On the Women Protection Bill in Pakistan...

A MIMETIC RELIGIOSITY

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.’

THE CRISIS OF AUTHORITY IN THE MUSLIM WORLD

THE SHARIAH’S LOST SOUL

Maryam Sakeenah

‘Shariah’ (Islamic law) has become one of the most spine chilling, sensational words in contemporary lexicon. In the United Kingdom with its sizeable Muslim population, fear of the Shariah is palpable as we hear of alarmist articles about ‘creeping shariah’ all over the UK, concern over the proliferation of halal meat or veils. Often the fear is irrational, used by xenophobes, racists and supremacists who resent multiculturalism and are uncomfortable with diversity.

But it is not just the Islamophobes and sensationalist media con artists who make the Shariah seem grotesque and terrifying. The spurious ‘caliphate’ of sorts run by the ISIS in Iraq and its bloodcurdling atrocities in the name of Shariah. Nigeria’s Boko Haram has followed suit with its brutal misogynistic practices. Groups like this which deface and defile the Shariah’s sanctity continue to proliferate all over the crisis-ridden Muslim world. 

And yet, crazy as this sounds, the demand for Shariah is not just understandable and legitimate but also an aspiration shared by an overwhelming majority of Muslims worldwide. The PEW Research Centre’s 2013 survey finds that most Muslims are deeply committed to their faith and want its teachings to shape not only their personal lives but also their societies and politics. Many express a desire for shariah to be recognized as the official law of their country. Solid majorities in most of the countries favour the establishment of shariah, including 99% of Muslims in Afghanistan, 71% of Muslims in Nigeria, 72% in Indonesia, 74% in Egypt, 84% in Pakistan and 89% in the Palestinian territories.

To make sense of this, one needs to understand that the Prophet (SAW) was a successful head of state and lawgiver, and that in statehood did Islam find culmination as an established system and way of life. The Islamic State flourished and ruled over continents for centuries. In fact, for most of Islam’s history before the colonization of Muslim lands, Islamic law was established as the law of the land. This has left an indelible impact on Muslim collective imagination, imbuing it with nostalgia in the narrative of a bygone glory. 

The introduction of ‘Anglo Muhammadan Law’ in British-ruled South Asia and the displacement of traditional Muslim fiqhi madhabs (juristic schools) in favour of colonial legal systems in other parts of the Muslim world has intensified this nostalgia. The decadence in post colonial Muslim societies is seen now as the result of the absence of Shariah law. Given the fact that many areas across the Muslim world writhe under oppression, tyranny and the systematic suppression of religious aspirations by corrupt secular regimes, this nostalgic longing has at times fuelled militancy and violence by rebel groups. The demand for Shariah is used by these militant and violent Islamist movements vying for political control and power. Secular political ambitions are sanctified with the holy battlecry for the restoration of Shariah law.

‘Whose Shariah?’, however, is a contentious, tricky question we do not have many answers to- but it is the very heart of the matter. The implications of this are seriously damaging to the wider interests of Islam.

Invoking religion and using religious rhetoric gives a religious colour to the violent, attention-seeking tactics used by these groups. Hence Islam is perceived as either intrinsically violent or with a dangerous potency to fuel religious violence. Simplified, reductionist stereotypes of Islam and Muslims are strengthened. This makes harder the task of peacemakers, healers and arbiters engaged in toning down the precarious polarization between Islam and ‘the West.’

The media shows such violence and militancy as essentially religious, not seeing it for its secular-materialist socio political underpinnings or the raw drive for winning power to redress perceived disempowerment by fringe groups.

Speaking of Boko Haram and ISIS, it has been heartening to see Muslim opinion leaders and scholars speak out against their methods, emphatically dissociating these from mainstream Islam. However, highly needful as it was, what was found wanting was a more specific refutation of the textual basis from where such actions of such groups seek justification.

In fact, there is a vital and basic understanding almost missing from Muslim collective consciousness- that many minutiae of Islamic law are rooted in cultural context. They were neither revealed laws nor stipulated as universal, absolute unalterable laws by divine will. The Quran and sunnah directly address and legislate for a few matters, and these texts are but few compared to the entire volume of Islamic juristic literature which was compiled and developed over the historical evolution of Islamic civilization.

The fairly modest content of Islamic laws in the Quran and sunnah means that for deriving the rest of the laws recourse has to be made to jurisprudence through scholarly consensus over the ages. More importantly, it means that such lawmaking has to be guided and inspired by the essence and ethical guideline of the principles of the Quran and sunnah.

That egalitarianism, establishment of justice, protection of rights and an interest in ending human misery to make possible higher ethical and spiritual functions of human existence is a core objective of Islam cannot be doubted. Islam had to deal with a society in which slavery- predating Islam- was a basic social institution. Islam regulated it by law, defining parameters and setting ethical guidelines. Wars involved sexual abuse victimizing women of the enemy side. Here too Islam set down rights and responsibilities to prevent such abuse. It is this humane dimension and ethical orientation Islam gave which shines through and endures over these temporal pre Islamic cultural traditions and practices. In this day and age when human progress has achieved the legal abolition of slavery and its associated practices, it is utterly ludicrous to invoke these ancient traditions as part of Islam. The rights of people recognized and protected in this day and age are sacred to Islam which teaches supremacy of law and human progress through constant social reform. Violating these established principles on which a silent global consensus exists, is sinful. It is important here to remind ourselves of the fact that the Prophet (SAW) wistfully remembered the signing of a pre Islamic document of rights (Half ul Fazul) and expressed his full endorsement of it as a prophet of Islam.

The failure of contemporary Muslim jurisprudence has been the inability to put the spirit at the core of the letter of the law and to make Muslims understand that the law exists to protect the essential values; that it is the protection of those values that are the heart of the matter, while laws are often bound by culture and historicity. This explains the unseeing literalism and fanaticism for restoring the letter of the Shariah in corrupt and decadent Muslim societies and the preoccupation with juristic nitpicking in the Muslim world.

It is the crisis of authority in the Muslim world due to which random groups pining for the return of Muslim glory make bold claims as to what constitutes Shariah law and give their own misconstrued versions tracing them back to sacred texts or early Muslim culture. Those who got together to condemn ISIS and Boko Haram’s actions as unIslamic must also with a single voice present a blueprint of Islamic law that is relevant, practical and applicable today, in tune with contemporary cultural and socio political context. It is a long haul, but unless such a juristic magnum opus is initiated, twisted, grotesque and soulless versions of ‘Shariah’ will keep haunting us like a spectre. Authority as to who interprets religious law and how has to be won back.

Abdal Hakim Murad (Tim Winter) writes of the plight of the Nigerian schoolgirls:

“... the whole atrocity underscores the crisis of leadership which is now a grave problem for global Islam. The Boko Haram abductions have been condemned by all the traditional authorities: Nigeria’s chief sultan, the grand muftis of Egypt and Saudi Arabia, the leading Islamic universities, the main Islamic bodies here in Britain. It’s been a moment of unity. Unfortunately, we can’t pretend that it has helped. For the last decade or so, across the Muslim world small but ferocious factions have defied the traditional leaders and taken religion into their own hands. In every case the result has been a disaster for communities and even whole countries. The use by these factions of religious rhetoric to validate what is often a political or economic grievance has left many religious leaders at a loss. In some cases the imams have been assassinated for speaking out against the extremists; this has happened in Nigeria, as elsewhere. So what should they do?
The founder of Islam had no time for extreme zealotry. ‘May the fanatics perish,’ he once commented. If he detected extreme or hateful behaviour in anyone he would condemn it immediately. Present-day leaders recall this, as they struggle to find ways of fighting terrorism.
So this scandal cuts more deeply. How to restore the authority of the mainline leadership, among embittered young men who trust no-one? Spies and bullets will not, in the long term, defeat these aberrations: the religious leadership must find some way of regaining its moral authority in an age of rapid change and rampant injustice.”

If the ethical spirit of Muslim law is not reinstated, if the textual bases for inhuman, brutal and violent practices not refuted, routine condemnations from Islam’s defenders will serve no more than as rhetorical generalisations. 

Lessons from Egypt

LESSONS FROM EGYPT

                                                                Maryam Sakeenah

Given a similar baggage from the past, the social spectrum in Egypt and Pakistan is built on ideological polarization as a result of political decisions- on both domestic and foreign policy- by leaderships unrepresentative of the public sentiment. These were unguided by understanding of social reality, creating a gaping split between religious and secular-liberal extremes over ideology, opinion, identity, worldview, lifestyle and affiliation: both strongly entrenched in passionate ideological commitments, feeding off one another and unwilling to budge.

Both nations suffered years of unscrupulous authoritarian rule directly or indirectly supported by the United States and allied Western nations. In Egypt, the resentment this created boiled over in the Arab Spring last year. Heartening and exciting, yet it also was in many ways a detonation of pent-up feeling with little organized political planning behind it. That should not however, take away the deep admiration the resilient protesters at Tahrir Square inspire. However, a huge question stared in the face: where to, and what now?

It still haunts the mind. While the Muslim Brotherhood has won an historic electoral win, for many the options were limited between a pro-Mubarak military man and the Brotherhood’s candidate. The vote was more against the continuation of a dictatorship many had given blood sweat and tears to defeat, than in favour of what the Brotherhood symbolized. Ruling over a populace so diversified in level of religious affiliation, Morsi faces huge challenges to bring to fruition the Brotherhood’s Islamist dream. The opposition against the attempt to increase presidential powers and the eventual success of the referendum approving the  draft-constitution by an Islamist-dominated council resonates with vital lessons Islamists in Pakistan have much to learn from. 

For starters, governing a society divided between the fiercely secular and the warmly religious is to have a hand in the hornet’s nest, unless one realizes that as human beings we all share in common the need for justice and basic freedom, for dignity and a decent life and two square meals a day. And if rulers set about delivering these, schisms and ideological affiliations do not stand in the way of achieving the common human good. The secular-liberals and the conservative Islamists are united by their basic human need for a dignified existence. In fact, for a government aspiring to rule by Islam, providing bread and rights is not about expediency, but a primary moral responsibility.

The Muslim Brotherhood with its well articulated prioritization of economic welfare, egalitarianism and social justice seems to have reached political maturation. In his first address after the referendum, Morsi said,"The coming days will witness, God willing, the launch of new projects ... and a package of incentives for investors to support the Egyptian market and the economy,"

Islamic political groups in Pakistan and abroad have made the mistake of putting the achievement of political ascendancy as their prime goal while ignoring the social project that must accompany it. Groups calling for a return to the Khilafah believe the establishment of Islamic government is the panacea, while religious parties often claim that the promulgation of the Shariah law shall crystallize a veritable Utopia. This runs contrary to the  precedent we have from the sunnah of the Prophet (SAW) whose epic spiritual and social mission preceded the establishment of the Shariah.

Both law and political policy are means to greater ends. Religious political groups make the mistake of seeing them as ends in themselves. The Shariah of Islam is the guarantor of the maqasid e Shariah, the guardian of Islamic values by which life is to be lived. Similarly political power is a means to establish an order that guarantees rights indiscriminately. Islamist groups in Pakistan have not so far proven themselves here. The talk of Shariah and the dream of Khilafah cannot be sold to a public writhing in the throes of poverty, ignorance, oppression, disease.  

Before launching a political struggle, Islamist parties need to embark upon the social project to mend a broken society, moderate between the dangerous ideological polarization and address social injustice. Such an effort can act as a secure launching pad for a political movement and a support base for a stable government. Without demonstrating this ability, political struggles of Islamic groups will be stillborn.

So far, an intellectually robust discourse mediating between the ideological polarization has not emerged from Islamic scholars in Pakistan. A comprehensive strategy to address the real problems has not been presented. 

As long as polarization between the religious and the secularized exists and grows, any religious group winning power will have to deal with stiff opposition leaving its hands tied.  That is the lesson from Egypt’s dilemma which the ruling Islamists seem to have dealt with skilfully. With a council including sizable diverse groups like Coptic Christians, leftist social activists and women, the draft constitution referring to the centrality of the Shariah managed to scrape through. The president has assured that the concerns have been taken seriously and that the constitution offers protection for minorities. The decision to put the draft to vote by a public referendum demonstrates the Brotherhood’s commitment to democratic process and its inclusive vision. Opposing groups quit protests in the wake of the Brotherhood’s conciliatory gestures, settling for a ‘wait and see’ approach.

Most ordinary people protesting in Egypt’s streets in 2011 and now have always been more interested in liberty, equality and rights than Shariah or the lack of it. Those calling for a return to the Shariah or actively opposing it will always be at the fringes, even if loud. The mass man wants things more tangible than legislation. As long as religious parties fail to take on social ills, they will remain unattractive to the man in the street.

Putting the cart before the horse by making Shariah law precede the provision of basic justice has proven disastrous. When the letter of the law is imposed without first actively promoting the value it exists to protect, this becomes brutal and spiritless. The experiment with the Hudood laws in Pakistan in the 80s allowed Islamic law (or the pretense of it) to fail by not creating the necessary conditions for it to work. Such disasters are likely to be committed by those seeking to win legitimacy by appealing to religious sentiment.

Islamic groups must also be conversant with modernity. Both freedom and democracy are part of the inevitable modernizing process in societies today. Egypt is livid over what is perceived as Morsi’s attempt to curtail both these hard-earned gifts. While the democracy package bred in Western society may certainly not be suitable for Muslim societies, the values of governance by popular will, decision-making involving public participation and accountability before the public and the law are values Islam vigorously promotes. Certainly, the intricacies of how these democratic values can best be ensured is something scholars and leaders have to work out given their social contexts. Other than that, the implementation of laws must be done in a manner that does not encroach upon personal liberty. While an Islamic society will facilitate and promote the values of Islam, it must not call for moral policing that trespasses the line between the public and the private. Individual morality in an Islamic system is promoted through education and gentle ‘dawah’ and no imposition is acceptable in the private lives of individuals as that is between a man and his God. Islamic groups in Pakistan are still unclear and uncomfortable with both these aspects of modernity and what these mean to them: freedom and democracy.

The Muslim Brotherhood seems to be learning the right lessons and growing in the right direction. Josh Rogin writing for Foreign Policy terms the Egyptian government an ‘honest broker in the Middle East.’ Morsi’s aide Essam Haddad makes it clear that the Muslim Brotherhood does not want to create a theologically based state in Egypt, but that it does want shariah to inform governance and law going forward. The Brotherhood's religious leader, Mohamed Badie, tweeted on the eve of the referendum approving the constitution by a 64% vote: “Let's start building our country's rebirth... men and women, Muslims and Christians."

Their Pakistani counterparts, while in awe of their victory, still have a long way to go- with a good deal to be unlearnt and a good deal to be learnt.