By Faizun Zackariya –
In a report released on the Colombo Telegraph website, the authors seek to give their “final suggestions” relating to “proposed changes to the substantive law”. The report is not signed by any group or individual except where it states Majority Committee [MC] members, nor does it explicitly state which substantive law is being referenced. On reading, it becomes clear that the suggestions relate to amendments to the Muslim Marriage and Divorce Act of 1951 in Sri Lanka from marriage and divorce to the madhabs. Subsequent articles attribute the authorship of the report to the All Ceylon Jamiyaththul Ulama (ACJU) et al. Thus we refer to it as the MC report.
Let us begin by quoting the relevant sections of the report.
The view of the Maalikis, Shaafis, Hanbalis and of some of the Hanafis in appointing women as Judge (Quazi) is that it is not permissible for a woman to be appointed as a judge, and if she is appointed, the one who appointed her is sinning, and her appointment is invalid, and her judgements carry no weight, no matter what ruling she passes.
The report presents verse 4:34 and 2:228 of the Holy Qur’an as well as a number of hadiths as evidence of this assertion. For those unfamiliar with these two verses, they are as follows:
Men are the protectors and maintainers of women, because Allah has one of them to excel the other, and because they spend (to support) from their means”. (Verse 4:34)
“ . . . men have a degree (of responsibility) over them”. (Verse 2:228)
The report also quotes the following Hadiths as evidence to illustrate that women cannot be judges:
“It was narrated that Abu Bakrah ( RadhiAllahuAnhu) said : When the messenger of Allah (peace be upon him) heard that people of Persia had appointed the daughter of Chosroes as their ruler, he said “ no people will ever prosper who appoint a women in charge of their affairs” Sahi al Buhari 4425.”
Based on these two verses as well as a number of Hadiths, the report goes on to state that:
“Allah has granted men a degree over women, and if a women were to be appointed as a judge that would contradict the degree that Allah has given men, . . . because in order for a judge to judge between two disputants, he must have a degree over them.
The judge is required to be present among men’s gatherings and to mix with disputants and witnesses and may need to be alone with them. Islam seeks to protect women and preserve their honour and dignity, and protect them from those who would toy with them. So Islam tells women to stay in their homes and not go out except in cases of necessity. And it forbids them from mixing with men and being alone with them, because that poses a threat to women and their honour”.
Furthermore, the MC report states that this hadith is general in meaning and refers to all positions of public authority.
Women as Quazis
The Muslim Marriage and Divorce Act in Sri Lanka effectively denies women the right to be a Quazi. Section 12 (1) of the Act states that Minister may appoint any male Muslim of good character and position and of suitable attainment to be a Quazi. One of the long standing demands of progressive Muslim women in Sri Lanka has been to overturn this provision so that women can have an equal right to be appointed as a Quazi. However, a section of the Muslim community in Sri Lanka has vehemently opposed reform of Sec 12(1) on the ground that it goes against the grain of Islam. As cited above, verse 4:34 of the Holy Qur’an is often at the heart of this resistance.
In the arguments about women’s honour and dignity, and men having a ‘degree’ over women as cited in the their report, we are made to believe that Sri Lankan Muslims live in an alternative reality and that Muslim women are confined to their homes, being protected and looked after by their fathers and husbands. In this alternative utopia conjured by this discourse the real lives of Muslim women are completely erased and wiped out. There is no recognition of the hundreds and thousands of Muslim women who go out to work on their own every day to make a living for their families whether as labourers, as migrant workers, teachers, accountants, doctors, librarians, lawyers etc.
The authors of the report assert that women’s judgements carry no weight. Yet, how do they account for the fact that the Muslim community in Sri Lanka lives in a multi ethnic and multi religious context in which women’s authority and expertise –irrespective of their ethnic –religious identities– whether Sinhala, Tamil, Muslim or Burgher – in the public sphere and in institutions, such as ordinary courts of law, public and civil service, the corporate sector, schools or hospitals is daily being exercised as a matter of fact? The discourse which denies Muslim women’s capacity to be appointed as judges, does not recognize and in fact completely ignores the fact that women and even a few Muslim women are making judgements in ordinary courts of law as district court judges and in magistrate courts, where Muslims must necessarily submit to the authority of women in those positions. Not only that, women are also making decisions and judgements as principals, as teachers, as lawyers, as doctors, as university professors, and even as business women running businesses.
Moreover, the Quazi court system is not a hermetically sealed system. Appeal from a Quazi lies to the Board of Quazis and then to the court of Appeal and thereafter to the Supreme Court of Sri Lanka where the case can be taken up by women judges. A Muslim woman is yet to be appointed to the Court of Appeal or the Supreme Court, but when it happens, how will the Muslim community respond to being judged by a Muslim woman sitting in these superior courts?
Conservative/Orthodox interpretations of verse 4:34
Quite apart from the socio-economic reality of women’s lives, it is imperative to critically interrogate the approach to Qur’anic interpretation which is employed by the authors of the report. They select verses from the sacred texts [Holy Qur’an and hadiths] to construct an interpretation that is favourable to them. In this approach, there is no attempt to understand the ultimate purpose or objective of Islam, to read the Holy Qur’an as a whole, to understand its ethical and normative framework, the principles underlying its linguistic structure, and the context in which the verses came to be revealed. The interpretative strategy of the authors is simply to assert men’s dominations over women, even at the cost of portraying the Muslim community as devoid of intelligence, reason and common sense.
If we follow a different interpretative strategy, it is possible to come to a completely different conclusion about whether a woman can be a Quazi or not. As innumerable scholars of Islam have pointed out, the Holy Qur’an in its essence and spirit recognizes the concept of reciprocity and equality between men and women which is expressed in general without qualifiers, caveats or provisos.
Take the following verses from the Holy Qur’an:
O mankind! reverence your Guardian-Lord Who created you from a single person created of like nature his mate and from them twain scattered (like seeds) countless men and women; reverence Allah through Whom ye demand your mutual (rights) and (reverence) the wombs (that bore you): for Allah ever watches over you. (Verse 4:1)
For Muslim men and women for believing men and women for devout men and women for true men and women for men and women who are patient and constant for men and women who humble themselves for men and women who give in charity for men and women who fast (and deny themselves) for men and women who guard their chastity and for men and women who engage much in Allah’s praise for them has Allah prepared forgiveness and great reward. (Verse 33:35)
And in no wise covet those things in which Allah hath bestowed his gifts more freely on some of you than on others: to men is allotted what they earn and to women what they earn: but ask Allah of His bounty: for Allah hath full knowledge of all things. (Verse 4: 32)
The believers men and women are protectors (awaliya) one of another: they enjoin what is just and forbid what is evil: they observe regular prayers practice regular charity and obey Allah and His apostle. (Verse 9:71)
And many more verses of the Qur’an – 30:21, 3: 104, 4: 124, 2: 187 complement the equality principles enunciated above.
Furthermore, the Qur’anic Verse relating to the Queen of the Sheba refutes any absolute prohibition against women holding positions of authority and leadership. Verse 27:23 describes the Queen of Sheba in the following words,
I found (there) a woman ruling over them and provided with every requisite; and she has a magnificent throne.
The Queen of Sheba is a strikingly positive role model of a woman head of state recognized by the Holy Qur’an. There were no objections raised about her rule in the Holy Qur’an nor was it stated that her people will not prosper because of her rule. There is in fact no clear authority in the textual sources, i.e. the Holy Qur’an and the authentic Sunnah of the Prophet (PBUH),that allows or disallows women to be appointed as judges. Rather the view that women cannot be judges is based, in particular on an interpretation of Surah Nisa Verse 34 that men are qawwamun or protectors of women. The verse is as follows:
Men are the protectors and maintainers (qawwam) over women because of (bima) what Allah has given one over the other (faddala) and because (bima) they spend [to support them] from their means.
Through a close analysis of Verse 4:34, it is possible to argue that unlike the more general expressions of equality between men and women in the Qur’an which we cite above, this verse is different in structure. Azizah al Hibri states that what appears to be a general statement, namely that “men are qawwamun over women,” is followed immediately by an explanatory phrase. A number of scholars argue that this explanation acts as a limitation upon the apparently general statement by specifying the reasons (‘illahs) or circumstances (as indicated by the word (“bima”) that would entitle a male to be qawwam. The first part that men are qawwamun over women, appears to be operative only:
(1) where God has endowed a male (in a certain circumstance or at a certain time with a feature, ability or characteristic which a particular woman lacks (and presumably needs in that circumstance or at that time) and
(2) that male is maintaining that particular woman.
Only under both of these conditions may the man presume to offer guidance or advice to the woman. The first element is important for explaining why the advisory role of the male is acceptable at all. The second element is important for limiting the advisory role to the man who is already taking care of the woman as her provider (if the woman is indeed being provided for).
Otherwise, she may be faced with droves of men who want to provide unsolicited Advice (fudhullyun).Al Hibri goes on to state:
In other words, the Holy Qur’an was describing (and not recommending) in this ayah a situation akin to the traditional one existing at the time, where some women were financially dependent. In those circumstances, the ayah informs us, God gave the man supporting her the responsibility (taklif, not privilege) of offering the woman guidance and advice in those areas in which he happens to be more qualified or experienced. The woman, however, is entitled to reject both (otherwise the advisory role is no longer advisory).
According to Islamic belief, the Holy Qur’an was “revealed” to Prophet Muhammad (PBUH) in a process of dialogue with the Divine. Scholars of Islam such as Amina Wadud explain that the Holy Qur’an contains both descriptive and prescriptive passages, and passages which refer to specific situations and those that offer universal spiritual principles. Is Verse 4: 34 not a descriptive passage which over time has turned into a prescription? Wadud contends that it describes a scenario prevalent at the time of revelation, but that it does not prescribe it as an irrefutable and irreplaceable commandment that must be encoded in the law and practiced by all who adhere to Islam as their way of life.
To understand passages of the Holy Qur’an, we must then take into account the historical circumstances at the time of its revelation. The contention that the Holy Qur’an is contextual has been accepted by the Ulemas in Sri Lanka and elsewhere with references to many verses as well as Hadiths.
Let us think of treatment of idolaters, war captives and slaves (both men and women) in early Islam. The Qur’an states, “Kill the idolaters wherever you find them, and capture them, and blockade them, and watch for them at every lookout…” (Verse 9:5).
Or take the reference to slavery in the Holy Qur’an:
O Prophet! Lo! We have made lawful unto thee thy wives unto whom thou hast paid their dowries, and those whom thy right hand possesseth of those whom Allah hath given thee as spoils of war. (Verse 33:50)
It is no sin for them (thy wives) to converse freely with their fathers, or their sons, or their brothers, or their brothers’ sons, or the sons of their sisters or of their own women, or their slaves. (Verse 33:55).
Around the Muslim world, these verses are considered contextual and specific to the time and space of revelation. Ulemas and Muslim intellectuals in Sri Lanka as well have gone out of the way to say that the above verses were revealed to address the situation that prevailed at that time in Saudi Arabia and is not relevant to the lives of Muslims today.
If we consider an altogether different example, the rules relating Mahrem (escort), have also undergone dramatic changes. Muslim housemaids travel to the Middle East frequently without a Mahrem and they even go to unknown houses to work. Sacred texts are not quoted when it comes to women migrant workers.
The truth is that Muslim women are no longer totally dependent on men. Indeed in many instance, women are now the breadwinners and the providers and protectors of their families.
Sura 4:34 cannot be quoted to support women’s inequality as the verse relies on the socio economic roles that men and women play in society. These inequalities are not immutable and they are not inherent in the nature of sexes; they are the product of historical socio-economic developments. Once women acquire education, participate in the economy, the “degree” that the Holy Qur’an says men have over women also disappears.
It is our contention that generating legal principles and rules based on the divine texts is no easy task. The Holy Qur’an can be interpreted in many different ways. In some cases Qur’anic texts are contradicted by hadiths. Thus the hadiths quoted by the MC report attributed to Abu Bakra is contradicted by the Qur’anic verses relating to the Queen of Sheba. The Holy Qur’an is a revealed book. It is superior to hadiths which comprise the sayings of human beings, the disciples of the Prophet (PBUH) who reported deeds and words. A hadith cannot be accepted as authentic if it is contrary to the Holy Qur’an, and the contradiction between the two has to be resolved by giving precedence to the Divine. Moreover, this hadith, said to be related by Abu Bakra, is classified as an ahad, or an isolated hadith. This means that the narrators of this hadith do not exceed two persons in each generation. Many modern-day commentators view this hadith as a false one based on facts. We are unable to go into details of this in this short article.
Furthermore, if one follows the principles of Imam Malik for fiqh, Abu Bakra must be rejected as a source of hadith. This is because one of his biographers tells us that he was convicted of the offence of qadhf (slander for giving false testimony by making an unproven accusation of zina) by the Caliph Umar al-Khattab, and flogged.
So how can a few Muslim men be allowed to selectively cite the Holy Qur’an and hadiths to deny women the right to hold the office of Quazi, when the Holy Qur’an as a whole encodes women’s equality as well as progress in human civilization? Moreover, the evidence before our eyes testify to the enormous economic and social responsibility borne by Muslim women within the family and community tell a completely different story. Asma Lamrabet, argues that through a contexualized reading, it is in fact possible to integrate the concept of wilaya in Verse 9:71 into a framework for equal citizenship for Muslim women. Awaliya here means alliance, mutual assistance and reinforcement. According to her,
“It is as much a matter of political citizenship as of day to day citizenship. Most importantly here, men and women are called on equally to be the agents of change in their respective societies”.
On such an interpretation, the key factor that ensures the success of a judge is whether she delivers justice and not the sex of the person. The call of the Holy Qur’an to this shared responsibility of women and men in the political management of society is the equivalent of a key democratic principle requiring equal responsibility of all citizens.
The ACJU/MC report
 Refer – http://groundviews.org/2017/11/17/the-mmda-and-muslim-womens-right-to-shape-an-egalitarian-law/
Translation by Abdullah Yusuf Ali.
Azizah al Hibri. (1997). Islam, Law, Custom: Redefining Muslim Women’s Rights, American University International Law Review 12(1): 1- 44
Qur’an and Woman: Rereading the Sacred Texts from a Women’s Perspective, (1999) New York & Oxford: Oxford University Press.
Please note that Abu Bakra is not the 1stCaliph
Fathima Mernessi: 1991 Veil and the Male Elite. English translation page 60© Perseus Books Publishing, L.L.C. 1
Wilaya is the root word of Walī (Arabic: ولي, plural ʾawliyāʾأولياء) is an Arabic word whose literal meanings include “custodian”, “protector”, “helper”, and “friend.”
Asma Lamrabet, 2015, AnEgalitarian Reading of the Concepts of Khilafah, Wilayah and Qiwamah, in Men in Charge? Rethinking Authority in Muslim Legal Tradition, Edited by Ziba Mir Hosseinin, Muli Al-Sharmani and Jana Rumminger, London: Oneworld.,
*Faizun Zackariya – Co Founder/Director, Muslim Women’s Research and Action Forum
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