By Ameer Ali –

Dr. Ameer Ali

In societies where secular officialdom considers it blasphemous to rebel against the power of sacerdotalism, and therefore sacrosanct to remain subservient to their dictates, even tinkering with the most blatantly oppressive elements of what is claimed to be sacred by the hierocracy becomes a virtual impossibility. This seems to be the fate of the long awaited recommendations made by Justice Saleem Marsoof Committee (JMC), appointed at tax payers’ expense, to investigate into the Muslim Marriage and Divorce Act (MMDA). By secular officialdom I simply mean the Muslim political hierarchy and the so called Muslim intellectuals who are advising it.  How and why the All Ceylon Jamiyathul Ulama (ACJU), an undemocratic and extra-territorially connected institution of religious functionaries and hierocrats, rather than theologians, has come to wield so much power so that it is able to veto all rational arguments against historical injustices endured by thousands of Muslim women innocently trapped under a male favoured matrimonial system is mind boggling. With some notable exceptions, even journalists and legal commentators on the issue have become unashamedly subtle apologists to ACJU for fear of avoiding its opprobrium. As a result, MMDA reforms remain either dead and buried for ever or frozen until perhaps another generation of agitators and daring intellectuals emerge to take up the cudgels and continue the struggle for Muslim women’s liberation. What follows is not a plea for promoting Muslim feminism an appeal to power holders in the Muslim community to listen to the voice of the aggrieved.  

In an earlier piece that I contributed to this journal (January 6 2018) I employed the term ‘pussyfooted reformers’ to describe the behaviour of recoiling by reform-seekers whenever the ulama¹ hurl in front of them the term shariah, and maqasid al-shariah² to counter any argument.  Conceding for the sake of argument that sharia means Divine Law, who will know that law best except the Divine? That Divine has not sent down a compendium of those laws in any textual or aural form. All that the humans can find in the Quran are some signs of the intentions of the Divine from which humans are expected to derive their own laws to the best of their intellectual ability and needs. Even though the Sunnah of the Prophet has added some specificities to those signs even they have to be contextualised in terms of time and circumstances. That was what the eminent Muslim jurists accomplished in previous centuries through a process of discursiveness and ijtihad (the exertion of mental energy in search of an opinion). These laws are known as fiqh (practical details and rules) and they are man-made, both literally and conceptually. Therefore they can be repealed, modernised and reformed through the same processes. 

From the legislative endeavours of early scholar jurists arose a number of schools of legal thought, counting more than a hundred at one stage. However, in the course of time majority of these schools became extinct, largely due to their irrelevance to changing times and context. Today, there are four schools of fiqh that are predominant in the Sunni world of Islam. One of them, the Shafiite School, is the ruling one in Sri Lanka.  Yet, none of the originators of these schools, to their credit, ever claimed that their interpretations and derivations from the basic sources were the most accurate and that the others were wrong. Contrary to our modern day integrists and religious purists, those savants were strong believers in freedom of thought and expression. Nevertheless, they were not utopian but practical minded people. Since not everyone in the community is erudite and has the intellectual capacity to engage in ijtihad, they recommended ordinary people to follow one particular School of Law to avoid confusion and conflict. They did not however, prohibit the erudite and knowledgeable who would come after them to undertake ijtihad, to critic and improve existing rules and derive new ones in order to enhance society’s progress and public welfare. As Irfan Ahmad put it pithily, “to reform was to critic and to critic was to reform”³. 

Unfortunately, religious leaders of later generations went against these expectations and disallowed not only new interpretations of existing laws but also cross-pollination and synthesis amongst existing schools of law. The instrumentality of ijtihad became highly restrictive if not totally prohibited.  Taqlid (imitation of the past) replaced ijtihad. It is this rigid commitment to taqlid that bedevils Islamic modernity all over the world and Sri Lanka is no exception. This is why MMDA reforms are stuck in the mud of religious obscurantism. 

In fact, in the eighteenth century, a new generation of Muslim intellectuals such as Shah Waliullah (1703-63) of India, Muhammad Ibn Ali al-Shawkani (1759-1834) of Yemen, and Muhammad Bin Ali al-Sanusi (1787-1859) of North Africa, prompted by the narrow religious puritanism of the Wahhabi movement in Arabia, started a mission to democratise ijtihad and even went to the extent of making it an obligatory duty for all Muslims⁴. Among them al-Shawkani went a step further and condemned tamadhhub (sectarianist quarrels among followers of different Schools of Law). Ahmad Dallal quotes from al-Shawkani, which is worth reading in the context of MMDA anti-reformers, who are not willing to overstep the precincts of Shafiite School of jurisprudence. “Know that just as partisanship … results in the effacement of the blessings of knowledge, the dissipation of its splendour, and the loss of the reward that derives from it, so too does it cause strife that leads to the shedding of blood, violation of sanctities, vilification of honours, and making violable what is in the protection of the Divine law.”⁵ 

Reinterpretation of fiqh without contravening the fundamentals of the religion is an ongoing process in Islam. One of the objectives of such reinterpretation is to remove hardships and injustices embedded in existing legal formulations. Even in ultra-conservative Saudi Arabia scholars have dared especially after September 11 2001, to challenge the status quo with new interpretations on established Salafi licensed sharia.  Such scholars have even faced long jail sentences by Saudi establishment⁶.   

MMDA has to be reformed. To subvert reforms in the name of upholding sharia is to demonstrate one’s ignorance of a golden tradition of legal liberalism in the history of Islam. Inaction only prolongs the agony of victims and may even lead to consequences far more destructive to Muslim families and the community than the fear about reforming. ACJU should wake up to face reality and challenge of modernity. 

In a country like Sri Lanka where Muslims are a second minority they cannot expect the government to take the initiative to introduce reforms that impinge on Muslim religious susceptibilities. It is the community leaders who have to take the first step. The government should be commended for at least appointing a committee to investigate the operation of MMDA and make recommendations to improve on it. The Marsoof Committee has done its job to the best of its ability. Now it is the duty of the Muslim parliamentarians to push the minister in charge to introduce the necessary legislation. It appears that ACJU has put a spoke in the wheel. Why are Muslim parliamentarians in bed with ACJU?      

Notes:

1. This name has been overly religionised to rob of its wider meaning, scholars. Ulama is plural for alim, which is derived from ilm, meaning knowledge. The word does not distinguish between religious knowledge and secular knowledge.   
2. Sharia, literally means “the way to a watering place”, and it occurs only once in the Quran, in chapter 45, verse 18. In the Quran, the word carries only an ethical and not legal connotation. However, from the time of the development of usul al-fiqh (theory of law) in Islam the term shariah referred simply to the two basic sources of law namely, the Quran and Sunna (deeds and sayings of the Prophet).  How did the sources of law come to denote the laws themselves is a mystery. Similarly, maqasid al-Sharia simply means aims of the sources of law. 
3. Irfan Ahmad, Religion as Critique: Islamic Critical Thinking from Mecca to the Market Place, University of North Carolina Press, 2017, p. 26.
4. Ahmad Dallal, Islam Without Europe, Traditions of Reform in the Eighteenth-Century Islamic Thought, University of North Carolina Press, 2018.
5. Op.cit., p. 56.  
6. Madawi Al-Rasheed, Muted Modernists: The Struggle over Divine Politics in Saudi Arabia, Oxford University Press, 2015.