Featured image courtesy Maatram
ACJU’s latest media statement on the Muslim Marriage and Divorce Act (MMDA) does not mention anything about altering their previous position. In other words they are still right. How can they not be? They are the Jammiyathul Ulama – The union of scholars. The statement has changed nothing except to defend their infallible president. Apparently according to the ACJU Rizvi Mufthi’s following statement, “Muslim Marriage and Divorce Act (MMDA) is perfect in its present state”, has been misinterpreted to mean that the MMDA is perfect in its present state.
What he really meant ‘according to the ACJU’ was, in their own words, “that our predecessors who were involved in formulating the MMDA had taken great efforts to make it near perfect. Of course, given the circumstances of that period. This does not imply that there need not be any reforms today to the Act, mainly in the administration of Quazi court system.”
So there you go. It was our fault. We were silly to assume that he meant what he said. The next time ACJU makes a public statement read between the lines.
Rizvi Mufti is the current president of the ACJU : the apex body of Islamic scholars of Sri Lanka. Thus he is considered the highest authority in Islamic knowledge. He has been acknowledged as a scholar undisputedly and unapologetically even by some of the most eminent intellectuals in the island. However, the ultimate question has never been raised; what is the credibility of the ACJU and Rizvi Mufti? What are the criteria for scholarship to legislate in Islam, and do the members of the ACJU meet those criteria? Are they really scholars? As an intellectual body that is also granted the privilege to legislate, what knowledge does the ACJU have regarding law? Can a scholarly institution that refuses to acknowledge and accommodate female intellectuals be trusted to demonstrate equality?
Power in the wrong hands is dangerous and destructive. ACJU’s latest media statement is nothing but a clear sign of their bigotry. It is incompetent to assume the gargantuan responsibility of guiding a society because they lack both ethics and knowledge. Like a child whose future is in danger in the hands of parents who lack the ethical and intellectual capacities to guide him or her needs to be taken away, and handed over to foster parents who can act in the best interests of that child, so is the Sri Lankan Muslim community now in need of a new foster home (Whether we have such a foster home is a topic for another day, but the point that I would like to stress is that we are in need of an alternative scholarly body).
My intention here is to expose the ACJU’s lack of knowledge in the basics of Islamic jurisprudence, and the understanding of the purpose of Islamic law which they have demonstrated time and time again. Here’s one of many instances where ACJU wrenched off their illusive scholarly garb, and exposed their ignorance and incompetence.
Justice Marsoof, the former supreme court judge and the head of the 16 member committee appointed in 2009 to “Consider and Propose Reforms to the Muslim Matrimonial Law and Upgrading of Qazi Courts in Sri Lanka” speaking to Daily News on the 22nd March of 2017 said,
“In our meeting on March 19, we asked the ACJU how we could use the concept of public interest to develop the law when reforming it, a subject we have been reading on widely and seen several Muslims adopt to their own law making. But the ACJU was unaware of it so they have asked one month’s time to study it. We are to then meet the Fatwa Committee of the ACJU on April 30 to discuss it.”
Public interest or Maslaha in Arabic is a principle of Islamic jurisprudence which is derived from the fundamental source of Islamic jurisprudence; the Qur’an. A simple definition of it would be ‘That which leads to good’. In Islamic jurisprudence a purpose, or in other words the purpose of a law, ruling or legal code that does not lead to the fulfilment of some good (Maslaha), or the avoidance of mischief or evil is invalid.
According to Dr.Jasser Auda, a scholar in the subject of Islamic jurisprudence, Maslaha or public interest is the purpose/ goal – maqsid in Arabic – of Islamic laws. In other words a law that is in contradiction with public interest is no law at all.(1)
After making a shameless public display of their lack of knowledge in such a crucial principle in Islamic jurisprudence, ACJU had the audacity to issue the following media statement on their website on the 3rd of April 2017 implying that they knew the meaning of public interest which they clearly did not.
“The All Ceylon Jamiyyathul Ulama (ACJU) ever since its establishment has always taken a very flexible and moderate approach, within the framework of Shari’ah and the greater public interest, when consulting on any issue”(2)
Public interest according to numerous prominent scholars of Islamic jurisprudence is ensured by preserving universal values such as justice, freedom, human dignity, equality, life, property, etc.
The late former Justice of the Supreme Court of Srilanka and vice president of International Court of Justice in Hague, C.G.Weeramantry in his book ‘Islamic Jurisprudence: An International Perspective’, cites an interesting example of how certain Muslim majority countries have derived laws from the Qur’an based on the notion of women rights which is a part of public interest.
“The permissibility of polygamy under the rules of Islam has been one of the bases of severe attack by its critics. The relevant Qur’anic passage runs, ‘You may marry two, three or four wives but not more’. The passage goes on to declare, ‘…but if you cannot deal equitably and justly with all, you shall marry only one.’ The word equitably has been explained by jurists as meaning not merely equality in lodging, clothing and necessaries, but also equity in love, affection and esteem…on their interpretations of this verse many Islamic communities recognize monogamy as the norm.
It should be noted that the clauses qualifying polygamy are reinforced also by the Quranic passage, ‘you will not be able to be equitable between your wives even though you be eager to do so’ (4:129). It is noteworthy that Tunisia adopted the rule of monogamy on the basis of this clause and that Muhammad Abduh (d.1950) the reformer and Grand Mufti of Egypt often said that no husband can be just to more than one wife under modern living conditions (Khadduri, 1978).”
What follows is an astonishing revelation,
“Majid Khadduri places this whole matter in an interesting perspective when he asks whether the Quranic law was meant to confirm the principle of polygamy or to reform it by imposing qualitative and quantitative restrictions on its practice. He suggests that the Quranic law concerning marriage, rather than intending to ratify the widely prevalent practice of polygamy, sought to reform it as far as was possible at the time. The ultimate intent of the Prophet, according to his view, was ‘to transform marriage from a polygamous to a monogamous relationship’. The ultimate objective of Quranic marriage law, then was to legitimate monogamy, rather than to endorse polygamy” (3)
Thus it is the author’s argument that the principle of gradual reform in the interest of the public is what is intended by this verse. This principle of gradual reform can be found in many places in the Qur’an such as in the different stages through which alcohol was eventually prohibited.
Again it is in the interest of the public that monopoly is prohibited in Islam, because monopoly does not allow fair trade. The merchant is in a position where he can raise the prices and control the supply of goods at his own will. Such a practice leads to injustice, inequality and all sorts of corruption.
It is because of Maslaha or public interest that some contemporary scholars question even the ethical narrative behind the concept of Islamic banking. Dr.Tariq Ramadan, a professor of contemporary Islamic studies at the Oxford University writes in his book ‘Radical Reform: Islamic Ethics and Liberation’,
“…The dominant neoliberal economy cares little about cosmetic adjustments and has no difficulty in integrating them into its business plan. Thus, the experiences, techniques, and terminology of Islamic finance are being studied and integrated by great international banks (HSBC, Credit Suisse, City Bank, etc) not because this constitutes an efficient alternative, but because the “Islamic” label opens new markets. The dominant logic of all-out profitability integrates in its dynamic all the initiatives which, by presenting themselves as alternatives or resistances to its own logic, open new and particularly profitable markets. This is a perversely vicious cycle: one has to suggest labels, change the terminology, and adapt the techniques. The garb is ethical but the content (i.e., obsession with return and profit) is exactly the same: the operation is nothing more than an exercise in pure marketing techniques.” (4)
Therefore Islamic banking might not be as Islamic as it sounds after all for one simple reason; instead of serving the public interest, what it is serving is a neo liberalist agenda. The neo-liberalists are after only one thing; profits. Thus it is still the wolf, but in sheep’s clothing, and we fall for anything that looks like a sheep, anything that has an Islamic label like Arabic or the beard.
Numerous examples can be found throughout the history of Islam where the principle of Maslaha was used to devise laws, but they are never more apparent than during the reign of Umar (AD 7th century); the second caliph and the companion of Prophet Muhammad. He understood that a prophetic injunction that deals with worldly matters is not to be taken literally, for he knew that the rationale or wisdom is what is to be derived from a ruling and not its literal application.
Dr.Jasser Auda who is an expert in Islamic law, narrates the following interesting incident from the life of Umar in his book ‘Maqasid Al Shariah: A beginners guide’,
“Another incident, which shows a more serious consequence of taking a ‘purpose-oriented’ approach to the prophetic instructions occurred during the days of Umar, the second caliph. The status of Umar in Islam and his continuous and wide-ranging consultation of a large number of Companions, make his opinions of special significance. In this incident, the Companions asked Umar, to distribute the newly-‘conquered’ lands of Egypt and Iraq amongst them as some sort of ‘spoils of war.’ Their argument relied on the clear and specific verses of the Qur’an that allowed fighters their ‘spoils of war’. Umar refused to divide whole cities and provinces over the Companions by referring to other verses, with more general expressions,stating that God has a ‘purpose’ of ‘not making the rich dominate wealth.’ Therefore, Umar (and the Companions who supported his opinion) understood the specifics of the verses of ‘spoils of war’ within the context of a certain purpose (maqsid) of the law. This purpose was, ‘diminishing the difference between economic levels,’ to use familiar contemporary terms.” (5)
It is in this context we need to understand how and why the ACJU has legalised child marriages despite the overwhelming evidence in the Qur’an, and the life of Prophet Muhammad against such an abominable practice which I intend to address in another article.
ACJU is an organization that is run by a group of individuals who claim to have attained scholarship in the sciences of Islam. However, as we have seen they fall way short of the basic qualifications that are required to legislate. Public interest or Maslaha as we have seen is an important principle in Islamic jurisprudence. How can a group of scholars who seem to be devising laws be oblivious to, and ignorant of such a basic principle? How can they be granted authority to represent a community?
However ACJU cannot be held entirely accountable for this fiasco, for the Muslim intellectual community including those who claim to be moderates have remained silent critics throughout this great tragedy. They have seen and heard how the ACJU has been misrepresenting Islam, their bigotry and ignorance, yet they have abstained from criticising the ACJU, from making them accountable for their irresponsible behavior, and they seem to not care about a viable alternative.
It is high time that we came to terms with the fact that the ACJU is not really a ‘Jamiyyatul Ulama’ – Union of scholars. We should be appalled by the realization that the Muslims of this country are represented by a group of people who have not the basic knowledge in Islamic jurisprudence. Change does not happen until those who are hungry for it make some noise. The ignorant have an excuse to be ignorant, but the sane have none to be silent.
- Maqasid al Shariah – A beginners guide by Dr.Jasser Al Auda, p:4)
- Islamic Jurisprudence: An International Perspective by C.G.Weeramantry
- Radical Reform: Islamic Ethics and Liberation.Dr.Tariq Ramadan (p.244)
- Maqasid Al Shariah: A beginners guide by Dr.Jasser Al Auda
Editors note: For other articles and content we have carried on this issue, including compelling and exclusive video testimony from women, click here.