The Maldivian government’s reaction to the fallout from the UN Human Rights Commissioner’s address to the Majlis is deeply disappointing. It largely confirms what many increasingly allege: the change President Nasheed and MDP promised was limited to regime change and does not include a genuine commitment to democratic reform.
Navi Pillay called on Maldivians to consider putting a moratorium on the practice of flogging. She did not say Maldivians who believe in Islam should abandon their faith. She pointed out that the Maldivian State is one of the few among followers of Islam that still engages in the practice of flogging, imposed disproportionately on women.
Her fundamental proposition was: why not be as compassionate as your faith allows instead of being as cruel as it gives you room to be? Her suggestion was that we discuss and debate among ourselves to find this path to compassion. The official government response to this was, shockingly, ‘You can’t argue with God.’
The Islamic Ministry’s condemnation of Pillay’s speech, and its criticism of MPs for ‘allowing’ Pillay to address the parliament are hardly unexpected. At the helm of the Ministry is Dr Abdul Majid Bari who, while having no qualms about pocketing money earned from his stake in the alcohol-guzzling pork-eating infidel tourism industry, presents himself as an ultra-pious conservative when it comes to affairs of the Maldivian public.
This deep-rooted hypocrisy is what allows a man who holds a doctorate in the interpretation of the Qur’an to mislead the Maldivian public into thinking that multiple interpretations of Shari’a and hadith are unequivocally un-Islamic and that debate is beyond the Islamic pale.
The view of Dr Bari and other ‘Islamic scholars’ such as Dr Afrashim Ali (the ex-singer who treats the subject of his doctoral exegesis as a state secret) is neither new nor uncommon.
Had they taken the time to put it to the public in a coherent manner it would read: in view of the fact that there are specific offences and sanctions prescribed in the primary sources of Islamic jurisprudence, the Qur’an and Sunna, there is no justification for suspending regulation specifically outlined in these divine sources.
This is the view of most conservative proponents of the Shari’a, and is obviously the one held by Dr Bari and others leading the charge of the flogging brigade. It is, however, by no means the only view on the subject within Islamic thought and jurisprudence.
Rather, there are a great variety of ‘Muslim voices’ offering different views—conservative, liberal and pragmatic—about whether and how the idea of human rights and Islamic normative requirements fit together.
Diverse ‘Muslim voices’ on human rights
Even before the modern era, Islamic law was characterised by a broad jurisprudential diversity based on geographic, ethnic and racial as well as philosophical grounds.
This is evident from the fact that it was 400 years after the death of Prophet Mohammed that ijthihad—reasoned interpretation of the sources of Islamic law—was brought to an end with the increased petrification of the Shari’a by medieval jurists.
Many liberal Muslim reformers thus demand the recovery of ijthihad in order to do justice both to modern needs and to the original spirit of the Shari’a. They emphasise the Shari’a’s original meaning as a ‘path’ or a guide, rather than a detailed legal code.
These liberal Muslim voices do not attempt to deny the binding character of Shari’a. What they ask for is active reasoning, ijthihad, which was originally regarded as an independent source of Islamic law.
Their view, as expressed by Lebanese philosopher Subhi Mahmasani is, ‘The door of ijthihad should be thrown wide open for anyone juristically qualified. The error, all the error, lies in blind imitation and restraint of thought.’
Critical approaches of liberal Muslims such as Mahmasani, Egyptian judge Muhammad Said al-Ashmawy and Abdullahi Ahmed An-Nai’m have often highlighted the humane character of the Qur’anic revelation, which is the most important source of the Shari’a.
Tunisian scholar Mohamed Talbi has argued, for example, that ‘Were it possible for us to ensure a life of justice and equality in a different way [to corporal punishment], this would certainly be a way pointing in the same direction as the Qur’an does.’
Although Shari’a had continued to be the predominant legal system in matters pertaining to family law, from the 19th century onwards, Islamic criminal justice had gradually retreated from public law.
The introduction of Islamic criminal law through legislation is thus a relatively recent phenomenon that emerged in the late 1970s and early 1980s. Libya enacted Islamic criminal laws in 1972-1974, Pakistan did so in 1979, Iran in 1982 and Sudan in 1983 and 1991.
And, despite the enactment of such laws, there has been a strong tendency within most Islamic societies to restrict the applicability of hadd punishments as much as possible.
In Pakistan, for instance, the Federal Shari’a Court resisted the reintroduction of stoning in the early 1980s by repeatedly refusing to apply this form of punishment. Prime Minister Zia ul-Haq replaced some of the judges with his own allies to finally have stoning judicially confirmed as being in accordance with Shar’ia.
What these arguments, incidents and discussions suggest is that reconciliatory mediation between tradition and modernity seems conceivable not only among those who are consciously liberal but also among conservative Muslims, as has been argued by many academics.
In light of the rich Islamic jurisprudence referred to above, it is hard to see what the Islamic Ministry’s statement ‘No Muslim has the right to advocate against flogging for fornication’ is intended to do. Except, of course, to shut the Maldivian public off from any other teachings and characteristics of Islam other than those held by Dr Bari and the Islamists who rule Maldivian thought today.
Yellow: the colour of cowardice?
The deafening silence of any opponents of Dr Bari and other Islamists’ extremist views is inexplicable.
Does this mean that among the Muslim scholars that this country now has in such multitudes, there is not one person who disagrees with the extremists’ position? Does it mean, as the recent Religious Unity Regulations suggest, that Maldives will only consider as legitimate Muslim scholars those who purport a particular fundamentalist view of Islam?
Is there not one member of the Maldivian judiciary, the legal community at large, the legislature, or civil society capable of espousing a different position? Does the Human Rights Commission of the Maldives agree that the UN Human Rights Commissioner is wrong? If not, why not say so? Where are you all hiding? What are you afraid of?
Foreign Minister Ahmed Naseem’s statement that there is ‘nothing to debate’ is ‘singularly counter-productive’. It makes President Nasheed’s same-day appeal for gender equality ring hollow, like many of his other statements that emphasise democracy and human dignity.
We may never know details of the Faustian pact President Nasheed and MDP have made with Dr Bari and other proponents of extreme Islamism. What we do know is that it is costing the Maldivian people their democratic, and religious, right to intellectual debate and growth.
No matter how far above rising sea levels it is capable of lifting us, or how much it can lift our colossal debt burden, it is not worth keeping in power a government that lacks the courage to raise Maldivians above the quagmire of ignorance the Islamists are sinking us into at such a rapid pace.
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