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
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
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.