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NOTE: This article first appeared in the New Straits Times (Malaysia) on 27 Jan 2001 in its Crosscurrents column.             

 

                        

            When Expediency Compounds the Crime.

 

            By Farish A. Noor.

 

            The Muslim world is once again in the international headlines, and

            as usual for all the wrong reasons. This time the incident which

            served as the catalyst for international condemnation took place in

            the state of Zamfara in Northern Nigeria, when a 17-year old Muslim

            girl named Bariya Ibrahim Magazu was flogged one hundred times in

            public for the alleged crime of having pre-marital sex with three

            men. The world was shocked not only by the punishment meted out to

            her, but also by the circumstances which led to her arrest and

            punishment.

 

            For the controversy here lay not in the laws of Islam itself, but in

            how the laws have been used and abused by the parties concerned.

            From the beginning there have been serious questions raised about

            the case of Bariya Ibrahim Magazu. There were those who insisted

            that the girl was actually underaged (and was therefore exempt from

            such punishment). Then there were the circumstances of her alleged

            crime itself: Bariya was accused of having pre-marital sex, but her

            accusers conveniently failed to note the fact that she was forced

            into having sex with the other men in the first place. Nonetheless,

            the fact that Bariya was pregnant and unmarried was enough to

            provide circumstantial evidence that sexual intercourse had taken

            place out of wedlock, and that she deserved to be punished.

 

            While the Western press highlighted the controversy (and

            anti-Islamic groups used it to further demonise the image of Islam

            and Muslims), the Muslim world was left mute and paralysed. Despite

            the obvious contradictions and problems with the case, few Islamic

            leaders were courageous enough to oppose the punishment openly. This

            itself is hardly surprising, since most Muslim states are caught in

            a catch-22 situation where they are unable to condemn the abuse of

            Islam for fear of being branded ’anti-Islamic’ by die-hard

            Islamists.

 

            It is ironic that throughout the Muslim world today one of the

            factors that unites Muslims is the double-standards and unjust

            treatment that is routinely meted out to Muslim women, who make up

            more than half of the global Ummah. Cases like Bariya’s are not new

            nor unique. Similar complaints have been heard in other

            predominantly Muslim countries that have opted for a hasty and

            unreflective implementation of Islamic law- at whatever human cost

            to their own respective populations.

 

            In Pakistan, Afghanistan and many Arab states, similar legal norms

            apply and women who have become victims of rape by men are forced to

            live in isolation for fear of being accused of pre-marital sexual

            relations. In cases where these unfortunate victims of rape end up

            becoming pregnant, the options left available to them are stark and

            harsh: Either to live outside their own communities as pariahs or to

            undergo abortions in order to get rid of the babies that could be

            used as evidence against them. As if the crime of rape is not bad

            enough, the abuse of the Law by so-called advocates of Islamisation

            have compounded the lot of the Muslim woman even more.

 

            In other Muslim countries where poor Muslim women have been forced

            into a life of prostitution in order to stay alive and feed their

            families, the practise of prostitution is condemned as a moral sin-

            but not the underlying economic and political factors that led to

            such practices in the first place. (To claim, as some conservatives

            do, that some women may actually want to become prostitutes in order

            to earn an easy living is so stupid an argument that we will not

            even address it here).

 

            Muslim men, on the other hand, are often let off much easier. For a

            start, it has to be admitted that Islamic courts tend to be more

            sympathetic to men rather than women. This has nothing to do with

            Islam or any alleged gender-bias within the religion itself. On the

            contrary it has everything to do with individual Muslims and how

            many Muslim societies continue to perpetuate forms of patriarchal

            rule that are contrary to the universal humanism and egalitarian

            ethos of Islam.

 

            Then there are the Ulama, who, as a class of savant-legislators, are

            made up almost exclusively of men who share a common educational and

            social background. One of the saddest things to admit today is the

            fact that till this day the Muslim world has not been able to break

            away from this esoteric and exclusive tradition from the past and

            that Muslims all over the world continue to live under the direction

            of self-appointed guardians of religious orthodoxy. Most of these

            ’learned and pious’ men also happen to be mortal men with mortal

            failings, and among their most obvious weaknesses is their inability

            to address contemporary issues and developments in Muslim society.

 

            So if and when cases of rape and abuse do occur in Muslim society,

            it is hardly surprising that many of the Ulama and doctors of

            Islamic law tend to point the finger of accusation at women instead

            of men. (Here we do not have to travel all the way to Nigeria or

            Pakistan for examples. Our own recent experience in Malaysia has

            shown that there are enough home-grown Ulama who think that women

            who get raped deserve it because they have been dressing

            provocatively and tempting poor, defenceless men).

 

            The situation in the Islamic world cannot and will not change unless

            steps are taken to address the nature of the problem itself. This

            requires a radical thinking of the spirit and practice of Islamic

            law in most contemporary Muslim societies.

 

            For a start, the literalist approach to the Law will have to be

            questioned in the light of recent developments. Cases like that of

            Bariya Ibrahim Magazu’s show that a literalist approach to the law

            does not help enforce the law or uphold justice, but actually

            succeeds in doing the opposite: It punishes the guiltless and allows

            the guilty to escape freely, thereby making a mockery out of Islamic

            Shariah law and making Muslims look like throwbacks from the

            medieval age of the past.

 

            Secondly, the changes in the implementation of Islamic law will not

            secure any long-term results without there being any major changes

            in the institutions of Islamic law themselves. As long as Islamic

            courts and the interpretation of Islamic law is left in the hands of

            the same group of traditionalist Islamic clerics- most of whom are

            men- Islamic law and the Islamic legal system will remain the

            exclusive purview of a select few. What the Muslim world needs today

            are younger judges who have been educated both in traditional

            Islamic law (ilmu Shariat) as well as the non-religious disciplines

            (ilmu akliyyah) such as sociology, economics, political science and

            the humanities. This would allow for the creation of a legal culture

            that is sensitive to the changes in society and able to adapt itself

            to the natural process of social development.

 

            Even if the Muslim world manages to pull this off, it does not mean

            that the injustices that have been carried out against women like

            Bariya Ibrahim Magazu will be undone. But it would at least mean

            that we will not be responsible for repeating the same mistake to

            others in the future. An expedient approach to the implementation of

            Islamic law will never eradicate the problem of criminality in

            Muslim society, but only compound it further.

 

            End.