want. Second, since the Sharia is the demand of the Swat Taliban, they believe that it is a good idea to implement the system there while ensuring it remains disconnected from the rest of the country. Third, imposing the Sharia is not an issue because that’s what is prescribed by the 1973 Constitution according to which all laws have to be in conformity with the Sharia.

But it is worth clarifying that the 1973 Constitution stipulates that all laws conform to the Quran and Sunnah, with no mention of the Sharia. This means that Sharia was not treated on a par with the Quran and Sunnah. This also indicates that the constitution gives the right of interpretation of laws of the state to legislators acting on behalf of the people rather than dogmatic ones of the past.

Those responsible for law- and constitution-making did not depend on the Sharia for both deliberate and inadvertent reasons. There was a conscious decision to keep the state from becoming a theocracy. A theocracy was certainly not the intention of the father of the nation Mohammad Ali Jinnah. Another critical factor pertained to the larger question of which interpretation to apply.

After all, the Sharia is an interpretation of the Quran and Sunnah. A quick reading of Islamic history amply demonstrates that the rulers and the socio-cultural environment of their time equally influenced interpretations by various individuals. For instance, it is said that the Abbasids directly influenced the process of the development of religious laws, during the latter’s codification, to suit their own interests. According to Islamic scholar Tahir Wasti, some of the comparatively minor crimes then were punishable by the state. However, the bigger crime of murder was left out of this categorisation.

In Pakistan, the Sharia debate started under Ziaul Haq whose primary objective was strengthening his power rather than making society Islamic. Unfortunately, there were certain judges who helped the military dictator cheat the entire country by boosting his efforts to have in place Sharia laws that suited his interests. This in itself is indicative of the fact that the Sharia was open to interpretation.

The main purpose of any law is to bring peace and justice to society. A law becomes meaningless if it cannot do so. In Pakistan’s case, as demonstrated by Wasti through his meticulously gathered data on the implementation of the law of Qisas and Diyat in the country, there appears to be a correlation between the imposition of religious laws and increasing crime in the country, especially homicide.Since the law of evidence makes the implementation of Qisas difficult, the state had primarily depended on using the law of Diyat. This essentially meant that a crime like murder, that can have far-reaching repercussions for society at large, was deemed a private matter that could be settled through compromise.

For those, who argue that the purpose of blood money and compromise denote the spirit of forgiveness encouraged by Islam, the implementation of this law in Pakistan proved to be better suited to the interests of the powerful and did not, in fact, reflect a sense of evenhanded justice and forgiveness for all tiers of society. In many cases, the poor and weak were forced to accept a compromise. Interestingly, the system was never strongly challenged by the legal community as a whole, perhaps because a compromise could mean less work while being paid the same fee in the case of some lawyers.

Referring to the peculiar situation in Swat, could one expect any better from Sufi Mohammad and his son-in-law Fazlullah than to implement the Sharia law in a way that suited their interests? The law of Qisas is also problematic because the conditions for a witness cannot be met by most including Sufi Mohammad, Fazlullah and the rest of their crew. It seems quite likely that those people whose loved ones have been murdered by the militants will be forced to accept a compromise in the name of the Sharia.

In fact, the Swati people have little choice in the matter because the state has abdicated the right to administer justice. This is certainly not in line with the instructions of the Quran and Sunnah, which, were these to be implemented in their true spirit, would require a fundamental re-negotiation of the legal regime in Pakistan and all over the Muslim world. Other Muslim countries including Saudi Arabia are not any safer even with the implementation of religious laws by the most powerful. Ultimately, any law has to have the inherent capability to protect the individual and society at large. It is a question of debate whether religious laws in the Muslim world have been able to achieve this. (Dawn)

The writer is an independent strategic and political analyst.



What is the difference between Sharia politicians and Hindutva politicians?

Religion has absolutely no place in politics in a democratic state - Reuters/File photo.

Pakistani activists of Islami Jamiat Talaba, the student wing of the hardline Jamaat-e-Islami, burn a US flag during a demonstration in Karachi, 03 August 2007, against the controversial statement of a US presidential hopeful. (Reuters)


Shan said...

It has to be remembered that even the Lal Masjid phenomenon, which had shocked the public for six months, only lasted till the time the government wanted to tolerate it. When the government decided to get rid of it, the whole process took less then a couple of days. There is clearly willingness in some influential quarters within the state to tolerate the phenomenon of militancy. The Taliban are a myth being perpetuated to serve interests of specific elements.

Masooda Bano, The News, April 03, 2009

Aamir Mughal said...

Ansar Abassi’s reaction on Flogging and LHC JUDGE


Mufti Ansar Abbasi’s Favourite NON-PCOED JUDICIARY differ with Mufti Ansar Abbasi [The News International/GEOTV/JANG] and wait for Fatwa of apostasy from Mufti Ansar Abbasi against the learned Judge.

Girl’s flogging not true picture of Islam, says LHC judge By Our Reporter Sunday, 12 Apr, 2009 | 05:08 AM PST

RAWALPINDI, April 11: The flogging of a teenage girl in Swat does not portray the true picture of Islam as it is not clear whether or not the exact procedure for convicting her under religious laws was adopted and who had issued the Hadd and under what authority.

This was stated by senior most judge of the Lahore High Court Justice Khwaja Mohammad Sharif while addressing a Mehfil-i-Milad arranged by the Lahore High Court Bar Association (LHBA) here on Saturday.

The recently reinstated judge of the LHC said irrespective of the fact whether the video was real or fake, it was a conspiracy to malign Islam and bring a bad name to Pakistan showing the world that Islam was a religion of extremism.

Mr Sharif, who was called chief justice of the LHC by the bar representatives, said Islam had laid very strict procedure to implement Hudood laws, almost making it impossible to apply.

He questioned under what authority the girl was flogged and what procedure was adopted to declare her guilty. The justice said Islam demanded four witnesses with immaculate character for conviction or the confession of the accused person.

Thanking lawyers for their unflinching support for the restoration of the deposed judges, he said the reinstated judges would try their utmost to fulfil the confidence and faith reposed in them by the legal fraternity.

The president of the HCBA highlighted the role of Prophet Muhammad (peace be upon him) as a legislator and a judge, saying the whole world has been taking benefit of the Islamic laws.

The bar also arranged a Naat competition taking one lawyer from every district of Rawalpindi division. The competition was won by Chaudhry Zubair from Chakwal. The function was attended among others by four judges of the LHC, four session judges and lawyers.

The HCBA had also invited Justice Maulvi Anwarul Haq, Justice Syed Sajjad Husain Shah and Justice Mazhar Hussain Minhas of the LHC’s Rawalpindi bench, earning the ire of the DBA Rawalpindi.

The DBA in protest did not participate in the function after its executive body in a meeting termed the invitation of PCO judges to the bar an attempt to divide the lawyers.

Some lawyers distributed written material crticising the administration of the HCBA for inviting the PCO judges and were confronted by some other lawyers that resulted in a scuffle. Majority of the lawyers left the venue without attending the function.

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