by Izeth Hussain
The murder by the Saudi authorities, in the gruesome form of a public beheading, of the innocent Sri Lankan maiden Rizana Nafeek is now in the past, and it might be thought that no good will come of dwelling on it. I believe on the contrary that certain aspects of that murder still merit consideration.
In this article I want to comment mainly on that murder in relation to the Sharia, which is regarded as the Divine Law of Islam. I want to show in the process that this is a matter of importance not just to the Sri Lankan Muslims but to the Sri Lankan nation as a whole.
But first I want to comment on an important aspect of the reactions to that murder in Sri Lanka. The murder was a horror story, to which the appropriate reaction should have been disgust and indignation. Instead a tsunami of compassion swept over the nation. Parliament which was sitting at the moment the news of the murder broke stood up spontaneously for a minute of silence; later Kandyan municipal councilors visited Rizana’s parents to offer their help, and so on. The story of an insignificant girl, who had gone abroad to face a life of toil and tears in the hope of bettering the prospects of her poverty-stricken family, had touched the nation deeply.
It was experienced by the nation as a tragedy. I am reminded of Yeats’ account of the experience of tragedy: it breaks the dykes that separate man from man and brings them together. In this case the Sinhalese came together with the Muslims, as well as with the other ethnic groups, over the tragedy of a Muslim girl. At the time an anti-Muslim hate campaign was mounting to a horrible crescendo. We must recognize the fact that there is in Sri Lanka racist insanity. But we must also recognize that there is among the Sinhalese a deep well of compassion – a central Buddhist value – that can bind the nation together.
However, while noting that compassion as something of great value, there was a shadow lurking in my mind. All ethnic groups have a capacity to feel compassion, but there was a suspicion in my mind that the Muslims would experience compassion over the Rizana tragedy to a significantly lesser extent than the Buddhists. My expectation was that they would be confused by misconceptions about the Sharia, which would make them believe that the beheading was after all dictated by the Divine Law, and therefore compassion would be out of place. My worst fears were confirmed by Amal Senalankadhikara, the Chairman of the Sri Lanka Bureau of Foreign Employment, who said in the course of an interview with Ceylon Today (January 27) that he had gone to Muttur expecting brickbats from the villagers, “But nothing happened. All the people believed in the Sharia Law. They said it was the correct thing to behead Rizana according to Sharia.”
Before establishing that the death sentence on Rizana was contrary to the Sharia, I want to make one point, and I want to make it most emphatically: Saudi and other fundamentalist barbarism are utterly contrary to the precepts and the spirit of the Sharia. Otherwise the Sharia would not have roused the admiration of civilized scholars all over the world. I have particularly in mind what Count Leon Ostrorog wrote in his book The Angora Reform published in 1927. A quotation from it is a staple in practically all writing on Islamic Jurisprudence, including Weeramantry’s book of that name.
The following is the quotation: “Considered from the point of view of its logical structure, the system (Islamic Law) is one of rare perfection, and to this day it commands the admiration of the student. Once the dogma of the revelation to the Prophet is admitted as postulate, it is difficult to find a flaw in the long series of deductions, so unimpeachable do they appear from the point of view of Formal Logic and of the rules of Arabic Grammar. If the contents of that logical fabric are examined, some theories command not only admiration but surprise. Those Eastern thinkers of the ninth century laid down, on the basis of their theology, the principles of the Rights of Man, in those very terms, comprehending the rights of individual liberty, and of inviolability of person and property; described the supreme power in Islam, or Caliphate, as based on a contract, implying conditions of capacity and performance, and subject to cancellation of the conditions if the conditions under the contract were not fulfilled; elaborated a Law of War of which the humane, chivalrous prescriptions would have put to the blush certain belligerents in the Great War; expounded a doctrine of toleration of non-Moslem creeds so liberal that our West had to wait a thousand years before seeing equivalent principles adopted.”
I come now to the death sentence on Rizana, which I hold should properly be regarded as a murder. No Muslim can question the imposition of the death sentence for murder because that is strictly in accord with the Sharia. But the murder has to be proved, and in the case of Rizana it was manifestly not proved, at least not according to norms prevailing in the rest of the world except for Saudi Arabia and perhaps just a few other places. We are asked to believe that Rizana, who was in the employment of that family for just one week, plotted and killed a baby. Does that sound credible? True, she was scolded that morning by the lady of the house. Can we believe that that drove Rizana to murder? We must remember that she had no record of criminality or juvenile delinquency, or of misbehaviour of any sort, and was evidently regarded in her village as just another normal child. Normally a murderer would take every precaution to ensure that no clue whatever pointed to her.
In this case we are asked to believe that Rizana strangled or smothered or choked the baby with all the evidence pointing only to her as the possible murderer. Only a lunatic would have plotted a murder in that way, but there is nothing pointing to lunacy or even eccentricity in Rizana’s life of sixteen years. Surely everything points to an accidental death. I myself wrote a letter published in the Island in which I pointed out that I and my wife, both aged 27 and both graduates, were so ignorant of the facts of life that we did not know that a baby had to be burped after imbibing milk. The consequences could have been very terrible for our first-born child. Rizana was a village girl of just sixteen, with scant education and scant experience of life. The Saudis will hold of course that she had confessed. I dismiss the claim that constitutes proof with total contempt as she withdrew that “confession” as having been made under duress. All the circumstances point to her having been absolutely veracious on that point.
What does the Sharia have to say on proof? I have no expertise on Law and therefore I will depend on what Weeramantry says in his book Islamic Jurisprudence. Before proceeding further I must say that his book contains a Message from the Grand Sheikh of Al- Azhar University in Cairo. Al-Azhar is widely regarded in the Islamic world as having the most authoritative voice on Sunni Islam, and therefore we can take it that the book has the imprimatur of orthodox Sunni Islam on it.
Under the heading The Presumption of Innocence, Weeramantry quotes the Prophet as saying, “Had men been believed only according to their allegations, some persons would have claimed the blood and properties belonging to others, but the accuser is bound to present positive proof.” The court proceedings in the Rizana case have not been made available, possibly because they don’t exist. From what is known, it appears that the judgment of murder was made on no more than the allegations made by the accusers, namely the parents of the baby.’ Plus her alleged “confessin”. It is known that no autopsy was performed to establish whether the baby was murdered or died of other causes, and it is difficult to see what positive proof could have been provided by the accusers. For reasons that I have already given, the case for murder had to be regarded as doubtful in the extreme, and for that reason – in terms of the Sharia – Rizana should have been acquitted. For this is what Weeramantry writes: “Islamic criminal law consequently throws the onus of proof heavily upon the prosecution and in the absence of such proof the accused must be acquitted.”
Weeramantry is worth quoting more fully to establish that what prevails in Saudi Arabia is in some ways not the Sharia but a perverse misapplication of it, amounting to an ugly and brutish caricature of the Sharia. Weeramantry writes: “There are further dicta of the Prophet on the standard of proof. Doubt was to be resolved in favour of the accused, for the Prophet’s instructions were: ‘Prevent punishment in case of doubt. Release the accused if possible, for it is better that the ruler be wrong in forgiving than wrong in punishing.’ … The ‘golden thread that runs through the English criminal law’, namely that an accused is presumed innocent until proved guilty, and also the wisdom of the common law that it were better that a hundred guilty persons be acquitted than that one innocent person be wrongly convicted – ideas that have now become part of universal human rights – were thus anticipated in Islam.”
(TO be Continued)