Mohammad Hashim Kamali
Professor Dato' Dr. Mohammad Hashim Kamali is founding CEO of the International Institute of Advanced Islamic Studies (IAIS) Malaysia.
The Inter-Afghan Negotiations (IAN) that started last September between the Taliban and the Afghan government turns out to be a protracted waiting game.
The talks began due to great urgency and expectations of the Afghan people, who are eager to see the end of some four decade-long of devastating war with great hopes that the IAN will bring peace.
The Taliban had a two-point agenda: American and North Atlantic Treaty Organisation (Nato) forces to leave Afghanistan, and implementation of syariah in the self-proclaimed Islamic Republic of Afghanistan.
The Afghan government led by President Ashraf Ghani asserts bringing peace to the war-torn country, but that he is the country's elected leader until his term ends in 2024. The Jamiyat Party of Afghanistan suggests that a transitional government takes over to facilitate peace.
Ghani's continuity almost certainly depends on the continued stay of American troops, currently at 5,000 (reduced from 100,000 deployed under the Obama administration), which is enough to deter a Taliban offensive.
Being under United States occupation, the realities are such that no significant decision is made in Kabul without American approval. The Afghan army is currently on the American payroll amounting to over US$5 billion per year, a sum that Kabul cannot pay from its own meagre budget.
The Doha talks have hitherto made no progress simply because all sides were awaiting the US presidential election results.
President Donald Trump has declared that the US troops will leave Afghanistan in near terms without specifying a date, but March has been mentioned as the target date. Now that he has lost the election, the waiting continues until the new president takes office. The Taliban are also waiting for renewed American assurance on the February 2020 agreement they signed with the Trump administration.
The Taliban have refused to sign a ceasefire agreement to pave the way for a peace pact, and have chosen the path of violence.
They have stepped up guerilla attacks against Afghan forces and caused heavy civilian casualties.
Prior to the February agreement, Taliban attacks on Afghan forces also invoked a US military response, which kept the violence within limits, but casualty rates had also become heavier since then. For over two months, the Doha talks between 21-member negotiating teams on each side were engaged in trivialities: What expressions they should be using at the talks and what should or should not be placed on the agenda.
The Taliban want their movement to be referred to as a legitimate jihad, and they refuse to refer to the Afghan government as an Islamic republic until Kabul accedes to their demand.
To call the Taliban's bloody raids on Afghan security forces a jihad would be suicidal for Kabul and generally unacceptable.
Yet the Taliban do have grassroots support, which may however be dwindling due to their belated killing sprees that have become particularly brutal under Mullah Hibatullah's leadership.
The Trump administration has not taken a clear stance on these raids although the US envoy for peace talks, Zalmay Khalilzad, had said that this degree of violence from the Taliban was not acceptable.
Protracted waiting with no clear end in sight may also raise a more sinister question: Do they (Taliban and the Afghan government) want peace?
If the US does not want peace, which is the understanding most Afghans seem to have, then those who are attached to them may also share the same attitude.
Moreover, the Taliban militarism and its suspected al-Qaeda links suggest that they most likely aim for a military takeover of Kabul and peace is not likely to deliver that prize.
The Kabul government has also missed opportunities for peace in recent months and a continuation of status quo is an option as it would likely prolong the American military presence.
Ghani's internal bickering with Afghan High Council for National Reconciliation chairman Dr Abdullah Abdullah has also led to indecision. Rumour has it that Dr Abdullah prioritises peace, whereas Ghani wants peace on his own terms.
The latter is also less than happy with the way the Taliban became the first party to sign an agreement with the Americans.
The Doha talks have yet to enter its proper agenda. It is uncertain but likely that the Taliban will take issue with the current constitution of Afghanistan with reference particularly to equality clauses for women and implementation of syariah. They also suggest that an ulama council be formed to take charge of implementing syariah.
Such demands will be met with resistance as prominent women leaders and civil society are critical of the Taliban's view on women. So, protracted negotiations are likely to continue, and may be more of the same with the waiting game. What remains to be said is that they all owe it to their conscience, country and people to drop petty delaying tactics and work sincerely for a peaceful Afghanistan.
Mohammad Hashim Kamali is founding chief executive officer of the International Institute of Advanced Islamic Studies Malaysia.
Published in: The New Straits Times, Wednesday 09 December 2020
The Quran does not mention any plague (ta'un) by name, but makes references to destructions of bygone people, adding also that calamities occur only within God's all-embracing knowledge (57:22; 64:11). Ta'un is the subject, however, of many hadiths in al-Bukhari and Muslim, including:
"If you hear of the outbreak of ta'un in a land, do not enter it; but if it breaks out in a place while you are in it, do not leave that place.
"When ta'un has struck, any faithful who stays patiently at home while knowing that nothing befalls him that God has not pre-ordained – earns the reward of a martyr," or "Death from a plague is martyrdom for every Muslim."
Lastly, "(And with regard to animals): The sick should not be taken where the healthy ones are."
Some Muslim scholars have drawn the conclusion that the Prophet's movement control orders during plagues are obligatory.
It is also not accidental that Ibn Sina (d. 428/1037), a Muslim scientist, was the first to introduce a 40-day social isolation measure calling it 'al-Arba'iniyah', which was almost literally translated as 'quarantine' in European languages.
The Covid-19 pandemic that has hitherto claimed over 325,000 lives, prompted authorities around the world, including in Malaysia, to impose restrictions on movement, business and travel.
The caliph 'Umar's management of the plague of 'Amwas is a case history of contemporary relevance: when the caliph heard of its outbreak, he decided to go to Syria himself to manage it. Upon reaching Surgh outside Madinah, he met with Abu 'Ubaidah al-Jarrah, Commander of the Muslim army in Syria, who advised the caliph to proceed to Syria.
At this point, 'Abd al-Rahman ibn 'Awf came forward and quoted the hadith from the Prophet that when plague is raging, one should not go from the non-infected to the infected area or vice versa. That settled the matter and 'Umar returned to Madinah.
The caliph then ordered that troops be moved to a healthier place in Jabiah. However, days after arrival, Abu 'Ubaidah died of the plague, followed by Muadh b. Jabal. Their successor, 'Amr bin al-'Aas executed 'Umar's orders to shift the troops to the hills, and to separate them into smaller groups to reduce interactions.
Covid-19 has also prompted questions over the higher purposes (maqasid) of syariah as to which comes first: protection of religion or protection of life. Although the conventional ordering of maqasid prioritises protection of religion (hifz al-din) over that of life (hifz al-nafs), actual life experience of the pandemic points to life as being the first priority.
Muslims were asked by their governments to perform Friday and other daily prayers at home to contain the deadly virus. Protection of religion had thus to give way to the protection of life. Travel bans imposed by Muslim countries also meant postponement of the 'umrah – and it looks likely even of the haj.
Congregational prayer and 'umrah are arguably Sunnah, not wajib, but even the haj proper, which is wajib, may be postponed to save life – a higher wajib. This order of priority is also noted in the following example: when a fit person sees another drowning, yet he runs the risk of losing the salat time – which should he prioritise? The answer is definitely to save the drowning.
Instances of conflict between the protection of life and that of property (hifz al-maal) have also been noted. Almost all businesses are shut under lockdown conditions and people are suffering, some with extreme hardship, yet all this is tolerated in order to protect life.
The traditional order of the maqasid that places religion first is based on an extremist scenario: when enemy forces attack a Muslim country, Muslims are duty-bound to fight and sacrifice their lives for their religion. But extreme situations are unrealistic, as no order can be observed in emergencies.
One also gives life to protect one's property, family etc., hence maqasid priorities should be based on normal, rather than extreme, situations.
For life is the sine qua non of all other syariah ordinances and should therefore come first. Hence, a corrective is due to the conventional ordering of the essential maqasid – if the syariah is to relate meaningfully to people's lives.
Mohammad Hashim Kamali is founding chief executive officer of the International Institute of Advanced Islamic Studies Malaysia.
Published in: The New Straits Times, Friday 22 May 2020
It may be said at the outset that in discussing haj related issues, one runs the risk of touching on public sensitivities as haj is part of the devotional aspects (‘ibadat) of Islam and not as open to rational enquiry in the same way as are matters of concern to civil transactions (mu‘amalat).
That said, raising questions over haj management matters tangential to the substance of worship should not be a problem. Islam does not even preclude religious matters from rational investigation in the spirit of healthy renewal and reform (tajdid).
Earlier precedent confirms this when, for instance, caliph Umar al-Khattab introduced the second call to prayer (adhan) on Fridays when the crowds attending congregational prayers in Madinah grew larger.
Also his successor, caliph Uthman Ibn Affan, edited the text of the Quran at a time when variations in its reading had cropped up due to differential Arabic dialects.
He verified the standard text with the help of leading Companions and then ordered the existing copies of the Quran to be destroyed.
In earlier centuries, the number of haj pilgrims was small and they travelled with slower traditional means of transport.
These numbers have risen beyond comparison, exceeding two million annually.
This also brings unprecedented challenges that call for fresh thinking and interpretation (ijtihad), some of which may not even require juridical ijtihad but only administrative and policy initiatives to make haj crowds more manageable.
One issue is the number of hajs that a person performs.
Haj is a once-in-a-lifetime religious duty of Muslims “who can afford the journey” (Q. 3:97).
But some affluent Muslims go to haj many times. Only the first instance fulfils the duty and the rest will count as supererogatory (nawafil).
These individuals should restrain themselves, and better still, spend the money on charity that may relieve the sick and the invalid of their hardships.
They will earn rewards for giving the opportunity to others, as well as for their charitable donations.
The haj authorities in Muslim countries are accordingly advised to take policy measures to discourage people from doing more than one haj.
This will help reduce numbers to some extent.
Another concern is the length of time that pilgrims take to perform the haj. Most pilgrims complete the haj in six weeks, while others can do so in 10 days.
There may be different issues of expenses and individual choices, but it should in principle be possible for the haj authorities in Muslim countries to make reasonable policy decisions.
The length of stay may be limited, for some categories of individuals and groups, to two or three weeks.
This will also help reduce numbers and enable better management of haj affairs.
Furthermore, statistics show that the number of applicants wishing to go to haj, from almost every Muslim country, is much larger than their allocated quotas.
When political leaders from different countries meet Saudi leaders, they often request an increase of their haj quotas. Saudi leaders are thus placed in an awkward position to respond.
Barring justified exceptions, requests of this kind should also be minimised and collective policy measures taken to observe the existing quotas.
This will also help keep the numbers under control.
What is the haj period and is there scope for fresh interpretation?
The Quran refers to the haj period as “months well-known” (ashhurun ma’lumat), within which the haj must be completed (2:197).
The text doesn’t specify the precise meaning of the “months well known,” but they were based on ijtihad.
The first and typical response, which is commonly adopted, is that the phrase refers to two complete months (of Syawal and Zulq iddah) and 10 days of Zulhijjah.
This is the position of the majority of the four madhabs (Shafie, Hanafi, Maliki and Hanbali), the four renowned Abd Allahs among the Companions (Abd Allah b. Umar, Abd Allah b. Abbas, Abd Allah b. al-Zubayr, and Abd Allah b. Amr b. al-Aas), and many others.
The second response given is that the haj period includes all the three months, that is, inclusive of the whole of Zulhijjah and this is the view of Imam Malik, and according to alternative reports, also of the Companions, Abd Allah b. Amr b. al-Aas, Abd Allah b. Abbas, Abd Allah b. Masud, and many others.
This second response is preferable and sound, for the Quran refers to the haj months as “ashhurun ma‘lumat,” which correctly subsume three months, and not as it were, “sharayn ma-‘lumayn,” which would mean two months.
So anyone who reaches Mecca in a state of Ihram (lit. abstinence from certain activities) and performs the wuquf in Arafah, tawaf of the Kaa’bah, and sa’ie between Safa and Marwah — known to be the haj essentials — any time during these three months, his haj is valid.
This was also the practice as was known during the Prophet’s lifetime.
The theory of ijtihad is explicit on the point that when different rulings of ijtihad exist over the same issue, the one that addresses present reality should be preferred.
The second of the two views is evidently more suitable to address current reality, and should be adopted. This would further ease the congestion caused by the shorter haj period.
Mohammad Hashim Kamali is founding chief executive officer of the International Institute of Advanced Islamic Studies Malaysia.
Published in: The New Straits Times, Thursday 19 December 2019
Due to the numerous forms it can take, corruption escapes the idea of a comprehensive definition.
It knows no boundaries, applies to the rich and poor individuals, organisations and countries, and it is as old as human history itself.
They are all forbidden on the basis they seek to distort the course of justice.
Differences in interpretation of a particular hadith (words of Prophet Muhammad) on the validity or otherwise of the declaration of personal assets of government officials have recently been featured in the media.
In principle, syariah (Islamic law) accepts reasonable disagreement (iktilaf) in interpretation provided it is clear of bias and does not pursue questionable objectives.
One way to evaluate this is to refer to the higher purposes (maqasid) of syariah.
If an interpretation pursues a lawful purpose that finds support in the higher sources of syariah, it is accepted, but is set aside and rejected otherwise.
If asset declaration is meant to fight official corruption, then this is not only valid in syariah but highly recommended and meritorious.
Official corruption has undoubtedly become the bane of good governance in many present-day Muslim countries, Malaysia included.
Provided asset declaration itself is not motivated by a corrupt purpose, such as violating the privacy of others and conducting unwarranted searches to inflict harm on them, and it is intended only as a means of combating corruption, it is valid beyond doubt.
This is because all government employees have a duty to stay away from corruption.
For government in Islam is a trust (amanah) that must be faithfully observed (Quran Chapter 4, verse 58), and betrayal of trust is strictly forbidden (8:72).
The text also speaks in condemnation of corruption (fasad) and its perpetrators (mufsidun) (2:205; 26:151; 30:41).
Fighting official corruption also forms part of the Quranic principle of ‘prevention of evil’ (nahy ‘an al-munkar) which is a duty of the leader and those in charge of community affairs (uli’l-amr).
Iqbal and Lewis wrote in their (2002) work, The Islamic Attack on Corruption, that “there is zero tolerance for bribery in Islam, and Islam rejects any idea that bribery serves as ‘the grease that oils the economic wheels’.”
There is no scope either for legalising corruption in the name of commission, gift, donation, advances, soft loan, loan write-offs and the like.
Islamic history also records instances of anti-corruption measures taken by the government. The second caliph, Umar Al-Khattab, fought bribery and corruption of officials through expropriation of personal wealth accumulated during the tenure of office.
This was done to prominent figures among the Prophet’s companions, Abu Hurayrah, Amri Al-Aas, Nafi Amri, Saad Abi Waqas, and Khalid Al-Walid, the governors respectively of Bahrain, Egypt, Mecca, Kufa and Sham, among others, who were found to have accumulated wealth which they did not have prior to employment.
Some of them indulged in trading activities and careless handling of public funds.
The caliph ordered Abu Hurayrah to “take your own property and what is necessary for your living, and surrender the rest to the Baitul Mal (public treasury)”.
Amri Al-Aas was simply ordered to hand over one half of his wealth to the Baitul Mal as he had acquired goods, slaves, livestock and artifacts that he did not have before he was appointed as governor of Egypt.
Expropriation was not confined to government officials but also extended to merchants, contractors and dignitaries who conducted business with the government and accumulated disproportionate amounts of wealth.
An interesting incident on this, recorded by Abu Yusuf, involved the two sons of the caliph Umar, Abdul Allah and Ubayd Allah, who accompanied an army contingent to Iraq.
Governor Abu Musa Al-Asharı, said: “Here’s money as advance to buy goods from Iraq and then sell them in Madinah. Give the capital to the caliph and keep the profit for yourselves.”
This was agreed and the caliph’s sons made a profit. But when handing over the capital to the caliph, the latter asked:
“Does he give similar advances to everyone in the army?” The answer to this was “No”, and the caliph asked them to pay both the capital and the profit.
A man said: “O Umar, perhaps you could treat this as an instance of mudarabah on the analysis that if they had made a loss they would have been accountable.”
The caliph agreed and asked his sons to deliver the capital and only half the profit to the Baitul Mal.
Expropriation of assets of corrupt officials was eventually institutionalised under the Abbasid caliph, Ja‘far al-Mansur, when a department was established for handling expropriation matters in cases of unwarranted enrichment.
Reports also indicate that vast amounts of properties were retrieved.
The Abbasid caliph, al-Qahir, is thus reported to have expropriated the properties of the mother of his predecessor, al-Muqtadir, which raised the assets of Baitul Mal by a substantial amount.
Published in: The New Straits Times, Thursday 25 July 2019
Following the United Nations General Assembly’s call in June 2007 for the abolition of the death penalty on the grounds of protecting human rights, the then minister in the Prime Minister’s Department, Datuk Seri Nazri Abdul Aziz, announced in October 2008 that the Malaysian government was considering withdrawing the mandatory death sentence for drug offences and replacing it with jail terms.
Death punishment for murder, terrorist acts, treason, kidnapping, rape, possession of fire-arms and drug trafficking applies to this day in Malaysia.
The Dangerous Drugs Act 1952 provides for the mandatory death sentence for possessing and distributing drugs.
But total abolition has remained a debated topic ever since.
The proponents of human rights, including the Malaysian Bar, the Human Rights Commission or Suhakam and Lawyers for Liberty have called for the abolition of the death penalty as no studies have proved that it is a deterrent to serious crime, and that in the event of a miscarriage of justice, the penalty is irreversible.
As for the mandatory death sentence for drug trafficking, they have further argued that the experience of many countries, including Malaysia, showed that most of those caught under draconian drug laws are not the big timers the laws are meant to target.
Besides, there is no evidence that the death penalty is effective as a deterrent to curb drug trafficking, its production and its sale.
The proponents of the death penalty draw attention to the need to protect society from serious crime and the predicament faced by the victims and family members of murdered victims who demand the capital punishment.
Imprisoning the criminal for 20 to 25 years is costly for the taxpayer and perhaps inhumane.
Broadly, syariah law applies the death penalty to four crimes — murder, terrorism, adultery and apostasy.
The first two are prescribed in the Quran, which makes murder liable to the death penalty under qisas (just retaliation) and makes terrorism (hirabah) also subject to the capital punishment.
As for apostasy (riddah) and adultery (zina), it is the sunnah (ways of the prophet) not the Quran, that makes them liable to the death penalty.
The Quran refers to apostasy in no fewer than 21 places, yet in all of them, the offence carries severe punishment in the hereafter.
As for zina, the Quran provides 100 lashes of the whip for all cases proven by four eyewitnesses which is almost impossible to obtain — hence all cases of zina are likely to be given alternative punishments.
The death punishment for apostasy and adultery is based on the authority of the hadith (words of the prophet) that falls short, however, of decisive (mutawatir) evidence.
It is then argued that a discrepancy between the Quran and the hadith on issues of life and death must naturally be determined by referring to the Quran.
The Quran refers to qisas in several verses, yet in all of them there is a strong emphasis on forgiveness and reconciliation between the parties.
Prophet Muhammad emphasised forgiveness in all qisas cases that were brought to him for adjudication and consistently advised the parties not to insist on retaliation, but to reconcile through the payment of blood money (diyah) or grant of forgiveness.
This would suggest that qisas carries the death punishment which is, however, not mandatory.
Hirabah is described in the Quran as the “waging of war on God and His Messenger and the spreading of corruption on earth”, which provides for punishments, such as execution, mutilation of limbs and banishment.
Muslim jurists have also understood hirabah, also known as qat‘al-tariq, to mean highway robbery, banditry and terrorism which involves with or without killing, theft and looting.
They have differed widely over the order and choice of punishment for them, but the majority of Sunni schools authorise the head of state to select one or more of these punishments in proportion to the severity of the crime.
In summary, hirabah, like qisas, carries the death punishment, but since it is subject to stipulations and the discretion of the head of state, it also fails to qualify as mandatory death.
Can a death sentence be imposed on the basis of taczir (deterrent) principle in serious crimes other than murder and terrorism?
Imam Malik and some jurists of the Hanbali school have allowed for a Muslim to spy on other Muslims who work for the enemy who spread heresies.
But the majority, including the Shafini, Hanafi, and some followers of the Hanbali schools maintain that the death punishment may not be imposed under taczir.
Imam Abu Hanifah, however, has held out that the ruler may punish recidivists and hardened criminals to death under taczir.
In summary, the syariah law is restrictive on the death punishment and when it is allowed, it is carried out with stipulations and has the possibility of repentance, reconciliation, or alternative punishment.
There is no clear case for mandatory death punishment in syariah — lest it compromises the impartiality of justice.
Syariah jurists, however, leave it to the head of state the possibility of him deciding otherwise if public interest (maslahah) dictates it.
Published in: New Straits Times, Sunday 2 June 2019
Tayyib is often used in juxtaposition with halal and often as synonymous with it. But a less well-known aspect of tayyib is its role as a conduit between the physical and the spiritual dimensions of halal, that of the body and the soul.
“Intelligent people know that seeking salvation in the hereafter,” wrote the twelfth-century polymath, Abu Hamid al-Ghazali, “depends on learning and practice.”
For only a healthy body can provide consistency for salvation of the soul. Al-Ghazali added that serenity of the body is not possible without food and nourishment.
In the light of this wisdom, some pious ancestors held that eating is part of the teachings related to salvation in religion.
Quranic dispensations on tayyibat also imply that lawful things and foods that are appealing to the senses should be enjoyed and celebrated.
Philologists helpfully and interestingly point out that the elements of pleasure and delight are included within the idea of purity and lawfulness.
Thus the crucial responsibility of caring for the body involves both an element of observing ethics and an element of pleasuring the body.
Since body and soul are not essentially separated, for this reason caring for the body is like caring for the soul.
In other words, the integrity of the soul becomes manifest and takes form in the integrity of the body.
Hence, there is an elaborate practice of caring for the body, starting with the nourishment of the body in Muslim practice.
The reasoning goes like this: if the body is the vehicle for the soul, then it attains the same inviolability as the soul.
However, Muslim teachings differ as to whether the body attains sanctity on its own, irrespective of the soul or whether the body is instrumental to the needs of the soul.
Since the purpose of human existence in Muslim thought is related to an after worldly salvation, the body and its needs have also become an important aspect of the same, according to some Muslim thinkers at least.
In order to attain salvation, the body has to be disciplined through learning and practice.
Since the body is the locus of such discipline, the etiquette of consuming food also acquires a certain importance in the overall scheme of salvation.
The spiritual dimension of food is further expressed by Islam’s outlook on food, which views food as a manifestation of divine mercy and beneficence.
Whether it is to safeguard food sources or for aesthetic purposes, perhaps for both sets of reasons, Muslim teachings also strongly advocate the protection and preservation of the natural environment.
The protection of trees, agricultural land, the sources of food and water and their purity, are all vital components of a balanced Muslim environmental ethics through which the human body and self can obtain felicity and fulfilment.
This ties up, in turn, with Islamic teachings on the preservation of naturalness (fitrah).
To preserve uncontaminated nature coupled with the celebration of a healthy and sound human nature is viewed as one of the Islamic ideals.
The human fitrah has many dimensions, one of which is the inborn, intuitive ability to discern between right and wrong, and therefore is of central importance to Muslim physical and ethical integrity.
“So direct your face steadfastly to faith,” enjoins the Quran, “as God-given nature (fitrah), according to which God created humanity: there is no altering the creation of God” (al-Rum, 30:30).
God in the Quran is also described as the original creator (fatir), who created the heavens and the earth without any model.
Fitrah is essentially supra-religious and permanently inclined to the fatir, the creator of fitrah, as in the Quran (al-An’am, 6:79).
Preservation of fitrah thus becomes an indispensable part of Islamic spirituality and ethics.
Further endorsement of this is seen in Islam’s identification of itself as din al-fitrah, a religion inherently inclined to fitrah, that is, to protect the natural fitrah in all things.
Fitrah in bodily terms is best preserved through consumption of tayyibat.
To understand fitrah for the most part also implies understanding the limits of human intervention in God-ordained nature and the inherent qualities of food and beverage.
Human intervention through scientific methods, such as in the case of genetically modified food, is thus acceptable within the inherent limitations of fitrah.
Some of these limitations are also imbedded in the syariah conceptions of halal and haram and of the fitrah-based naturalness.
As for the rest, intervention in the natural endowment of victuals must pass the tests of rationality, human need and benefit, and avoidance of harm to the natural environment.
For without these limits,the fitrah is also known to be susceptible to distortion and corruption through bodily indulgence in transgression and disobedience.
Published in: New Straits Times, Friday 11 January 2019
Female genital mutilation (FGM), also known as female genital cutting and female circumcision, is the removal of some or all of the external female genitalia.
FGM was practiced among the pre-Islamic Arabs and has survived among some Arab communities after the advent of Islam. Its practice today is widespread despite the generally negative opinion of Muslim scholars concerning it.
FGM is seen as an injury and violation of the physical integrity of a female child. Islamic law and religion only validates circumcision of the male child. There have also been international efforts to persuade practitioners to abandon it, and in 2012 the United Nations General Assembly, recognising FGM as a human-rights violation, voted unanimously to intensify those efforts.
Female circumcision is prevalent in Malaysia. The issue is, however, intermingled with cultural and ethnic sensitivities. Malaysia has no laws in reference to FGM. The practice in Malaysia usually involves a prick or a slit at the top of the clitoris and is widely contested whether it should be construed as FGM at all. Similar practices exist among Malay Muslims of southern Thailand and Indonesia.
The procedure was previously performed by village midwives but with rapid urbanisation, it has moved to formal healthcare settings, clinics and hospitals.
This also brought with it a dilemma for doctors — whether to perform the procedure and if so, how exactly to do it. Doctors turned to the Health Ministry, which then consulted the National Fatwa Committee in 2009.
Mary Ainslie in her study, The 2009 Malaysian Female Circumcision Fatwa, wrote that rather than continue dialogue with medical practitioners or open up discussions with international Islamic organisations, the committee’s immediate response was “to draw up and issue the fatwa very quickly in early 2009”. The fatwa puzzled many in the ministry as it marked a paradigm shift in the practice with female circumcision moving it from being sunnah (recommended) to being wajib (obligatory).
In other Muslim countries, religious leaders have debated the FGM. Reportedly, in 2006, the Cairo-based Egyptian Dar al-Ifta convened an international conference of scientists and Islamic scholars, and after exploring a diverse range of opinions, it concluded that the mutilation presently practised in some parts of Egypt, Africa and elsewhere represents a “deplorable custom which finds no justification in the authoritative sources of Islam, the Quran and the practice of the Prophet”.
The former grand mufti of Egypt, Sheikh Ali Gomaa, emphasised that Islam is a religion of knowledge, learning and research. While FGM was previously practised as a social custom (and not a religious requirement), it becomes a religious obligation to say unequivocally that the practice of FGM is today forbidden in Islam.
In countries, such as Burkina Faso and Senegal in West Africa, religious leaders themselves have led the call for abandonment of the practice and with success.
There is no reference to FGM in the Quran whatsoever. No ruling of general consensus (ijma’) nor of an analogy (qiyas) with the male circumcision has been recorded. The one hadith that is often quoted in support of FGM is problematic and seen as forgery.
Thus, it is reported that a Madinah woman, Umm Atiyyah, practiced FGM and other women used to go to her for the purpose. Then it is added that the Prophet told her one day: “Oh, Umm Atiyyah! Take the smallest amount (of the skin) so as not to weaken (the body); for it gladdens the face and adds enjoyment for the husband.”
Al-Baihaqi and Abu Dawud have recorded slightly different versions of the hadith. Abu Dawud has followed it with the comment that the chain of transmission of the hadith is weak and broken in parts (da’if, munqati’).
One of its narrators is Muhammad ibn Hasan al-Kufi. Some hadith scholars have identified him and Muhammad b. Sa’id al-Kadhdhab were one and the same person, who was believed to have fabricated 4,000 hadiths, and was executed for it by the Abbasid caliph al-Mansur (d. 775CE). Imam Ahmad ibn Hanbal has confirmed that he was a zindiq (heretic) which was why he was executed.
Contemporary Egyptian scholar, Mohammad Salim el-Awa, has quoted a large number of prominent Muslim scholars, including Zayn al-Din al-‘Iraqi (d.1403 CE), Muhammad b. Ali al-Shawkani (d. 1839 CE), Sayyid Sabiq (d. 2000 CE), Yusuf al-Qaradawi and others to say that the hadith is unreliable and should be discarded.
Mohammad Salim draws the conclusion that FGM is a violation of the physical safety of young girls, and it is a fallacy to label FGM as permissible (mubah).
We now have two conflicting syariah positions, which affect the people’s lives. Both cannot be correct. It is likely that there is some weakness in both versions.
Since there is no scriptural ruling on FGM and it is the subject of juristic conflict, the issue may be determined on rational grounds, by reference perhaps to the benefit (maslahah) and harm (mafsadah) thereof. General tendency among Muslim scholars, and also the international opinion, is inclined to suggest that its harm outweighs its benefit.
A gradual approach and campaign to discourage the practice may be advised, starting perhaps with parents, as the current Mufti of Perlis has also suggested, that parents should stop sending their female children to be circumcised. It is an individual right and should be left to their personal choice. Education and the mass media should also play a role.
Published in: New Straits Times, Friday 14 December 2018
Ever since the Sept 3 news of public caning of two women for lesbianism (musahaqah, also sihaq, tribadism) by the Syariah High Court of Terengganu, the issue came under public scrutiny.
Questions are asked about the fairness of the sentence, whether it was harsh and gave a bad impression of Islam and Malaysia, and whether it was sound under syariah law.
Those who defended the sentence mainly referred to syariah whereas the critics highlighted respect for human rights and dignity.
This was not the first time public caning made headlines in Malaysia, but it was the first time that the punishment was carried out in a public setting, except for the Syariah High Court in Tawau — yet, the victims always seem to have been women.
The facts of the case were that two women, aged 22 and 32, were arrested by Terengganu syariah law enforcement officers for attempting to have lesbian sex in a car in Dungun in April.
They had not actually committed, but attempted to commit musahaqah, as it is not easy to commit it in a car. They were sentenced under the Syariah Criminal Offences (Terengganu) Enactment 2001.
The actual offence of musahaqah is a syariah takzir offence “the punishment for which shall be at the discretion of the court”. Penal sentences in syariah must be founded on clear proof. The details of the act committed must be known unequivocally beyond doubt. Should there be any doubt, the judge is advised to be lenient, and avoid harshness.
The two women pleaded guilty in August to lesbianism and were sentenced to six strokes of the cane and fines of RM3,300. They were caned in front of over 100 onlookers in the court, including their family members, representatives from legal bodies and NGOs, and members of the media.
Musahaqah literally means rubbing fiercely without penetration, typically the act of two women rubbing their private parts against one another, which can also occur between two males. As for the juridical basis of musahaqah, fiqh textbooks refer to the Quranic passage that speaks in praise of believing women who “guard their private parts ( li-furujihim hafizun) except with those who joined to them in the marriage bond”.
The text continues to declare that “those whose desire exceed these limits,” to be transgressors (23: 5-7). Hence, all sex outside marriage, including musahaqah, is transgressive of the syariah limits.
Also quoted is the hadith that provides: “A woman may not look at the private parts of another woman nor may she sleep under the same cover with her.”
Another hadith quoted on musahaqah declares: “When a woman [sexually] approaches another woman, both of them are adulterers (zaniyatan).”
No punishment is, however, mentioned for musahaqah, hence, the conclusion that it is a transgression (maksiyah) that may be punished under takzir. The equation of musahaqah with zina in the second hadith is in its literal sense, as zina in Arabic means transgression and sin. But, zina and lesbianism are different in that the latter does not involve penetration nor does it threaten purity of the family lineage.
Confession under syariah law is also weak evidence as it can be distorted, obtained under pressure, and sometimes made as a way out of a vexed situation. Published information on the case indicates that the two women had initially pleaded not guilty in July, but they later changed their plea to guilty after failing to secure syariah lawyers to defend them.
From April 2018 when they were arrested until September they were under immense pressure in their private lives, and then by the media, especially the Malay media, that consistently described them as “lesbians”, “lesbian couple” and “deviant couple”. The confession they made under these conditions was, therefore, questionable.
Moreover, unlike the hudud offences and qisas (retaliation), which carry fixed penalties, takzir in syariah is an open category that can carry various sanctions: from a verbal reprimand to public warning, counselling, physical and custodial punishments — and in modern times, also probation order, suspended sentence, police attendance, etc.
There is a certain mindset on the part of syariah judges, however, that takzir must consist of caning and lashing. This was the case in times past when penal systems were poorly equipped to diversify forms of penalties.
But times have changed and when there are acceptable alternatives for takzir, an effort should be made to use them.
Aspects of takzir that the judge bears in mind are the conditions of society, public opinion, and the consequences of his judgment on Islam’s good name.
Sure enough, this case received bad publicity worldwide. Almost all major media channels carried it giving Islam and Malaysia a negative profile.
Even in Malaysia itself, women are not allowed to be caned under civil law. Then also, Tun Dr Mahathir Mohamad said on Sept 6:
“The cabinet is of the opinion that this (the caning) does not reflect the justice and mercy of Islam”, as it was the first conviction of same-sex relations under syariah law.
The prime minister added that the women should have been advised instead of being publicly whipped.
In light of the foregoing, public caning in a blaze of publicity and humiliation for a first conviction with a questionable confession, in an unreceptive climate of opinion should have been more lenient.
A verbal admonition, or a suspended sentence of some kind might have been advisable to deter repetition, and would most likely have averted the unwanted publicity.
Published in: New Straits Times, Friday 21 September 2018
We know that moderation (wasatiyyah) is a major Islamic principle and way of life by the clear affirmation of the Quran. In an address to the Muslim community, the Quran conveys God Almighty’s vision of this Ummah as a community of the middle path (ummatan wasatan) to make moderation, therefore as a guide and conduct of their earthy life (al-Baqarah, 2:143).
Moderation has not only much to say about the personal conduct of individuals and the community’s collective ethos, but also on the use of the earth’s resources and care for its natural environment. The substance of this teaching is elsewhere endorsed in the Quran where the text speaks of balance (al-mizan) in the creation of this earth and the terrestrial universe, all of which have been created in a state of grand natural equilibrium, “so weigh all things fairly and do not disturb the (God-ordained) balance.” (al-Rahman, 55:7).
Three other concepts of relevance to sustainability conveyed in the Quran, are firstly, humankind’s assignment as the trustees and vicegerents (Khalifah) of God on earth to act as bearers of a mission and responsibility to establish a just socio-economic order therein (al-Baqarah, 2:30). The utilisation of earth’s natural resources such as land, water, air, fire (energy), forests, and oceans are considered the right and joint property of the people. Since humankind is God’s vicegerent on earth, they should take every precaution to ensure the rights and interests of its other inhabitants, including the animals and birds, are fulfilled, not only of this but also of future generations.
The second and still related concept is that of ‘building the earth’ (i’mar al-ard), also known as ‘umran’, or building of a humane civilisation on earth, which has been expounded in much detail by Muslim scholars, notably the Andalusian scholar, ‘Abd al-Rahman Ibn Khaldun (d. 1406 CE) and others. Justice and being good to others (al-’adl wa’l- ihsan), which are essential to a humane civilisation, envisage not only the general wellbeing of the present but also of the future generation.
The third aspect of relevance to sustainability in the Quran is the avoidance of prodigality (Israf, al-A’raf, 7:31) and extravagance (al-tabdhir, al-Isra’, 17-27). The two are basically synonymous, yet a technical distinction has been drawn between them. Israf signifies prodigality and wasteful use of what is otherwise permissible, such as one who consumes food in excess, or uses water wastefully, even for purposes of cleanliness and ablution.
Tabdhir on the other hand is spending on that which is unlawful in the first place, such as the purchase of drugs and gambling tools. With regard to the former, the text says that “God does not love the prodigals — al-musrifun,” and in reference to the latter, that they are the “the devils’ brethren,” both of which expressions signify primarily moral and behavioural aspects of human conduct, but can be the subject of legal action if they amount to manifest harm (darar).
The lawful government is then authorised, under the concept of public interest (maslahah), and just policy (siyasah ‘adilah) to impose restrictions on that which may be permissible, and also to elevate to a prohibition what is reprehensible (makruh) in the shariah. The Islamic legal maxim-cum-hadith that ‘harm may not be inflicted nor reciprocated [in the name of] Islam would in principle authorise the individual and the community to take legal action against persons and organisations, even states, that are guilty of environmental damage and destruction.
The Prophet of Islam has added his voice to say with regard, for instance, to greening the earth that “anyone who plants a tree, no human nor any of God’s creatures will eat from it without it being reckoned as charity from him.”
In another widely quoted hadith, the Prophet has said that even if one hour remained before the final hour and one has a palm-shoot in his hand, he should plant it.
In yet another hadith report, Abu Barzah once asked the Prophet: “Teach me something so that I may derive benefit from it.”
He said, “Remove the trash away from the walkways of the Muslims.”
Muslim leaders, such as the first caliph Abu Baker, advised their troops that when engaged in war with the enemy forces, they must not chop down trees nor destroy agriculture, nor kill an animal, unless it be for essential human needs.
In another hadith, the Prophet has also said that anyone who “kills a sparrow in vain, God Almighty will take him to task for it in the Day of Judgment.”
Islamic teachings are also emphatic on cleanliness in both personal hygiene and the enhancement of beauty. With regard to the former, the Quran says that “God loves those who insist on cleanliness — al-mutatahhirin (al-Baqarah, 2:222), and the latter is the subject of a renowned hadith, which declares succinctly that “cleanliness is one half of the faith”.
One can elaborate further, but even from what has been said, it is clear that sustainability, moderation, and cleanliness are entrenched in Islamic teachings and are integral to the faith of the believers. Rich and resourceful as these sources are, yet many aspects of these teachings are being neglected in the personal behaviour, speech and lifestyles of Muslims generally, to which Malaysia is also not an exception.
Published in: New Straits Times, Friday 25 May 2018
AL-AZHAR is the oldest and largest institution of higher learning in the Islamic world with over half a million students and 15,000 staff. It is internally diverse with currents of opinion that represent the purist, modernist, and liberalist camps on Islam. Al-Azhar’s towering figures of modernism and reform have opposed liberalist hermeneutics and their positions on many other issues of concern to Islam. The success of modernism within al-Azhar is due partly to its pragmatism and moderation.
Following Egypt’s 2011 revolution that brought former Egyptian president Mohamed Morsi to power, al-Azhar asserted its influence with renewed vigour. The Shaykh of al-Azhar, Ahmad al-Tayyib, opposed the purists, calling them “modern day Kharijites,” a reference to a violent group that was responsible for much bloodshed in the early years of Islam.
He also severely criticised the attacks in March and April 2011 against shrines, and blamed the purist Salafi elements for them.
Al-Azhar also took a modernist stance in the debates on Islam and state in Egypt. In June 20, 2011 document entitled Wathiqat al-Azhar Hawla Mustaqbal Misr — al-Azhar’s document about the future of Egypt — al-Azhar leadership advocated moderation in Islamic thought (al-fikr al-Islami al-wasati) that drew inspiration from famous Azharite reformers, including Hasan al-‘Attar, Rifa‘a al-Tahtawi, Muhammad ‘Abduh, Mahmud Shaltut, Yusuf al-Qaradawi and others. The document also pays tribute to non-Azharite Egyptian intellectuals, philosophers, lawyers, and artists who contributed to the evolution of Egypt and the Arab world. On the relationship between Islam and state, the document calls for the establishment of a modern state (dawlah ‘asriyyah), democratic transformation (al-tahawwul al-dimuqrati), prevention of extremism (ghuluw), misinterpretation (su’ al-tafsir), and deviationist currents (at-tayyarat al-munharifah) that rely on sectarian and immoderate religious rhetoric.
The document is supportive of a constitutional democratic state that guarantees the separation of powers, and grants the people’s representatives the right to legislate in accordance with the precepts of “true Islam,” a religion that has never throughout its history experienced a theocratic state. The document supports the decisions of an elected legislature but adds “provided that the general principles of Islamic syariah are the main source of legislation.”
Many purist leaders called for changing “general principles” to the “rulings (ahkam) of Islamic syariah,” as they argued that general principles can refer to general values such as equality and justice in a way to avoid instituting Islamic substantive law. The Supreme Constitutional Court (SCC) ruled that the state should only uphold rules that are considered apodictic with respect to both authenticity and meaning. The document’s signatories also agreed that “Islamic principles” refer to “a number of comprehensive concepts, derived from syariah texts that are apodictic in their authenticity and meaning.”
After the revolution, the Muslim Brotherhood (MB) and Salafis controlled over 70 per cent of the People’s Assembly. When an issue arose over the validity of khul’ (divorce), the Assembly consulted al-Azhar on the matter, and al-Azhar took the view the khul’ law was fully in accordance with the syariah. The khul’ law which empowers the wife to initiate a divorce, clearly represents a modernist approach to women’s divorce rights.
Because of these developments, as well as the university’s efforts in countering purist rhetoric, al-Azhar has been seen as the voice of moderation. Even Egyptian Christians, who were concerned about their freedoms in a state dominated by political Islam, have largely considered al-Azhar as the voice of moderate Islam.
After the (now defunct) revolution, Ahmad al-Tayyib wasted no time to draft a new bill to amend a 1961 Law which empowered Egypt’s President to appoint the rector of al-Azhar. The bill was passed into law in 2012 guaranteeing al-Azhar’s independence, as well as reviving the Supreme Council of Ulama’ (SCU) (Hay’t Kibar al-Ulama’ — that was abolished by Nasser in 1961. The 2012 law stipulates that SCU members must be drawn from the four Sunni mazhabs, just as they were also charged with electing the Rector of al-Azhar. This reference to the four mazhabs clearly excluded the liberalist doctrines and positions on mazhabs.
Al-Azhar’s role as a source of guidance on matters of syariah appeared in Article (4) of Egypt’s 2012 Constitution, which stated that “the opinion of al-Azhar’s Supreme Council of Ulama’ must be taken in matters related to Islamic syariah.” Commentators raised questions, however, as to whether this was binding or optional. Al-Azhar’s gain in this respect was consequently short-lived, as the 2014 Constitution removed this article altogether.
Mahmoud Azab, Professor of Islamic Civilisation at Sorbonne University in Paris, explained that since Ahmad al-Tayyib was inaugurated in April 2010, he revamped the curricula taught at al-Azhar higher education institutions that are crucial to the religious society in Egypt.
Al-Tayeb also established Bayt al-‘Aela al- Misriyyah, an institution that brings together sheikhs from Al-Azhar, prominent church clerics and civil servants to reform, discipline and refine religious discourse from extremists and solve the issues related to sectarian strife before they occur.
Amr Ezzat, an Egyptian researcher on freedom of expression commented: “Simply put, al-Azhar is not a fan of extremists; its sheikhs pass through screening to ensure they were not affiliated with the Brotherhood or Salafis. That’s why al-Azhar’s leaders mostly belong to a wasati school of thought different from that of political Islam.
The writer, Mohammad Hashim Kamali is the founding CEO of the International Institute of Advanced Islamic Studies (IAIS) Malaysia.
Published in: New Straits Times, Friday 02 March 2018