DATE=3/14/2000
TYPE=BACKGROUND REPORT
TITLE=SHARIA LAW / PENALTIES
NUMBER=5-45640
BYLINE=WILLIAM EAGLE
DATELINE=WASHINGTON
CONTENT=
NOT VOICED:
INTRO: Many in Nigeria remain fearful of Islamic law,
or Sharia. They reject the punishments it prescribes
for serious crimes - flogging or the amputation of
limbs or flogging. Many human rights activist agree,
calling such punishments "cruel and unusual." But
others say these kinds of punishments are not
necessarily part of Sharia. From Washington, reporter
William Eagle takes a look at the issue.
TEXT: Sharia is a Muslim code of behavior - for the
individual and for society. In many Muslim countries,
its provisions on family issues - like divorce and
inheritance - are incorporated into secular law.
But its application in criminal law is less common:
Ali Mazrui is the director of the Institute of Global
Cultural Studies in Binghamton, New York:
/// ALI MAZRUI ACT ///
In reality, most Muslim countries do not use
traditional classical Islamic punishments. But
they do not [openly announce that] because it's
a politically sensitive [topic]; they just avoid
situations where the maximum punishment for
stealing is chopping off the hand or the maximum
punishment for adultery is capital punishment.
They just do not implement them. The great
majority of the 50 countries which are members
of the Organization of Islamic Conference have
systems of civil law that are very far from the
severe punishments of yesteryear.
/// END ACT ///
But there are exceptions - such as Sudan, Afghanistan,
and Saudi Arabia. These countries use the criminal
provisions of Sharia that may lead to amputation for
stealing or flogging for adultery.
While infrequently used, these punishments make
headlines - and alarm even some Muslims.
In Nigeria, many Muslim leaders who favor the
imposition of Sharia assure non-Muslims that Sharia
will not apply to them, but others remain doubtful and
point to the experience in some other African
countries.
Mohammed Salih, a native of Sudan, is a professor at
the Institute for Social Studies in the Hague
(Netherlands). He says Christians and other non-
Muslims in Sudan have suffered since the imposition of
Sharia there over 10 years ago, during the rule of
then-President Jaafar el-Nimeiry.
/// SALIH ACT ///
How do you distinguish between Muslims and non-
Muslims in Sudan? When someone is caught by
the police, and you plead no, I am not a Muslim,
it is hard to verify if you are [telling the
truth]. During Nimeiry's time, more than 250
southern Sudanese Christians got their hands
amputated. /// OPT //// The number of hands cut
in Sudan during the first three months of the
implementation of Sharia during Nimeiry's [rule]
was more than 100 times more than the total
number of people whose hands were cut off during
the time of the Prophet Muhammad and his four
successors. /// END OPT ///
The whole idea of verification is not taken
seriously once you are caught. In Sudan, you
have vigilante groups that take the law in their
own hands. They will see a woman in the street
with her head not covered, and they will ask her
to cover herself. In these kinds of situations,
these [assurances] of verification [by
authorities] and decency do not exist.
/// END ACT ///
Professor Salih say Sharia also has an indirect impact
on non-Muslims.
/// SALIH ACT ///
[When] you accept Sharia as the [legal] code,
you accept the whole notion of citizenship that
comes with it. You divide society in two: the
people of the [Koran] and the non-Muslims. Here
you create a hierarchy of citizens: Christians,
Jews, and traditional believers. The hierarchy
is applied to power - if you are Muslim you are
more likely to have more legal rights under
Sharia law than non-Muslims-so the implications
[of Sharia] go beyond the criminal code.
/// END ACT ///
Others say a better understanding of Sharia would
reduce the concerns of non-Muslims. Roman Loimeier
[pron. LOI-my-er] is a professor of religion at
Beyreuth [PRON. BAY-roit] University in Germany.
He says all four schools of Islam - including the
Maliki school of northern Nigeria - have rules of
procedure that Islamic judges are expected to follow
when applying Sharia. He says that when the
guidelines are followed properly, it is very difficult
to apply extreme penalties - which are called "hadd"
or "fixed" in Islamic law:
/// LOIMEIER ACT ///
In all schools of Islamic law, the only
possibility to punish someone with the "hadd"
punishment for adultery would be if both
partners confess. If they do not confess, the
procedural law says you have to bring four
witnesses who have seen the act committed.
Next, these four witnesses have to be men, and
good citizens - honest and accepted members of
the community. Thirdly, all the witnesses have
to give identical statements. [So] it is almost
impossible to carry out a "hadd" [severe]
punishment unless there's a confession [by the
adulterers].
The problem is in countries like Sudan
where Sharia is applied, these [laws of
procedure] ruling the application of the Sharia
are not applied. So what you [get] is a
perversion of the application of the Sharia.
Many [Islamic scholars] conclude that the real
Sharia as applied in Sudan or Afghanistan is not
the real Sharia - but a perversion of it.
/// END ACT //
Besides following these judicial procedures, experts
say there are other recourses for reducing penalties.
John Voll is a professor of Islamic History at
Georgetown University in Washington, D-C. He's also
the associate director of Muslim-Christian
Understanding in Washington.
Professor Voll says a state governor in Nigeria has
the authority to reduce a harsh penalty suggested by
an Islamic judge:
/// VOLL ACT ///
If [the governor] were doing it in the more
traditional sense, he would go to a Sharia
scholar and ask for a "fatwa", a legal advisory
opinion. He would ask the scholar [if] it would
it be justified to suspend the amputation of the
hand of this person because of the extenuating
circumstances at the current moment, and the
scholar might say yes, it's possible. The
governor would then say in light of this non-
binding opinion, I will then suspend the
implementation of the amputation, but give an
equivalent punishment.
/// END ACT ///
Other Muslims say there's too much focus on literal
interpretations of Sharia.
Farid Esack [pron. fah-REED eh-SACK] is a Muslim
theologian in Cape Town, South Africa. He's also a
member of the country's Commission on Gender Equality:
/// ESACK ACT ///
The Sharia is meant as a path for reaching a
harmonious society. When the Sharia gets
elevated to being a sacred entity by itself,
this is the antithesis of what Islam stands for
- which is the absolute supremacy, or sacredness
of God - and only God is sacred: religion is not
sacred - Sharia is not sacred, the path to reach
God is not sacred. And so Muslims then have to
see what are the underlying principles of the
law that God enunciated for Muslims at a
particular time, and what are the objectives of
the law. It is the objectives of the law which
we should seek to fulfill and not the letter of
the law.
/// OPT /// .particularly when there is no
homogenous community where everyone has an equal
level of religiosity [belief] and commitment to
that particular faith, or where everyone has an
identical understanding of what following Sharia
entails. /// END OPT ///
/// END ACT ///
Some Muslim scholars are saying that countries that
have adopted Sharia law should also allow judicial
review, under which interpretations of the Sharia
would be broadened to take into account historical and
political conditions. Many conservative Muslims
oppose judicial review, saying that the Koran and
Sharia are sacred and are to be taken literally.
Professor Ali Mazrui of the Institute for Global
Cultural Studies supports it:
/// MAZRUI ACT ///
The whole body of Islamic law grew out of
interpretation by major scholars generations
after the Prophet Mohammed. So if there was no
interpretation and reform and re-interpretation
[to begin with], there would be no Sharia law as
we know it today. [Sharia] itself is an
outgrowth of the extension, re-interpretation,
and use of analogy of basic principles of the
Prophet's own time when the Muslim community was
much smaller.
The problem is that many Muslims in the 20th and
21st centuries have tended to act as if the doors
of judicial review ["ijtihad"] are closed. But
many of us believe they are not - and we should
look at many of these things that were intended
to operate in seventh century Arabia and be
reformed in the light of changing circumstances.
/// END ACT ///
Yet the literal view of Sharia - with its harsh
penalties - appeals to many. According to news
reports from the area, Muslim protesters in northern
Nigeria favor the strict interpretation of Sharia
adopted by their newly elected governors. (Signed)
NEB/WE/KL
14-Mar-2000 10:32 AM EDT (14-Mar-2000 1532 UTC)
NNNN
Source: Voice of America
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