A question that needs to be understood well
Before I start talking about sharia, let me first qualify that this piece is written from the perspective of a politician rather than a religious scholar. It is important to mention this as well as why it is important to look at the concept of sharia from political science perspective. When sharia is presented as a political model that has to be adopted by a state then it should be examined from that angle. In West politicians are expressing fears that rising Muslim populations in their societies would create pressure for introduction of sharia. Similarly, in Muslim majority countries religious political parties are demanding introduction of sharia and a law ratified by an assembly is sometimes rejected by them as crossing limits. The recent case to explain this point is Women Protection Bill adopted by Punjab Assembly and the opposition to it by religious political parties.
Shara is the root of the word sharia meaning a path or the way. Urdu shahrah comes from the same root which means a road that takes you to a destination. In other words, sharia is the path provided for a person to pursue to lead a good life that is spiritually uplifting and temporally just. This path is ordained in Quran and the tradition of the Prophet Mohammad (PBUH). The sharia is for an individual to pursue voluntarily without compulsion or enforcement by an outside agency. It is this voluntary adoption that will be judged by God in the afterlife. sharia has two main components that have to be followed which are Huqooq Allah (meaning the rights of God) and Huqooq-ul-Ibad (meaning the rights of other humans that we deal with). An important point to remember that has created a lot of misconception is that sharia cannot be imposed by the state on the citizen because it is a voluntary act. Let me try to explain this through some examples.
The Charter of Medina that was the political constitution drafted by the Prophet Mohammad (PBUH) does not give state the right to impose sharia on its citizens. There is no article that gives the state of Medina the right to demand from its citizen’s practice of their religion. Similarly, after successful conquest of Mecca the general amnesty offered did not require people to either convert or were forced to follow a sharia. Lastly, during the reign of Caliph Omar (RA) one night, during a tour of the city, he heard drunken voices coming out of a house which prompted him to scale the wall and apprehend the people for consumption of alcohol. Next day the convicts were presented in the court of Qazi Hazarat Ali (RA) who required Caliph to provide justification on what basis he violated privacy of a citizen. Since Caliph entered the house without a warrant or a permission, the case was dismissed. These three examples clearly indicate that adoption of sharia by the citizen is a voluntary act and cannot be imposed by the state.
So then why is this confusion about imposition of sharia by the state? The confusion has started when religious scholars started including fiqah (law) as part of the sharia but in reality these are two different political concepts. They had a political objective in that by adding fiqah to become part of sharia the theologians wanted to control both private and public spheres of people’s lives in which they have largely succeeded in the last 1,000 years. The practical example of this is present day Iran and Saudi Arabia where state demands from its citizen practice of religion. Wikipedia describes the word fiqah is an Arabic term meaning “deep understanding” or “full comprehension”. Technically it refers to the body of Islamic law and the process of gaining knowledge of Islam through jurisprudence. In other words, in a Muslim majority country we should seek imposition of fiqah by the state rather than a sharia. The problem we may encounter in achieving this is that fiqah stopped developing after the end of Abbasid rule around 860 AD. Another complication in adopting fiqah is that there are various schools of thought which makes it difficult to arrive at a consensus. But it is not impossible to achieve it and we must pursue that route.
In political terms, what I am trying to propose is that it is important to clear the ambiguity surrounding the political difference in sharia and fiqah. In Islamic political thought there is no separation of church and state as promoted by Western liberal democratic model. Islam offers separation of individual sphere governed by a voluntary adoption of sharia and a public space governed by fiqah or law. The source of both these spheres is Quran and tradition of Prophet Mohammad (PBUH) so there is no inherent conflict in it. But sharia and fiqah should not be mixed together to allow state to have the right to impinge on the private life of an individual. State cannot dictate to the citizen that they have to pray five times and fast in Ramazan. Similarly, state cannot demand women to wear hijab although modesty of dress in a public domain is required by almost all societies. Islam demands grace, dignity and good behaviour as member of a community which is a common theme in all societies. State does have the right to adjudicate a conflict arising between two citizens relating to inheritance, property or any other issue using fiqah. State also has the right to prosecute a citizen if they commit a crime again using fiqah. Zakat is probably one of the only individual acts that can be imposed by the state in the form of a tax because the money collected help in funding the social security services offered to poor.
Now coming to Women Protection Bill adopted by Punjab Assembly, I support the approach adopted by Khyber Pakhtunkhwa Assembly which sought guidance from Council of Islamic Ideological Council (CII) on the draft before placing it on the floor. But does CII have the capacity and capability to provide good guidance is something that we need to seriously look at. It would be wise for Punjab government to seek views on the bill from wide spectrum of scholars both political and religious to decide whether amendments are needed and of what sort. But women do need protection in a male chauvinist society of Pakistan where a substantial number of them are subjected to domestic violence and abuse.