The Openly Stated Aim of the Muslim Marriages Bill – To Reform the Shari’ah
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The Openly Stated Aim of the Muslim Marriages Bill – To Reform the Shari’ah
To claim that the proposed Muslim Marriages Bill has a hidden agenda is incorrect. Agenda Yes. Hidden – well not so hidden. In fact the modernist lobby are explicitly clear about the aims they wish to achieve via the Bill.
The brief given to some of the Project Committee members can be gauged from the following.
South African Muslim women striving towards a goal of gender equality should actively involve themselves in the process of refashioning Islamic law within the new constitutional dispensation. It is important that they participate in the South African Law Commission’s investigation into Islamic marriages and related matters in order to ensure that their equality rights are in no way compromised in favour of religious and cultural freedoms and rights. In doing so they must ensure that they are actively involved in all legislation concerning religious custom and usage. Only then will they be in a position to ensure substantive equality between Muslim men and women. (Gender Equality and Religious Family Laws in South Africa – Christa Rautenbach.)
As it will be seen below, they have attempted to diligently carry out this mission of “refashioning” Shariah.
The following are quotes from or about Prof. Najma Moosa, member of the Project Committee. Introducing Najma Moosa, and quoting her, Bibi Dhansay writes:
Instead she became an academic lawyer, schooled in secular law, but specializing in an area of Islamic law called Muslim Personal Law, "an area which has and continues to be manipulated by male theologians much to the detriment of Muslim women".
It is clear that she views the Ulama to be guilty of manipulation, and that this is to detriment of Muslim women.
"The Law Commission Project has been a major event that I have participated on behalf of the Muslim community. It will impact greatly on the lives of Muslims in South Africa with regard to the recognition of Muslim marriages. I am participating to make sure that Muslim women's interests are being protected".
Her objective for being part of the Commission is evident. What about Muslim men’s interests?
"Living in South Africa, which is a secular state, my faith does not impact on my leadership role. The fact that I am a Muslim woman does not mean that I can't be the Dean of a Law School. If I had to be taking a leadership role in religion, yes, I may have had difficulties".
Can there ever be a sphere of a Muslim’s life on which one’s faith does not impact? When being the Dean of a Law School, in practical terms, involves many evils, then certainly the fact that she is a Muslim prevents her from this position.
Introducing her, Bibi Dhansay writes:
Moosa is concerned about the youth and has written this book with them in mind, "whether we realize it or not, we are already losing our youth. The (present) religion is too difficult and restrictive for them to follow". Women must not be afraid of the word "change", says Moosa. "They must not be afraid to assert themselves. Religion was never intended to be a burden, but a joy. We must celebrate our religion and our faith. Respect yourself as a woman".
Islam is too difficult, is a burden, and has to change to the times!
"You have to live your religion in a way that it makes sense to you. You can be a believer. You can be a follower of Islam, but then you can JUST be a follower. You must have the courage to live what you believe in. I cannot believe in something, which does not makes sense to me. If it is questionable, I must be able to find the answers to it"
Imaan entails unquestionable belief in all the teachings of the Messenger of Allah, Sallallahu alayhi wa sallam, whether out feeble minds understand them or not.
“While this point is debatable, Islam allows a man to marry up to four wives.”
To refer to an issue emphatically mentioned and encouraged in the Qur’aan as “debatable” is to put one’s Imaan in danger.
Writing about Najma, Bibi Dhansay strangely states:
“She has a daughter who is also a Muslim.”
This begs the question why she is introduced with the surname “Vista”
“Muslim women are particularly disadvantaged by non-recognition because they have no recourse to the law of the land and are subject to the jurisdiction of an unsympathetic informal judiciary manned by religious authorities”
The Ulama are unsympathetic to women.
“These are but first steps towards the full recognition of a reformed MPL as provided for in the Constitution.”
The reformed version of Shari’ah is provided for in the Constitution!
Of particular note are the words “first steps”. The Bill is just the first step. If the Bill is enacted and becomes law, the ideal stage would be set for further “reforms” of the Deen of Allah Azza wa Jalla. The control of the Act would then be in the hands of the Courts who are bound to develop the Act in order to “promote the spirit, purport and objectives of the Bill of Rights”. Concessions are being made in order to get the Bill passed. Once this is achieved, the Bill is out of the hands of the public, with all control handed over to the Courts. In order to see that the public bite the bait, and the noose of the snare fits neatly around the neck, the Bill is even softened in favour to the clergy to win their support. Once done, they could be dispensed with.
“Although as yet unrecognised in South African law, MPL would need to be reformed in line with constitutional provisions, including equality, once it is so recognised. The right to have MPL recognised is therefore not constitutionalised. MPL therefore needs to be reformed before it will be officially recognised. Muslim women in South Africa suffer from various discriminatory practices with regard to religious divorce to which they are often denied access and/or are ignorant of their Islamic rights in this regard.”
Shari'ah will have to be first moulded to fit in with the Constitution.
“Islamic law (Shari’a) is the conservative interpretation and application of the primary sources of Islam by early Muslim jurists like Abu Hanifa and Imam Shafi (founding fathers of the major Sunni (traditionalist) schools of law named after them). My research highlights the fact that the Islamic law of divorce is a complex matter, posing severe legal, financial, social and emotional problems. It is especially difficult to analyse the concept of talaq. Considerable differences of opinion between Sunni schools of Islamic law, between approaches of conservative and modernist scholars and between legislation in Muslim countries on divorce (sometimes at variance with primary sources of Islam) highlight the extent of this difficulty. However, a closer study of the subject reveals that the basis for a rational, realistic and contemporary law of divorce can be found in the primary sources. I contend, however, that the limitations imposed by the primary sources of Islam on the husband’s unilateral right of divorce (which limitations include a disapproval of the innovated triple divorce and the introduction of the dower, maintenance and iddat) provide only limited checks on the husband’s powers. This has placed Muslim countries under pressure to introduce reforms to safeguard the rights of the wife and to ensure a real opportunity for reconciliation.”
A call to shift away from the matha-hib, to consider “modernist scholars” as opposed to “conservative” ones, and a repeated call to “introduce reforms”.
“Islam introduced a waiting period called iddat which starts after ‘divorce’ has first been pronounced. Briefly then, this period is variable and the divorce becomes effective only once the iddat has been completed. Maintenance (nafaqa) is limited to the iddat period. The whole question as to whether maintenance should be extended to the period beyond iddat is subject to interpretation. The Koran, however, while making maintenance for divorcées compulsory, does not limit it to the iddat period nor does it stipulate any quantum which should serve as a cut-off point.”
The immutable laws of the Shari’ah are open to “interpretation”.
“Islam in the seventh century provided the Arabian community with numerous improvements with regard to the rights of women. With time, however, these improvements were curtailed. There is thus a distinction between Islam and later traditional interpretations thereof, namely Islamic law.”
A distinction between Islam and Islamic Law! What a shame, the Ummah is following Islamic Law and not Islam. Perhaps she would enlighten us about true Islam.
“While Islam does not provide women with equal rights to initiate a divorce, as I have said, it nevertheless provides them with equitable rights. Furthermore (arbitrary) divorce, although permitted, is frowned upon. I therefore contend that this imbalance as far as any restraints on ending a marriage is concerned should be rectified in order to reflect this equity in considering any MPL legislation in South Africa in this regard.”
Does anyone want to guess why the Project Committee’s draft Bill gives the wife a unilateral right to divorce her husband?
“Although this principle of ‘irretrievable breakdown’ is not foreign to Islamic law, local Muslims regard it as less stringent in its application and therefore it cannot serve as a substitute for the Islamic law of divorce. Furthermore, in addition to judicial dissolution, Islamic law recognises several extra-judicial forms of dissolution. Generally in South Africa conservative religious authorities (Ulama) currently regulate and administer MPL.”
The fact that Ulama regulate issues of Shari’ah is objectionable to her. Ulama have unanimously rejected ‘irretrievable breakdown’ as a grounds of annulment, but she says it is not foreign to Islamic Law. Had she forgotten that Islamic Law, according to her, is something different from Islam?
Najma Moosa had written a thesis entitled: An Analysis of the Human Rights and gender Consequences of the new South African Constitution and Bill of Rights with Regard to the Recognition and Implementation of Muslim Personal Law (MPL). We were unable to obtain a copy, but are sure it would make interesting read to understand where the Bill is coming from. Commenting on the thesis, Lourens du Plessis writes:
“(She) concludes that the recognition of, for instance, Muslim Personal Law subject to the Constitution is feasible, both theologically and from a human rights point of view, on the strength of the particular understanding of the teachings of Islam which she proposes.”
(The future of South Africa: Perspectives of Integrating Different Cultures --Means of Law, Lourens du Plessis)
Here are some quotes from Ms. Farida Mahomed, also a member of the Committee.
“Presently, Muslim marriages are supervised by informal patriarchal judiciaries such as the Transvaal and Natal Jamiat al-Ulama, Sunni Jamiat al-Ulama, Muslim Judicial Council (Cape Town), and the Islamic Council of South Africa. The clergy applies Islamic
Law that dates back to the 9th century schools of thought namely, Hanafi and Shafi’. Modern scholars argue that the moral and ethical intent of Islam supports egalitarianism and social justice. Yet, as laws are dynamic, the origins of these laws bear traces of misogyny [hatred of women] and patriarchy [male domination in the family].” (Words in brackets are ours)
The Ulama and the matha-hib are backward, and the Qur’aan teaches hatred of women.
“In conclusion, Committee members are constantly alerted to the fact that the Constitution is the supreme law of the Republic, and will continue to debate the issues bearing in mind that the challenge for the recognition of aspects of MPL is to ensure that there is compatibility of such legislation with the Bill of Rights, particularly the equality clause.”
According to her the Constitution has superiority over all other charters, including the Qur’aan, and therefore Shari’ah has to be reshaped to fit in with the Constitution.
“…the male dominated clergy interpret the text according to their own understanding.”
The Ulama are guilty of distorting the true teachings of Islam. The whole Muslim world is in misguidance, save a few modernists who understand the true Islam!
“Yet, many debates conclude that considering socio-economic circumstances of society, traditional laws must be reformed, because unreformed laws would further enslave women to the whims and fancies of patriarchal interpretations of antiquated laws.”
Once again, a call to reform the Shari’ah.
These few brief quotes should serve as a sufficient eye-opener as to the real objective of the Muslim Marriages Bill.
May Allah Ta’ala save the Ummah from those who see a need to reform His Shari'ah.
Sources:
- http://www.derebus.org.za/archives/1999Oct/articles/muslim.htm
- www.uct.ac.za/depts/lrgru/equapaps/rauten.pdf
- www.wcrp.org/RforP/womens%20program/Profiles/women_profiles_moosa.html
- www.uct.ac.za/depts/lrgru/newslets/2001-may/islamic.htm
E I Vawda
Durban 26 Muharram 1432 1 January 2011
