By Rafia Zakaria
AS voters in the American state of Oklahoma went to the voting booth on Nov 2, an unusual question awaited them. State question 755, also dubbed the ‘Save our state amendment’, asked voters to amend Article 7 Section 1 of the Oklahoma state constitution such that “courts rely on federal and state law when deciding cases”. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia law.
The proposition defined Sharia law as “Sharia law is Islamic law. It is based on two principal sources, the Quran and the teaching of Muhammad [PBUH]”. Under the proposition, voters had to indicate whether they voted `yes` in favour of the ban or `no` against it.
The measure passed with nearly 70 per cent of Oklahoma voters in favour of the proposition. Similar measures are now being considered in the states of Louisiana and Texas. Since the passage of the measure, the director of the Oklahoma chapter of the Council on American-Islamic Relations (Cair) has filed a legal challenge against it.
The lawsuit is based on the `free exercise` and `establishment` clauses of the First Amendment to the United States constitution, asserting that individuals have the right to practise their faith and that governments cannot favour or endorse any single faith. The legal challenge asserts that Oklahoma’s ballot measure has singled out Islam for “profound stigma” and has consigned Muslims “to an ineffectual position within the political community”. The Oklahoma ballot measure was sponsored by Sen Anthony Sykes, who asserts that its intent was never to stigmatise Muslims but to protect the state of Oklahoma from “un-American influences”.
The supporters of the Oklahoma Sharia ban took impetus from a case adjudicated in the state of New Jersey earlier in the year. In that case, a trial court denied a restraining order to a Moroccan Muslim woman in an abusive marriage. The judge found that the woman’s husband could not be found guilty of sexual assault because he did not possess the requisite “criminal desire or intent to sexually assault” her, since he thought he was merely exercising his rights under Islamic law.
While the trial court’s decision in the New Jersey case was overturned on appeal, the negative construction of Sharia law in the minds of Americans was not. Within days of the decision, the case had been widely publicised by conservative blogs and news websites announcing the arrival of Sharia law in America which would allow men to abuse their wives with impunity. A few months later, a Muslim judge in the United Arab Emirates issued a similar decision that said that “disciplining” women was permitted under Islamic law.
The legal challenges filed against the Oklahoma ban on Sharia law in the state may well be successful. Nevertheless, several issues are likely to continue to be at the forefront of the Sharia debate in the US. While most American Muslims recognise the Islamophobic hate-mongering behind the Oklahoma initiative, few are interested in actively supporting counter-arguments on issues such as a man’s supposed right to discipline his wife.
While Islamic scholars as well as new translations of religious texts have indicated that such interpretations are controversial and lack scholarly consensus, few American Muslim organisations have taken to supporting these new perspectives. Unsurprisingly, therefore, few protests were heard from the American Muslim community questioning the decision of the New Jersey judge or the judge in the UAE on the issue of whether disciplining women is permitted in Islam. fatwa
Oklahoma’s ban on Sharia law is thus the visible symptom of a deeper problem. The crimes committed in the name of Sharia by governments such as Iran, set to stone a woman to death for adultery, or Saudi Arabia whose grand mufti recently issued a that it was forbidden for women to work as cashiers, or the Taliban who revel in hacking off arms, together make Sharia vulnerable to attacks such as the one seen in Oklahoma.
Extricating Islamic law from the clutches of the political theatre it has been reduced to is a daunting task and requires Muslims to take an active stand against literalist and backward interpretations of Sharia law that construct it in the western imagination as a mediaeval corpus that has little room for innovation.
Ironically, some of the very factors that enable Muslims to hold on to a collective sense of identity often impedes the project of distancing Sharia from the barbaric enactments of punishments that garner so much attention in the western world. The uniting concept of the Muslim world thus results in the unfortunate association of all Muslims with practices such as stoning and the religiously sanctioned abuse of women. fatwas ummah
Even while diversity, plurality and dynamism are core features of Sharia law, Muslims — including American Muslims — are loathe to disagreeing publicly with emerging from Saudi Arabia, possibly because of their divisive impact on the idea of a single-faith community. This perceived tension between embodying the unity of the and acknowledging Sharia as varied and diverse must be discarded if Sharia law is to be rescued from future bans.
The task of taking back Sharia law must thus necessarily involve vocal condemnations of barbaric acts carried out under the imprimatur of Islamic law wherever they may occur.
Just as Cair issues daily alerts that focus attention on civil rights violations against Muslims, so a similar body must be created by American Muslims that issues similar denunciations of practices such as stoning and the subjugation of women. The ban on Sharia law cannot be contested exclusively from inside an American courtroom on the basis of American constitutional guarantees that mandate the freedom to practise one`s faith. It must also be fought at the level of American hearts and minds by promoting an understanding of Sharia as an evolving body of law meant to be motivated by justice and mercy rather than fear and intimidation.
The writer is a US-based attorney teaching constitutional history and political philosophy.
Source: Dawn, Pakistan