By M Mifly Naleemi –
The unique feature of Islam is the justice, fair play, equity and equality to all irrespective of gender, status, class and ethnicity of a person. The theologians or Ulamas are too not exempted from this basic fact. That is why it is said there is no “Priesthood” in Islam. No one has any special privilege or favor other than through his/her deeds and actions. No one is above the law and everyone is subject to criticism and question.
Nowadays, print and social media write for and against the views and suggestions purportedly attributed to Dissenting Group of the Saleem Marsoof MMDA Committee to the proposed amendments recommended by the committee headed by former Acting Chief Justice Saleem Marsoof.
I feel it is my duty too as a member of the Muslim community who was actively associated in the Islamic theological studies for the last fourteen (14) years to express my views on the proposed views and suggestions of Dissenting Group so as to dispel the consequential misunderstandings and misconceptions which would have been created in the minds of people who have lack of deep knowledge about Islam and Shariah.
Dissenting Group is attributed to have said inter alia the following contentions which have been subjected to severe criticism by the media.
Imposing of minimum age of marriage is the violation of Shariah.
Appointment of women Quazi is in contravention of the Shariah.
There are some basic principles for understanding and interpretation of any law- be it western or Shariah- If anyone tries to understand or explain such laws superficially without having awareness of such basic principles, misinterpretation of the law would be the inevitable result.
Few such basic principles related to understanding the MMDA Reforms are as follow:
Contextual meaning prevails the literal meaning.
In pari materia (“upon the same matter or subject”) When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter
Golden rule versus literal rule. (Isthikraa’u). The golden rule gives the words of a statute their plain, ordinary meaning. However, when this may lead to an irrational result that is unlikely to be the legislature’s intention, then it is interpreted taking the spirit of the entire statute into the consideration.
Generalia specialibus non derogant.
Specific rule prevails the general rules
I had a reasonable doubt when I read the views of the ACJU on the proposed reforms to the MMDA whether it had any idea of the principles of interpretation of a law.
I wish to explain the five (05) basic Islamic rulings covering the entire life of any human being so as to understand the incorrectness of ACJU on the above said two contentions.
Obligatory (“Wajib”): The doer is rewarded and the abstainer is punished. Ex: Being truthful.
Prohibited (“Haraam”): The doer is punished and the abstainer is rewarded. Ex: Deception.
Commendable (“Sunnath”): The doer is rewarded and the abstainer is not punished. Ex: Giving charity.
Undesirable (“Makrooh”): The doer is not punished and the abstainer is rewarded. Ex: Telling white lie.
Permissible (“Mubaah”): The doer is neither rewarded nor punished. Ex: Selection of dress, foods and other similar day to date affairs.
Any aspect- without any exception- of life of any human being does not fall except under one of the said five rulings in the sight of Shariah.
Imposition of minimum marriageable age
There is no any explicit or implicit ruling in Shariah saying that giving of a girl in marriage once she attained the puberty is “Obligatory” (wajib) or “Commendable” (Sunnath), instead it is permitted (Mubah).
In Islamic Shariah, what is prescribed as “Permissible” (Mubaah) can be made as “Obligatory” or “Prohibited” for a “Public interest” which is called in Shariah as “Maslaha Mursalah”.
Several examples can be cited. The Holy Qur’an was compiled for the public interest after the death of Prophet Muhammad (PBUH). Nobody said it is in contravention of the Shariah. The restrictions and control imposed (for the public interest) on the trade of import and export cannot be argued as it is violation of Shariah simply because the Shariah has not imposed any restriction on international trade. The mandatory requirement of possessing of valid driving license is not against Shariah even though it has not imposed such restriction. All these issues are classified under the category of “Permissible” (“Mubah”).
Similarly, imposition of minimum marriageable age (which falls under the category of “Permissible”) for a “public interest” (Maslaha Mursalah) is not a violation of Shariah simply because Shariah has not imposed such restriction as claimed by ACJU.
Assuming without conceding that child marriage is “Obligatory” or “Commendable”, the golden rule -which is equivalent to “Isthiqra’a” in the Shariah- on analyzing the other verses and spirit of the Shariah law, implies that child marriage is not recommended due to several reasons including the impossibility of getting just and fair consent from a child bride.
The following authentic Hadees explicitly emphasizes the importance of getting the consent of the bride prior to her marriage.
“When a man gives his daughter in marriage and she dislikes it, the marriage shall be repudiated” (Bukhari, 67:43).
Hence, the probability of such negative ruling may lead to an absurd result that is unlikely to be the pure intention of the Shariah and so on.
Appointment of Woman Quazi
There is no any hard and fast rule that women should not be appointed as Quazis. There is no any explicit prohibition in this regard in the Shariah. ACJU might have come to the conclusion that Muslim women cannot be appointed as Quazis based on the interpretations of literal meaning rather than of the contextual one.
For an illustration, the holy Qur’an says: “and they-women- have rights similar to those against them in a just manner, and the men are a degree above them-in responsibility and authority-, and Allah is Mighty, Wise.” (Chapter 2 and Verse 228)
The above verse does not subscribe to the interpretation that women are inferior to men. On the contrary it explicitly implies that men are given some responsibility over women in some aspects considering the inherent strengths and weaknesses of the gender.
Further, it was attributed to Dissenting Group that the following saying of the Prophet Muhammad (PBUH) was quoted to prove that women are incapable of leadership roles
“No people will ever prosper who appoint a woman in charge of their affairs”
The saying attributed to the Prophet Muhammad (PBUH) was a specific incident mentioned by the Prophet.
Hence, the specific incident or rule should not be generalized in the light of the maxim of interpretation of “Generalia specialibus non derogant”.
Assuming without conceding that there were such explicit narrations to the effect to say that men are superior to women, such literal interpretations contravene the golden interpretations when we look at the Shariah on a larger perspective (which is called in Shariah “Isthiqra’u”)
For an illustration the holy Qur’an declares
“Never will I allow to be lost the work of any of you, whether male or female; you are of one another.” (Qur’an 3:195)
“O mankind, indeed We have created you from male and female and made you peoples and tribes that you may know one another. Indeed, the most noble of you in the sight of Allah is the most righteous of you. Indeed, Allah is Knowing and Acquainted.” (49:13)
On the basis of the above and other facts, I kindly request the Dissenting Group of the Justice Saleem Marsoof MMDA committee to revisit their position, set aside the petty differences and come to a united position to reform this long awaited MMD Act.