In other words, rulings and punishment would be ‘tailored’ to suit local conditions. This means discretion based on local conditions and situations and whatnot would apply. So the Shariah was not static but dynamic.
NO HOLDS BARRED
Raja Petra Kamarudin
(Bernama) -- Students of the Syariah Law Faculty of Universiti Malaya (UM) have launch a "Friends of Kartika" club to demonstrate support for the part-time model who has expressed he wish to be caned by the authorities over her transgression with alcohol.
UM Students Representative Council secretary, Shah Rizul Ayuni Zulkiply told a press conference here today that the objective of the club was to demonstrate support for Kartika by the Muslims students in the university.
She said the club was confident that the decision by Kartika to accept the punishment was a means of correcting herself and be guided by the teachings of Islam.
Kartika was recently fined RM5,000 and ordered to whipped six times by the Kuantan Syariah High Court after she pleaded to consuming alcohol at a hotel in Kuantan some time last year.
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Many Muslims, Malays of course included, do not realise that there are 6,346 verses in the Quran (Koran) but only about 80 verses or so touch on the issue of ‘laws’. That is slightly over 1% of the Quran. How, therefore, did the Shariah or Islamic law come about?
The Shariah was developed over 300 years from the mid-600s to the mid-900s, after the death of Prophet Muhammad. Some of it was adapted from the Quran, which was revealed over 22 years during the time of the Prophet. The verses of the Quran were not revealed all in one go but came down in bits and pieces as the situation demanded and whenever a ruling needed to be made.
For example, there is the story of how certain people in Medina accused the Prophet’s youngest wife, Aishah, of adultery with a young handsome Arab man. This came about when Aishah was making a journey in the desert and when the caravan stopped she went to answer the call of nature, invariably away from public view. The caravan, not realising that she was missing, continued its journey and she was accidentally left behind.
She returned to the caravan site and discovered that the caravan had left, leaving her behind, so she sat there hoping that they would realise they had left her and come back to fetch her.
But the caravan did not realise she had been left behind until they stopped for the night. So they decided to camp there since it was already getting dark and they would go look for her the next day come daylight.
In the meantime, this young Arab man on his horse came along, saw this woman in a veil sitting all alone in the desert and he immediately recognised her as one of the Prophet’s wives. He had never met Aishah before and of course could not recognise her face -- in fact, Aishah’s face could not be seen because of the veil -- but he knew she was the Prophet’s wife because of the veil that she wore.
At that time only the Prophet’s wives wore veils.
He took her on his horse and pursued the caravan and it was not till the next day they caught up with the caravan. Imagine the people’s surprise when they saw Aishah sitting behind this young man on his horse.
And that started tongues wagging.
Ali, the Prophet’s companion, cousin and son-in-law, who later on became the fourth Caliph (which means ‘successor’) of Medina, felt that a Prophet could not afford a scandal and because of the allegations of adultery against Aishah then probably the Prophet should divorce her.
This troubled the Prophet because he really loved Aishah, who was his favourite wife. Although he refused to divorce her he did leave her and after three days the ruling on adultery was revealed. The Prophet happily went back to Aishah to tell her what had been revealed.
Those who commit adultery should be whipped 100 lashes and those who wrongly accuse someone of adultery should be whipped 80 lashes. And that was what the Quran stipulated as far as punishment for adultery is concerned.
The old pre-Islamic tribal laws for adultery was, of course, stoning to death.
While the Quran forbids the drinking of intoxicating substances, it is ‘silent’ on the punishment. But over 300 years from the mid-600s to the mid-900s, one Qadi (Kadi), the equivalent of a court official during the time of the Caliphs, decided that the punishment for drinking should be the same as that of the punishment for false allegations of adultery, meaning 80 lashes.
So, if Kartika is supposed to be punished according to ‘Islamic law’, then why a fine of RM5,000 and six lashes? Should not the correct punishment be 80 lashes as decided by the Qadi during the era of the mid-600s to the mid-900s? The Qadi during the time of the Caliphs did not impose a fine plus six lashes. It was 80 lashes.
We must remember that the Shariah was not carved in stone, so to speak. It in fact never existed during the time of the Prophet. It developed over 300 years after the Prophet had died. And by the year 1,000 there was no longer any discussion or ‘development’ allowed.
In other words, the Shariah ‘stood still’ for more than 1,000 years until now, 2009. What had been decided before the year 1,000 was accepted as final and complete and any further ‘innovation’ was declared haram and classified as bida’ah (the Arabic word for ‘innovation’).
But the Shariah itself varied from city to city and from time to time. Let us focus on just two seats of the Islamic Empire at that time -- Medina and Kufa. Medina was ruled by the four Caliphs -- Abu Bakar, Omar, Othman and Ali -- while Kufa was ruled by its governor, Muawiyah, which became the seat of the Umayyad Empire.
In Medina, the punishment of cutting off the hands of thieves would apply if the item you stole exceeded the value of three dirhams while in Kufa it was ten dirhams. This means if you stole a bicycle in Medina your hands would be cut off while it was a motorcycle in Kufa, to use this analogy as a ‘modern’ yardstick. Then, in other parts of the Empire, even stealing a loaf of bread could mean your hands would be cut off.
Different Qadi at different times and different places over those 300 years decided on rulings and punishments based on ‘local conditions’. They would take into consideration local tribal customs, the state of emergency (whether they are at war or at peace), how society functions, the ‘value system’ of the society at that time, and whatnot.
In other words, rulings and punishment would be ‘tailored’ to suit local conditions. This means discretion based on local conditions and situations and whatnot would apply. So the Shariah was not static but dynamic.
For example, in Medina, the man of the household would negotiate a woman’s marriage ‘contract’ such as dowry and so on. Women must stay out of the entire thing and just accept what has been decided. In Kufa, a woman can negotiate her own terms and can make her own decisions regarding her marriage. So the price for ‘sacrificing her virginity’ is hers to decide in Kufa, while in Medina the man of the house decides the woman’s ‘worth’.
The greatest tragedy in Islam was when by the year 1,000 or so they decided that no further ‘innovations’ would be allowed. So, for more than 1,000 years, Muslims have had to live by the rules decided long before the year 1,000 by people who took ‘local conditions’ into consideration in making these rules.
Even then, the rules were not consistent. They varied from place to place and period to period. They changed as and when the Qadi decided they needed to be changed. And some Qadi were strict while others were pragmatic. And when the Umayyad Empire was toppled and the Abbasids took over, the rules were again changed, right up to the time of Harun Al Rashid.
During the time of Harun Al Rashid, a power struggle ensued between the Caliph and the religionists. As a compromise, a deal was struck whereby the religionists would decide on the laws and the Caliph would merely implement the laws. If Harun Al Rashid had resisted he would have been ousted just like the Umayyads before that.
In that sense it was a power-sharing contract of sorts, a separation of the church and state, as they would say in the west. No longer did the state have the power to make laws. The religionists took over this function. But in this case, while the ‘church’ had the powers to make the laws, the ‘state’ was obligated to enforce them or else get kicked out.
Muslims, in particular the Malays, have to understand how the Shariah came about and how it developed over 300 years after the death of the Prophet until what it is today. And they must also understand how ‘time stood still’ for more than 1,000 years because of the many power struggles between Medina and Kufa (which saw the Muslims split into Sunnis and Shiahs, until today), the Abbasids and Umayyads, and the Caliphs and the ‘men of the cloth’.
Imam Malik had a different view and his Muwatta’ lies testimony to this. Zayd too had a different view and it was he who decided on the 80 lashes for drinking where during the time of the Prophet this had not been the case. Abu Yussuf in fact even went into conflict with Harun Al Rahid as to what the proper interpretation of the law should be. And Malik was even whipped and jailed because he and the Caliph disagreed on the doctrine.
And Malaysian Malays, most who follow Imam Shafie, would certainly disagree with Malik, who not only made it legal to keep slaves but also the slave owner is allowed to have sex with female slaves. That is not considered adultery or extra-marital sex since the slave is your property anyway.
This law has never changed until today although I would not know where one can buy female slaves nowadays.
I say we should open the doors for the reinterpretation of Islam and allow ‘innovation’, which has since been outlawed by Islam. And we need brave Muslims to study the history of the Shariah and decide what applies in this day and age and according to the environment we live in.
If we really want to split hairs, then even the Amanah Saham, which many Malays invest in, is haram. Any profit made through no effort of your own is considered usury, according to Zayd, and is therefore haram. Are we prepared to follow Islam to the letter or do we just want to pick and choose what suits us and conveniently ignore the rest since it would be profitable to do so?
That is my take on the Kartika issue and I sincerely apologise if my views differ from that of ‘mainstream’ Muslims. After all, even Malik and the Caliph disagreed on the doctrine of Islam and he was punished severely for that.
Ultimately, what we have today is what the victors or what those in power have decided for us. Those who disagreed but did not have the power to voice their opinions lost out and their views, whether correct or otherwise, died with them.
Do we not say the victors and not the vanquished write the books?
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