Q: I am deeply concerned about this so called Muslim Personal Law or Muslim Marriages Bill (under discussion in South Africa) and the Muslim lawyers and ulema that have banded together and entered into negotiations with the government with regards to this. I clearly remember from madresah and the last sermon of our Prophet sallallahu alaihi wa sallam that he clearly asked 124,000 sahaba that he had now completed the deen (religion) and asked them to be witness to that fact, to which they all said, yes. The mere fact Muslims are thinking of entering into talks with the government to implement shariah and also allow for some lee-way so that this bill can become law, clearly tells me that we as Muslims are saying shariah comes short and to get one thing recognized we are willing to negotiate on other items on the shariah.
A: Your concerns are well motivated but not entirely correct. Let me explain the reality of this Bill. At the outset I wish to make it clear that I am totally opposed to this Bill for I do not believe we need a Bill of this nature and I fear this Bill might pave the way for interpretation of Islamic Law by Courts that will not be in line with Shariah.
But let me now address some of the points you raised.
The move to have a Bill of this nature implemented by the Courts has nothing to do with Shariah being considered incomplete or falling short to fulfil the needs of the Ummat. The Ulema who are campaigning for this Bill do not believe that Shariah is incomplete or inadequate Instead, what the Ulema are doing is seeking power to implement and enforce the complete Shariah. The Bill consists of Shariah Laws that the Ulema want to get recognised by the Government and enforced upon Muslims through the courts. Right now, when Ulema issue a ruling regarding Nikah or talaaq, etc then our Muslims, the very same people who are opposed to this Bill, will refuse to accept the rulings of the Ulema. Both men and women are guilty of this serious failure to recognise Shariah in their lives. Had this been an Islamic country, the situation would not be like that. So ulema feel that through this Bill even the Ulema will be empowered and the Shariah will be forced upon Muslims. Don’t you agree, that this is an ideal motive? Yes, there are drawbacks that we fear, as mentioned in my first paragraph
Furthermore, the Ulema who are behind this Bill are totally sincere in their intentions. People that have not sat and discussed the matter with them fail to realize their good motives and sincere intentions. These negotiations with government do not signify anything sinister or a hidden agenda on their part. This is like negotiation with a government department to obtain permission to build a Musjid or to send money to Palestine, or to acquire a visa for Hajj/Umra, or Muslim organisations applying to be recognised as a Non-Profit Organisations, or seeking permission to give Athaan over a Public address system. If a Muslim is owed money, he goes to the kuffar court to recoup that debt. Running to these kuffar departments does not mean that Muslims are compromising their Deen in any way. Yes, when these kuffar systems are used against the Deen or are used to commit transgression against Allah’s Law then the person doing that must be stopped and reprimanded.
The original Bill had many good and proper Islamic proposals but these were removed by the Parliamentary Committee. The Ulema are now in the process of bringing back those provisions and demanding that the government accept these proposals. If not, the Ulema will withdraw from the entire process. So again, this is a sign that the Ulema are conscious of their duty to protect the Deen of Allah. They are not going to accept any Bill that the government wants.
In the time when Britain were ruling India then the British government had set up Islamic Courts to deal only with marital cases of Muslims. These courts were manned by Ulema and Muslim judges and functioned quote usefully. All the Ulema of the country accepted these courts, and when these courts were dismantled by the Indian government, the Ulema made applications for their reinstatement. But this never came about. So using the power of the courts to enforce (not implement or interpret) our Shariah is valid and acceptable. Yes, we need to be careful how the process is driven.
I hope the above few words serve to place this whole issue into proper perspective. Please maintain respect for the Ulema; don’t just act on and believe in hearsay, and don’t follow what people speak in the streets. You did the correct thing to write to us on this matter so you can get first hand information of what’s happened in this regard
Mufti Siraj Desai