Human rights: Sakineh’s case & beyond

The punishment is the crime

Sakineh Ashtiani’s name is now well known across the world. The 42-year-old mother of two was convicted of murder and adultery in Iran. She has been on death row in Iran since 2006. This year, an international campaign was started by her children to prevent her execution. Some reports alleged that because of her conviction for adultery, Sakineh would be stoned to death. Appeals have been issued by international human rights organisations around the world and the petition to ‘Free Sakineh’ counts international celebrities among its signatories.

On Sept 8, 2010 Ramin Mehmanparast, a spokesperson for the Iranian government, confirmed that the Iranian government had suspended the stoning sentence but retained the option of carrying out the execution through other methods.

In the media blitz accompanying his attendance at the UN General Assembly, Iranian President Mahmoud Ahmadinejad defended Sakineh Ashtiani’s case by deflecting attention towards the impending execution of a woman (subsequently put to death) in America. In a statement he said: “A woman is being executed in the United States for murder but nobody protests against it.”

Ahmadinejad’s strategy of justifying the execution of one woman by pointing to another is an old one. World leaders routinely point to the existence of injustice in other countries as an argument for visiting a variety of abuse on their own populations with callous impunity. In Muslim countries especially, the existence of injustice in western countries seem to function as a convenient argument for their excesses.

On the international front, however, the case of Sakineh Ashtiani and the use of stoning punishments have generated vociferous condemnations. The barbarity of the act of stoning, captured in a recent film entitled The Stoning of Soraya, has led many to conclude that Islam unequivocally condones such punishments.

Such perceptions, based on cases like Sakineh’s, present an urgent and pressing challenge to theology and to Muslims committed to preventing the hijacking of their faith for political objectives pursued by a variety of rulers. While many Muslims have signed the petition to free Sakineh Ashtiani their anti-stoning arguments have remained couched in western human rights principles rather than Islamic theological arguments.

This paradigm is now being taken up by an emerging movement led by Muslim women who seek to challenge the presentation of practices like stoning as unarguable and unchallengeable practices of Islamic law. The Musawah movement, initiated in March 2007 by a Malaysian NGO called Sisters in Islam, seeks to challenge inequality and issues like stoning under the framework of Islam.

As its guiding principle the movement which includes female Muslim activists from Iran, Nigeria, the United States, Malaysia and scores of other countries declares that “we as Muslims declare that equality and justice in the family are both necessary and possible. We hold the principles of Islam to be a source of justice and equality, fairness and dignity for all human beings. The time for realising these values in our laws and practices is now”.

In a conference held in February last year, Musawah founder Zainah Anwar, describing the challenge said, “very often Muslim women who demand justice and want to change discriminatory laws are told ‘this is God’s law’ and therefore not open to negotiation and change”. She went on to assert that justice is a central and intrinsic principle in Islam and that Muslim women will no longer be silenced by attacks in their quest to achieve justice and equality.

With respect to the use of stoning as a punishment for adultery, a prominent Islamic feminist scholar Ziba Mir-Hosseini associated with Musawah recently published a critique of stoning laws based on Islamic theology. In her paper, published on the Musawah website and entitled “Criminalising sexuality: Zina laws as violence against women in Muslim contexts” Mir-Hosseini locates Zina crimes at the intersection between “religion culture and law”.

She argues that practices like stoning must thus be challenged on a variety of levels including theological challenges, larger widespread understandings of women as property and relationships to other laws and legal mechanisms that promote that women must always acquiesce in the leadership of male guardians. One important mechanism in doing so is to recognise that several of these precepts emanate from fiqh or juristic pronouncements made by legal scholars but are nevertheless presented as divine and unassailable.

A theological argument against stoning is also provided by University of Wisconsin law professor Asifa Quraishi in her recent paper Who says Sharia demands stoning of women?, Prof. Quraishi presents a detailed discussion of the plurality within Islamic law to demonstrate that those that argue that ‘stoning’ is a necessary element of Sharia are relying on incorrect presumptions that all of Sharia is in fact divinely ordained.

In presenting the plural sources of Islamic fiqh, therefore, Quraishi highlights that difference of opinion and diversity, particularly in legislative fiqh, such as the laws governing ‘stoning’, is an essential part of Islamic jurisprudence. Given this, it is a gross misrepresentation to say that supporting ‘stoning’ punishments is part of being a believing Muslim and believing in Sharia and also consequently believing that opposing Sharia is essential to women’s rights.

The argument made by the Musawah movement and these scholars thus is multifaceted. First distinctions must be made between Sharia as the ‘revealed way’ and Islamic fiqh or the science of Islamic jurisprudence. Second, as said by Qasim bin Jawziyya, an Islamic jurist in the seventh century, “the fundamentals of Sharia are rooted in wisdom and promotion of welfare of human beings in this life and the Hereafter. Sharia embraces justice, kindness, the common good and wisdom”. Given these tools, it is certainly possible to formulate fiqh-based arguments that oppose stoning and any other barbaric punishment from within both an Islamic and a human rights framework.

The presence of stoning punishments for sexual crimes in the law books of Muslim countries and the lack of challenges posed to them from within Islam are a cause for urgent concern for all Muslims. Not only do existing discussions promote misperceptions about religious law to dupe the ignorant but also use this as a basis for political theatre rather than as a tool of justice. Movements like Musawah and the work of emerging Muslims scholars can provide Muslims with the tools to distinguish between faith and propaganda.

Rafia Zakaria is Associate Editor of altmuslim.com and an attorney who teaches constitutional history and political philosophy. This article was previously published in Dawn (Pakistan).