GUEST COLUMN by RAFIQ ZAKARIA
UNEASY EDICT
Though the laws precise, Muslim jurists have interpreted them differently, making the Shariat difficult to enforce

Since its inception, Pakistan has tried to experiment with Islamisation but the efforts have borne little fruit. Even Zulfikar Ali Bhutto, a non-practising Muslim, took some half-hearted measures which were seen as gimmicks by the public. His successor, Zia-ul-Haq, introduced Nizam-i-Mustafa -- the system of the Prophet -- but he could not make it work. Only his Hudud Ordinance prescribing Quranic punishments for certain crimes shook the prevalent legal code. Now Nawaz Sharif has come forward with an omnibus bill, which provides that Shariat will be the supreme law of Pakistan. But there is a proviso that this will be applied to different schools, according to their respective rules, traditions and interpretations which will make legal confusion worse confounded.

Broadly speaking, Shariat is the set of laws and rules as ordained in the Quran and Sunnah, the words and deeds of the Prophet. And where there is no precedent in either of the two sources, then ijtihad or independent thinking is to be exercised. Classical jurists have also resorted, in some cases, to two other sources known as quias or analogy and ijma or consensus, to arrive at a decision.

Out of the 6,666 Quranic verses, there are only 300 that have mandatory or legal bearing. As most of the Quran is allegorical in content, there is enough scope for varied interpretations. For instance, there is no mention in the Quran about how an imam or leader is to be selected or what qualifications he should possess. There are two Quranic verses on consultation: (42:36-40). These are regarded as the basis for the selection of a ruler or a chief executive. They have been relied upon not only by the religious but also the temporal authorities to justify election, selection, nomination and even usurpation. The scope has been widened over the ages; monarchists, feudal satraps, military dictators, democratically elected presidents and prime ministers, all have taken advantage of it. It is this precedent, juridically approved, that has put the bulk of the Opposition in Pakistan against the latest move. Then there is a Quranic text (4:59) which has been used by jurists in the past to equate "obedience to God and the Prophet with obedience to ruler". It is feared that this verse will come handy to Nawaz Sharif to perpetuate his rule. For the administration of justice, the Quran has specified the mode and content for a few crimes. The punishment for murder is death but this could be waived by payment of money to the next of kin. The Quran has similar punishments for other crimes: cutting off of hands for theft, "execution or crucifixion or the cutting off of the hands and feet from opposite sides or exile from the land" for treason and flogging for adultery if four witnesses testify to the act of penetration committed shamelessly in public. People making false charge of adultery against a chaste woman are to be given the same punishment if they cannot substantiate their accusation. Usury has been prohibited, but the term is not defined. Some commentators have held that it does not apply to "economic credit". Still, some Muslim countries have established Islamic banks that work only on profit sharing.

As regards the laws pertaining to marriage, divorce and inheritance, which form the basis of Muslim Personal Law, the Quranic directions are rather broadbased. Though polygamy up to four wives is permitted, provided they are treated equitably in all respects, there is the warning this would not be possible and hence "marry only one" (4:3). As for divorce, the Quran says that it is to be given in three stages but meanwhile the husband and wife are to try and reconcile. That is why three talaqs pronounced in one breath, which is still valid in India, is regarded as illegal by several schools. After divorce, during iddat or a period of three menstrual periods, the wife cannot marry, a provision which Professor N.J. Coulson describes as the "supreme innovation of the Quran" to determine paternity. There are also clear instructions about a woman's maintenance in the case of divorce: "Provide them the means to live properly; the well-to-do according to their capacity and the hard-pressed according to their means." (2:236)

Inheritance on the death of a Muslim is governed almost mathematically by the provisions in the Quran. The male child is assigned a share equivalent to that of two females; if there are females only, and more than two, they get two-thirds of the inheritance. If there is but one, she will receive a half. The female inherits from three sides -- from the father as daughter, husband as widow and son as mother. There is the Quranic verse about the evidence of a woman being half that of a man (2:28) but this is restricted to a financial transaction. There is no admonition in the Quran for the wearing of the veil, but the instruction to "cast outer garments over their persons" in verse 33.59 has been so interpreted by some schools. Non- Muslims will not be subject to Shariat but to their religious laws and traditions. Jaziya, being a temporary provision, has become obsolete.

All these commandments, though apparently clear and precise, have been subjected to numerous implications and connotations by Muslim jurists, making the Shariat difficult to enforce in modern times. Of the 49 Muslim countries, three -- Saudi Arabia, Iran and now the Taliban-controlled Afghanistan -- have opted wholly for it. Pakistan may be the latest addition if its 15th constitutional amendment goes through the Senate, which seems unlikely.

Professor Ziauddin Sardar of King Abdul Aziz University of Jeddah has described in a somewhat picturesque manner the negative role of the fundamentalists in this regard: "By emphasising the precision in the mechanics of prayer and ablution, length of beard and mode of dress, they have lost sight of individual freedom, the dynamic nature of many Islamic injunctions and the creativity and innovation that Islam fosters within its framework. They have founded intolerant, compulsive and tyrannical orders and have provided political legitimacy to despotic and nepotistic systems of government ... They have divorced themselves from human needs and conditions. No wonder then that the majority of Muslims today pay little attention to them and even foster open hostility towards them."

The writer is a renowned Islamic scholar