Ighsaan Taliep – IPSA Wasatiyyah Symposium 2018
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AI: Transcript ©
And special thanks to Doctor Fatima sidat. We are running
behind, and we are due for a coffee break.
What I'm going to suggest, with the permission of sheikhsan,
maybe Sheik San, if you can give your address, and then we can
break for coffee. Would the audience be agreeable to that?
Jessie won't talk for long
without further ado. Let me
first of all thank our panel for their excellent inputs. Very
thought provoking, and I must confess, as a journalist, I've
lost hair and gone gray covering this issue of Muslim marriages for
23 years. I must confess, our next session is going to be having a
look at the current status. Sorry, that is applying Islamic law
within a with a Muslim, within a Muslim minority concept a South
African case study. And the South African to do it is Malani ich
Santali, who is also the principal of IPSA. He wears many other hats
and turbans, But this morning, he is from IPSA, the
cousin.
Firstly, I perhaps also need to make the point that before we
break, and I'll really try to be quick about it. Sha Allah, is that
it's perhaps fortuitous that our respondent, Malini Hassan Hendrix,
has also informed last night that due to ill health, he has had to
withdraw from the proceedings this morning, so
that helps us along in terms of time. But I was really looking
forward also to his presentation.
So the question of applying Islamic law legislation within a
Muslim minority context, and really looking, starting to look
at South Africa as as a case study, so from an outline
perspective, question which I wish to pose is, what is Islamic law?
This may be a question which seems redundant, but I think it is quite
important for us to reflect
the Sharia and change in in fatwa. And
then also a particular principle, I think, which is valid and
relevant for us, is the fundamental rule in Muslim
relations with others.
And then looking at the thick of minorities, as well as then
traversing from a fic of minorities to a fic of
citizenship. And incidentally, the reason why I was looking forward
to molinefs and Hendrix's presentation also today, is that
he has really cultivated a passion to talk about the fic of
citizenship. In particular,
nonetheless. So the first question then we're posing is, what is
Sharia?
And
if we look at this particular slide here, we'll find that on
your left and looking at the big circle we are referring to Sharia
as revealed Sharia. And in the revealed Sharia, we have the Quran
in the prophetic tradition.
And to be noted also is that the prophetic tradition is not in its
entirety inside the circle of the revealed Sharia.
And then the next
sort of
space there that we're looking at is that, how all of that feeds
into the development of fiqh and the relevance of in that
particular regard, there has been mentioned. And then a third level,
or tier of development, which is known sort of more generally as
sia shadaria, which is public oriented policy, and the
formulation of kanun
and Kanu is then sort of translated as processes of
legislation. So legislative processes
and so I think it is very critical for us to really at least be
cognizant of these three tiers of.
The operation of Islamic law, because it is patent
from sometimes within ulama circles that we cross the
boundaries in terms of what is Islamic law.
Is Islamic law, Sharia is Islamic law, fiqh. So when we're talking
about Islamic law, we are referring to both of them,
and an area which, of course, from a South African perspective, is
where the process of the Muslim marriage bill really fits into,
which is the development of legislation and that from the
classical sources, perspective is within the realm of what is known
as Si, as a Shari.
Okay, so to come back to the first sort of
space and tier,
the Quran, of course, is what we have as the first and primary
source, which is known as the Sharia. And so the Quran in all
its content, we believe to be
immutable. The Quran is established decisively,
as well as the fact that it's on the other hand, though, when it
comes to its implications of how these texts, the sacred texts, may
be interpreted, that may be a different story, because, albeit
that in its entirety, it is established authentically in a
decisive pottery manner, its implications are not necessarily
as such, and that for the most part of it, the interpretation of
the sacred texts are open to different opinions, And so its
indications and its implications, therefore, are Lonni for the most
part, which is speculatory. And it is for that reason that obviously
when we look at the next tier, which is the fiqh, where you have
this plethora and this array of different schools of thought of
jurisprudence.
So the Quran then has, very importantly, those two very
specific, I think, characteristics which are very important for us to
consider.
Secondly, if we look at the prophetic tradition, we will find
that the prophetic tradition, similarly, is obviously regarded
as like the Quran is the primary the hadith is the secondary source
of legislation in Islam. And so the prophetic tradition then
becomes part of the revealed Sharia, to the extent that
obviously we have, as we do, also that the same characterization of
katriya fubuts. In other words, that it is decisively decisively
authenticated. You may have the category of the Hadith which is
Sunnah, or the Sunnah, which is mutawatera, but then you have
those that are not necessarily authenticated as decisively as is
the criteria that is applied to the Quran, and that there again,
the application of the speculatory sort of criteria becomes relevant
and applicable to the to the to this prophetic sunnah In terms of
its authentication,
in terms of the actual content of the prophetic tradition
is where the ABC references come in. And so, from the perspective
of the usur, our ulama have made distinctions between what are the
Sunnah of the Prophet sallallahu that is intended to be
legislation,
normative, tertiary,
and what are the component and the content of the Sunnah that is not
intended to be tertiary, legislative.
And they are then the three categories that apply here. And so
the first one will have is that which is Tishri, which is where
really a fits in, and it's part of the revealed Sharia.
And in that particular context there, the Prophet sallallahu
alayhi wa sallam would have been acted in one of three capacities,
either as the messenger of Allah that conveys Allah to others
mission to humanity, or conveys the message to humanity as his
mission. Or he may then, in other words, as a Rasul. Secondly, he
may be acting in his capacity as a.
A judge, where he has to settle disputes in society. And so the
access to those categories of sunnah is not open for everyone,
but for people who are in similar positions, who have to dispense
with disputes. And the third category is the category where the
prophet would have acted as a leader or
the ruler of the state. Again, those categories are not access,
accessible widely to everyone, you and me here as as lay people, but
normative in terms of the ruler, the leader and government,
then we have the Sunnah of the Prophet sallallahu sallam, which
is
not normative, veritashiri in other which is not for legislative
purposes. And this sunnah of the Prophet sallallahu Sallam is then
further categorized into two areas, and that is where the
Prophet sallallahu alayhi wa sallam, then would be either
recorded and reported to be doing things that human beings normally
do,
right so in the way in which the Prophet sallallahu sallam, for
example,
would have conducted his affairs as a human being in society, would
have been one of the members of society, and he would have done
the same things that everybody else is doing in society.
And so those
traditions which are then narrated of the Prophet Salla Salam is not
intended to be normative. And so
the way in which the Prophet, sallAllahu, sallam, for example,
would have dressed
is not something which is exclusive to the Muslims in the
community. The dress code of Islam is very clear in terms of what are
the criteria that need to be confirmed,
terms of our uncovering, etcetera, etcetera, but the mode of the
clothes or the clothing pieces are informed by the culture or the
roof of the society.
So those are, yes, Incorporated, you'll find them referenced in
buchare, etc, etc, but they are not intended to be normative.
And so as for example, as I'm standing here in front of you, I'm
looking slightly different than somebody, for example, that he is
like Sheik nurdin, Muhammad nurdin lemu, for example, was. And so his
tie is far more
sort of identifiable to the Nigerian context and culture and
and this is kind of not identifiable.
So
at the same time, when we then look at that which is non
tertiary, non normative, we also have issues with the Prophet
sallallahu, alaihi salam would have guided and given advice. And
very commonly, the Prophet sallallahu Sallam would be asked
by the Companions, oh prophet of Allah, is this revelation or is
this your opinion?
They would ask, is this revelation or is this your opinion. And in
many instances, the prophet Salla Salam say no, but I'm just doing
this because this is what I think is a good idea. But tell me what
you think, and then you would tell the Prophet sallallahu sallam.
There are many, many incidences like this, whether it is in the
form of
warfare and strategies and stratagems, or whether it's in the
form of agricultural kind of methodologies that are being
employed by the farmers, etc, etc, and so forth and so those are not
intended, obviously to be normative. And we will then find
that b and c folds outside the revealed the revealed Sharia, and
is not intended to be part of the ideal Sharia.
Then if we move from there and go to the development of the of the
fiqh, the fiqh is, is, is obviously from just terminology
perspective, we use the word Islamic law. But then sometimes,
when we speak about Sharia, we also use the term Islamic law, but
the two are distinctly different concepts, and so when we talk
about the fiqh, it's not about Revelation, it's about the
processes of interpretation, understanding and making sense of
what is contained in the sacred text. And those formulations have
been being recorded, as well as being developed into the
jurisprudence, then more accurately, over the decade or
over the periods the epochs and those jurisprudences and its
development was once again very key in.
Formulation was the question of the RUF of society. Was the whole
notion of also perhaps synonymous with the roof the ad, the sort of
norms and the customary practices of society. And so in its
interpretation, like Shaham would also referred to for
purposes of what recognition of marriage laws would mean for us in
a South African context,
the considerations are extremely and is required to be extremely
context sensitive. And so contextualization becomes very,
very key, and that is where, obviously, and either also
operates.
So that is then, therefore to be, I think the point is to be made is
to say that
sort of very, I think reckless statements that are being made is
to say, is to say, and claims that are being made that those who want
to see legislation take place, or people that's interested in
changing Islamic law. And then, with this, when the word is said,
changing Islamic law, it automatically also is just
extended to Sharia.
And then not just Sharia, but actually Quran wants to be
changed, which I think is really
disingenuous and dishonest,
but it could also be informed by ignorance. And so the whole then
question that that then develops from there is what we then have as
a norm in the Muslim world, where the the processes of legislation
and the development of legislation is far more mature than obviously,
our own first encounter here in as a Muslim community. And so it's
not as if this hasn't happened yet. If you go to different
countries in different parts of the world,
especially in the field of family law. Obviously, this is something
which is quite developed. And so here we're talking about par noon
and sia Sharia, which is oriented public oriented policy, which is
then employed by the ruler, by the government. And this is where
Shariat point comes in. Is because the ruler then will then
extract from all of the sources which or all the options that
could be available within the corpus of the jurisprudence
the legislative process. The ruler, or in this instance, in our
case, the legislature or parliament, will then look at all
the options that are available there, and perhaps that are not
available, that could still become available, that are then
formulated as the most appropriate in accordance with the roof of the
South African context here, and then Obviously having formulated
that having. And here, obviously the process of formulation in a
legislative context with a parliamentary dispensation is
where there is public, participatory processes which we
obviously are all part of. And so the Ulema Muslim community,
academicians, everyone, they are all part of that process. So when
then we all manage to find a consensus, if, Inshallah, we can
do so, we are then able to enjoy the deficiency, which was lamented
earlier on by Sheik Riyad fatal, that the executive authority of
government is then squarely behind the implementation of that piece
of legislation, which everybody would have contributed towards
developing. And I think this, yes, as Sharia, many examples, of
course, of this as well. But very perhaps
appropriately is if one looks, for example, at what say now, who are
in who had done at the time when he found that there was just a
sense of almost irresponsibility and recklessness with the way in
which a Talaq was pronounced in his time and in his position as
the as the Amir, as the ruler, He then from AC as a Sharia
perspective, public oriented policy determined and decreed that
this folly that was somehow
describing the context where three talaqs were being issued,
willineri, he would then make those people accountable for the
irresponsible attitudes and make the three talaqs in one sitting
equivalent to to three talaqs, as opposed to what it was before in
the time of the Prophet PSB upon him in terms of the Allah and in
his own Khilafah, also in the first period.
Was that those three
issuance of utterances would be regarded in one sitting as one
single, as one single. It is telling that a person like whom
Shaykh LIMU had also referenced that towards the end of the life
of Sina Alvar
Ibn Al Josi in his book on uso, lamal Karin says that Sina ower
had, in fact,
regretted that particular
sort of position that he had installed or that he had taken and
and applied in society, nonetheless. So I think from our
perspectives, the whole notion of, what is Sharia? Where is it that
we're talking about the immutable law, the unchangeable laws of the
Sharia, and we are the other areas, obviously, which speaks
about jurisprudence, development of it in the context of and even
further to that sia Sharia, which is applied into a context of
kanun. The kanun, then again, enjoys the and that is where, in
the Muslim world, how it has happened,
where the formation and the formulation of the the bill before
it becomes an act, is then something which,
because of the presence and the participation of everyone through
parliamentary processes and the consensus that is reached on the
on this piece of document, this then means that the Ascent by
Government of this piece of legislation into as an act.
Then removes all disputes that you find in the different madame. So
there's no
fanaticism about the Hanafi mother. There's no insistence
about the sheriff reposition. There's no insistence about that,
but all of it becomes part of this for a piece of legislation for
purposes of implementation and application and and that is really
critical, because also in a kawariya, the legal Maxim's
perspective, the the the maxim leads and says that Huq muhatila
that the command of the government dissipates with all forms of
disagreements, etc, you Shafiq, we will rush through here as we're
sorry about that. And so the next slide that we're looking at is
Sharia and change in fatwa, change in ruling based on change in time
is not reprehensible. Is yet again, another fifth maxim that
says the
Asmaa so when times change, it is not reprehensible. It's not
frowned upon that the rules and a calm also change, and then,
perhaps to just preface or put a writer to that pertain to the
questions, again, of each Ihan which pertains to the bulk of the
laws of the jurisprudence, and these changes in that will attract
change in fatwa can be as a result of change in place, change in
time, change in condition and change in custom and off. Okay, so
again, the question of change in time is more reference to facade
as a man, where people have become less ethical, in the in the in the
conduct amongst one another, etcetera, etcetera. And so, yeah,
there's, there's all sorts of examples for that as well. Next
slide,
when we look at our condition and situation in South Africans. I
think the development of the fit of minorities as a separate
sphere, a separate space of academic endeavor and development
for jurisprudence is very, very important. And importantly there,
in particular, is the whole relationship of Muslims with non
Muslims, and how we interact with the secular context which we found
ourselves in which clearly the Quranic reference in 68 to nine,
Suratul muntahida makes very, very clear that Muslims obviously do
not have any form of limitations in the way in which they interact
with the environment with non Muslims On the basis of those
verses. There next slide, if we then look at the fifth of
minorities. This is just a quote here from prasashi and Kamali is
minorities in light of the higher objectives of the Sharia. And so
the whole idea, obviously, of the challenges that are faced by
Muslims because they are in a secular dispensation, and that the
culture and the environment around them is one which be may be at
variance with their own kind of sensibilities. I think for us as
Muslims in this country,
we have a far stronger position.
And in terms of how we relate to the field of minorities, compared
to, say, for example, in Europe, where the age of those communities
there is relatively young compared to our own existence here, and we
really don't have any hang ups in terms of how we relate to our
environment, how we interact with the judicial structures and the
system, how we interact with government and our roles as
citizens in the country
at the same time. However, it is important to note that there have
been people who have been trailblazing in this regard, the
likes of Tara dawi, the likes of tahija balawani, the likes of visa
Hashim Kamali himself. And many of them have obviously made the point
to say that this is not a rupture from the classical fit. It is but
an extension of the classical FIP. And so I think that's an important
point for us also to bear Emma. And so the next slide we're
looking obviously at being the higher purposes of the Sharia and
the very discussions that show Mohammed LIMU, which I don't think
we have to repeat right now I've had this morning in terms of how
would the formulation of legislation be guided and governed
by the questions of interest, the well being of society, the masala
of society, the references, obviously there, to Ibn Al qayms
statement about the Sharia and its entirety being about masala, and
that that is basically, it's, it's, it's structure, and then
also the the the references to the the preservation of life,
preservation of faith, the preservation and those six
obviously guiding principles there, that whenever, and this is
the important part, whenever we interpret text of the Sunnah and
text of the Quran, which may be less than explicit in its
implication, we must always remember that its interpretation
must always be guided and governed by these higher purposes and
values of the Sharia, and that when anything of interpretive
processes go in contravention day to it will be struck down to make
sure that it becomes harmonized with the higher purposes of the
Sharia. And so in the next slide,
the question obviously that we, as in Islam, there is this
fundamental principle about the respect for the rule of law, that
where we find ourselves, we uphold the law. And that Ibn taymiyya is
little statement there better living 60 years under tyranny than
one night under anarchy. Is not to justify tyranny, but is to
highlight how seriously Islam views the question of the rule of
law.
And so I think that for us is very important. For us as Muslims,
again, living in South Africa, we must be guided by the fact that
the Muslim world views Muslims in South Africa almost enviously at
times, for how good we have it, for the freedoms we enjoy, for the
protections we enjoy, and all of this, obviously, as Professor
Fateh might also reference, obviously comes out of our
Constitution. So all the guarantees, all the freedoms in
the Bill of Rights, and comes obviously also with the question
of constitutional supremacy. And so how constitutional supremacy is
navigated, I think, for us, is also not an impossible task. Some
of the issues in the current bill, notwithstanding, were being
considered in light thereof, even though that may not be the
ultimate yet. And if where we are at right now, and some of the
informed opinions believe that this will the current case that's
in the Western Cape High Court will land up again in the
Constitutional Court. It will hopefully afford us the
opportunity, once again, to become a little bit far more
engaging of of these processes in that regard, and so navigating a
pathway for creating a viable legislative framework to secure
the bulk of Muslim marriage, divorce and customary laws are
then accommodated, is something which is of extreme, I think,
utmost important for us, given the preceding presentations that had
been made and said Ahmed in the last presentation last night, he
then references Something similar to that effect. And he speaks to
one of these judges, which are appointed outside the precincts of
Al Medina by the name of Sure. And he speaks to him about the
importance of the delivery of rights and the securing of rights,
and that if, in essence, the legislation, whether it's the
Quran and the Sunnah is about justice. It's really a city to be
talking about justice when we cannot deliver justice, and that
when we cannot execute justice on the ground. And that's his kind of
reference to one of his his judges. And then the reference
that I made already.
Three in closing was that the legal Maxim says that the
authority, the authority of the executive eliminates disputes, is
something which is there for us as a tool, and when we then become to
a point where, where we can we consensus can be forged, it then
obviously forges the opportunity to have a piece of legislation in
front of us that we know that the Sharia then justifies and
vindicates that when
executive authority and legislative authority and
parliamentary authority is
is assented To, then obviously it means we would be able to live
inshallah harmoniously without having nightmares about which
mother we belong to and which mother we don't belong to. Sugar.
Very much. Salaam. Warning you.