Monday, March 7, 2016

On the Women Protection Bill in Pakistan...


Maryam Sakeenah

The refusal of the Pakistani religious right to allow the criminalization of domestic violence does not just reflect misogyny and a sense of insecurity over a perceived loss of patriarchal control. On a deeper level, it shows a mindset that reduces religion to a mere mimetic replication of the first Islamic society of Arabia over fourteen centuries ago.

One of the major justifications given by clerics for opposing the Women Protection Bill prescribing punishments for domestic violence is that such a law is essentially ‘against the Shariah’, as it innovates laws not hitherto specified by the primary sources of religion.

This mindset has surfaced elsewhere too- one of its starkest manifestations is ISIS’s revival of institutionalized slavery as an ‘Islamic’ practice, as slavery had not been explicitly criminalized by Islam.

The problem with this thesis is that it is literalist in interpretation and mimetic in implementation. This literalism and mimesis vindicate and endorse as ‘Islamic’ many an authoritatian and misogynistic practices dating from the time and place in which Islam was first set, unacceptable today in the light of the fundamental rights and principles over which humanity has achieved a quiet, universal consensus.

But what needs to be examined is whether Islam actually calls for an exclusively literalist reading of its sources and a mimetic replication of seventh century Arabia everywhere and at all times?

The Quran and even its elaboration in hadith stipulate few legislations, especially for phenomena characteristic of modern society. There is a wisdom in this silence- it understands the essential condition of human society- flux. This means that as societies evolve and grow over time, their needs change, and for a law system to be relevant, it must be flexible and adaptive to novel situations and conditions as they arise. Hence there is a deliberate purpose in this silence- to allow space for lawmaking relevant to the time and place. Yet the sources of Islam are complete in themselves- because they leave pointers, guidelines and suggestions that must inspire and lead such lawmaking in the right direction.

This understanding was not lost on the earliest generation after the Prophet (PBUH) who made Ijtihad a vital institution for progressive juristic innovation, such as Umar (R.A)’s innovations in the divorce laws to cater to the trends in his time.

Secondly, the purpose of law is to safeguard values which are at the core of Islam. The legal aspect of the shariah exists to protect the ‘maqasid ul shariah’- the core values. At times such law is explicitly laid down by the sources. Often, it is not. The scholars of Islam are in agreement that to ensure the achievement of the maqasid, juridical innovation may be made within the parameters defined by Islamic sources. Hence, Ijtihad.

One of these core values is human dignity and sanctity of one’s personal integrity. When a woman goes through domestic abuse and violence, it violates her dignity and respect as a human being and her fundamental rights as a partner in marriage. There is absolutely no equivocation in Islamic sources about this being condemnable behavior. The acceptability of domestic violence as the husband’s prerogative in Arabia predated Islam. Nor is the absence in the Quran and sunnah of a fixed penal law regarding it a bar to formulating such a law. There is no equivocation in the sources of Islam regarding the reprehensibility of domestic violence. By making gentle physical admonition exclusively tolerable in extreme cases of ‘nushuz’ (rebellion/defiance as in the case of unabashed disloyalty) and only after exhausting all other preferred strategies, Islam actually rejects domestic violence as the man’s prerogative to have his way with his spouse. The strictest conditions are laid down to ensure that neither pain is inflicted nor a mark left. Islam does not really require of men to put this exceptional permissibility to action in any situation at all. Simultaneously, the Prophetic conduct shows this never really has to be done, and there are better ways to resolve marital discord. He said, "How does anyone of you beat his wife as he beats the stallion camel and then be intimate with her?” (Bukhari, vol. 8, Hadith 68)  

The Quran says that spouses are to ‘dwell in tranquility with each other’ (Ar-Rum 21). It instructs husbands to ‘Live with them on a footing of kindness and equity.’ (An-Nisaa 19) 

In a society where honour killings, acid throwing, domestic and sexual violence are far too common, legislating in order to curb these horrendous practices works well to fulfill the maqasid of the shariah. Any legislation to ensure the provision and protection of the human rights recognized by Islam is commendable, just like the Prophet (PBUH)’s praise for the pre Islamic peacemaking document ‘Half ul Fuzul’ which laid down rights.

While the Women Protection Bill needs to be examined and modified to rule out its misuse and there can be a healthy debate around it, there can be no doubt that in its objective it fulfills the demand Islam makes on us_ to deter violence against the vulnerable and provide access to justice.

While constructive criticism and suggestion should be welcomed, the tirade from the religious against the law is tragic in that it seems to imply that Islam stands on the side of the male abuser and slights the issue of domestic violence. That is a dangerous and ugly untruth which ought to have been dispelled by those who claim to stand for Islam’s defence.      

Addressing the issue of the revival of slavery as ‘Islamic’, Michael Perez writes, ‘…we must refuse the position that limits our contemporary ethical horizons. To do so, we can take the Prophet’s statements against slavery as our contemporary responsibility… Such a perspective is critical today… Muslims have a role to play in the elaboration of Islam, and push forth a future in which slavery is no longer a question.’

Those who insist on an uncreative mimetic religiosity need to remember what Iqbal had meant when he wrote, ‘The movers have gone ahead… the unmoving ones have been crushed.’