Bar-Sharci

United Nations Convention on the law of the sea

Location December 10, 1982a 
Montego Bay, Jamaica 
Effective 
Condition November 16, 1994[1] 
60 ratifications 
Parties 160[2] 
 
The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), which took place from 1973 through 1982. The Law of the Sea Convention defines the rights and responsibilities of nations in their use of the world's oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources. The Convention, concluded in 1982, replaced four 1958 treaties. UNCLOS came into force in 1994, a year after Guyana became the 60th state to sign the treaty.[1] To date, 158 countries and the European Community have joined in the Convention. However, it is now regarded as a codification of the customary international law on the issue. 
 
While the Secretary General of the United Nations receives instruments of ratification and accession and the UN provides support for meetings of states party to the Convention, the UN has no direct operational role in the implementation of the Convention. There is, however, a role played by organizations such as the International Maritime Organization, the International Whaling Commission, and the International Seabed Authority (the latter being established by the UN Convention). 
 
Contents [hide] 
1 Historical background 
2 UNCLOS I 
3 UNCLOS II 
4 UNCLOS III 
5 Part XI and the 1994 Agreement 
6 Signature and ratification 
6.1 United States non-ratification 
7 See also 
8 References 
9 External links 
 
[edit] Historical background 
International Ownership Treaties 
 
Antarctic Treaty System 
Law of the Sea 
Outer Space Treaty 
Moon Treaty 
International waters 
Extraterrestrial real estate 
 
The UNCLOS replaces the older and weaker 'freedom of the seas' concept, dating from the 17th century: national rights were limited to a specified belt of water extending from a nation's coastlines, usually three nautical miles, according to the 'cannon shot' rule developed by the Dutch jurist Cornelius van Bynkershoek. All waters beyond national boundaries were considered international waters — free to all nations, but belonging to none of them (the mare liberum principle promulgated by Grotius). 
 
In the early 20th century, some nations expressed their desire to extend national claims: to include mineral resources, to protect fish stocks, and to provide the means to enforce pollution controls. (The League of Nations called a 1930 conference at The Hague, but no agreements resulted.) Using the customary international law principle of a nation's right to protect its natural resources, President Truman in 1945 extended United States control to all the natural resources of its continental shelf. Other nations were quick to follow suit. Between 1946 and 1950, Argentina, Chile, Peru, and Ecuador extended their rights to a distance of 200 nautical miles to cover their Humboldt Current fishing grounds. Other nations extended their territorial seas to 12 nautical miles. 
 
By 1967, only 25 nations still used the old three-mile limit, while 66 nations had set a 12-mile territorial limit and eight had set a 200-mile limit. As of May 28, 2008, only two countries still use the three-mile limit: Jordan and Palau.[3] That limit is also used in certain Australian islands, an area of Belize, some Japanese straits, certain areas of Papua New Guinea, and a few British Overseas Territories, such as Anguilla. 
 
[edit] UNCLOS I 
In 1956, the United Nations held its first Conference on the Law of the Sea (UNCLOS I) at Geneva, Switzerland. UNCLOS I resulted in four treaties concluded in 1958: 
 
Convention on the Territorial Sea and Contiguous Zone, entry into force: 10 September 1964 
Convention on the Continental Shelf, entry into force: 10 June 1964 
Convention on the High Seas, entry into force: 30 September 1962 
Convention on Fishing and Conservation of Living Resources of the High Seas, entry into force: 20 March 1966 
Although UNCLOS I was considered a success, it left open the important issue of breadth of territorial waters. 
 
[edit] UNCLOS II 
In 1960, the United Nations held the second Conference on the Law of the Sea (“UNCLOS II”); however, the six-week Geneva conference did not result in any new agreements. Generally speaking, developing nations and third world countries participated only as clients, allies, or dependents of United States or the Soviet Union, with no significant voice of their own. 
 
[edit] UNCLOS III 
 
Sea areas in international rightsThe issue of varying claims of territorial waters was raised in the UN in 1967 by Arvid Pardo, of Malta, and in 1973 the Third United Nations Conference on the Law of the Sea was convened in New York. In an attempt to reduce the possibility of groups of nation-states dominating the negotiations, the conference used a consensus process rather than majority vote. With more than 160 nations participating, the conference lasted until 1982. The resulting convention came into force on November 16, 1994, one year after the sixtieth state, Guyana, ratified the treaty. 
 
The convention introduced a number of provisions. The most significant issues covered were setting limits, navigation, archipelagic status and transit regimes, exclusive economic zones (EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of disputes. 
 
The convention set the limit of various areas, measured from a carefully defined baseline. (Normally, a sea baseline follows the low-water line, but when the coastline is deeply indented, has fringing islands or is highly unstable, straight baselines may be used.) The areas are as follows: 
 
Internal waters 
Covers all water and waterways on the landward side of the baseline. The coastal state is free to set laws, regulate use, and use any resource. Foreign vessels have no right of passage within internal waters. 
Territorial waters 
Out to 12 nautical miles from the baseline, the coastal state is free to set laws, regulate use, and use any resource. Vessels were given the right of innocent passage through any territorial waters, with strategic straits allowing the passage of military craft as transit passage, in that naval vessels are allowed to maintain postures that would be illegal in territorial waters. "Innocent passage" is defined by the convention as passing through waters in an expeditious and continuous manner, which is not “prejudicial to the peace, good order or the security” of the coastal state. Fishing, polluting, weapons practice, and spying are not “innocent", and submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Nations can also temporarily suspend innocent passage in specific areas of their territorial seas, if doing so is essential for the protection of its security. 
Archipelagic waters 
The convention set the definition of Archipelagic States in Part IV, which also defines how the state can draw its territorial borders. A baseline is drawn between the outermost points of the outermost islands, subject to these points being sufficiently close to one another. All waters inside this baseline are designated Archipelagic Waters. The state has full sovereignty over these waters (like internal waters), but foreign vessels have right of innocent passage through archipelagic waters (like territorial waters). 
Contiguous zone 
Beyond the 12 nautical mile limit there was a further 12 nautical miles or 24 nautical miles from the territorial sea baselines limit, the contiguous zone, in which a state could continue to enforce laws in four specific areas: pollution, taxation, customs, and immigration. 
Exclusive economic zones (EEZs) 
Extends from the edge of the territorial sea out to 200 nautical miles from the baseline. Within this area, the coastal nation has sole exploitation rights over all natural resources. In casual use, the term may include the territorial sea and even the continental shelf. The EEZs were introduced to halt the increasingly heated clashes over fishing rights, although oil was also becoming important. The success of an offshore oil platform in the Gulf of Mexico in 1947 was soon repeated elsewhere in the world, and by 1970 it was technically feasible to operate in waters 4000 metres deep. Foreign nations have the freedom of navigation and overflight, subject to the regulation of the coastal states. Foreign states may also lay submarine pipes and cables. 
Continental shelf 
The continental shelf is defined as the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles from the coastal state’s baseline, whichever is greater. State’s continental shelf may exceed 200 nautical miles until the natural prolongation ends. However, it may never exceed 350 nautical miles from the baseline; or it may never exceed 100 nautical miles beyond the 2,500 meter isobath (the line connecting the depth of 2,500 meters). Coastal states have the right to harvest mineral and non-living material in the subsoil of its continental shelf, to the exclusion of others. Coastal states also have exclusive control over living resources "attached" to the continental shelf, but not to creatures living in the water column beyond the exclusive economic zone. 
Aside from its provisions defining ocean boundaries, the convention establishes general obligations for safeguarding the marine environment and protecting freedom of scientific research on the high seas, and also creates an innovative legal regime for controlling mineral resource exploitation in deep seabed areas beyond national jurisdiction, through an International Seabed Authority and the Common heritage of mankind principle.[4] 
 
Landlocked states are given a right of access to and from the sea, without taxation of traffic through transit states. 
 
[edit] Part XI and the 1994 Agreement 
Part XI of the Convention provides for a regime relating to minerals on the seabed outside any state's territorial waters or EEZ (Exclusive Economic Zones). It establishes an International Seabed Authority (ISA) to authorize seabed exploration and mining and collect and distribute the seabed mining royalty. 
 
The United States objected to the provisions of Part XI of the Convention on several grounds, arguing that the treaty was unfavorable to American economic and security interests. Due to Part XI, the United States refused to ratify the UNCLOS, although it expressed agreement with the remaining provisions of the Convention. 
 
From 1983 to 1990, the United States accepted all but Part XI as customary international law, while attempting to establish an alternative regime for exploitation of the minerals of the deep seabed. An agreement was made with other seabed mining nations and licenses were granted to four international consortia. Concurrently, the Preparatory Commission was established to prepare for the eventual coming into force of the Convention-recognized claims by applicants, sponsored by signatories of the Convention. Overlaps between the two groups were resolved, but a decline in the demand for minerals from the seabed made the seabed regime significantly less relevant. In addition, the decline of Socialism and the fall of Communism in the late 1980s had removed much of the support for some of the more contentious Part XI provisions. 
 
In 1990, consultations were begun between signatories and non-signatories (including the United States) over the possibility of modifying the Convention to allow the industrialized countries to join the Convention. The resulting 1994 Agreement on Implementation was adopted as a binding international Convention. It mandated that key articles, including those on limitation of seabed production and mandatory technology transfer, would not be applied, that the United States, if it became a member, would be guaranteed a seat on the Council of the International Seabed Authority, and finally, that voting would be done in groups, with each group able to block decisions on substantive matters. The 1994 Agreement also established a Finance Committee that would originate the financial decisions of the Authority, to which the largest donors would automatically be members and in which decisions would be made by consensus. 
 
[edit] Signature and ratification 
 
 ratified 
 
 signed, but not yet ratified 
 did not signOpened for signature — December 10, 1982. 
 
Entered into force — November 16, 1994.[1] 
 
The convention is ratified by 160 countries, Niue, Cook Islands and the European Union. 
 
Countries that have signed, but not yet ratified — (19) Afghanistan, Bhutan, Burundi, Cambodia, Central African Republic, Colombia, El Salvador, Ethiopia, Iran, Democratic People's Republic of Korea, Libya, Liechtenstein, Malawi, Niger, Rwanda, Swaziland, Thailand, United Arab Emirates, United States. 
 
Countries that have not signed — (20) Andorra, Azerbaijan, Ecuador, Eritrea, Israel, Kazakhstan, Kyrgyzstan, Peru, San Marino, Syria, Tajikistan, Timor-Leste, Turkey, Turkmenistan, Uzbekistan, Vatican City, Venezuela and Palestine, Taiwan, Sahrawi Republic. 
 
[5] 
 
[edit] United States non-ratification 
Main article: United States non-ratification of the UNCLOS 
Although the United States helped shape the Convention and its subsequent revisions, and though it signed the 1994 Agreement on Implementation, it has not ratified the Convention.[6] 
 
[edit] See also

United Nations Convention on the law of the sea

Location December 10, 1982a Montego Bay, Jamaica Effective Condition November 16, 1994[1] 60 ratifications Parties 160[2] The United Nations Convention on the Law of the Sea (UNCLOS), also called t…

19 Apr 2010

this research is based on somaliland legal system

By Mohamed Farah Hersi 
 
 
 
Published February 2009 
 
 
 
Mohamed Farah Hersi is an attorney and human rights researcher. He holds an LL.B (Bachelor of Laws) from the University of Hargeisa in Somaliland, an LL.M (Master of Laws) from the University of Pretoria in South Africa, and is currently a Ph.D. candidate. 
 
so on the light of mahmed farah i would like to recommend or argue the visitors of this blog specaily somaliland law undergraduates or LLB graduates to further the search towards this. 
 
 
 
Table of Contents 
 
1. Republic of Somaliland 
1.1. Pre-Constitutional Structure of the Government of Somaliland 
1.2. Geography 
1.3. Economy 
 
2. The Political Structure of Post Clan-Based Government in Somaliland 
 
2.1. The Sources of Somaliland Laws 
 
2.1.1. Civil Law Tradition 
 
2.1.2. Sharia Law 
 
2.1.3. Customary Law 
 
2.2. Special Courts and Tribunals 
 
2.3. The Ombudsman 
 
2.4. The Status of Islamic law in the Constitution 
 
2.5. Process of Law Making 
3. The Judicial Structure 
 
3.1. The Hierarchy and Structure of the Courts 
 
3.2. The Jurisdiction of District Courts 
 
3.3. The Jurisdiction of Regional Courts 
 
3.4. Appeals Courts 
 
3.5. The Supreme Court (and the Constitutional Court) 
 
3.5.1. The Appointment of the Chief Justice 
 
4. Somaliland Legal Research 
 
4.1. Primary Legal Materials 
 
4.2. Case Laws 
 
4.3. Law Reports 
 
4.4. Legal Journals 
 
4.5. Official Government Gazette 
 
5. Online Resources 
 
1. Republic of Somaliland 
 
 
Due to the colonization of Africa, the Somali territory was divided into five areas, all subjected to colonial rule, but ruled by different imperialist powers. 
 
 
 
The northern part of the Somali territory was colonized by the British government, which named it the “Somaliland Protectorate.” The United Kingdom ruled the Somaliland Protectorate from 1884 to 1960. During the mid 1950s, when the African nationalist movements were gaining momentum, Somaliland became part of the political movement against imperialistic domination. As a consequence, the chiefs and the political leaders in Somaliland agreed to demand their independence from the British government, which was granted on June 26, 1960. 
 
 
 
The other four parts of the Somali territory, defined as areas which were occupied by Somali people (Southern Somalia, Djibouti, parts of Ethiopia (the Ogaden region) and the Northern Province of Kenya), were colonized by Italy, France, Ethiopia, and Kenya respectively. During the aforementioned nationalist movement, Somalis in these regions were also struggling to gain their independence from colonial rulers. At that time, Somaliland was the only independent Somali state, and started a political movement towards the unification of all Somalis in the colonized territories into a single state. As a result of this movement, South Somalia gained independence from Italy on July 1, 1960. Although Somaliland was already recognized as an independent state by over 30 countries, the Somaliland government chose to unite voluntarily and unconditionally with South Somalia, indicating the strength of the prevailing sentiment of Somali unity. On July 1, 1960, Somaliland and South Somalia united together to become the Democratic Republic of Somalia. 
 
 
 
In 1969, after nine years of civilian rule, the Democratic Republic of Somalia fell under military rule. A coup d’état, led by General Mohamed Siyad Barre, overthrew the civilian government of Cabdrashid Ali Sharmake. While the military regime was in power in Somalia, a political movement developed in the northern regions of Somalia (Somaliland) against the Barre regime. As result of that movement, Barre dismantled and banned all political parties in the country, as well as suspending the multi-party system and the Constitution of the Republic of Somalia. 
 
 
 
In 1981, in response to Barre’s aforementioned actions, members of the Somaliland elite launched the Somali National Movement (SNM) in London. This movement incited the northern regions of Somalia (Somaliland), where the Isaac clan dominated, to become increasingly hostile toward the military government, and better organised in its campaigns against it. The government of Somalia consequently imposed certain harsh security measures. Politicians belonging to the Isaac group were either killed or arrested. It should be noted that the status of the Isaac was not like that of the Tutsi in Rwanda or Bosnian Muslims in Serbia, for example, in terms of holding high-ranking governmental positions. The Isaac served as government ministers and highly ranked military personnel, among other positions. 
 
 
 
By early 1988, a full-fledged civil war had broken out in Somalia, with hostility coming from the northern region, directed at the military government. As a result of the aggression towards the government, Barre’s regime destroyed Somaliland’s capital of Hargeisa, using a combination of artillery, South African mercenaries, and bomber aircraft, which were launched from the airport and outskirts of the city of Hargeisa. Several UN agencies reported these atrocities. The SNM defeated Barre’s forces in the northern regions, and as result it gained the authority to rule the former northern regions of Somalia (Somaliland). In 1991, the civil war came to an end. 
 
 
 
After the fall of Barre’s regime in Somaliland, an inter-clan conference was held in Buroa. On May 18, 1993, the Republic of Somaliland declared itself an independent and sovereign state. The territory of Somaliland is bordered by Ethiopia in the south and west, by Djibouti in the northwest, by the Gulf of Aden in the north, and by Somalia in the southeast. 
 
1.1. Pre-Constitutional Structure of the Government of Somaliland 
 
 
The Constitution of Somaliland provides for a hybrid system of governance, which combines traditional and western institutions. In a series of inter-clan conferences, culminating in the Boorama Conference in 1993, a clan-based government was constructed, which consisted of an Executive, with a President, Vice President, and Council of Ministers, a bicameral Legislature, and an independent judiciary. The traditional Somali council of elders was incorporated into the governance structure and formed the upper house of the legislature, responsible for selecting a President as well as managing internal conflicts. The government became a "power-sharing coalition of Somaliland's main clans," with seats in the Upper and Lower houses proportionally allocated to clans according to a predetermined formula. In 2002, Somaliland finally made the transition to multi-party democracy. The local council elections were contested by six parties, and were considered the most peaceful in Africa for twenty years. 
 
1.2. Geography 
 
 
Somaliland is situated on the eastern horn of Africa and lies between the 08°00' - 11°30' parallel north of the equator and between 42°30' - 49°00' meridian east of Greenwich. It shares borders with the Republic of Djibouti to the west, the Federal Republic of Ethiopia to the south, the Puntland region to the northeast and Somalia to the southeast. Somaliland has 460 miles (740 km) of coast, the majority of which is along the Red Sea. Somaliland is slightly larger than England, with an area of 137 600 km² (53 100 sq miles). 
 
1.3. Economy 
 
 
Somaliland's primary export is livestock, estimated at 24 million heads per year. In 1996, 3 million heads of livestock were exported to the Middle East alone. A February 1998 ban on beef imports by Saudi Arabia significantly harmed this industry. However, the ban was lifted in December 2006, which allowed the industry to recover. Other exports include hides, skins, myrrh, and frankincense. Agriculture is generally considered to be a potentially successful industry, especially in the production of cereals and horticulture. Mining also has potential, as there are many diverse mineral deposits in the country, although currently the industry consists solely of quarrying. 
 
 
 
Recent research shows that the country has large offshore and onshore oil and natural gas reserves. Several wells have been excavated during the last few years, but due to the country's unrecognized status, foreign oil companies could not invest in them. This has caused a wide range of problems which may affect the stability and sustainability of the peace and democracy that have been achieved by Somaliland since its secession. 
 
 
 
Somaliland has not yet established a concrete and reliable trade relationship with the international community. Although Somaliland has good relations in terms of trade deals with various countries, the lack of recognition continues to paralyze the potential for investments that the international community may consider. 
 
 
 
Since the Eritrean-Ethiopian War, Somaliland has grown as a major export port for Ethiopia. The two countries signed a deal in which Ethiopia agreed to pay Somaliland for the use of the port city of Berbera to export and import goods for Ethiopia. 
 
 
 
2. The Political Structure of Post Clan-Based Government in Somaliland 
 
The 2001 referendum of the Constitution of Somaliland established a new democratic system. The political system in Somaliland is based on presidential, rather than parliamentary, system. A presidential system was chosen because the parliamentary system proved to be unable to deal with the constraints imposed by clan-based politics. Somaliland has three independent branches of government, executive, legislative and judicial. 
 
 
 
2.1. The Sources of Somaliland Laws 
 
 
Prior to colonial rule, Somaliland practiced both Islamic law and customary law. Islamic law was not as effective as the customary law. Customary law, referred to as the Somali traditional justice system, was the only widely effective law which existed during the pre-colonial era. Although these two legal systems merged, Somali traditional law was still the dominant law in Somaliland. As a result of colonization, Somaliland adopted the statutory law which was brought by the colonial powers. This statutory law became an integrated with the previous laws which were effective in Somaliland, creating a hybrid legal system in the country. At present, there are three legal systems, all derived from different sources, which regulate both civil and criminal acts. 
 
2.1.1. Civil Law Tradition 
Although Somaliland was a British protectorate, the merger with South Somalia altered the legal tradition of the nation. Hence, the common law was overruled by the civil law tradition. 
 
2.1.2. Sharia Law 
The majority of the population of Somaliland is Muslim; hence the Islamic religion is very influential on the Constitution and legal system. The Constitution of Somaliland provides that enacted legislation will be deemed invalid if it contravenes the basic principles of Islamic law. Because of this provision, there exist informal courts which deal with certain issues to which Islamic law is relevant, such as marriage, divorce, and succession. 
 
 
 
2.1.3. Customary Law 
Prior to the colonial era and before Islam became the dominant religion, the Somali people were regulated by customs and traditional values and norms. This traditional justice system is now enforced and entrenched through legislation. Although customary law is not specifically provided for in the Constitution, the people of Somaliland are still entrusted to resolve their disputes through methods of traditional justice in conjunction with Islamic law. 
 
2.2. Special Courts and Tribunals 
Somaliland has not yet adopted special tribunals, claiming that they lack both the financial and human resources necessary to establish such courts. Furthermore, there is currently no enacted legalisation which will establish such courts. 
 
2.3. The Ombudsman 
There is not yet a well-developed understanding of how to establish such an office, which would deal with certain claims against the executive. 
 
2.4. The Status of Islamic Law in the Constitution 
As provided both under article 5 of the Constitution and in the preamble of the Constitution, Islam is the state religion. In addition, the primary basis of all legislation is Islam, and every law enacted by the parliament which is not consistent with the principles of Islamic law shall be null and void. 
 
2.5. Process of Law Making 
The process of law making is laid out in the Constitution of Somaliland. Article 77 of the Constitution stipulates the procedures and the powers of the different organs of the state in regarding the drafting, adoption, and approval of bills. This article provides the following: 
 
 
 
Each House of Parliament shall forward any bills which it passes to the other House for review and advice. Each House may refer a bill back to the other only once. The Parliament shall determine the procedures for the progress of bills, and shall make clear the special status of bills relating to finance and those that the Government considers to be urgent, both of which shall be given priority. Any bill passed or approved by a 2/3 majority of both Houses of Parliament may not be referred back to the Parliament by the President, who is thereby obligated to sign it. If the President considers the bill to be in conflict with the Constitution, he shall inform the speakers and the Attorney General, who shall refer it to the Constitutional Court. The President shall sign any bill forwarded to him by Parliament within three weeks of receipt of the bill, provided that he has not referred it back to Parliament. If the President fails to sign a bill forwarded to him by Parliament within the required period, and has not referred it back to Parliament, then the bill shall henceforth become law, and shall be promulgated by the House which had forwarded it to the President. 
 
 
 
All bill passed by a majority of members of the House of Representatives, other than those relating to finance, shall be forwarded to the House of Elders, which shall: 
 
· Approve them or propose amendments, or 
 
· If the House of Elders does not approve the bill, or its proposed amendments are not accepted by the House of Representatives, the latter has the right to return the bill to the House of Elders during its next session. If the House of Elders does not approve the bill this second time, nor submit a response within a month, the bill shall pass and shall accordingly be forwarded to the President. 
 
 
 
All bills passed by the House of Elders by a majority shall be forwarded to the House of Representatives, which shall: 
 
· Approve it or propose amendments, or 
 
· If the House of Representatives does not approve the bill, it shall not be referred back to the House of Elders. 
 
 
 
If the President accepts a bill passed by both Houses, he shall issue it in the Official Journal within 21 days. If, however, the President does not accept the bill, or proposes amendments, he shall inform the Speaker of the House of Representatives his reasons for such action within 21 days. If the House of Representatives is not satisfied with the reasons given by the President, and the bill is passed again by a 2/3 majority of the members of the House, the President must accept the bill. If a 2/3 majority is not reached, the bill will not pass. 
 
3. The Judicial Structure 
Somaliland had its own judicial system headed by the High Court in Hargeisa until 1960. In 1960, the Somaliland Constitution re-confirmed the existing judicial system, but suspended the appeals to the East African Appeal Court. On the reassertion of its independence in 1991, Somaliland rebuilt its judicial system fairly quickly, with the Somaliland 1993 Charter (Article 21) setting up the Somaliland Supreme Court as the highest court of the land. The court structure which had existed prior to the military rule of 1969, which was based on the Organisation of the Judiciary Law 1962 (Legislative Decree No. 3 of June 12, 1962) was re-established and confirmed by the Somaliland Organisation of the Judiciary Law 1993 (Law No. 41 of August 18, 1993). The court structure was re-confirmed in the 1997 Interim Constitution and is now set out in Chapter Four of the current Somaliland Constitution. A description of the structure of the current Somaliland courts of law is set out below. 
 
 
 
The new Somaliland Organisation of the Judiciary Law (Law No. 24, 2003) which proposed to consolidate the existing provisions was initially approved by both Houses (on Dec. 21, 2003 by the House of Representatives and on Feb. 15, 2004 by the House of Elders), but was returned by the President to the Houses to re-consider the then Article 10(2) of the Bill, which related to the appointment of Supreme Court judges. The President said that the Article did not conform to the Constitution; the Article stated that the President shall consult the Supreme Court Chairman about such appointments, while the Constitution says that he shall consult the Judicial Commission, which is incidentally chaired by the Supreme Court Chairman. When the House of Elders passed this bill in 2004, they also amended Article 21, proposing to rise the minimum age of judges to 35. The bill was adopted on July 13, 2000. This Bill is now awaiting approval by the House of Elders and the President. As it is mainly a consolidation law, almost all of its provisions are already in force. 
 
3.1. The Hierarchy and Structure of the Courts 
There are two principal sources which empower the Courts of Somaliland and delineate the judicial structure, which are: 
 
· The Somaliland Constitution, Chapter four, and 
 
· The Organisation of the Judiciary Law, (Law No. 24, 2003) 
 
There are several different types of courts in the nation, each of which serves a different function. They are as follows: 
 
· First instance courts, which are the District Courts and the Regional Courts, 
 
· The Appeals Courts, 
 
· The Supreme Court, which is also the Constitutional Court. The Court can also serve, with additional representatives, as the High Court of Justice when dealing with the impeachment of public officers other than the President or Vice-President. 
 
 
 
As provided on August 14, 2006 by the then Acting Chief Justice, Somaliland has now 33 functioning courts of law, staffed by 87 judges. 
 
3.2. The Jurisdiction of District Courts 
The district courts deal with all claims based on Sharia, which are primarily matters relating to family law and succession. They also deal with civil litigation concerning suits for amounts up to 3 million SL (Somaliland Shillings - about $484 at a rate of exchange of $1 = 6200 SL)., and criminal cases punishable by imprisonment for up to 3 years or fines up to 3 million SL. This court is presided over by a District Judge. 
 
3.3. The Jurisdiction of Regional Courts 
All civil litigation and all criminal cases which do not fall within the jurisdiction of the District Court are under the jurisdiction of the regional courts. The General Section of the Court deals with crimes punishable by imprisonment for periods between 3 and 10 years which are heard by a Regional Judge. The Assize Section deals with cases attracting a higher prison sentence, which are heard by a Regional Judge and an assessor who has knowledge of the Sharia. According to Articles 7 and 38 of the Organisation of the Judiciary Law, and the panel of assessors is compiled every year by the Ministry of Justice. This court also deals with all claims pertaining to labour or employment law, and any claims arising out of local government elections. 
 
 
 
The Court is divided into four branches – civil, criminal, finance and taxation, and juvenile. The President of the Regional Court hears juvenile cases, which come under the jurisdiction of the Regional Court. 
 
3.4. Appeals Courts 
The Appeals Courts deal with all appeals from the District and Regional Courts. Each Appeals Court is divided into: 
 
 
 
1. The Assize Appellate Section which deals with appeals from the Regional Assize Court, which are heard by two Appeals Judges and two assessors; 
 
2. The Juvenile Section; 
 
3. The Finance & Taxation Section; and, 
 
4. The General Appellate Section, which deals with all other civil and criminal appeals. 
 
 
 
The President of the Appeals Court in each region acts as the head of the judiciary in that region. 
 
3.5. The Supreme Court (and the Constitutional Court) 
The Supreme Court is the highest judicial organ in the country, and is comprised of the chairman and at least four judges. The Supreme Court deals with: 
 
1. All appeals from the Appeals Courts; 
 
2. Jurisdictional issues between the courts of the land; 
 
3. Administrative suits relating to the final decisions of public bodies; 
 
4. Declarations of general election results (both presidential and parliamentary) and decisions on any complaints relating to such elections, as well as appeals from lower courts’ decisions regarding complaints relating to local government elections; and, 
 
5. Reviews of its own decisions under the relevant Articles of the Codes of Civil and Criminal Procedures (Articles 266 & 238 respectively). 
 
 
 
The Supreme Court may sit as a bench of three justices, or as a full bench when dealing with important issues or issues set out in Article 10(4) of the Organisation of Judiciary Law (e.g. appeals relating to elections issues, cases from the Assize section of the Appeal Courts etc). Under Article 12 of the same Law, the Supreme Court shall have the following sections: 
 
1. Civil section; 
 
2. Criminal section; 
 
3. Juvenile crime section; 
 
4. Administrative section; and, 
 
5. Research & legal interpretation section. 
 
 
 
The justices of the Supreme Court also constitute the Somaliland Constitutional Court. The Constitutional Court sits as a full bench and can: 
 
1. Adjudicate on suits relating to the constitutionality of the acts and decisions of the Government and the Legislature; 
 
2. Interpret the provisions of the Constitution and the laws of the land when these provisions are a subject of controversy; and, 
 
3. Reach decisions on prior court decisions which are challenged as being contrary to the Constitution. 
 
 
 
The justices of the Supreme Court can also sit as the High Court of Justice, with an additional four representatives elected by the two Houses of Parliament. This special court deals with the impeachment of ministers, members of parliament, and other specified public officers; since 2000, this court does not deal with the impeachment of the President or the Vice-President. 
 
 
 
Article 2 of the Organisation of the Judiciary Law, (Law No. 24, 2003) re-confirms the independence of the judiciary, which is set out in the Constitution (see Articles 97(2) and 99(2)). The Law also makes it clear that special courts outside the courts of law which are set out by the Constitution cannot be established in Somaliland, and no committees with judicial powers or which act in a quasi-judicial capacity and issue criminal punishment can exist in the country (Article 2(3) & 2(4)). Individuals can, however, by agreement of both parties to a dispute, use alternative dispute resolution mechanisms through appointed mediation panels (Article 2(5)). This simply confirms the traditional methods of settling disputes. 
 
 
 
Judges other than Supreme Court justices are appointed by the Judicial Commission, which was set up under Articles 107 and 108 of the Somaliland Constitution. Judges hold office until their retirement, which is typically at 65 years of age. The Commission is chaired by the Chairman of the Supreme Court and consists of two other Supreme Court Justices, the Attorney General, two high ranking civil servants (Heads of the Ministry of Justice and the Civil Service Agency) and four members of the public selected once every two years by the two House of Parliament. The Commission also deals with the promotion and, when necessary, the disciplining of judges, the procedures of which are set out in detail in Articles 40-46 of the Organisation of the Judiciary Law. 
 
3.5.1. The Appointment of the Chief Justice 
The Chief Justice is appointed by the President, in consultation with the Judicial Commission, according to Article 105 of the Constitution; but in respect for the Chairman of the Commission, the appointment must be confirmed at a joint sitting of both Houses of Parliament. The President, under Article 105(2), may dismiss the Chairman of the Supreme Court subject to the approval of both Houses. 
 
4. Somaliland Legal Research 
Neither post-colonial nor post-military regime Somalia has had any comprehensive legal research libraries, privately sponsored websites, governmental websites, bar associations, legal information guides, Supreme Court libraries, or law databases. Therefore, it is very difficult to find relevant legal information. All of the websites which are mentioned in this article are supervised by the Somaliland Diaspora. 
 
4.1. Primary Legal Materials 
Somaliland, despite being an unrecognized state, has a complex system of laws which regulate all aspect of citizen life. The laws of Somaliland are mainly derived from the laws which Somaliland had practiced during the union with Somalia. Although Somaliland has drafted and adopted a Constitution which invalidates all pre-Somaliland laws that are not in conformity with the current constitution, some of these laws are still enforced by Somaliland courts. There are numerous statutes, regulatory codes and other laws which the Somaliland parliament has passed, all of which are consistent with the constitution. 
 
4.2. Case Laws 
The Somaliland legal system is organized according to the civil law, rather than the common law. Consequently, case laws are neither published nor significant to future legal decisions. 
 
4.3. Law Reports 
In Somaliland, there are no law reports issues which document the annual reports of the courts, or the judgments and decisions of the courts. 
 
4.4. Legal Journals 
Legal journals are not yet being published in Somaliland. The faculty of law at the University of Hargeisa has recently published a legal magazine which is aimed at analyzing and discussing the laws of Somaliland. However, this magazine is more like a student law review than a legal journal. 
 
4.5. Official Government Gazette 
The Somaliland government set up an official government Gazette three years after the restoration of Somaliland independence. The primary purpose of this gazette is to publish all laws which the president signs and promulgates. It is published on monthly basis, and is crucial for the dispensation of the promulgated laws in Somaliland. One of the main challenges facing this governmental Gazette is the lack of an official website, which can make available the laws which have been promulgated in Somaliland

this research is based on somaliland legal system

By Mohamed Farah Hersi Published February 2009 Mohamed Farah Hersi is an attorney and human rights researcher. He holds an LL.B (Bachelor of Laws) from the University of Hargeisa in Somaliland, an LL.…

13 Apr 2010

Revealed: UK’s first official sharia courtsAbul Taher

ISLAMIC law has been officially adopted in Britain, with sharia courts given powers to rule on Muslim civil cases. 
 
The government has quietly sanctioned the powers for sharia judges to rule on cases ranging from divorce and financial disputes to those involving domestic violence. 
 
Rulings issued by a network of five sharia courts are enforceable with the full power of the judicial system, through the county courts or High Court. 
 
Previously, the rulings of sharia courts in Britain could not be enforced, and depended on voluntary compliance among Muslims. 
 
It has now emerged that sharia courts with these powers have been set up in London, Birmingham, Bradford and Manchester with the network’s headquarters in Nuneaton, Warwickshire. Two more courts are being planned for Glasgow and Edinburgh. 
 
Sheikh Faiz-ul-Aqtab Siddiqi, whose Muslim Arbitration Tribunal runs the courts, said he had taken advantage of a clause in the Arbitration Act 1996. 
 
Under the act, the sharia courts are classified as arbitration tribunals. The rulings of arbitration tribunals are binding in law, provided that both parties in the dispute agree to give it the power to rule on their case. 
 
Siddiqi said: “We realised that under the Arbitration Act we can make rulings which can be enforced by county and high courts. The act allows disputes to be resolved using alternatives like tribunals. This method is called alternative dispute resolution, which for Muslims is what the sharia courts are.” 
 
The disclosure that Muslim courts have legal powers in Britain comes seven months after Rowan Williams, the Archbishop of Canterbury, was pilloried for suggesting that the establishment of sharia in the future “seems unavoidable” in Britain. 
 
In July, the head of the judiciary, the lord chief justice, Lord Phillips, further stoked controversy when he said that sharia could be used to settle marital and financial disputes. 
 
In fact, Muslim tribunal courts started passing sharia judgments in August 2007. They have dealt with more than 100 cases that range from Muslim divorce and inheritance to nuisance neighbours. 
 
It has also emerged that tribunal courts have settled six cases of domestic violence between married couples, working in tandem with the police investigations. 
 
Siddiqi said he expected the courts to handle a greater number of “smaller” criminal cases in coming years as more Muslim clients approach them. “All we are doing is regulating community affairs in these cases,” said Siddiqi, chairman of the governing council of the tribunal. 
 
Jewish Beth Din courts operate under the same provision in the Arbitration Act and resolve civil cases, ranging from divorce to business disputes. They have existed in Britain for more than 100 years, and previously operated under a precursor to the act. 
 
Politicians and church leaders expressed concerns that this could mark the beginnings of a “parallel legal system” based on sharia for some British Muslims. 
 
Dominic Grieve, the shadow home secretary, said: “If it is true that these tribunals are passing binding decisions in the areas of family and criminal law, I would like to know which courts are enforcing them because I would consider such action unlawful. British law is absolute and must remain so.” 
 
Douglas Murray, the director of the Centre for Social Cohesion, said: “I think it’s appalling. I don’t think arbitration that is done by sharia should ever be endorsed or enforced by the British state.” 
 
There are concerns that women who agree to go to tribunal courts are getting worse deals because Islamic law favours men. 
 
Siddiqi said that in a recent inheritance dispute handled by the court in Nuneaton, the estate of a Midlands man was divided between three daughters and two sons. 
 
The judges on the panel gave the sons twice as much as the daughters, in accordance with sharia. Had the family gone to a normal British court, the daughters would have got equal amounts. 
 
In the six cases of domestic violence, Siddiqi said the judges ordered the husbands to take anger management classes and mentoring from community elders. There was no further punishment. 
 
In each case, the women subsequently withdrew the complaints they had lodged with the police and the police stopped their investigations. 
 
Siddiqi said that in the domestic violence cases, the advantage was that marriages were saved and couples given a second chance. 
 
Inayat Bunglawala, assistant secretary-general of the Muslim Council of Britain, said: “The MCB supports these tribunals. If the Jewish courts are allowed to flourish, so must the sharia ones.” 
 
Additional reporting: Helen Brooks

Revealed: UK’s first official sharia courtsAbul Taher

ISLAMIC law has been officially adopted in Britain, with sharia courts given powers to rule on Muslim civil cases. The government has quietly sanctioned the powers for sharia judges to rule on cases …

12 Apr 2010

Is Islam Compatible with Democracy and Modernity?

Asghar Ali Engineer 
 
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It is frequently argued that because many Islamic countries are monarchies or dictatorships – or because of certain events that have taken place within their borders – Islam is not compatible with either democracy or modernity. Some would maintain that Islamic culture is itself a stumbling block to a democratic polity and modernistic society and can accommodate neither. To maintain such a position is to misunderstand not only religion, but society, history and the operation of social forces. 
 
If the same logic were applied elsewhere then Christianity too would still be under a cloud. The Christian Church also opposed democracy, secularism and modernity until the 18th century. A great struggle ensued between the church and princely rulers on the one hand, and between Christian and secular elements in society on the other. It was finally only during 19th century that democracy and modernity became acceptable within western, Christian society. 
 
However, even some well-known scholars and orientalists have accepted such a superficial view of Islam and Islamic society. The western media, partly for political reasons and partly from ignorance of the social and material forces at work, have been instrumental in propagating such views about Islam and Islamic societies. But in order to understand the reality requires deeper insight into the social processes at work and it is necessary to view the issue from a number of perspectives: sociological, political and historical. 
 
Recently a debate took place on the web regarding these issues. Ten questions were posed and responded to by the participants: 
1) Is Islam incompatible with democracy? 
2) Can Shari’ah laws with their harsh punishments and democracy go together? 
3) Is it possible in Islamic countries to separate religion and state? 
4) Can Islam support individual rights i.e. human rights? 
5) Has the United States contributed to hampering democracy in countries like Saudi Arabia, Egypt, etc? 
6) Is Islam opposed to modernity and does it refuse to come to terms with it? 
7) Can religious texts be used as blueprints for the structure of a modern society? 
8) Do women hold an inferior position in Muslim society, and can equality for women only be ensured through secular laws? 
9) Is Islam tolerant and progressive, given that Islamic countries ban music and T.V., cinema posters etc? 
 
I shall try to answer each of these questions in turn. But as I stated before, in order to understand these questions it is not enough simply to look at what is happening in Muslim countries today and ascribe it to religion and religious teachings. Religion may appear to be a dominant cause but often it is not. Much happens under the cover of religion but there are all sorts of interests, particularly political and economic, that are more determinative and cannot be ignored. One also has to remember that there is no single interpretation of any religion. And one’s interpretation is deeply influenced by one’s sociopolitical inclination and turn of mind. Contemporary forces also play an important role in the interpretation of religion. Contemporary Islam is being interpreted in multiple ways. And the roles of history, of historical forces, of culture and of cultural heritage are all factors in the interpretation of religion. 
 
With these preliminary remarks in mind let us address the questions detailed above. 
 
Islam and Democracy 
The first question is whether Islam is incompatible with democracy. It certainly is not. The Qur’an lays emphasis on what it calls shura’ (consultation) (3:159, 42:38). Even the messenger of Allah is required to consult his people in worldly matters and Muslims are required to consult each other in their secular affairs. Now it is true that such consultation and modern day representative democracy may not be exactly similar. However, the idea of modern democracy and the Qur’anic injunction to consult people is the same in spirit. New institutions are continually developing and human societies, depending on their worldly experiences, continually change and refine these institutions. The Qur’anic text not only gives us the concept of shura’ (democratic consultation) but cannot be said to support even remotely the ideas of dictatorship and authoritarianism. 
 
Some commentators try to use the Qur’anic verse 4:59 to justify obedience to any kind of authority including a monarch, a caliph or a military dictator. This is certainly not the spirit of the verse. One has to see it in its historical context. The verse is addressed to Bedouins who were nomads and were not used to submitting to any authority. The Prophet sent his representatives to these Bedouin tribes and they refused to follow his instructions. The verse exhorted them to obey these authorities. It cannot be used to justify submission to illegitimately constituted authority. And, read in conjunction with the verses 3:159 and 42:38, it implies strongly that one has to submit to properly and democratically constituted authority. Authority has to be legitimate and properly constituted. 
 
In the contemporary world the concept of shura’ should mean democratic process and the constitution of proper democratic institutions - for which elections are a necessary requirement. In Islam no authority forcibly constituted, or acquired by power of swords or arms, can have any legitimacy whatsoever. The institution of monarchy or military dictatorship did not exist during the time of the Prophet. They are subsequent developments and were legitimized by the ‘Ulama in order to prevent anarchy. Thus the ‘Ulama conferred some legitimacy on monarchy, not in the light of Islamic teachings but only to prevent anarchy. Some of them also became part of the power structure but their pronouncements had no Islamic legitimacy. One sees this today in most of the Islamic countries. The ‘Ulama in Saudi Arabia are very much part of the monarchical power structure and legitimize everything the Saudi rulers do. 
 
Thus the absence of democracy in Muslim countries is by means on account of Islamic teachings or the incompatibility of democracy with Islam but due to a host of factors: political, historical and cultural. The imperialist powers, first of Europe and then of the United States, have also played their role. The early Islamic democracy breathed its last within thirty years of the Holy Prophet’s death. The institution of monarchy crept in under Roman influence. It is important to note that the capital of Islam had shifted from Medina to Kufa in Iraq and then to Damascus in Syria, once part of the Roman Empire. Mu-‘awiyah who seized power without the consent of the Muslims operated from Damascus and adopted Roman monarchical ways. Thus deeper historical and cultural influences must be taken into account in order to understand the political institutions in many Muslim countries today. American and British interests also play their role in shaping the power structures in these countries. In many Islamic countries including the Saudi Arabia and Egypt there is a deep longing among the people for democracy and popular government but it is frustrated by the heavy hand of authoritarian rule. It is not Islam that stands in the way of establishing democracy in these countries. It is powerful vested interests - both internal and external – that are preventing democracy from being established. 
 
Divine Mercy and the Shari’ah 
The next question is of implementation of Shari’ah law in Muslim countries. Many theologians and their followers believe sincerely that the problems confronting their countries and societies can be solved by enforcing Shari’ah laws and the punishments prescribed therein. Also, they believe these laws must be enforced as they were developed by the early jurists (fuqaha’) without any rethinking. This is certainly not the spirit of the Qur’anic injunctions. Many Qur’anic verses were revealed in and relate to particular situations and this has to be kept in mind when applying these laws. The fundamental principle is to prevent crime and crime can be prevented in number of ways. At times harsh punishments may be necessary while at other times reformative efforts may be more relevant. When the Qur’anic injunctions about crimes like murder, theft, robbery, rebellion, rape and adultery are considered carefully this becomes quite obvious. 
 
For example, the verse on cutting off of hands, 5:38 is immediately followed by verse 5:39 which says, “But whoever repents after his wrongdoing and reforms, Allah will turn to him (mercifully). Surely Allah is Forgiving, Merciful.” Thus emphasis is on reform and repentance, not on harsh punishment. It may be awarded only in extreme cases. Also, if verse 5:39 is read in conjunction with the verse 5:33 where punishment for “those who wage war against Allah and His Messenger and strive to make mischief in the land is that they should be murdered, or crucified, or their hands and their feet should be cut off on opposite sides, or they should be imprisoned”, it should become obvious that one must distinguish between ordinary and ultimate crime. When the punishment for mischief in the land or waging war against Allah and His Messenger could be imprisonment, how can the cutting off of hands be justified for mere theft? 
 
Cutting off of hands can also be interpreted metaphorically, to mean taking measures that will prevent the miscreant from committing theft in future. Cutting off the tongue could mean silencing some one, not literally cutting off the tongue. Also, one has to keep in mind the historical context. This was the traditional, pre-Islamic punishment meted out at that time and when some tribes indulged in crimes for their survival. The Qur’an invokes the then prevalent punishment but also adds the concept of reform and repentance and speaks of Allah’s Forgiveness and Mercy. A criminal, if he repents and reforms should be forgiven and shown mercy. Thus the Qur’an accepts the then prevalent punishment but improves upon it. The real purpose of Qur’anic justice is to reform the criminal but not to spare him if he persists despite being given the opportunity for a better life. 
 
Separation of Religion and State 
Another question relates to the separation of state and religion. Muslims generally believe that it is not possible to separate Islam and the state. This belief has acquired almost doctrinal status among Muslims. However, it has no such doctrinal position in the Qur’an. In fact it has been pointed out that the Qur’an does not even mention the concept of the state, only the concept of a just society. There was no state in Arabia at the time that Islam appeared and the Prophet laid down a bare framework of administration for the newly emerging society. There was no paid police, army or bureaucracy during his time. It was during the time of 2nd Caliph Umar that a register (Diwan) of paid army soldiers was started. It is mere historical coincidence that a state structure came into existence along with the religious movement. The Shari’ah law provided a cohesive and logical legal structure where before there had been a legal vacuum and thus was a great advance. Hence Shari’ah law acquired a very high status in Islam. 
 
Integration of state and religion is therefore a historical coincidence rather than a result of religious doctrine. Over time Shari’ah law, which had been the result of a dynamic process, became stagnant. Some modern scholars tried to infuse the principle of dynamism by invoking the concept of ijtihad but did not succeed because of the stagnation inherent in most Islamic states. The authoritarian rulers in Muslim countries find legitimization only through the support of the ‘Ulama and the ‘Ulama insist on retaining the Sahri’ah law as inherited from the past. If Shari’ah law were to be rethought or reinterpreted in the light of modern conditions, the orthodox ‘Ulama would risk losing their grip over the power structures. This collaboration between authoritarian rulers and the orthodox ‘Ulama has thus resulted in total social, political and legal stagnation in many Muslim countries. 
 
In some Muslim countries it may not be possible to attempt a total separation between state and religion, where for example, non-separation has become an integral part of the historical legacy, and one should begin by taking gradual steps in that direction. There cannot be any universal recipe since much will depend on the specific conditions in each country. An overall Islamic moral framework can be retained - as had happened in many western countries, including the USA, where an overall Christian moral framework has influenced law making. There are few countries in the West that have discarded such influence totally. Among Muslim countries Turkey has achieved separation of state from religion. But it must also be borne in mind that forcible imposition of modernization and separation of state and religion failed in countries like Afghanistan during the thirties and in Iran during the time of the Shah. Such attempts resulted in Islamic revolution and the imposition of Shari’ah law from above. 
 
Islam and Human Rights 
Individual rights are fundamental to the functioning of any liberal democracy. In fact the concept of individual rights or human rights has evolved along with the evolution of democratic power structures. Since there is no fully fledged democracy in any Muslim country there is little respect for the concept of individual rights. Indeed, many authoritarian rulers in Muslim countries reject the very concept of human rights denouncing them as western and secular in origin. 
 
Thus one has to struggle for democratic power in order to usher in the concept of individual rights in Muslim countries. Human rights activists in some Muslim countries such as Saudi Arabia and Egypt are dubbed as western agents, persecuted and thrown into jail. Anyone who holds a different political opinion faces persecution. Some who advocate changes in the Shari’ah laws in the light of changed conditions, or attempt to reconceptualize Islamic philosophical doctrine, face severe persecution. There is little respect for individual rights and individual dignity. Full respect for individual rights and dignity are only possible under a fully democratic system. For that there is a basic need for a democratic polity. 
 
Freedom of conscience and freedom of speech have never been denied by the Qur’an or the Prophet. The Prophet never suppressed individual freedom or discouraged differences of opinion. He even said that difference of opinion in the Islamic ummah was a matter of grace and mercy. However, with the evolution of feudal and monarchical culture differences of opinion were not permitted and were ruthlessly suppressed. During the early Abbasid period a controversy raged whether the Qur’an was created or is coeternal with God. The Abbasid who supported the Mu’tazilah viewpoint that the Qur’an was created forcibly suppressed the other point of view that the Qur'an is coeternal with God and flogged a person of the stature of Imam Abu Hanifa for holding a contrary view. This authoritarian culture remains unchanged in many Muslim countries today. Many Islamic scholars have had to leave Egypt, Pakistan and other Muslim countries for western universities. 
 
The suppression of free speech and freedom of conscience go hand-in-hand with the suppression of freedom of inquiry. It is for this reason that no Muslim country today has a strong tradition in the social or physical sciences. For the sciences to flourish one needs a liberal democratic culture. Muslim countries will remain far behind in these fields if their authoritarian power structures are not demolished and replaced with democratic ones. Unfortunately there is no such movement in sight. The United States has always propped up corrupt and authoritarian rulers in the Middle East who suppress freedom of expression and many of these countries remain totally dependent on the west. They cannot develop even to the extent that India has developed. No Muslim country can boast of any modern scientific discovery. 
 
Islam and Modernity 
Democracy and modernity go hand in hand. One can hardly be modern without being democratic. Whilst it is possible to argue that there are successful authoritarian models of modernization like China and Singapore, on deeper reflection it will be seen that democratic model is more congenial to modernization, particularly in the social sphere. Modern social sciences cannot flourish under authoritarian regimes even though natural sciences might. 
 
But the lack of modernity in Muslim countries is not because of Islamic teaching per se but is due more to its medieval interpretation. Islam can come to terms with modernity. Its teachings are quite modernistic if one goes by the Qur’anic pronouncements. The Qur’an encourages pluralism in verses like 5:48, 6:109, 60:8. All these verses are quite supportive of a pluralistic social structure. In fact early Islamic societies were far more pluralistic than any others throughout the medieval period. The Qur’an not only recognizes the validity of other faiths but also makes it incumbent for Muslims to respect equally all past prophets - and one who fails to do so is not true Muslim. Clear proof can be found in verses 4:150-152. 
 
The intolerance in Muslim societies today is more political than religious. Islam need not be intolerant of any other religion including that of kufr (unbelief) if it agrees to coexist peacefully and harmoniously. Thus Islam and pluralism can go together and have always done so. In fact it was Europe in medieval times that as intolerant of non-Christians. Islam today must free itself from the grip of intolerant theologians close to authoritarian power structures - authoritarian power that is at the root of their intolerance. 
 
Religious Texts and Modern Society 
It is true that some religious texts pose serious problems for modern society. But it need not be so with the Qur’anic texts if they are properly understood and are interpreted in the correct spirit. At the same time one should not obstruct worthwhile democratic, social and political change simply because some text is problematic. The religious texts were revealed or evolved in a very different social environment and one must take today’s relevance into account. One need not reject religious texts per se but examine their suitability or otherwise for modern societies. 
 
Status of Women 
Many Muslim societies treat women as inferior to men and try to justify this treatment by quoting from religious texts including the Qur’an. But they quote very selectively to prove women’s subordination to men. The Qur’an, if approached holistically, promotes the equal status of women. The verse often quoted by theologians to show women’s inferior status is 4:34, but they ignore verses like 2:228, 33:35 and several others or try to explain them away as promoting merely spiritual equality. This is incorrect. The Qur’an taken as a whole is far more supportive of equality of the sexes. Modern Islamic scholars now totally reject the orthodox interpretation of verse 4:34 made in a social environment in which male superiority was considered as quite natural, socially and biologically. I have discussed this in details in my book Rights of Women in Islam. It need not detain us here. 
 
But one has to wage a serious struggle to promote sexual equality in contemporary Muslim societies where Muslim women suffer many severe disabilities. Again, it should be a part of the democratic struggle. One can break the stranglehold of the conservative ‘Ulama only in a tolerant, pluralistic modern democracy. It is not Islamic teaching that stands in the way, it is the orthodox ‘Ulama on the one hand, and authoritarian power structures on the other. The Qur’an, can in fact, can become a great asset in promoting sexual equality. 
 
What we need are not only modern interpretation of the Qur’anic text but also female theologians fully conscious of their rights

Is Islam Compatible with Democracy and Modernity?

Asghar Ali Engineer Comment on this article Read other comments on this article It is frequently argued that because many Islamic countries are monarchies or dictatorships – or because of certain even…

08 Apr 2010

Universal declaration of Human Rights

On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights the full text of which appears on this page. Following this historic act the Assembly called upon all Member countries to publicize the text of the Declaration and "to cause it to be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories." 
 
PREAMBLE 
 
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, 
 
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, 
 
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, 
 
Whereas it is essential to promote the development of friendly relations between nations, 
 
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, 
 
Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms, 
 
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge, 
 
Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction. 
 
Article 1. 
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. 
 
Article 2. 
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. 
 
Article 3. 
Everyone has the right to life, liberty and security of person. 
 
Article 4. 
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. 
 
Article 5. 
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 
 
Article 6. 
Everyone has the right to recognition everywhere as a person before the law. 
 
Article 7. 
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. 
 
Article 8. 
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. 
 
Article 9. 
No one shall be subjected to arbitrary arrest, detention or exile. 
 
Article 10. 
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. 
 
Article 11. 
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. 
 
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. 
 
Article 12. 
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. 
 
Article 13. 
(1) Everyone has the right to freedom of movement and residence within the borders of each state. 
 
(2) Everyone has the right to leave any country, including his own, and to return to his country. 
 
Article 14. 
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. 
 
(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. 
 
Article 15. 
(1) Everyone has the right to a nationality. 
 
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. 
 
Article 16. 
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. 
 
(2) Marriage shall be entered into only with the free and full consent of the intending spouses. 
 
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 
 
Article 17. 
(1) Everyone has the right to own property alone as well as in association with others. 
 
(2) No one shall be arbitrarily deprived of his property. 
 
Article 18. 
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. 
 
Article 19. 
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. 
 
Article 20. 
(1) Everyone has the right to freedom of peaceful assembly and association. 
 
(2) No one may be compelled to belong to an association. 
 
Article 21. 
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. 
 
(2) Everyone has the right of equal access to public service in his country. 
 
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. 
 
Article 22. 
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. 
 
Article 23. 
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. 
 
(2) Everyone, without any discrimination, has the right to equal pay for equal work. 
 
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. 
 
(4) Everyone has the right to form and to join trade unions for the protection of his interests. 
 
Article 24. 
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. 
 
Article 25. 
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 
 
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. 
 
Article 26. 
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. 
 
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. 
 
(3) Parents have a prior right to choose the kind of education that shall be given to their children. 
 
Article 27. 
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. 
 
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. 
 
Article 28. 
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized. 
 
Article 29. 
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible. 
 
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 
 
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. 
 
Article 30. 
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Universal declaration of Human Rights

08 Apr 2010

Islam and Modernity

Farrukh Saleem 
 
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The Organization of Islamic Conference (OIC) has fifty-six member states plus Palestine with ten other entities including the United Nations holding observer status. 
 
Out of the fifty-six, Syria, Iran, Libya, Pakistan, Iraq, Tunisia, Algeria, Somalia, Maldives, Burkina-Faso, Uganda, Sudan, Gambia, Uzbekistan, Azerbaijan, Cote d’Ivoire, Gabon, Mauritius, Lebanon, Guinea, Turkmenistan and Kazakhstan are categorized as ‘Authoritarian Regimes’. That is a total of twenty-two or 40 percent of the OIC (Afghanistan has long been classified as a ‘Totalitarian Regime’). 
 
Nearly 15 percent of OIC member states are ‘Traditional Monarchies’. They are: Saudi Arabia, Bahrain, Kuwait, UAE, Brunei, Oman, Qatar and Morocco. Some nine OIC members pass as having ‘Restricted Democratic Practices’: Malaysia, Jordan, Egypt, Cameroon, Senegal, Comoros, Yemen, Chad and Tajikistan. 
 
Only 15 OIC members are considered to be “Democratic”: Indonesia, Turkey, Bangladesh, Sierra Leone, Guinea-Bissau, Niger, Mozambique, Mali, Kyrgyz, Togo, Benin, Guyana, Djibouti, Albania and Suriname. Any member state that fulfills just three objectively analyzed criteria (multi-candidate, multiparty, competitive elections) qualifies as a Democracy. 
 
Thus at least 70 percent of OIC members are Authoritarian Regimes, Totalitarian Regimes or have Restricted Democratic Practices. 
 
Political Rights and Civil Liberties 
Freedom House, a nonpartisan, nonprofit, broad-based, democracy-related research think-tank, has since 1978 published Freedom in the World, an annual comparative assessment of the state of political rights and civil liberties in 192 countries and 18 related and disputed territories. The methodology of these surveys is based on the Universal Declaration of Human Rights with little or no culture-bound view of freedom. Each country is rated on a scale of 1 to 6 for political rights and civil liberties and given an overall rating: Free, Partly Free, or Not Free. 
 
In the 2003 Freedom House survey at least thirty of the 56 OIC member states were classified as being ‘Not Free’; 53 percent of the total membership. The ‘Not Free’ countries are: Pakistan, Saudi Arabia, Iran, Egypt, UAE, Syria, Iraq, Libya, Bahrain, Qatar, Oman, Afghanistan, Tunisia, Sudan, Gambia, Uzbekistan, Turkmenistan, Kazakhstan, Algeria, Maldives, Mauritius, Somalia, Lebanon, Guinea, Kyrgyz, Tajikistan, Chad, Yemen and Cameroon. 
 
Bangladesh, Indonesia, Turkey, Malaysia, Morocco, Kuwait, Jordan, Burkina Faso, Uganda, Azerbaijan, Cote d’Ivoire, Gabon, Sierra Leone, Guinea-Bissau, Comoros, Senegal, Niger, Mozambique, Nigeria and Togo are ‘Partially Free’. Only four OIC members were classified as ‘Free’. They are: Mali, Benin, Guyana and Suriname. 
 
Conclusion: At least 93 percent of OIC members are either ‘Not Free’ or only ‘Partially Free’. 
 
Economic performance 
More than 1.3 billion people, one-fifth of humanity, live in the OIC states. Within the OIC are Saudi Arabia, Iraq, Iran, UAE and Kuwait that between them possess 700 billion barrels of proven oil reserves. All the 1.3 billion put together have an annual GDP of less than $1.5 trillion. 
 
There are only 290 million Americans and their annual GDP is $10.4 trillion. France is at $1.54 trillion, Germany $2 trillion, UK $1.52 trillion and Italy, long the sick man of Europe, $1.4 trillion. 
 
Kuwait, UAE and Brunei are the only OIC members where per capita income exceeds $10,000 a year. At least fifty OIC members have per capita incomes of under $5,000 a year. Forty-five OIC members have per capita incomes of under $1,000 a year. 
 
Education 
Of the 1.3 billion OIC Muslims more than 800 million continue to be absolutely illiterate. Of the 290 million Americans 227 are Nobel Laureates (India has 4). 
 
Of the 1.3 billion Muslims less than 300,000 qualify as ‘scientists’. That converts to a ratio of 230 scientists per one million Muslims. The United States of America has 1.1 million scientists; Japan has 700,000. 
 
Among them, fifty-six OIC countries have an average of ten universities each for a total of less than 600 universities for 1.3 billion people. India has 8,407 universities, the US has 5,758. 
 
The arms trade 
The planet’s poorest countries include Ethiopia, Sierra Leone, Afghanistan, Cambodia, Somalia, Nigeria, Pakistan and Mozambique. At least six of the poorest of the poor are OIC members. 
 
The largest buyers of conventional weapons are Taiwan, Saudi Arabia, Turkey, S Korea, China, India, Greece, Egypt, Japan, UAE, Israel, Finland, Pakistan, Kuwait and Singapore. Of the fifteen top buyers of conventional weapons six are OIC members. 
 
The US, Russia, France, UK, Germany, Netherlands, Ukraine, Italy, China, Belarus, Spain, Israel, Canada, Australia and Sweden are the largest suppliers of weapons. Not one is part of OIC. 
 
Is the Ummah listening? 
We are trapped in a vicious cycle of illiteracy, poverty and violence. We continue to blame non-Muslims for all our failures. Salman Rushdie is convinced that America’s ‘war on terrorism’ is all about Islam. Rushdie says what we have is a 
 
"paranoid Islam, which blames outsiders, ‘infidels’ for all the ills of Muslim societies, and whose proposed remedy is the closing of those societies to the rival project of modernity.... this is presently the fastest growing version of Islam in the world." 
Rushdie goes to add that 
 
"if Islam is to be reconciled with modernity ... the restoration of religion to the sphere of the personal, its depoliticization, is the nettle that all Muslim societies must grasp in order to become modern. The only aspect of modernity interesting to the terrorists is technology, which they see as a weapon that can be turned on its makers. If terrorism is to be defeated, the world of Islam must take on board the secularist-humanist principles on which the modern is based, and without which Muslim countries’ freedom will remain a distant dream." 
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Islam and Modernity

Farrukh Saleem Comment on this article Read other comments on this article The Organization of Islamic Conference (OIC) has fifty-six member states plus Palestine with ten other entities including the…

08 Apr 2010

waiting for an Islamic Reformation

by Ishtiaq Ahmed 
 
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An Islamic Reformation has yet to materialize, but without it the Muslim world is seriously handicapped, intellectually and materially, in facing the challenges of the present and future. 
 
The current wave of fundamentalist Islam conveys a distorted image of the highly variegated Muslim heritage. From quite early times diverse and pluralistic approaches existed among Muslims for understanding their religion. Some schools approached the Quranic text as a multilayered discourse comprising literal as well as symbolic and esoteric messages. On the other hand, populist movements insisted that each word should be understood in the literal sense. The latter tendencies gave birth to anthropomorphist doctrines about God's detailed intervention in all matters and came to represent the fundamentalist strand. 
 
Rationalism, as a movement of free thought, also made an early appearance and between the 9th and 13th centuries it constituted a robust intellectual activism with adherents in many parts of the Muslim world. The first statement in favor of rationalism was presented in the following words by Al-Kindi (801-66): "We should not be ashamed to acknowledge truth from whatever source it comes to us, even if it is brought to us by former generations and foreign powers. For him who seeks the truth there is nothing of higher value than truth itself" (Albert Hourani, A History of the Arab Peoples, 1991: 76). 
 
The general assumption upon which Muslim philosophers built their rationalism was that if reason was applied correctly it could furnish reliable and certain knowledge about the universe but it was necessary to believe that some knowledge comes only through revelation. The Spanish-Arab philosopher Ibn Rushd (1126-98) emphasized the preeminence of human intelligence and philosophical reflection over the apparent meaning of Quranic verses. He asserted that in case of a contradiction between the truths discovered by philosophy and what the Quran appeared to state, the discoveries of the philosophers were to be relied upon and the Quranic verses interpreted metaphorically. 
 
For various reasons the rationalist movement could not consolidate itself and the intellectual leadership passed into the hands of Imam Ghazzali (d. 1111). With the help of a simple formula that revelation was superior to reason, he established the lasting hold of scholasticism over Muslim intellectual activity. As a result dogmatism became permanently entrenched in Muslim intellectual discourses. It is therefore not surprising that the syllabi of the contemporary Islamic madrassas are based on scholasticism and dogmatism. 
 
In societal terms the implications were that the Fuquha (jurists) and ulema seemed to have tacitly reached the conclusion that all matters deserving to be explained or regulated in law had been covered by Fiqh rulings; the world had reached its ultimate development which would last till such time that decline sets in and the whole universe declines into chaos, as predicted in the sacred sources, culminating in the Day of Reckoning or Qayamat. Belief in such teleology allowed medieval scholars of Islam to be complacent that in future all that was needed was to apply the rulings of Fiqh to specific circumstances. Such assumptions resulted in the doctrine, 'closing-of-the-gates-of-ijtihad'. 
 
It was in the 18th century that the 'closing-of-the-gates-of-ijtihad' doctrine began to be questioned. The new reformers were the Wahabis of the Arabian Peninsula. They denounced the cult of sufi-saints, visits to shrines in the hope of intercession of dead masters on behalf of a supplicant and a host of elaborate ceremonies that had taken root in Muslim societies. Instead the Wahabis subscribed to a strictly Unitarian interpretation of Islam and sought to employ ijtihad to purify contemporaneous Islam of 'unIslamic accretions'. 
 
In one sense, the Wahabi reforms were not different from the Reformation that Luther and Calvin had successfully led in Europe. They too strove to restore pure, unadulterated Christianity, but it was purely fortuitous that the scientific discoveries of that time undermined the Aristotelian physics upon which the church had built its view of the universe. Such a confluence of religious reform and scientific change did not underpin the Wahabi attempts at reformation. Consequently it became a reactionary rather than a progressive intervention in Muslim affairs. 
 
Muslim encounters with science and modernity came via the colonial intervention. Following Napoleon's landing at Alexandria in 1798 Muslim modernism began to take shape. However, under the influence of Jamaluddin Afghani it reaffirmed the supremacy of revelation over reason. He wrote a famous pamphlet denouncing 'materialism', the term he employed for describing science and the scientific method. 
 
A more sophisticated position on reform was taken by Sir Syed Ahmed Khan. Deeply impressed by the achievements of English rule and English education, Sir Syed adopted a rationalist-scientific approach to phenomena by arguing that Islam was not only a religion based on reason as Afghani had asserted but also on nature. Hence the name of his intellectual movement, the Nechari (naturalist) School of Thought. Thus he not only supported a study of Western natural sciences but also economic methods and theory. In a bold reinterpretation of the Quran, Sir Syed came to the conclusion that the ban on usury was not applicable to modern banking and commercial practices. His followers however failed to sustain the Nechari School which slipped into oblivion soon after his death. 
 
The intellectual leadership of the Muslim world passed on to Allama Iqbal who reverted to the scholastic position of Ghazzali and Afghani, asserting that reality was spiritual and therefore science, which could only deal with material data, was inadequate for fathoming true reality. His notion of 'spiritual democracy' charmed Muslim League leaders such as Prime Minister Liaqat Ali Khan who translated it into a constitutional principle by declaring God and not the people of Pakistan sovereign. Such formulations opened the market for Abul Ala Maududi's 'theo-democracy' and Ghulam Ahmad Pervaiz's 'Quranic democracy' and many other novel but bogus terms. Their disciples continue to churn out even more confused and contradictory notions of science, democracy and a modern economy of growth. 
 
The government of Gen Ziaul Haq whose fundamentalist leanings were proverbial caused the greatest harm to rationalism. Elsewhere in the Muslim world too fundamentalism became a prominent state ideology in the 1980s and this situation persists. The result is that an Islamic Reformation has yet to materialize, but without it the Muslim world is seriously handicapped, intellectually and materially, in facing the challenges of the present and future. 
 
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waiting for an Islamic Reformation

by Ishtiaq Ahmed Comment on this article Read other comments on this article An Islamic Reformation has yet to materialize, but without it the Muslim world is seriously handicapped, intellectually and…

08 Apr 2010

laws that are abused

Zubeida Mustafa, The Dawn, Karachi, March 5, 2004 
 
Even in these hard times, there are days which bring glad tidings. Last week we received an e-mail from a former death row prisoner who has won his freedom after being acquitted by the Sessions Court, Islamabad. 
 
Dr M. Younus Sheikh, a doctor and a teacher, had been accused of blasphemy - falsely, it is now clear - in October 2000. In September 2001 he was sentenced to death. He had denied the charges. 
 
A slow and protracted process of appeal and retrial followed leaving him languishing in solitary confinement on death row for more than two years until his release in November 2003. 
 
Although found innocent, Dr Sheikh had to remain in hiding even after he was a free man because he continued to receive death threats. He has now left the country to take asylum in Europe. 
 
There is a positive dimension to Dr Sheikh's case. It shows that the judiciary in Pakistan still has judges who are fearless and conscientious and who are prepared to hand down judgments based on their sense of justice and fair play. 
 
But one cannot overlook the fact that this country continues to have laws on its statute books which were instituted in the name of Islam by an autocratic ruler and are all too frequently misused by unscrupulous persons against those they perceive as their enemies for not sharing their dogmatic interpretation of Islam. 
 
The blasphemy law is one of them. According to the International Humanist and Ethical Union (IEHU) today more than 100 people are in Pakistani prisons accused of blasphemy. 
 
There are also the Hudood laws which are a travesty of justice. Today a large number of women are in prison because they have been charged with adultery under Zina Ordinance. 
 
The law has been so much abused that the National Commission on the Status of Women last year issued a report after much deliberation by jurists and experts recommending the abolition of the Hudood laws. Its chairperson, retired justice Majida Rizvi, has been campaigning relentlessly for their annulment. She has so far failed to succeed. 
 
The mere fact that many people arrested under both the laws are later acquitted shows that the laws offer ample opportunity for abuse. Many a times, blasphemy charges are brought against a man on flimsy grounds and he finds himself in prison under the shadow of death. 
 
He wins his freedom only after a long judicial process and the judge is brave and fair. Similarly, an innocent woman is charged and thrown into jail on baseless allegations that hold no water in a court of law. 
 
Until the poor woman is acquitted as no adequate evidence is found, a few years have passed during which her reputation is totally ruined, her family scattered and she herself is so thoroughly demoralized that her acquittal hardly brings any relief to her. 
 
Since we do not have an activist social scientist such as Asghar Ali Engineer in our midst, no one has analyzed the real factors behind the cases brought against various people under these laws. 
 
Obviously, the reason would vary from person to person. For instance, many women are charged by their former spouses out of anger or vindictiveness. Even in blasphemy cases, at times economic factors play the main role. 
 
Why should we have laws which can be so misused? Why can't these laws be amended or, better still, dropped so that there is no room for abuse? President Pervez Musharraf tried to amend the blasphemy law a few years ago. 
 
It was a very minor amendment which he had suggested that would have only modified the procedure of registering an FIR for blasphemy. 
 
The police would have been required to carry out preliminary investigations to see if there were any grounds for a case of this nature. Even that was unacceptable to the religious leaders who were so vocal in their protest that the president had to backtrack. 
 
As for the Hudood Ordinances, they have never attracted any attention except from the women's groups and the human rights activists. Is it because most women who are jailed under this law are poor and illiterate and have no political clout and have no connections with the centres of power. 
 
The sufferings of the voiceless in our society generally go unnoticed. Hence it is now for the women's groups, human rights activists and international bodies such as Amnesty International and the IHEU (who took up Dr Shaikh's cause) to struggle for a change in such laws. 
 
Why do those who have the power to introduce changes and want Islamic precepts to govern our public life, opt for the obscurantist and narrow interpretation of Islam? Why is it that Islam is presented as a religion that is repressive, harsh and devoid of humanism? In the absence of any resistance from any quarters, the obscurantists get a free hand. 
 
Even though most people would not subscribe to these views and would never uphold the brutal punishments prescribed under these laws, they have been so thoroughly indoctrinated that they do not want to challenge what the so-called purveyors of Islamic teachings have been propagating. 
 
The SPDC report which made a detailed study of education in Pakistan found the madressahs producing students who are "unable or unwilling to be amenable to conduct that does not conform to prescribed norms". 
 
The curricula of the madressahs are heavily indoctrinated by religious subjects and at the higher level comparative religion is taught in the form of theological debates wherein the student learns to refute the beliefs of other doctrines (radd) rather than tolerating them. 
 
As such the products of the madressahs tend to be doctrinaire and intolerant of pluralistic ideas. Their mindset is "one-sided and exclusivist" and "insular and self-righteous". 
 
The madressahs have always been there with their rigidly orthodox curricula. How come they have assumed such an important role now as to worry all sensible people? True their numbers have grown enormously. What is more, the products of these institutions have now gained ascendancy in state policymaking in many areas. Hence laws such as the blasphemy law and the Hudood Ordinances. 
 
Yet the number of children passing out of secular institutions is much higher. What should cause greater concern is the fact that education in general schools (which are not madressahs) is equally doctrinaire in its contents. 
 
An analysis of the textbooks clearly establishes that children are taught to be proud of war, intolerant of other religions, nationalist to the extent of being jingoistic by distorting history, teaching it selectively, drumming in the greatness of our own religion while by implication showing no respect for other faiths, the school textbooks produce students who, according to the SPDC, look at the world in terms of "black and white" and "us versus them" with a mindset that is "single-dimensional" and "exclusivist". 
 
Then above all, the majority of the people are illiterate. In these conditions, there might be some people who have managed to develop an independent mode of thinking - their own personal experience may have taught them that other religions also teach virtues and goodness. But they never have the confidence and intellectual capacity to challenge the prevailing mindset. 
 
Of course the ideal approach would be to correct the curricula in all the schools so that the mindset of the entire nation changes. But this is a slow process for it would take a generation to change this outlook. Besides, who would bell the cat? The problem is that many who can bring about changes have their own hidden agendas which do not always coincide with their public positions. 
 
Meanwhile, it is important that we do not provide any opportunity to unscrupulous elements to misuse the laws and brutalize the people in the name of religion.

laws that are abused

Zubeida Mustafa, The Dawn, Karachi, March 5, 2004 Even in these hard times, there are days which bring glad tidings. Last week we received an e-mail from a former death row prisoner who has won his fr…

08 Apr 2010

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