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Beyond the Muslim Marriages Bill

2011-04-24
April 24, 2011

CRITIQUE OF THE MUSLIM MARRIAGES BILL
in support of the call to prevent its enactment

GENERAL CRITICISMS
 
1. In the past, Muslims have faced situations where they were ruled over by non-Muslims, who offered them a modicum of self-governance in the form of a separate Islamic judiciary for inter-Muslim affairs. That was the case, for instance, in Sicily, after the Normans wrested control of the largest Mediterranean island from Muslim hands. The ‘ulamâ’ of the Muslim community who stayed in Sicily as opposed to migrating to Dâr al-Islâm, consulted each other on the proposal of the Norman ruler, and decided to go for the option of accepting to have their own affairs governed by a judiciary of Muslims appointed by the non-Muslim monarch. That was an evil, undoubtedly, since judiciary is a political office (wilâyah) to be administered by the Islamic dawlah. They chose, however, the lesser of the two evils, since in that manner they prevented a free-for-all anarchical situation within the polity of Muslims, and ensured that transactions amongst them which did not involve the Christian community (and which most likely still represented the bulk of interpersonal dealings affecting Muslims) would continue to be determined in accordance with the sharî`ah of Allah.
The question might thus be posed as to why it would not be preferable to do so with the proposed Muslim Marriages Bill which the South African secular legislature is aiming to convert into a binding law.
 
The reason for the differentiation, tilting the scales against endorsement by Muslims of such a Bill, is that the prevalent features thereof contrast sharply with historical precedents such as the Sicilian Muslims’ dilemma we have briefly sketched here above:

 
a)     The proposal of the Norman ruler was to the effect that, though he had the authority to appoint and dismiss the Muslim judges (and in doing so he would no doubt consult the leading figures in the Islamic community), once they were in office, those judges implemented the pristine form of Islamic fiqh as it was. That is demonstrably not the case with the Muslim Marriages Bill.


b)    First of all, there is nothing in the Bill to ensure that the decision-making judge will be Muslim, regardless of the early undertakings to that effect which emanated from the South African government. In fact, in an exercise of overtly provocative harassment of us Muslims, the South African Department of Justice decided to expunge from the latest draft any reference to the requirement that the judges to be appointed in terms of the Act should strictly belong to the ummah. South Africa would then become the first planetary experiment where seculars might decide what is meant, for instance, by a statement of Allah, may He be Exalted, though they do not confirm the truth of Him and His Oneness in the first place.
      Moreover, given the differences among Muslims in this country, even the appointment of Muslim judges by the South African government would increase mutual animosity across our community.

 

c)     Secondly, the Bill directly interferes with our fiqh and changes aspects of it to make it “politically correct” in the eyes of the dominant secular worldview of this age. It is as if the Norman ruler forced the Muslim judges to introduce aspects, in the fiqh they judged by, which were more palatable to the Christian members of the Sicilian society. No Muslim can accept that the sharî`ah of Allah should be reshaped by non-Muslims in exchange for the paltry price of some selective aspects of it being implemented under secular control.


d)    Flagrant examples of such direct tampering with the fiqh are the imposition of a marriageable age which is in contraposition to the fiqh, and in fact runs counter to the Prophetic encouragement to marry daughters off at a young age to prevent the fitnah of zinâ; The absurd stipulation that a Muslim who wants to contract a separate second marriage must satisfy a secular court or any court for that matter (since no Islamic ruler required his judiciary to interfere with such private contract and intrude into it by validating it or otherwise) that he has the requirements making him eligible for that; The imposition of the duty of formal registration in respect of what is not asked by the fiqh to be committed to writing as of rule, such as divorce; The intimidation and criminal punishment of Muslims who stand for the genuine original fiqh when it conflicts with certain provisions drafted by a secular legislature; The sweeping powers accorded to the secular Cabinet Minister to regulate and determine aspects of Islamic interpersonal rulings, as if he were a Muslim ruler. That includes his discretionary right to deem a marriage desirable and thus push for its contracting; The tampering with Muslims’ private proprietary matters; The introduction of the extraneous figure of the family advocate, etc.


e)     Unlike the situation in old Sicily, no fear of anarchy, if some organized judiciary coordinated by the non-Muslim ruler should not be established, exists in South Africa. Muslims have for decades managed to regulate their family law affairs among themselves in a smooth fashion. Improvement of what has been achieved so far is easily attainable by setting up a dispute-resolution mechanism under the Arbitration Act, by virtue of which the terms of reference would make the uncontaminated fiqh the sole basis for any settlement or verdict.


f)      By contrast, in a community rife with ideological and organizational fragmentation as the Muslims’ "community" nowadays, the creation of a parallel family law system implemented by a secular state would add to the split between Muslims, inside families and within the Muslim society at large. We do not need such additional source of friction now.


g)     Since the epoch of the four great Imams of the extant schools of fiqh of Ahl as-Sunnah, and the other juristic masters such as Sufyân ath-Thawrî, al-Awzâ`î, al-Layth b. Sa`d, Abû Thawr, ‘Abdullâh b. al-Mubârak, Ibn Jarîr at-Tabarî and Ibn Abî Laylâ, no one among enlightened Muslims advocated the codification of Islamic Law. In fact, Imam Mâlik rejected Caliph al-Mansûr’s suggestion to go that route. Whether a place was dominated by the Hanafis, as in the Ottoman Caliphate, or the Shâfi`is, such as in Greater Syria for centuries or the Malay Archipelago, or by the Mâlikis, eg. in Islamic Spain or the Maghreb, the sharî`ah was always left open to free selecting by judges of the best solutions to problems, and to new ijtihâd. The Bill, on the contrary, has the audacity of promoting a rigid codification of our fiqh, a codification of it by non-Muslims, on top of it.


h)    Once you codify the fiqh, most of the energies will be spent, not on working out the best solutions based on our sources, especially Allah’s uncreated Speech and the Sunnah of the best of creation, Sallallâhu ‘alayhi wa-Sallam, in a flexible mode, but on interpreting and re-interpreting the commas and hair-splitting details of human legislative statements.


i)    As a result of such codification, I am forced to stick to one view of a single madhhab, though I might belong to another school, and, even within my own madhhab, scholars might legitimately opt to give preference to an alternative view within their school or even to a view outside their madhhab, as in the case of Abû Hanîfah’s ruling on the re-marriage by the spouse of a long-term absentee.


j)    In Islam there is ikhtilâf, disagreement on derivative branches while agreeing on the fundamentals; and khilâf or conflict, ie. being at variance on the source-roots of the Dîn. The latter, which exists, for instance, between Ahl as-Sunnah and such deviant sects as the Shî`ah or the Fatalists or the Khawârij, is slammed as evil. The former is described by the Prophet, Sallallâhu ‘alayhi wa-Sallam, as being a rahmah for his ummah. The dual source meaning of rahmah in Arabic is a) mercy, and b) judging. There is mercy in judging according to different branches of the same luxuriant tree of Ahl as-Sunnah wa’l-Jamâ`ah. The Muslim Marriages Bill purports to nullify such rahmah in favour of a flattening codified uniformity.


k)     Contrary to what the Bill is insinuating, our fiqh not only deals with the substantive aspects of the Law, but also with the procedural method of establishing them. An extremely rich literature exists on the subject in all the four schools: Evidentiary rules, the role of the oath, the admissibility of testimonies (eg. by women or non-Muslims), the permissibility of hearsay evidence to verify a claim of harm or darar, which the Bill explicitly lists as a ground for dissolving a union, the whole process of conducting a hearing, etc. The Bill seeks to impose the ordinary procedural rules of secular civil courts to a body of substantive laws governed in the fiqh by different procedural norms.


l)       The Sheriff, the police, the criminal law tribunals, indeed the whole arm of the executive power of a secular state is unleashed in the attempt to foist an alien law on the Muslims.


m)  The Bill clearly aims at a propaganda addressed to Muslim women to seek recourse to secular tribunals’ bizarre re-interpretation of the fiqh, as opposed to campaigning for more effective dispute-resolution by their fellow Muslims solely in terms of the sharî`ah. That is made clear by such provisions as the criminalizing of a Muslim conducting a marriage ceremony “withholding” information on the existence of the parallel legal system designed by seculars.


n)    Since a growing number of Muslim women are susceptible to such propaganda (also because, we have to concede, full avenues of Islamic recourse were not made available to them), it is easy to envisage sharp marital conflicts or conflicts between prospective spouses as to whether to opt out of registering an existing or purported union under the Act or submit to its provisions. This further atomization of Islamic society, at a time when greater unity is sorely needed, is plainly detrimental to the interests of our ummah.


o)    The Act entrenches the unacceptable so-called “salafi” approach of picking and choosing between madhhabs at random. We have alerted, in this critique, to some evident examples of such juristic jumble. If that is the case already at the stage of the mere draft of the enabling legislation, it is easy to anticipate the resort, case after case, to an amorphous juristic mass in terms of which decision-makers shall arbitrarily switch from madhhab to madhhab (quite likely to opt for what accords most with the prevailing secular ethos).
 

 

2. The conclusion thus has to be that, unlike previous scenarios such as the Sicilian one, all considerations regarding Muslims’ interests converge into the necessity of opposing the Bill. The few benefits it extends can and should be upheld through purely Islamic arbitrations.
 

 

3. We submit that it is by far preferable to keep the existing status-quo. Let the Muslims’ marriages continue on the present basis, and let secular courts in South Africa decide on civil forms of marriages entered into by Muslims purely in accordance with secular law, which is the only one they have legitimacy to explain, interpret and apply. The Muslims are enjoined not to let the sacred Law of Allah be elucidated, construed, analyzed, dissected, re-formulated and implemented by the secular judiciary of a secular state.
 

 

4. If protection of women is the (only) trump card of the Bill , such protection (including financial one) is effectively and extensively capable of being satisfactorily provided by Muslims themselves through a capillary diffusion of a genuinely Islamic network of awqâf or endowments. This aspect will be expatiated upon in the video accompanying this article.
 


5. Linked to this issue is another potent reason behind our rejection of the Bill: The heavy cost implications.
 

In Islam, the administration of justice was a speedy and fully gratuitous business. Members of the judiciary were appointed by the ruler. They followed an inquisitorial system and descended into the litigation arena in order to extract all that could enable them to rule panoramically over an issue. Every member of the public, rich and poor, educated or lay, had immediate and rapid access to the decision-maker, without having to bear the expenses associated with sophisticated legal representation or be mulcted in legal costs, a capitalist aberration, simply for “exercising his or her much trumped up right of access to justice”, which right is thus a double-edged sword with lethal poison sprayed on one side thereof.


Costs are compounded by the existence, envisaged by the Bill, of layers of review and appeal as with any civil court of this Republic.


By keeping the existing status quo, precious money would be saved for projects aimed at uplifting the South African society, be it Muslim or otherwise.


The proposed network of endowments could be effectively put to use to finance the stipends of a reasonable number of Muslim dispute-resolvers able and willing to determine, according to the sharî`ah of Allah, undiluted and safeguarded from secular intrusions, matters referred to them in terms of the flexible Arbitration Act of South Africa. That way, women’s concern for more justice and protection (legal, social and financial) will be fully catered for, free of charge and in an un-compromised Islamic manner. 


 

 
IT IS ACCORDINGLY INCUMBENT ON THE MUSLIMS TO VOCIFEROUSLY CONDEMN THE PROPOSED MUSLIM MARRIAGES BILL, WHICH IS OPENLY IN CONTRAVENTION OF THE SHARĬ`AH, AND, IN THE EVENT OF ITS COERCIVE ENACTMENT BY SECULAR AUTHORITIES IN DEFIANCE OF THE MUSLIMS’ VOICES, TO DISTANCE THEMSELVES FROM IT AND NOT TO PARTICIPATE IN ANY PROCESS STEMMING FROM IT AND RELATED THERETO, TO THE EXTENT THAT SUCH NEGLECT OF IT IS LEGAL AND DOES NOT CONSTITUTE AN OFFENCE IN TERMS OF SOUTH AFRICAN LAW


 
A SAMPLE OF CRITICAL ANALYSIS OF UNACCEPTABLE SPECIFIC PROVISIONS OF THE PROPOSED BILL

  • The definition of "Islamic Law" on page 5 of the Bill  restricts the applicable fiqh to four usûl or sources, discarding a number of other sources, discarding a number of other sources recognized by various madhâhib (Custom, blocking the means to expected evil, public interest, presumption of continuity, etc). That is an arrogant secular restriction on Islamic judicial determinations.
  • Clause 3: "Equal status". There is no “equality of status” in the fiqh as enounced here. A woman, for instance, cannot initiate a talâq. Imam Mâlik prohibits a woman from giving in sadaqah more than 1/3 of her property. What if I want my marriage to be ruled by the fiqh of such Imam?
  • 4 (2) (a): There is no legal interest on the part of the other co-wives in a dispute which does not affect their marriages. They have no “locus standi” in the sharî`ah.
  • 5 (2) (a) and (b): Mâlik makes the consent by the wife to the marriage of the bikr or the still young thayyib merely recommended. This secular codification interferes with a Muslim’s free and voluntary choice of juristic methodology to follow.
  • 5 (1) (c): According to both Mâlik and Imam Abu Hanîfah (= the two primary schools of the Hijâz and the 'Irâq), witnesses are NOT a condition of validity (as opposed to perfection) at the time of concluding the marriage. One cannot arbitrarily choose Imam ash-Shâfi`’s position on the matter and, based on the seculars’ peculiar view of the issue, force it as if the conclusive Islamic ruling on it.
  • 5 (2) read with 5 (3) binds a Muslim to the Act in respect of any subsequent marriage, ie. it strips him of choice on which legal system to apply to any separate contract of marriage. Once he has “fallen for the bait”, he is entrapped for life.
  • 5 (5) The secular Cabinet Minister wishes to usurp the role of the political Imam of the Muslims.
  • 5 (6) The secular Cabinet Minister or his authorized delegate can broadly determine the maslahah (interest) of a Muslim couple and rule on the validity of an Islamic marriage. That is something that cannot be countenanced by sincere Muslims.
  • 5 (7) It gives the secular family advocate the generalized, sweeping powers to "assist Muslims under the age of 18", as if seculars could replace the Islamic ruling on bulûgh (puberty) and eligibility to be party to a marriage contract with their idea of marriageable / majority age.
  • 6 (3) (c): The marriage officer appointed by a secular government is given the legal right to ascertain the validity of an Islamic marriage and obligatorily register it in certain circumstances, or, as per 6 (5), to refuse registration. That is something inconsistent with our Din. On what basis does the secular state authority determine who has Islamic legitimacy to fulfill such roles?
  • 6 (6): The secular court might ultimately rule on what marriage should be registered or canceled.
  • 6 (7) What issues from a secular institution becomes, quite disconcertingly, a prima facie proof of a purely Islamic matter.
  • 6 (9) (a): If one of us, deemed suitable to do so by the true fiqh, wants to conduct a marriage ceremony as per the sharî`ah, he is placed under a statutory duty to inform his Muslim brothers that they can be governed by a harmful Act illegitimately enacted by seculars. If we do not tow the line in that respect, we can be slapped with a R20 000 fine. All one needs to trigger that off is a nasty spouse or witness or the like thereof saying that "you did not offer that choice".
  • 7: This provision has the brazen audacity of stating that if an age prescribed by the seculars is not adhered to, such fact debars one from contracting "a valid Muslim marriage", to quote from the exact words of the Bill, even though it might be perfectly validated by Allah's Law.
  • 8 (1) It interferes with the automatic application of the fiqh on ownership of proprietary assets by spouses; 8 (3) (a) The secular court has a say on that; 8 (4) read with 8 (5) It drags unconcerned co-spouses into the issue.
  • 8 (7) (a) The requirement of "equality" is deliberately couched in vague generic terms. That opens the door wide to theoretical aspects of equality (standard of maintenance, the rewarding by individualized gifts, the decision on company for traveling) being forced on Muslim husbands, though classified as discretionary prerogatives of the man by the fiqh.
  • 8 (7) (b) (as well as (c)) It calls on the secular court to determine how Muslim spouses ought to regulate their proprietary affairs inter se.
  • 8 (12) It can expose ordinary sharî`ah-abiding Muslims to nasty legal consequences for recommending adherence to the fiqh of Islam.
  • 9 (3) (a) to (c) No "registration" of an irrevocable divorce or entrusting the choice of divorce to a wife is prescribed by the fiqh [Subsections (e) and (f) empower the secular court to prescribe how the occurrence of an irrevocable divorce might be confirmed]. In terms of 9 (4) (a) a spouse who does not register what the fiqh does not need to have it registered is criminalized and fined.
  • 9 (3) (d) The secular court might rule on the validity of an irrevocable divorce. What procedural law and law of evidence will it follow in doing so? Clearly not what our fuqahâ' have defined at length in their noble texts over more than one millennium.
  • 9 (5) (a) The use of the form "must" removes the Qâdi's centuries-old discretion, and tilts the balance in favour of one litigation side.
  • 9 (5) (b) An application for faskh discards the procedural rules laid down in the fiqh, in favour of secular procedural law. In addition, it forces the wife to seek recourse only from an ordinary secular civil court.
  • 9 (6) (a) and (b) Khul` is a private agreement in Islam. It does not require a formal judicial recording. Seculars cannot legislate to Muslims to depart from the fiqh.
  • 9 (8) (a) The contents of this sub-section should be examined further by reference to the relevant provisions of the Act mentioned therein.
  • 9 (8) (b) The secular court tampers with the ownership of proprietary assets stipulated in the fiqh. The more so in subsection (c), when it is empowered to consider the sequence of multiple marriages, which sequence has always been regarded as irrelevant in the fiqh. There is no term "second" or "third" or "fourth" wife in our Law. Each one is a co-wife placed on an equal footing pursuant to a fully separate valid marriage contract.
  • 9 (8) (c) The secular court is enabled to order a polite parting gift.
  • 10 (3) Sweeping powers are entrusted to the secular court in determining the identity of the guardian of a child. Rules of guardianship in the fiqh, moreover, vary considerably from madhhab to madhhab.
  • 10 (4) (b) What Islamic knowledge will inform the family advocate's approach and perceptions? Clearly none.
  • 11 (2) (a) (Also 11 (2) (c) (i)) It is absolutely untrue that, in an unrestricted sense, the husband is obliged to maintain the wife merely for being the husband. Marriage is a contract, and the wife is entitled to maintenance as a quid pro quo in return for countervalues to extend to her husband. The fiqh can rule out arrear maintenance, and breaches of the marriage contract by a wife might in the fiqh disentitle her to maintenance, etc.
  • 11 (2) (b) (ii) The age of majority of the seculars is different from our concept of bulûgh.
  • 11 (2) (c) (ii) This provision is false in the Law.
  • 11 (3) read with (4) The secular court has ample discretion in fixing the amount of maintenance.
  • 11 (5) The Prescription Act is curiously ignored. The fiqh on arrear maintenance is complex and varies among the madhâhib.
  • Sweeping and far-reaching powers, extending up to criminal law, are granted to the secular Cabinet Minister by section 14 of the Bill.


 



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