Fighting fiqh fatigue
Salbiah Ahmad
Sep 28, 04 10:26am [taken from MalaysiaKini.com]

Perak Mufti Harussani Zakaria and Abdul Hamid Othman, the religious adviser on Islamic affairs to premier Abdullah Ahmad Badawi, gave short shrift to the proposal of including marital rape in the Penal Code, a federal law on crimes.

According to the local press, Harussani considered the proposed law as inter alia 'menentang hukum Tuhan' (against God’s laws), a standard sort of ulama response. Abdul Hamid thinks that marital rape in the Penal Code is only relevant to non-Muslims, as ‘Islamic law is adequate to check a husband’s abuses’.

Abdul Hamid opted for a procedural stand. State Islamic law has provisions for the offence of ‘ill treatment’ of wives in 13 state laws and the federal territories. This was part of the move to codify general principles of fiqh into positive legislation as Islamic law in the 1980s, during the Mahathir administration.

Abdul Hamid appears to say that Muslim men do not rape, they only ill-treat their wives and the full force of the federal criminal laws should not apply in cases involving Muslims. He falls short of saying that this is because Islam is the religion of the federation, as some lawyers and some judges are wont to say in the civil courts these days when they dispose matters to state Islamic courts.

Shahrizat Abdul Jalil, the minister for women, family and community development, bleats a non-committal response, "We need to be careful ... in an issue like this, which involves Syariah law". A lawyer by training, she appeared none the wiser in these matters and takes her cue from the religious adviser, a contemporarised grand vizier.

Abdul Hamid has no new tricks up his sleeve (the sleeves of the Arab abaya in the dusty caliphate days, could purportedly hide sleeping cats!) This same argument was also used by the government ulama of Pusat Islam, in a meeting in 1990 for a federal law on domestic violence. It created a stalemate in the campaign for some years.

Apostasised

Women’s groups were adamant on the implementation of one federal law of general application. Muslim women complained that state law had inadequate safeguards and state courts were slow in providing protection from domestic violence as per the ‘ill-treatment’ provisions.

In a dramatic illustration of the problem, a Muslim woman, out of desperation of not getting legal protection for domestic violence, purportedly apostasised an order that she may file for an injunction against molestation in the KL High Court under the Rules of Court in 1992.

The women’s lobby for a federal law had the support of the late Alex Lee, the deputy minister of national unity and social development in 1994 in discussions between the ministry and women’s organisations. The minister was Napsiah Omar.

(The ulama did not attend the late 1993-1994 GO - NGO discussions, despite invitations, preferring instead to lodge their views with the Attorney General (AG), Mohtar Abdullah’s office.

I think there was also ulama dissent to the proposal to include marital rape in the 1989 amendments to the Penal Code, despite lobbying from 1985. The Attorney General in 1989 was Abu Talib Othman.

I remembered a last ditch attempt by Siti Zaharah Sulaiman, whom I accompanied, to see the AG on the matter before the amendments became law. (Siti Zaharah was then chief of the women’s affairs bureau or HAWA in the prime minister’s department).

The Domestic Violence Act was passed in May 1994. It was Napsiah Omar’s last public act in the ministry. The law was not enforced until women’s groups staged a demonstration on International Women’s Day some two years later. This prompted opposition leader Lim Kit Siang to take the new minister to task in Parliament. The law was enforced within the year.

Zarizana Abdul Aziz, of the Women’s Crisis Centre pointed out the pitfalls of the ulama’s views by inter alia referencing the Quran and hadith (reported sayings of the Prophet).

She is a lawyer with several years of women’s rights work with the international network of lawyers and activists, the Women Living Under Muslim Laws (WLUML) network.

The ulama in the present situation did not disclose the authoritative premises for their opinions. One would suppose that they are not ignorant of the sources, which constitute part of any authoritative discourse.

In a discourse where agents share a belief system, the authoritarian discourse is a norm of blind obedience and the authoritative is the practice of ‘rationally determined obedience’. (El Fadl, 2001).

He was speaking about the trenchant authoritarianism in contemporary Islamic determinations. El Fadl has an important contribution in the study of fiqh literature in his analysis of the authoritative and the authoritarian.

The Quran and Sunnah (the actions of the Prophet) are ‘works in movement’, lending themselves to multiple interpretive strategies. The text also instigates a process of engagement in which the text plays a central role. The text remains relevant and central because its openness enables it to continue to have a voice.

Frozen text

If the text is no longer capable of speaking or if the text is denied its voice, there is no reason for engaging the text, after all the text is frozen in the state that it was in at the last time it was engaged.

Mufti Harussani for instance said that a wife has no right to refuse sex. Refusal is disobedience or nusyuz, a state that deprives her of any support. Thus maintenance is exchanged for sex in a marriage. We might note that rape is not categorized as an offence in classical hudud law as well.

An investigation of fiqh literature on the subject discloses that the classical view on marital relationships have relied heavily on a set of hadith, which El Fadl describes as the ‘prostrating and submission’ traditions. As a matter of interest, I am listing three of several as follows:

1) “It is not lawful for anyone to prostrate to anyone. But if I would have ordered any person to prostrate to another, I would have commanded wives to prostrate to their husbands because of the enormity of the rights of husbands over wives.”

2) “If I would have ordered anyone to prostrate before anyone but God, I would have ordered a woman to prostrate to her husband. By God, a woman cannot fulfill her obligations to God until she fulfils her obligations to her husband and if he asks for her (i.e. for sex) while she is on a camel’s back, she cannot deny him (his pleasure).”

3) “If a man calls his woman to bed, and she refuses to come, the angels will continue to curse her until the morning.”

According to hadith scholars, the authenticity of these hadith ranges from da’if (weak) to hasan gharib (good).

All of them are singular transmissions, not reaching the level of tawatur or multiple transmissions. These principles establish the hierarchy of reliable hadith. Thus single transmissions are not as reliable as several transmissions and so on.

What is important is that these purport to lay down the principles in marital relationships and gender relations. El Fadl stipulates that if a hadith has serious theological, moral and social implications, it should meet a heavy burden of proof before it can be relied upon.

He finds it suspect that a whole host of angels are aggrieved by a man’s libido: ‘Do the heavens maintain their enthusiasm for the male libido regardless of its many forms and regardless of the emotional consequences upon the wife?’

The Quran is vigilant in asserting the unshared, undivided and non-contingent supremacy of God. Thus Islamic dogma insists that submission to God necessarily means non-submission to anyone else.

"Consequently any tradition (hadith) that draws an association between the status of the Prophet, or the pleasure of God, and the status or pleasure of the human being is inherently suspect."

Gender relations

A number of contemporary scholar-theologians including Amina Wadud (1992) and Asma Barlas (2000), have done important ground breaking work on gender relations in the Quran.

The Quranic scheme of marriage is characterized as a relationship of companionship and compassion (mawaddah wa rahmah), not a relationship between a superior and inferior.

This was highlighted by Zarizana Abdul Aziz in her letter. There is another perspective of analysis of the body of fiqh which have relied on the ‘prostrating and submission’ traditions - a rights perspective.

The ‘universality’ of the operation of classical Islamic law is limited to the abode of Islam (dar al-Islam). A Muslim in the abode of war (dar al-harb) and non-Muslims in that abode are not subjects of protection by Islamic law.

In its classical form and taking into consideration the history of civilisations of that period, Islamic law does not recognise the natural equality of all persons before the law. The legal capacity of persons depends upon the categories of persons; Muslims and non-Muslims, men and women, free persons and slaves.

The fullest capacity is that of a free Muslim male. In classical understandings, women have equal rights in financial matters but not in family, succession and public life. Like slaves and non- Muslims, Muslim women have no legal authority over free men. ‘Legal personality’ defines the boundaries between dominant and non-dominant groups.

The body of Islamic fiqh above mentioned when translated into legal principles in a husband and wife relationship, means inter alia that he is entitled to marital control over his wife.

She has to ‘deliver herself’ (taslim nafsaha), put herself at his disposal (tamkin nafsaha) on the condition that she is physically capable of sexual intercourse or desires it and her husband can provide her adequate housing.

She forfeits her maintenance if she is disobedient (nasyiz). Our state Islamic laws contain these principles in provisions on maintenance.

Bodily integrity

The concept of human or fundamental rights is relatively recent in the 18th century, with roots in the American and French revolutions. (Very often these writings fail to acknowledge the contribution from cross-cultural exchanges among Greek and Arab-Muslim philosophers and between Muslims and Christians before this).

In these early formulations in the 18th century in Western European intellectual circles rights belonged to free white men, not to women, non-whites or slaves. The present day understanding of equality is the result of two centuries of intellectual and juridical development.

Thus our present understanding of women’s human rights to bodily integrity for example, a right under the Women’s Convention or CEDAW is a universal right across cultures.

Malaysiakini reader Azrul Mohd Khalib for instance wrote in support of the proposal for marital rape in the Penal Code. Through the process of expertise and knowledge in other fields, I think a fair number of Muslims do share similar concerns.

However, fiqh principles on gender relations may not have embraced this understanding. The Muslim wife in traditional fiqh has a right not to be ill-treated or be subjected to acts that would impair her health.

This is not the same as saying that women have a right to bodily integrity, which includes the right to be free from rape in any situation, by strangers or persons known and known intimately (as in marriage) to the women.

The classical fiqh understandings have frozen the openness of the text. A proposal of marital rape is tested against the fiqh not against the open text as interpreted by new works on gender relations. The paradigm did not shift.

El Fadl (2001) explains a situation like this as ‘closing the text’, which he says "is intellectually arrogant; the reader is claiming a knowledge that is identical to God’s knowledge".

Man-made law

In my view it is iniquitous to oppose the proposal on marital rape with reference to a paradigm that is no longer tenable. Similarly the argument by Abdul Hamid that we should not interfere with state Islamic law that allegedly has adequate protection on ‘ill-treatment’ of wives must fail.

The current dilemma we face in our state Islamic laws is that state legislatures under powers conferred on them in the ninth Schedule of the Constitution (the State List) codifies mainly classical fiqh opinions.

The reform for purposes of codification of fiqh into positive legislation is limited to ‘borrowing’ fiqh across the schools of thought (very rarely across sects) or patching several fiqh principles together. There is little or no paradigm shift in the notion of rights, which informs these pieces of legislation.

El Fadl (2003) views Islamic law in positive legislation and I add here whether of classical fiqh or new interpretations, as ordinary man-made law because of the human element in the interpretation.

"As long as the law relies on the subjective agency of the state for its articulation and enforcement, any law enforced by the state is necessarily not God's law. Otherwise, we must be willing to admit that the failure of the law of the state is, in fact, the failure of God's law and, ultimately, God himself. In Islamic theology, this possibility cannot be entertained."

This is the view of a good and increasing number of Muslim scholars who are also lawyers like An Naim. Like civil law, Islamic law (as man-made law) is changeable and it responds to the changing circumstances of our times.

References:

Khaled A. el-Fadl (2003), "The Human Rights Commitment in Modern Islam", Joseph Runzo et.al (eds), Human Rights and Responsibilities in the World Religions. Oxford, England: Oneworld Publications; idem, (2001), Speaking in God’s Name: Islamic Law, Authority and Women. Oxford: One World Publications

Amina Wadud (1992), "Qur’an and Women". Kuala Lumpur: Penerbit Fajar Bakti Sdn Berhad

Asma Barlas (2000), “Believing Women” in Islam: Unreading Patriarchal Interpretations of the Qur’an. Austin, Texas: University of Texas Press.

Baber Johansen (1999), "Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh" (Leiden: Brill)

Rudd Peters, (1999), “Islamic Law and Human Rights: a contribution to an ongoing debate” Islam and Christian Muslim Relations. Vol 10. No. 1 pp. 5-14
Abdullahi A. An Naim (2001), “Human Rights” in Judith R. Blau (ed), The Blackwell Companion to Sociology”, (Malden: Blackwell Publishers, Inc) pp. 86-99; idem, (1998-1999), “Shari’a and Positive Legislation: is an Islamic State Possible or Viable?” in Eugene Contran (et.al) (eds), Yearbook of Islamic and Middle Eastern Law, vol.5 (The Hague: Kluwer Law International, 2000) pp. 29-42; idem, (1996), “Towards an Islamic Hermeneutics for Human Rights,” in An Naim (et. al) (eds), Human Rights and Religious Values (Grand Rapids, Michigan, USA: William B. Edermans Publishing Co), pp. 229-242