Islamic law: a Divine gift

LAW can simply be defined as a set of rules governing human conduct. The western concept of law presupposes a state. According to it, the state makes or authorizes to make rules that constitute law, and these rules are enforced on the basis of sanctions. The purpose that the law is made to serve may vary from welfare of the people to the interests of a regime.

The origin, nature, and scope of the Islamic legal system is different from that of the western legal systems. Islamic law, in plain words, is the body of rules of conduct revealed by God to his Prophet (PBUH) whereby the people are directed to lead their lives.

Compared to the western concept of law, the features of Islamic law, in brief, are: 1. It has not been decreed by any earthly ruler, but revealed by God. 2. It originates from Divine Revelation, not custom or tradition. 3. It remains valid, whether a state recognizes it or not. 4. Where a state does not recognize it, Islam ensures its observance by the Muslims living in its territory through cultivation of religious consciousness in the human soul and awakening of awareness through moral education. Thus, Islamic law applies to the conscience of a Muslim even if he is living in a non-Muslim state.

5. It addresses every aspect of human life, not just the legal system. 6. Its purpose is to ensure the welfare of man, individually and collectively. It does not aim at the glorification of the lawgiver, as God is above all wants and weaknesses. 7. The means by which compliance with Islamic law is secured are of a wider character than the sanctions in the western legal systems.

8. In a Muslim state, the community through a chosen representative or a group of representatives administers it. 9. When non-Muslims are living in a Muslim state, only those parts of Islamic law apply to them that are not specifically identified with the tenets of Islam. 10. Regarding its enforceability, Islamic law can be divided into the following three classes: a. Those laws that regulate men’s relations to and dealings among one another, their enforcement is incumbent upon the community; b. Those laws that only address the spiritual aspect of an individual’s life, are enforced, by God, by means of spiritual rewards and punishments; and c. Those laws that not only concern the spiritual aspect of individual life but also affect Muslim society, their enforcement is left to the discretion of the state.

It must also be noted that though the western legal systems regulate the economic, social, and political affairs of a nation, they do not cover rules of moral behaviour. Such rules only exist in the form of customs and social manners, and are enforced by the sheer force of public opinion. Consequently, whenever the public accepts as moral or even starts ignoring certain immoral actions, the entire concept of morality, due to this moral laxity, transforms. Islamic law, on the other hand, reaches much deeper into thought, conduct, and life.

The range of scope and purpose of Islamic law and western legal systems differ due to the different characters and abilities of their creators and proponents. It is a fact that in order to have an absolute comprehension of what the law should be, one must not only have before him the entirety of human life but also completely understand the human nature.

No jurist can ever have such a complete picture of human life and nature. Only God has the ability to accurately know which rules are suitable for all human beings. Thus, the law prescribed for man by Him, through Divine Revelation, is the most comprehensive and expedient one. No wonder, most of the recent western concepts regarding human rights, rights of animals, international affairs, family matters, judicial independence and impartiality, legal representation, juristic personalities, charitable trusts, non-retroactivity, etc, were never alien to Islam.

As it is the Revelation through which we become aware of the will of God, so it is the source of the laws of Islam. Revelation consists of: 1. Communications made by Gabriel, under the directions of God, to the Prophet (PBUH) either in the very words of God, or by hints; 2. Such knowledge as occurred in the mind of the Prophet through inspiration from God; and 3. Opinion of the Prophet, embodied in the form of ratiocination, delivered from time to time on issues that happened to be raised before him.

In answer to the question as to how opinion of the Prophet can form part of Divine Revelation, God says: “Your companion errs not, nor does he deviate. Nor does he speak out of desire. It is naught but revelation that is revealed — One Mighty in Power has taught him, the Lord of Strength. So he attained perfection.” (Al-Quran, 53: 2-6)

Revelation is available to us in the form of the Quran and the Sunnah of the Prophet. The Quran comprises only those Revelations that are made in the very words of God, while the rest form the corpus of the Sunnah. Here it must be mentioned that it is wrong to claim Ijma and Qiyas as sources of Islamic law. Both are mere tools provided in Islamic jurisprudence for further extension of the law.

They only extend the laws given in the Quran and the Sunnah to matters not expressly covered by them. The methods of expansion of law should not be confused with sources of law.

Blair’s flawed logic

BRITISH citizens of South Asian origin, Muslims and those from Pakistan in particular, are justified in feeling extremely vulnerable these days, especially after the London Metropolitan police pumped five bullets and killed a completely innocent man last week.

Twenty-seven-year old Brazilian Jean Charles de Menezes was shot five times in the head and his only crime seems to have been — that is, if the version given by the London police is to be believed — is that he was coming out of a building in London which had been under police surveillance following the July 7 attacks. Also, he was apparently carrying a rucksack and — again, according to the police — was trying to run away after being told to stop by the police.

It should be noted, however, that at the time Mr Menezes was shot, he was lying face down on the ground, and the justification given by the London police commissioner, Ian Blair, for shooting the man in the head was that a shot in the chest or abdomen could have detonated bombs or explosives that the victim might have had tied around his body. As it turns out, the poor Brazilian didn’t have any such thing on him.

A day after this terrible act of misjudgment was admitted to by the London police, all that it could offer Mr Menezes’s family was regrets. His family, which lives in Brazil, has rejected the British apology, saying that the British police seemed to be following a policy of shooting first and asking questions later.

And, as in this case, if the person dies, then the standard practice seems to be to offer regrets to his family. The family in this case has said that it plans to file a lawsuit against Mr Menezes’s unprovoked killing and it remains to be seen what results from the family’s decision to take the matter to a British court.

In the wake of the London attacks, Muslims all over the world rallied to Britain’s — and by extension Tony Blair’s — cause, saying that such reprehensible acts could never be justified on any ground whatsoever. There were many Britons of Pakistani origin and many Pakistanis here who were quite aghast at the connections that were being suggested between the three of the alleged suicide bombers and their country of descent. As seems to have become the norm, many Pakistanis saw it as yet another conspiracy to malign Islam and to taint their country’s image. Even some top government leaders toe this line — often unconvincingly. In many cases, their reasoning is flawed and their contentions unconvincing as in the case of the London bombings which they blame on the failure of the British government for lack of action against religious extremists and hate-mongers in Britain.

The fact of the matter is that Pakistan needs to do move and quickly to contain the cult of hatred and violence, with a section of madressahs playing a major role in its promotion and spread. It is clear to the rest of the world — and to many independent observers within the country as well — that there is some link between sectarian and terrorist groups and the madressahs. As part of its responsibility as America’s ally in the war against terror, Pakistan government is in the hunt for Al Qaeda’s leadership and the remnants of the former Taliban regime of Afghanistan. And given that much of the Taliban’s top leadership were educated and trained in madressahs in Pakistan, the link between religious extremists/terrorists and religious seminaries in this country is clear.

The government should have acted to sever this link after the president made a hard-hitting speech in 2002 calling for the registration of madressahs and curbing the publication and circulation of hate literature. As a result, now it finds itself in the rather unenviable position where whatever action it takes is seen by many as the outcome of pressure from Washington and now from London as well.

As for Tony Blair, of late, he seems to be in an unenviable position. For instance, in the face of renewed domestic criticism that the London attacks were a direct result of Britain’s Iraq policy (a poll after the attacks put the percentage of Britons who believed this at over 60 per cent), Mr Blair’s defence has been that the attacks were not in any way the result of Britain’s involvement in Iraq.

The British prime minister is right when he says that there can be no justification under any circumstances for acts of violence against innocent civilians of any country, but his contention that Britain’s policy on Iraq had nothing to do with these attacks is disingenuous.

The occupation of Iraq does give hate-mongers, religious extremists and terrorists groups an opportunity to recruit people to their ranks, and that is something Mr Blair and his government seems to ignore. One should remember that the decision to invade Iraq was fraught with much controversy in Britain and it even led to a reputed scientist, Dr David Kelly, committing suicide after his input to an official intelligence dossier, in which he had argued against Iraq’s invasion, became public.

In fact, the details of his death were later disputed in a letter to the Guardian (December 22, 2004) in which eight medical and legal experts had questioned the reasons why an inquest into such a “sudden, unexpected and violent death” had been denied by the authorities.

The controversial dossier itself was featured in a report on BBC’s investigative programme, Panorama, whose correspondent Andrew Gilligan made a case that Mr Blair’s government had deliberately manipulated intelligence to exaggerate the military capabilities of Saddam Hussein’s government in order to justify a planned invasion of Iraq.

Using an unnamed source, Mr Gilligan claimed that this manipulation was done at the behest of one of the prime minister’s closest aides. A government inquiry later held the BBC and Mr Gilligan responsible, saying that the allegations were unfounded and exonerated the aide.

The reporter, the chairman of the BBC and its director-general all resigned once the inquiry was made public, with Mr Gilligan saying this of it [the inquiry report]: “It casts a chill over all journalism, not just the BBC’s. It seeks to hold reporters, with all the difficulties they face, to a standard that it does not appear to demand of, for instance, government dossiers.”

Add to this the fact that Britain’s decision to join the US in invading Iraq has always run counter to popular opinion in the Islamic and Arab countries and even in most non-Muslim developing countries like Brazil or South Africa, for instance. In fact, it would not be inaccurate to suggest that even in many western countries — especially those playing a leading role in Iraq like America, Britain, Italy or Spain (before it withdrew) — public opinion has always been bitterly divided with many citizens believing the war to be unjust and unnecessary.

That being the case, the only plausible reason for Mr Blair continuing to insist that the London attacks have nothing to do with his government’s policy on Iraq can only be self-serving. Perhaps, he and his advisers believe that acknowledging their mistake would in fact be an admission of an error of judgment, and vindicate some of his harshest critics, including former cabinet members, ex-foreign minister Robin Cook and ex-secretary for international development Claire Short and quite a few others.

As a follow-up to the blasts, senior UK officials, including, Home Secretary Charles Clarke, the London police chief and Mr Blair himself have held meetings with various Muslim groups in an effort to assure them that the government is not pointing fingers. However, their seems to be a disconnect between this and the actions undertaken by the British authorities, especially the London police, since the London attacks.

And Mr Blair’s refusal to acknowledge that his government’s policies might have played some role in providing the motivation to terrorists and misguided religious fanatics for the attacks only strengthens the impression among many that he, like his friend across the Atlantic, completely miss the point on their Iraq misadventure.

The continued denial could very well end up alienating many British Muslims, most of whom disagreed with their government’s Iraq policy in the first place. If that were to happen, the exact opposite of what the British government would like to do with its Muslim population will happen, and the bridge that already exists in the minds of many young Asians in Britain between their views and those of the mainstream will only widen. If that happens, Asians in Britain will feel threatened and vulnerable.

Email: omarq@cyber.net.pk

Distorted devolution and LB polls

AS the local government elections approach, any prospects that these will be free and fair are fast fading. General Musharraf does not tire of stressing that his government will ensure transparent polling. But his pronouncements are belied by the fervent claims of ministers and PML-Q leaders that their party will sweep the “partyless” elections. No less damning is the systematic pre- election rigging accompanying these claims.

The aim here is to sideline the moderate opposition parties and divide their support base. Take the official targeting of the PPP for example. The government of Sindh gerrymandered districts Dadu, Larkana, Mirpurkhas, Jacobabad and Hyderabad to create several smaller districts more amenable to electoral manipulation; illegally sacked the nazims in these and other districts; and continues to persecute party activists and leaders to force them to change their loyalties.

In Punjab too, the government has reportedly resorted to highhanded tactics: arresting, torturing and implicating several party activists and leaders in fabricated cases. To boost the electoral chances of the ruling party in districts where it might otherwise lose, rigging has taken the form of selective distribution of state funds and visible development projects. As if this wasn’t blatant enough, President Musharraf and PM Aziz are openly canvassing votes for PML-Q candidates.

Then there are the government’s legal manipulations. In June, President Musharraf approved amendments in the Local Government Ordinance 2001 which were duly promulgated by the provincial governments. While the pretext was one of introducing “efficiency” and “accountability” in local governments, these amendments further undermine their autonomy. Notably, the provincial assembly has been stripped of its powers to vote on the “external recall” of district nazims.

In what seems like a curious replication of the notorious presidential powers to dismiss an elected prime minister, the chief minister has instead been empowered to suspend district nazims for 90 days, set aside their orders in the public interest and sack them if the provincial local government commission so recommends after an inquiry. This provision is likely to pose a constant threat to nazims, especially those of the opposition parties.

In another move rightly seen by opposition parties as a recipe for “cooked-up” elections, provincial governments have been authorized to appoint administrative officers as “caretakers” to ensure the neutrality of the transitional process. Still another questionable amendment reduced the number of union councillors (who form the electoral college for the district and tehsil nazims) from 21 to 13.

One of the stated objectives behind this move is to reduce the financial burden on local governments. The real reason, critics say, is that it would be easier for the government to browbeat a smaller number of councillors into voting for its preferred candidates. Them there is the continuing provision of non-party polls which is meant to suppress partisan affiliations and to encourage electoral competition along easier to manipulate ethnic and caste lines.

With candidates competing for office around these divisive loyalties, the elections are likely to further exacerbate traditional hostilities at the local level. Last but not least is the decision to allow ministers and MPs to contest local elections while retaining their parliamentary seats, a guaranteed recipe for the abuse of public office for electoral gains.

“Pre-poll” rigging is just the tip of the iceberg, however. Devolution suffers from contradictions that are inherent in democratic facades propped on authoritarian crutches. Four years after it was implemented, any hope of meaningful devolution of power from the centre downwards to the local levels remain illusory. While local governments nominally have autonomy from central and provincial intrusions, the country’s 42 civilian- populated military cantonments and the federal capital territory remain outside the ambit of devolution. In another vivid illustration of its contradictions, devolution has been accompanied by the growing centralization of powers in the office of the president and the continuing negation of decentralization from the federal to the provincial level.

Moreover, the centrally-controlled devolution scheme has created divisions at the local and provincial levels. Absent democratic legitimation by the provinces, it has fuelled ethno- regional resentment over the denial of provincial autonomy. Jurisdictional and political conflicts between the provincial and local governments virtually crippled local governance in the aftermath of the October 2002 general elections, especially in the NWFP and Sindh where opposition parties controlled district governments.

Elected politicians and district nazims who undercut the former’s local authority have also been at loggerheads. Their frictions culminated in a written demand from over a hundred and fifty PML-Q MPs for the pre-poll accountability of nazims. Official audit reports that exposed rampant corruption and misappropriation of public funds by local governments lent further credence to their demand. But Gen Musharraf’s response, ironically enough, was that the polls should not be delayed so that the people of Pakistan could “exercise their right of vote in a manner which weeds out the corrupt and holds them accountable...we need to let the process of democratic renewal continue...we must be patient with democracy and what it produces.” The real intent behind the general’s epiphany may have been to reaffirm his democratic credentials. But it only served as a tell-tale reminder of the iron grip of centralized military-led rule guised in the garb of devolution.

Given its contradictions, and its association with the military-led rule, the devolution plan is likely to continue to be internally questioned even if external donors and their collaborators in civil society continue to support it. As low levels of domestic ownership mar its sustainability, the government’s ongoing electoral and legal machinations undermine the rule of law and negate the very concept of devolution. Thus, the real issue is not whether the devolution is or is not working. Nor is it merely that of ensuring free and fair polls.

When the entire constitutional framework of the state is subordinated to the military, it does not take any extraordinary presence to understand that schemes like the one relating to devolution are mainly a cover erected to legitimize and sustain their usurpation of state authority.

Simply put, devolution under military rule is a contradiction in terms. Democratic development, including decentralization of power, requires a sustained political process free of military interference. Military-sponsored plans like devolution only create more distortions in our political system.

Men who tamed the IRA

IF history is a nightmare from which we are trying to awaken, as James Joyce said, then the people of Ireland finally woke up from troubled slumber last week. The announcement that the Irish Republican Army was abandoning its more than 30 years of violence signalled an epochal event unlike any other in modern Irish history. British Prime Minister Tony Blair called it “a step of unparalleled magnitude; Irish Prime Minister Bertie Ahern called it “a momentous ... development.”

But the IRA did not lay down its arms on the spur of the moment. Rather, its statement was the result of decades of painstaking work by Gerry Adams and Martin McGuinness, the leaders of Sinn Fein, the political wing of the IRA. They took on one of the immutable forces in Irish life and changed it from within.

It’s been a delicate, often dangerous walk for Adams and McGuinness as they sought to win support for peace without moving too far ahead of their core constituency. There are many around the world who distrust Adams and see him as an unrepentant terrorist putting a moderate front on the IRA, while some partisans of the Republican cause believe that he has gone soft.

Under the circumstances, it is remarkable that Adams and McGuinness have accomplished as much as they have. The name of the IRA has been writ large in Irish history for more than a century. It fought a war of independence, which was followed by the British partition of Ireland in 1921, which in turn was followed by another vicious civil war after an IRA split. Then, successive IRA campaigns to end the partition ensued.

In the latest burst of violence, which started in 1969, more than 3,600 lives were sacrificed as the consequences of partition came home to roost. The nightmare was in full flood.

Now, the IRA’s statement has changed everything. How Adams, the president of Sinn Fein, and McGuinness, his chief negotiator, succeeded in taking an armed revolutionary movement and placing it on a road to peaceful political activism is an extraordinary story.

Many times in the past, Irish leaders have tried and failed. Michael Collins, who in many ways created the IRA’s revolutionary tradition, lost his life attempting to turn it against violence during the civil war in 1922. Adams and McGuinness came of age four decades later, as young partisans of the Republican cause in the 1960s. But they recognized very early on that the war was not winnable, that the British army and the IRA had essentially fought each other to a standstill.

Imperceptibly at first, the two men began to change the fundamental premise on which the movement was based — that an armed campaign was the only solution. In 1972, shortly after 23-year-old Adams was released from internment on a British prison ship (where he’d been held as a suspected IRA member), he and McGuinness convened a secret dialogue with an influential Northern Ireland politician, John Hume, then leader of the province’s major Roman Catholic party. They formulated what became the Hume-Adams document — essentially a wish list for nationalists.

— Dawn/Los Angeles Times

Discovering America

It is not often that the views of 19th-century thinkers are discussed in daily newspapers preoccupied with current events, but Alexis de Tocqueville, born 200 years ago, is worthy of the honour — and relevant to anyone worried about the state of our world. The French lawyer went to the US in 1831 to study penal reform, but the nine months he spent travelling from New York to New Orleans produced the classic Democracy in America, still regarded by some as the finest book ever written on either of the two subjects of his title.

De Tocqueville is remembered best for his conclusion that American goodness meant American greatness, central to the doctrine of American “exceptionalism” — an idea that jars with those, and not only in his native land, who dislike the democracy-exporting hyperpuissance that has emerged since the collapse of communism and 9/11.

But he also had much to say about democracy — “the slow and quiet action of society upon itself” — and its interplay with equality, whose sharp decline he would surely regret in the George Bush era. He wisely condemned “violence employed by well-meaning people for beneficial objects”.

Like other great writers, De Tocqueville’s work has often been selectively plundered. Liberals like his emphasis on the dangers of mediocrity and materialism; conservatives prefer his warnings about big government and admiration for the American habit of freely uniting in voluntary associations - today’s civil society - to act as a check on the executive and on the “tyranny of the majority”.

De Tocqueville got some things wrong. His prediction of a titanic struggle between America and Russia did not survive the cold war. He did not see that slavery would lead to the American civil war. China’s rise eluded him. Yet he understood how societies change, the strength of the human spirit and the fragility of what free people create. “All who seek to destroy the liberties of a democratic nation ought to know that war is the surest and shortest means to accomplish it,” he wrote. That’s another great thought well worth remembering.

— The Guardian, London