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defensive, passive, outdated and isolated (Ramadan, 2009).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. (Umma Hana)
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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