The intent of Sharia is to serve justice, indeed, the foundation for a safe and peaceful soceity rests on justice where no one is apprehensive of the other. However, Sharia like all other laws of the land is literllay owned by the ones who desire to control the future of society. Unless the technicalities are debated freely, it remains a control mechanism of in most of the Muslim majority states. Much of the Personal Sharia is fine, bus some parts of the Public Sharia dealing with rape, adultery, divorce, apostasy, child custody and blasphemy are contentious. More on Public and Personal Sharia at: http://sharialaws.blogspot.com/2011/07/sharia-in-one-gulp.html
Mike Ghouse
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Muslim Woman: Last amongst the Equals
By Mohammed Khan Hanif(UK)
I was talking to a Muslim sister on the topic Women's status in Islam and during our conversation she told me that her daughter had read a book entitled "Price of Honour"[1] by an English woman journalist Jan Goodwin. She told me that this book had turned her daughter against Islam. I was naturally very curious, so I read the book. However, it contained little that was new to me. The book deals with issues relating to the appalling treatment that Muslim women suffer in Muslim society. The articles were well researched, cleverly put together and unfortunately contained painfully true accounts of Muslim women around the world. Reading them was unsettling and disturbing for anyone - particularly for those who have little or no knowledge of the Qur’an, the Book Muslims believe to be God’s guidance revealed verbatim.
After reading the book I felt I must at least attempt to clear one point. If this is fully understood, then people will recognise the disparity between Islam, as found in the Qur’an and Islam, as currently practised by those who profess to be Muslims. If the reader understands this fundamental difference, then I will have achieved my aim.
There is a common misconception that a law that is implemented in a ‘Muslim’ state is an Islamic law.[2] Unfortunately this misunderstanding not only lies with the non-Muslim, but those who are presumed to be the pillars of established Muslim authority have also embedded it into the image of Islam. This situation has remained unchallenged for fear of repercussions by the religious establishment; and whosoever challenges their autocratic dominance and `divine' right is likely to be condemned as an apostate. However, I will attempt to challenge the misconception that what a ‘Muslim’ state calls laws, are what the Qur’anic teachings direct and condone.
The primary source of Islamic law is in the Qur’an.[3] Readers of this Qur’an will realise that these laws are also near common sense. On the other hand, most prevalent ‘Muslim’ laws are based on tradition, and that is not necessarily in accord with Qur’anic injunctions. Many of these laws are wrongly attributed to God’s Messenger - Muhammad pbuh [4]. The basic rule to remember is that any law that is against the Qur’an, we, as Muslims, should not accept it as Islamic and it cannot be the word of our Prophet, as he would never preached anything anti-Qur’anic. "I but follow (naught but) what is revealed to me (The Qur’an)". Qur’an 6:50, 10:15, 7:3.
Nevertheless, some religious jurists over, a thousand years ago, constituted certain laws according to their own beliefs, interpretations, experiences and traditions of the time. Perhaps more importantly some of the Shariah laws were interpreted and enacted under the direction or influence of the ‘Muslim’ monarchs.[5]
Therefore some of the Shariah and Hudood laws are not based or supported by Qur’anic injunctions. In fact, some of the laws are in clear contradiction with the Qur’an but are wrongly credited to Islam. Under the current Hudood law, maximum punishment for Zina (adultery) is death by stoning - although this is not found in the Qur’an.
As reported in the Daily Nawa'e Waqt Pakistan, 22nd March 1981 and Pakistan Times, 10th April 1981, a court in Pakistan concluded that stoning to death was un-Islamic because it contravenes a clear Qur’anic injunction. "The woman and man guilty of Zina (adultery/fornication), - flog each of them with a hundred stripes…" Qur’an 24:2.
The late General Zia-Ul-Haq, the then President and Chief Martial Law Administrator, challenged and rejected the court decision because in his opinion "The Judges did not do their home work". As a result, Zia dismissed the whole bench and appointed judges of his own choice who predictably overturned the former decision. It was said that Zia had been criticised and put under immense pressure by the Saudi king to dismiss all judges for setting a ‘wrong’ precedent.
This example clearly demonstrates how certain traditional laws are constituted and labelled as Islamic laws. As a result of this perverted belief, that all laws made by ‘Muslim’ governments are Islamic and in accordance with the Qur’an, the media (and other ill-informed people) can attack Islam for the un-Islamic beliefs that are in reality rooted in tradition and culture. This myth is perpetuated, by people such as General Zia and other figureheads in ‘Islamic’ establishment and that consequently tar all Muslims with the same brush.
An ordinary person cannot offer any proper answer to such attacks as he or she has also been indoctrinated by corrupt leaders and priests with beliefs that wrongly imply laws to be Islamic, when if fact they are not.
In March 1995, an article, published in the `Eastern Eye', London, `Women at the Verge' accompanied by a critic’s letter entitled `Degrading Law' claimed that a woman raped, under Muslim Shari'ah law, has to produce four witnesses to corroborate her accusation, otherwise she risks being jailed. This absurd situation is shown to be true, because in ‘Muslim’ countries wherever Shari’ah is enforced, this is exactly what happens. However, the requirement of four such witnesses is totally against the teaching of the Qur’an.
Because of the examples set in countries implementing Shariah law it is difficult to blame non-Muslims for quickly latching on to such displays of unjust punishments – however wrong and obscure they may be from the teaching of the Qur’an.
The requirement of four witnesses is not as complex an issue, as it has been made to appear. The Qur’an states: "…those who launch a charge against chaste women, and produce not four witnesses (to support their allegations) flog them with eighty stripes". (Qur’an 24:4).
“And as for those of your women who are guilty of “immoral conduct”, call upon four from among you who have witnessed their guilt; and if these bear witness thereto, confine the guilty women to their houses until death takes them away or God opens for them a path [through repentance]. And punish [thus] both of the guilty parties; but if they both repent and mend their ways, leave them alone: for behold, God is an acceptor of repentance, a dispenser of grace”. (Qur’an 4:15). Please read underline emphasis. How could you leave one alone? Once punishment of stoning by death has been executed?
If women are proven guilty after a full and thorough investigation, then Qur’an impose "…Confine them to their houses”. The punishment prescribed here for the crime is house confinement, not death by stoning. The Qur’an takes very tough stance and prescribe sever punishment to men who harass innocent women. If actual or presumed harassment is based on religious or sexual orientation then the offence becomes aggravated. (33:59-61).
The distinction between illicit relationships - zina by consenting sane adults must not be confused with rape. The rape is heinous crime against women and it should be met with sever punishment as a deterrent.
For the context in which we are talking about, the Qur’anic verse specifically applies to women who are found guilty of indecency. The term ‘indecent’ means offending against recognised standards of propriety. The important point to remember is that there is no mention of a hundred stripes or stoning to death. More importantly in the entire Qur’an, God does not prescribe stoning to death as a punishment for any crime. In the Qur’an, the verse 19:46, stoning is recorded as an act carried out only by pagans – such as Abraham’s father who threatened to stone Abraham pbuh.
The verse 4:15 simply means if a person witnesses women committing lewdness (or any such action leading towards adultery, e.g. loitering, curb crawling or soliciting, etc.). Then evidence of less than four witnesses is insufficient to convict the accused. Some scholars draw inference from this verse that it also means sexual transgressions such as lesbian relationship.
You will see that the Qur’an has taken extra ordinary measures to protect honour and dignity of women and therefore as a deterrent it prescribes; "… And those who accuse women and produce not four witnesses to support their allegations; flog them with eighty stripes and reject their evidence forever…" (Qur’an 24:4).[6]
Under the current English law (Street Offences Act 1959 - Police law) only one witness is required; a police constable may arrest any women without a warrant, in a public place and with reasonable cause to committing an offence. Whereas the Qur’an demands four witnesses in public order ‘indecency’ offence and leave no room for a wrongful conviction in the first place.
Call it pathetic or sinister of all Hudood Ordinance; even if one were stupid enough to rape a woman in front of four witnesses, it would be impossible to convict any man of this crime under the Shariah laws.
You must not be surprised if no one has been stoned to death for a rape in Pakistan, in spite of Shariah Ordinance in force (Since 10th Feb 1979). There are hundreds of women in Pakistani prisons who have been waiting for their case to be heard, and they have been waiting for years. How sorry they must feel, as they realise, that let alone get "Islamic justice", their ordeal in prison may never end.
According to the Human Rights Commission of Pakistan, every two hours a woman is raped in Pakistan and every eight hours a woman is subjected to gang rape. The frequency of rape is thought to be much higher but many rapes remain unreported due to a combination of social taboos, discriminatory laws and victimization by the police. Meanwhile, Pakistani law is punishing victims of rape as though they were criminals while the perpetrators go free. www.amnesty.org/wire/July2004/Pakistan According to report by Pakistan National Commission on the Status of Women (NCSW) “an estimated 80% of women were in jail in 2003 because they had failed to prove charges and were consequently convicted of adultery. (Jails and prisoners, State pf Human Rights 2004, HRCP).
According to Amnesty International[7], these helpless women are repeatedly raped in prisons on daily basis yet; no man can be prosecuted successfully of raping a woman. Why not? - Because a rape victim cannot produce four witnesses. (It needs to be said that since the implementation of this draconian law, not a single man has ever been convicted, on strength of evidence provided by the eyewitnesses in the entire Muslim history). Approximately 70% of all women in Pakistani jails are specifically charged under adultery ordinance and consistently raped by police officers because these victims are perceived as immoral. (27th November 1988 Manchester Guardian Weekly). www.geocities.com/capitolhill/Parliament/3251/spring99/pakistan.html
The purpose of the Qur’anic injunction was to protect women but the Hudood Ordinance does exactly the opposite.
The forensic science, such as DNA testing or other conventional methods to establish whether sexual intercourse has taken place are not relied upon in the Shariah court. The circumstantial or corroborative evidence is inadmissible. This again is in contradiction with the Qur’an. In Prophet Joseph’s pbuh case when he was falsely accused of attempted rape[8], material evidence was sufficient to clear him of this charge. If a critic laughs at the medieval ‘Shari'ah’, we should not condemn those critics of not understanding God's wisdom; just give them an opportunity to validate it with God’s guidance - in the Qur’an. The stoning is biblical punishment and ironically it was even rebuked by Prophet Jesus pbuh (John 8).
Suppose somehow all four witnesses appear before the court and one witness during the trial says he did not see the actual act of penetration. Not only will the whole case crumble and the defendants discharged on the strength of one admission, but the remaining three witnesses will be charged for falsely accusing the suspect and all three could be sentenced to eighty lashes apiece (Fatawa Alamgiri - Full Shari’ah Ordinance details published in Pakistan Times 12th February 1979), Only a fool would put himself in such a predicament. The pendulum of justice swings in favour of a single witness.
However, filing a complaint of rape without producing four reputable witnesses would tantamount to a self-confession and therefore a woman is charged of having illicit sexual intercourse, then the victim would be charged of Zina (adultery/ fornication). The victim’s testimony, medical examination and circumstantial evidence would be held unreliable. The burden of proof lies with the victim otherwise she is presumed guilty. This is another erosion of Allah’s clear injunction. “Every one is presumed innocent until proven guilty” (24:12-16).
The Rape must be proved either by the rapist's confession or by the testimony of four male witnesses. The fact alone should casts serious doubts on credibility of 4 witnesses that they saw the act of penetration but failed to prevent it? In real world this is virtually impossible to prove. All sexual relationship including married couple, are carried out in privacy, away from inquisitive eyes. Nor would any sane couple invite 4 witnesses to see them commit adultery. However, if a woman is raped by daring out-laws or at gunpoint then that constitute rape. All most all women in Pakistani jails awaiting trial for illicit sex had actually filed complaint of rape. Ironically, the majority of the Muslim Jurists agree that the raped woman should not be subject to any punishment.[9] Mufti Taqi Usmani a former Shari’ah bench judge cited that prosecuting a raped woman, would be contradictory even to the current clauses of Qazaf ordinance (false accusation).
Allah’s clear injunction was misinterpreted by jurists and substituted with absurd man-made law. “…woe to those who write the Book with their own hands, and then say:"This is from Allah …," (2:79).
The current Hudood law also goes against overwhelming majority of Muslim jurists. But Pakistani Shari’ah law makers have failed to do their `home work': that it is not possible for a woman to rape her self.
The Hudood Ordinance is totally flawed and even defies all logic but unfortunately it is the law of the land. This is the reason the Supreme Court of Pakistan was informed by Advocate Dr Babar Awan that the law in its present shape cannot protect victims of ‘Zina-bil-jabr’ (rape). In his formulations, Dr Awan suggested that section 10 (4) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 was against the injunctions of Islam as well as the principles of justice as this was contradictory to other provisions of section 10 of the ordinance where lesser punishment had also been prescribed for similar offences.[10]
Qur’anic injunctions propose to safeguard the status of women in society and to make it difficult for anyone to defame their character. And when she does face false allegations or becomes a victim, the perpetrators when caught, do not escape punishment. This is why, according to the Qur’an, four witnesses are required to prove a woman’s guilt in cases of lewdness and indecency. However, this is not the case that four male witnesses are needed to substantiate allegations such as rape or adultery.
All such suspecting women held in jails by Pakistani authorities under the guise of Shari’ah ordinance are victims. The parliament must take immediate action, first of all repeal draconian ordinance and replace it through due legal process. Secondly, set all women free, provide adequate compensation for the ‘wrong full’ arrest, mental and physical torture, repeated rape and make sufficient provision to rehabilitate them back in to a civil society as respectable citizens.
Note: After civil society and women’s right organisation’s uproar, despite much opposition from religious establishments, in November 2006 Pakistan senate ratified Ordinance, allowing rape women to be prosecuted under civil law. However, the requirement of four witnesses remained on the statute.
This article was published in Tolu-e-Islam monthly Lahore in August 1998. The writer is a former BBC Radio presenter, editor and producer, currently employed as an advisor with Middlesbrough Citizens Advice Bureau. (UK) Email: hanif_mo@hotmail.com
REFERENCES
[2] The question which is likely to confront Muslim countries in the near future is whether the law of Islam is capable of evolution - a question which will require great intellectual effort, and is sure to be answered in the affirmative: Provided the world of Islam approaches it in the spirit of Omar - the first critical and independent in Islam who, at the last moments of the Prophet, had the moral courage to utter these remarkable words: "The Book of God is sufficient for us". - (The Reconstruction of Religious thought in Islam by Sir Muhammad Iqbal, Published by Institute of Islamic Culture Lahore, page 129, edition April 1999).
[3] Should I seek other than God as a source of law when He has revealed this book (Qur’an) fully detailed. 6:114 - Those who do not rule according to God’s scripture are the disbelievers. (5: 44-47).
[5] Sir Iqbal in his Presidential address of All-India Muslim League session at Allahabad, in December 1930 declared: “I, therefore, demand the formation of a consolidated Muslim state [Pakistan] in the best interests of India and Islam. For India, resulting from an internal balance of power; and for Islam, an opportunity to rid itself of the stamp that Arabian imperialism was forced to give it, to mobilise its law, its education, its culture and to bring them into closer contact with its own original spirit and with the spirit of modern times". Islamic fundamentalism since 1945, P-25 by Beverley Milton-Edwards, Routledge ISBN 0-415-30173-4
[6] “According to the most of the commentators, this refers to immoral conduct on the part of a man and a woman as well as to homosexual relations. Some of the commentators attribute to the term “fahishah” (here rendered as “immoral conduct”) the meaning of “adultery” or “fornication” and are, consequently, of the opinion that this verse has been “abrogated” by 24:2, which lays down the punishment of one hundred stripes for each of the guilty parties. This is unwarranted assumption must, however, be rejected. … the expression fahishah does not, by itself, connote illicit sexual intercourse: it signifies anything that is grossly immodest, unseemly, lewd, indecent or abominable in word or in deed (cf Lane Vl, 2344f.), and is by no means restricted to sexual transgressions. (Commentary verse 4:15, The Message of the Qur’an by Muhammad Asad).
(i) "Although Zina covers both fornication and adultery, in the opinion of Muslim Jurists, the punishment laid down here applies only to unmarried persons. As for married persons, their punishment, according to the Sunnah of the Prophet is stoning to death". (24:2. Note 2954 - Commentary by Abdullah Yusuf Ali). Most later-date revised editions omitted last 2 paragraphs of the above note. Please refer to revised and edited [edition 1410 H] for full quote; published by King Fahd Holy Qur’an Printing Complex, Saudi Arabia.
(ii) Abu Hurairah reports: That the Prophet (S.A.W.) said'. "Imam Shafi'i, Abu Yusuf and Muhammad (Muslim Jurists) have said that if the offender is married the hadd (punishment) of stoning to death will be applied, but if he or she is unmarried, only punishment by Ta'azir will suffice". (Shari'ah: The Islamic Law - by Abdur Rahman I. Doi - Page 243) However, Ta’azir; punishment is not specified by the Qur’an.
[7] For example Amnesty International News Release on Pakistan, 10th June 1997 highlighted a case: “Fifteen-year-old Jehan Mina became pregnant after being raped by her uncle and cousin. Her family filed a complaint of rape but since there were no witnesses, the alleged rapists were acquitted. Yet her pregnancy was proof that "zina" [extra-marital sexual intercourse] had taken place and she was sentenced to 100 lashes in public. The punishment was later converted to 3 years imprisonment and 10 lashes."
[8] The Governor’s wife accused Joseph (Yusuf AS) of attempting to rape her but the testimony of a witness and evidence of Joseph’s shirt torn from the back (not front) was enough to clear him from the false charge of attempting to hurt and dishonor the Governor’s wife. 12:24-29.
[This article was initially published in Tolu-e-Islam monthly magazine, Lahore, in August 1998 but the article has been revised and some passages have been re-written, amended, edited and updated]. – MK Hanif.
Tolu-e-Islam founded at the behest of Allama Iqbal & Quiad-e-Azam in 1938 - http://www.toluislam.com
