10 December, 2018

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Sharia Law: Myths And Reality – A Sri Lankan Perspective

By Ummu Hana

The concept of ‘sharia law’ or ‘Islamic law’ is a widely discussed subject for centuries. Today this concept is being largely pre-conceived by academics as well as general public around the world. Hence the sharia law become defensive, passive, outdated and isolated (Ramadan, 2009). Misconception regarding sharia law illustrious among western nation, Muslim majority countries as well as locally in Sri Lanka, also it is not limited to non-Muslims but also for Muslim and for some Muslim intellectuals. Nature of misconception regarding sharia law vary from it macro level issues to micro level issues. Due to the misinterpretation of sharia law, by some intellectuals it made to be scary instead of being a mercy to mankind and the rest.

Muslim legal experts and researchers should find a way to research and propose in every domain including marriage law, property law their perspective that is fully consistent with higher objective of Islam and at the same time applicable in a secular environment | Photo courtesy Wedding in Islam Facebook group

“Europe’s long history of religious warfare and the age of Enlightenment that followed led to the establishment, in most western countries, of a firm divide between church and state. From this divide emerged the concept that religious morality should be separated from secular law. Coming from a historical and cultural tradition defined by the separation of church and state, many westerners assume that secularization is a necessary precondition for the emergence of modern, democratic forms of government that respect universal human rights”(Elbayar, n.d.). This historically rooted divisive perspective deter from approaching to the contents of a sharia law without looking at it entirety.

In Muslim majority countries the notion of sharia law became a comfort label for ruling elites either to strength the autocratic political power base or to rally voters behind political parties to seek and / or sustain the political power base. In 1979 in Government of Pakistan with the passage of the Hudood Ordinance, and in Egypt with a 1980 amendment to the constitution stating that “the principles of the Islamic sharia are the chief source of legislation.” Recently, the newly adopted Iraqi constitution included a clause stating that “no law can be passed that contradicts the undisputed laws of Islam” (Elbayar, n.d.). Several religious political parties are gaining support all across the Muslim world, from traditionally secular countries like Turkey to Egypt, Tunisia, Jordan, Morocco, and Palestine.

Beyond the broader contextualization of the concept of sharia law within the political and legal domain, the Sharia law being criticized at several other micro level elements such as personal law, penal code, property law etc… “Some contemporary scholars fail to recognize Islamic Law as an equal to English Common Law, European Civil Law and Socialist Law. A few academics have even attempted to place Islamic Law into the Civil Law tradition. Other writers have simply added a footnote to their works on comparative justice on the religious law categories of Islamic Law” (Wiechman, et al., n.d.).

Within the Sri Lankan context the concept of sharia law was never being the subject of controversy in the past. Historically the “Sri Lanka’s legal system is a rich mix of native laws and laws that were placed by the colonial powers” (Cooray, 2008). The legal tradition in Sri Lanka is a combination of Portuguese, Roman Douche and English law in addition to customary and personal laws based on ancient customs of the Sinhalese, Tamils and Muslims. Though this diversity being well accepted within the legal domain, today among the general public of Sri Lanka there is a significant level of lack of awareness and misconception about historically rich and pluralistic legal system of our own. This lack of conscious of the richness resulted several questions among certain citizens which can be understandable. Among those questions one important question is ‘why can’t we have one (Douche) legal system despite of having various legal systems’. As these questions arise within the citizens that are logical as we lost the memory of the richness of our own pluralistic legal system we need to give answers to these questions that can let the ordinary public being confident of what we have.

This paper concentrate in brief to provide and objective take on Sharia Law considering the need of empowering the ordinary citizens of Sri Lanka and explore research gaps to the legal experts and law students of Sri Lanka to deal with.

Conception of Sharia and Sharia Law

In understanding what is sharia law it is important to understand the primary principles entrusted on believer of Islam (Muslim) and how sharia and sharia law fit to achieve its visionary objectives. The primary principles are the higher objectives of protecting the global conception of life and death, common good and interest of humankind and the universe(Ramadan, 2009).

In nutshell sharia is nothing but the best practice applicable in purifying the heart, soul and body of any given human community and diverse social contexts to build and sustain a just human society that uphold immutable values such as justice, freedom, protection, dignity, respect etc. that are Islamic and at the meantime universally shared. In this context coming up with a best practices in terms of ethics, good governance, value adding strategies, diagnosis of social problems that harmful to the humanity and the rest, considering unique desires of social, local, regional, national, and global contexts will be a part and parcel of sharia. Further the concept of sharia relates to all the domains in terms of politics and power, economy, ecology, environment, art, culture, gender issues, purification of heart etc. in addition to law and jurisprudence and simply sharia demands to purify every worldly domain for betterment of the mankind and the rest.

The term ‘sharia law’ derived from the same concept of sharia but confined to legal perspective which include critical reading, interpretation and strategies in the legal field taking in to account of the immutable values in a given changing human and social context (Ramadan, 2009). It is important to understand that sharia is broader concept than the sharia law and reducing or narrowing down the sharia in to mere legal domain is clearly misleading.

Before go in to details, I would like to highlight some main points regarding sharia. The Sharia has two brooder components; one deals with the practices and believes of a Muslim believer including rituals (e.g.: prayers, fasting) which is to attain inner peace by getting closer to God .This segment is unique to those who believe in God. So every believer struggle to attain inner peace by identify and comply with the best way which prophet Mohamed and his companions have practiced without any innovation. The second component relates application of sharia to world at large to ensure protecting the global conception of life and death, common good and interest of humankind and the universe (Ramadan, 2009). Here my article is mainly concentrating on the second components and not the first.

In substance the sharia as well as sharia law is secular in its application but in principle fully consistent to the faith of Muslim and fully acceptable for the rest of the human being as it is in compliance with universally shared values. Accordingly “Shari or sharia lawis not an exclusive concept: but it is an open system that promotes right governance falls within its scope, as we do not have an exclusive model to which we must confine ourselves” (Ramadan, 2009).

Sharia Law and its Compatibility within the Sri Lankan Legal Context

With the higher objective of sharia in mind such as justice, protecting the global conception of life and death, common good and interest of humankind and the universe(Ramadan, 2009)we can confidently state that substantial portion of the constitution of Sri Lanka as well as the legal and judicial framework is in compliance with the concept of sharia.In other word everything within the Sri Lankan constitution, the legal and judicial system that is in compliance with the higher objectives are in compliance with sharia and we as a citizens of this country have a moral duty to ensure that the constitution as well as legal and judicial system are in consistent with the immutable values that are Islamic and universally shared.

As sharia is the way or path toward compliance to the principles of justice, continued study of legal and judicial framework as well as the constitution of Sri Lanka can confirm the applicability of it in the changing context or can add alternatives or spot light on area where legal system need to be renewed to cater the changing context. Accordingly sharia demand from Sri Lankan Muslims take responsibility to contribute as much as they can to promote justice and freedom in all spheres until the higher objective of justice, protecting the global conception of life and death, common good and interest of humankind and the universe are guaranteed to the entire citizens of the country.

In today’s contemporary world, the understanding about the notion of sharia is completely away from the higher value of sharia among most of Muslims and non-Muslims and confined to a very smaller segment. The Sri Lankan societies also are not exception to this global miss-conception.

For example as I stated earlier sharia is not confined to one particular model but to the higher values such as justice, and freedom that are universally shared. Accordingly at the outset having various legal models such as English law, douche law, Kandiyan law, thesawalami law, Muslim marriage law, property law that are comfortable to accustom various social groups can be acceptable in terms of sharia as far as these models respect the immutable values of social justice and freedom that are shared universally.  Having said that today, we need to understand that over a period of time the changing dynamics of the social groups and growing complexities cause to these models to change within in order to ensure the adherence of the higher objectives.

Accordingly the legal and judicial experts and potential legal and judicial experts of Sri Lankan citizens both Muslims and non-Muslims need to assess their position on several issues within the legal domain. As I stressed several times sharia is nothing but in principle to ensure justice and freedom to mankind and rest this is not the only expectations of Muslims but universally shared and therefor in principle there cannot be a counter argument against the sharia. Therefore as far as Muslims, any effort undertaken by anyone within legal and judicial framework to ensure justice and freedom such effort that is fully complies with sharia.

When it comes to contributing in the field of ethics, law and jurisprudence with adherence to higher objectives of maintaining justice, freedom and mercy to the Sri Lankan citizens it is a shared responsibility of every concerned citizen of this country and the same responsibility indeed the portrayed Muslims through their faith.  Therefore it is very clear that responsibility toward law and judicial reform is common and shared to all communities secular itself as well as fully consistent with faith of Muslims.

A Way Forward

Accordingly the sharia perspective can significantly add value to the governance structure and law and jurisprudence by motivating all concerned Muslims citizens of Sri Lanka to contribute their level best to reform and ensure the existence of a living system that fully comply with higher objectives. There is no reason to contradict with the concept of sharia in principle as it is not confined to a particular model but stress the application of higher principles consistently.

Within the Sri Lankan Muslims unfortunately the term sharia and its visionary higher values and principles are not understood or largely a distorted subject and heavily commercialized. For example when we discuss about finance related product or service, today we can see in financial market, there are several services with the brand of ‘Islamic’ that comes together with conventional services to banking, insurance and lease. Here we can see the inconsistent in terms of adopting higher principle and the motive of adding the ‘Islamic’ label is merely to attract the growing market internally and around the world today.

Therefore Sri Lankan Muslims intellectuals in general and those who were in the field of law and jurisprudence in particular get the major part of the responsibility as they have to get equipped with the higher objectives of sharia and to reform the understanding of the same within themselves as well as sharing the principle based perspective with fellow citizens of this country and moving toward better governance and legal systems.

While accepting the plurality of the legal system, the Muslim legal experts and researchers should find a way to research and propose in every domain including marriage law, property law their perspective that is fully consistent with higher objective of Islam and at the same time applicable in a secular environment.

Reference

Cooray, A., 2008. Oriental and Occidental Laws in Harmonious Co-existence: The Case of Trusts in Sri Lanka. Electronic Journal of Comparative Law, May.12(1).

Elbayar, K., n.d. Reclaiming Tradition: Islamic Law in a Modern World. [Online]

Available at: http://www.iar-gwu.org/node/23

[Accessed 27 March 2013].

Ramadan, T., 2009. Radical Reform Islamic Ethics and Liberation. New York: Oxford University Press.

Wiechman, D. J., Kendall, J. D. & Mohammad, n.d. Islamic Law: Myths and Realities. [Online]

Available at: http://www.iium.edu.my/deed/lawbase/ilw_myth_real.html

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Latest comments

  • 3
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    We in Sri Lanka are covered by so called Sharia Law in only marriages and divorces. On all other matters we follow the national law which is applicable to all the citizens of this country. In these comments, there is no discussion on this.
    I find that Muslim women in this country are treated unfairly. Muslim men are allowed polygamy and they can take a divorce without much of a hassle. Women are not paid alimony. Where as women have difficulties in getting a divorce it is easy for men to get a divorce.
    Muslim lawyers or women who had access to these courts reading this column may be able to tell more about this condition of women and how law is applied here.

  • 0
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    Dear Tyron
    Its seems you are interested on learning various religions it’s great, religions are like variety of flowers in a garden, if garden contains only one kind of flower with only one design it does not seems good. Srilanka is a garden with variety of flowers…

    The second how understanding these flowers….i used to criticize islam and other religions, with some unknown / pre described / quotes collected from various web sites and racial pages…
    But I found that, the reality is different once we get in to deep on each religion….spend your time to study the religion before quoting something irrelevant…
    The historic transcripts has to be understood with the background of history either its Srilankan history/Islamic history… what so ever,….so first of all you and me should study the history to explain… these statements …

    Regarding the punishment in islam….I remember I red, when the second / third ruler of islam umar in power he suspend all the law of punishment in islamic law for 10 years (while he was in power)…considering the draught and poority…… in concept the punishment in islam is equal to muslim and non muslim there are somany incidents muslims were punished against jews and other communities while islam in rule…. The rule is same for all mankind…..the Islamic law in punishment has to be implemented only if the all doors for wrong doings are closed……in order to build a peaceful society without murder, rape, child abuse…etc
    Don’t take examples from Saudi / Afhgan -Taliban / Iran to understand islam…it’s like taking Myanmar to understand about Buddism….
    About the force conversion; islam is the only one religion which claims itself that, there is no compulsory in religion these applicable even for muslims…if you can try to find a statement same like this from any other religion…. (Quran -Baqara 2 : 256)
    And quran has a separate chapter saying don’t blame for others gods, let them to worship their gods….etc Quran 109, no any other religion contains such comments / statements it shows the acceptance of other religions in islam ……so in a nutshell have a positive eye on religion, you will find excellent smell and colour of these variety of flowers….

    • 1
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      The thing is…! People know a lot about religions but nothing about the truth., science.., if shariah laws what will happen to homo sexuals..? Its completely natural..?

  • 0
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    Education is the essence to a peaceful progressive life. The link below perhaps will shed some light on those who are serious to pursue The Divine Injunction. What Sri Lanka needs right now is a boost to it’s economy through ethical means. Historically, the Shariah (The Islamic Constitution) has played a vital role. Lets settle for no less than productivity and development.

    http://www.thenational.ae/news/uae-news/dubai-crown-prince-launches-islamic-banking-centre

  • 1
    1

    Dear Ms. Priya
    Your concern on ladies in general is highly appreciable, but unfortunately it seems its washed by western propaganda about muslim ladies….
    Find the followings states in srilanka..
    • Child abuse among muslim girls are much lower …
    • Divorce among muslim ladies much lesser than other ladies..
    • Abandoned ladies in muslims are much lesser..
    • Almost No elderly abounded ladies in muslim community or negligible….elders home…
    • Number of suicides negligible…
    • Childs without father states of negligible….
    • Unknown parent Childs nill
    • Foreign employment ladies, less compare to our community…
    • Murdered by husband or in laws very less or NO…
    • Rape and misuse case negligible….
    • Almost NO AIDS patients…
    • They never allow using their ladies as sexiest materials….
    Etc……
    But in other way round…
    • We have many suicides and murders…
    • Almost every week we have arrest warrants against child abuse or rape cases…
    • How many kids we have without the father name…
    …..Etc

    So what kind of community we are looking for…..so in my opinion ladies are well protected and respected in srilankan muslin community than all other communities in Srilanka…
    With regards to the law you are talking about please refer the islam law before write your view… ladies has equal rights to divorce as gents in Islam law (Called as FAS’H)….so Ms. Priya let us think and work to uplift the status and communal respect of our ladies…and wipe out bustard rapist from our community ….

    • 1
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      I am only discussing Muslim law and not those statements that you are saying. Can we stick to the points I am talking about.

      About Muslim law I rechecked from a lawyer- a Muslim man can get a divorce without giving ANY reason. He tells the Muslim judge , he wants to divorce, at most the judge can delay by 3 months to try and settle. Alimony is not paid to the wife. Paltry sum of 3/4 months expenses are paid to the wife.

      A women has to PROVE the fault of the husband. She cannot go to courts and divorce the husband if she does not like him. A man can divorce without a reason.

      Muslim man get married to 4 wives- and divorce them also without reasons.

      • 0
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        Why i tell you these statements for an eye opening, as we have so may problems to be solved in our community specially among our ladies…..what ever the law says they muslim ladies enjoying much better and respectful life with their families and friends compare to other communities….

        With regards to the law; the lawyer also misinformed,as per my studies the islam law 100% supportive to ladies side…

        Please refer below link directly from muslim quran translation and expanation
        http://www.tafheem.net/tafheem.html

        Read the verses from 222 and beyond with explanation on same….you may get some idea…

        • 1
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          Please read the Muslim Marriages and Divorce Act. It is very clear on polygamy, divorce by the male and female. I stand by what I say. I believe this Act is available in the web.

          • 0
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            Tolerance and Compassion in Islam –

            http://www.youtube.com/watch?v=fx4c29ol890

          • 1
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            If you google ” Muslim Marriages and Divorce Act, you can get the Act. I tried cut and copy sections to prove my statements, but its PDF and it does not allow copy and paste. Any one can have access to it, But my Muslim friends tell me that the law differs from the Islamic texts such as Koran. Koran is very pro women where as this particular Act is not in keeping with the Koran. He also tells me that there are initiatives to bring amendments to this Act in terms of Koran but there is a conservative Ulema lobby that is stopping these things.

      • 0
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        sorry start chapter 2 verse 222 and beyond….

        • 0
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          What is in the Holy Quran is not what is in the law.

          • 0
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            I quoted from muslim Quran only to understand how islam treats women in case of divorce; muslim law supports 100% towards the ladies regardless of the cause of problem….regards to the law as per my studies studying Islamic law needs much time…it has to taken from quran, way of life of musilm final prophet and the rules of immediate followers of muslim final prophet ….definitely it will take much time if I found any website..etc, I will let you know, I am not an expert on it…

            • 0
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              I do not know much about Koran seeking justice for women. May be it is and I am not challenging what I dont know. I only know what is practiced in Sri lanka ie the Muslim Marriages and Divorce Act(1951?) which is discriminatory for Muslim women. I am not in anyway referring to Koran. Give me sometime- I can quote the ACT

  • 0
    0

    Raw Pork Was Thrown Into The Mahiyangana Mosque
    July 28, 2013 | Filed under: Colombo Telegraph,News,STORIES | Posted by: COLOMBO_TELEGRAPH
    https://www.colombotelegraph.com/index.php/raw-pork-was-thrown-into-the-mahiyangana-mosque/

  • 0
    0

    Iranian women undergo ninja training

    http://youtu.be/2v-YpamvIXg

  • 0
    0

    Iranian Ninjas … Yes, They Do Exist

    http://youtu.be/gDyXH8YFLeU

  • 0
    0

    Iranian Ninjas 02

    http://youtu.be/xn0F2DVGFqs

  • 2
    0

    Muslims can have their personal laws in Sri Lanka. This right has always existed. The Mukkuvas of the Eastern Province, who are Muslims, had their own personal laws. You cannot have Sharia law for all Sri Lankans or for all Muslims for that matter as sects differ and groups differ. The Sri Lankan law always took that into account. We have never had uniform laws for sub-groups. Kandyans have their own laws. But, there are problems with Islamic law. It discriminates against women. Education levels are low among Muslim women. They seldom go to university. This is a problem that all of us have an interest in. We cannot have women treated unequally in our society on some assumption that it is good for them to be modest. A woman’s modesty cannot be assured just because she is covered from head to foot. It is sad that a girl’s life is decided at childhood: that she would remain covered; marry young; not be educated; be submissive to males. We cannot condone this in modern times.

    • 0
      0

      @ ponkoh sivakumaran,

      The women population percentage of Sri Lankan the Muslim women are more educated than others. You can make an analysis and see. There are many qualified accountants and Degree holders in Muslim women are un employed and they are not interested of working. Because they are happy with their family life and the requirement is limited for them. They don’t have much cosmetics expenses etc…..they don’t do make up etc etc…..

  • 0
    0

    @ponkoh sivakumaran-
    Gone are the days where muslim parents decide thier daughters future & muslim girls Marrying young, I honestly believe you are misinformed- you should check , the International Schools in Sri Lanka and the Universities overseas to know how many Muslim Girls are well educated & independent ,,

    The above stated situation is worst to date among your people in India & even in Sri Lank there are large members of your community who still follow your traditions, always remember when you point one finger at others there are three fingers pointing back towards you.

    I can give you loads of examples – but am not on an unlimited bandwidth ,so I do not want to waste my time & money trying to prove that ,today a little bit of googling will tell you how similar are all present religions that are based on on traditions & Myths , sects of Islam are no exception to this there are more traditional Muslims who dare to over rule the Word of God to accept and believe in traditions passed down by generations over hundred of years based purely on hear say…………………

  • 2
    0

    There is only one God/super power in this universe which is the NATURE. There are no so called creators or gods. If there is any why can’t he create similar mankind with same faith? Why there are such differences in human kind ? And I strongly, believe all human kind should bring under a one common law which should be based on fairness.

  • 1
    0

    Hi brothers in Christianity, I just have a simple question, how can a human be considered as God? then what’s the difference between us and the God. and how can God have a son?

    Human is a creation and for all the creation there is a Creator and that is God, the Oneness.

  • 1
    0

    This article does not touch on the Muslim law applicable in Sri Lanka which is what it should do when she is writing to Colombotelegraph and for Sri Lankan readers. It is rather confusing and not easily readable article.

  • 0
    0

    UMM HANNA,

    YOU ARE USING YOUR “KUNYA”

    YOU ARE POSING OFF AS A SCHOLAR.

    CAN YOU PLEASE IDENTIFY YOURSELF AND NAME THE SCHOLAR YOU LEARNT FROM..

    LET US HAVE YOUR C.V.

  • 0
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    [Edited out]

  • 0
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    [Edited out]

  • 1
    0

    Shariya law is the worst can happen to a country. Law says everyone must follow islam and only islam is the correct religion. All others must be killed. All women must cover there face. Women cant drive. Women can get raped and need 4 men to witness to go to Shariya court. LOL this is good maybe 1000 years ago LMAO. get off from our country with your stupid law.

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