[Reader-list] "Fatwa against state" - Dr SN Gilani comments on Maulvi Umar Farooq

[Kshmendra Kaul]

THE DAILY RISING KASHMIR
Wednesday, December 17, 2008 (Srinagar)
 
"Fatwa against state"
 
 ( There is a need to understand who can issue a Fatwa, under what conditions and what does fatwa mean per se. Dr. Syed Nazir Gilani responds to the statement of Mirwaiz Umar Farooq to issue a fatwa against state government over imposing restrictions on offering Friday prayers at Jamia Masjid for past six weeks)
 
On 12 December, 2008 it was for the sixth consecutive Friday that people couldn't offer prayers at Jamia Masjid, in Srinagar, due to the restrictions.  Have the authorities in the State failed to provide a habitat which does not interfere in the freedom of religion? This is an important question. 

Have the members of Indian Security Forces which have entered the territories of the State on 27 October 1947 to perform three stipulated tasks namely to protect 'life', 'honour' and 'property' and act in aid of the state forces, dutifully performed their job or have drifted away from the contractual obligations ? This is another important question.

Mirwaiz Umar Farooq, on 28 November had threatened to issue a Fatwa against the authorities for this interference in the freedom of religion. On 12 December he has repeated that Ulemas (scholars of classical religious sciences) here were planning to issue a fatwa (formal opinion) against the state government to protest against the 'religious repression'. What are the merits of this Fatwa? This is another important question and begs an unbiased and well informed judgment.

In the early days of Islam, Fatawa (Plural of fatwa) were pronounced by distinguished scholars to provide guidance to other scholars, judges and citizens on how subtle points of Islamic law should be understood, interpreted or applied. There were strict rules on who is eligible to issue a valid fatwa and who could not, as well as on the conditions the fatwa must satisfy to be valid.

A pope also issues a Papal bull or charter. It is named after the bulla that was appended to the end to authenticate it.

According to the usul al-fiqh (principles of jurisprudence), the fatwa must meet the following conditions in order to be valid:

The fatwa is in line with relevant legal proofs, deduced from Qur'anic verses and Ahadith (prophetic sayings and traditions); provided the Hadith was not later abrogated by the prophet. 

It is issued by a person (or a Board) having due knowledge and sincerity of heart; 

It is free from individual opportunism, and not depending on political servitude; 

It is adequate with the needs of the contemporary world. 

Mirwaiz is well learned as compared to a majority of religious scholars in Srinagar. However, his scholarship is not of the caliber that can qualify for being a jurist satisfying a number of qualifications and trained in the techniques of ijtihad (personal reasoning) the fourth source of Islamic law after the Qur’an, the Prophet’s sunna, and ijma, or consensus, to issue a legal opinion or interpretation of an established law. 

He does not have the comparative study of other religions. As a Muslim and as a citizen of Jammu and Kashmir he has every right to practice his religion. It is not a Srinagar based Muslim who has to defend the freedom of his religion but it is a civic obligation of every other religious or non religious citizen of Kashmir that they defend the freedom of a Muslim to offer Friday prayers freely at Jamia and other mosques.

A mosque is an institution of every Muslim and the mosque of the Prophet (peace and blessings be upon him) was open for everybody, men and women, old and young, Arab and non-Arab. Mosque has to be a democratic institution and it should not be held as a private property.

There is a serious cause to invoke the freedom of religion guaranteed under the Indian Constitution and invoke the terms of Instrument of Accession and challenge the state authorities and the Security Forces for imposing restrictions on 'prayers' at the Jamia mosque in Srinagar.

However, Mirwaiz, before he decides to use the weapon of Fatwa, shall have to convince every common Muslim in Srinagar, that genuine religious performance has been hindered by the State.  Many may dispute the question of his highest knowledge of Quran and Sunnah, piety and integrity.

Even if one cascaded down the test scale and gives him the benefit of doubt, he shall still need to prove that he satisfies the four basic conditions before announcing a 'Fatwa'. Out of the four conditions to make a 'Fatwa' valid condition (2) that is, "It is issued by a person (or a board) having due knowledge and sincerity of heart;" and condition (3) that is, "It is free from individual opportunism, and not depending on political servitude;" are non-compromisable. 

Mirwaiz is chairman of a faction of Hurriyat (APHC) and this makes him a person of prescribed political faith which is in conflict if not at war with many other political opinions in Kashmir. He heads Kashmir Coordination Committee (KCC) and is also Chairman of Jammu Kashmir Mutahid-e-Majlis Ulema (MMU). As Chairman of United APHC he failed to secure the faith of the non Muslims (Kashmiri Pandits) in the harmless and pro Kashmiri interest of his alliance.

The heavy political interests of Mirwaiz in APHC attract his disqualification for a valid Fatwa under the third most important condition, that is, "It is free from individual opportunism, and not depending on political servitude;" As a Muslim his views on the state attack on Lal Masjid, its innocent inmates, including men, women, and minor children cause a serious hump in his 'piety and integrity'. His grave like silence on the movement of civil society institutions for the independence of judiciary and rule of law in Pakistan and non concern for the rights of the citizens of Jammu and Kashmir in Azad Kashmir and Gilgit and Baltistan also lower the score of credit in his 'piety and integrity'. 

Moreover, the four sunni schools of Islamic jurisprudence namely Hanafi, Maliki,  Shafi'i  and Hanbali and the Ja'fari school of Islamic jurisprudence may not all agree on the question of his highest knowledge of Quran and Sunnah, piety and integrity. There are equally valid and unerasable questions marked on the history of his inherited political credentials. It has remained, at times, at a distance from the best interests of the people and their mood. 

Peoples 'Fatwa' needs to be enforced against the state authorities and others through the invocation of the guarantees enshrined in the Constitution and in line with the three stipulations of the Instrument of Accession. To seek a relief under the Instrument of Accession in no way means that it would prejudice the merits of the right of self-determination. After all our detained leaders seek a relief under the freedoms guaranteed in the Constitution of India and all their travel documents are issued in accordance with the spirit of the laws and the Constitution of India. However, for any consideration to issue a religious 'Fatwa' Mirwaiz shall have to resign from his multiple political interests and wait to qualify on the four conditions which make a 'Fatwa' valid.  

Maulana Mehmood Madani, president of the Jamaat-e-Ulema-e-Hind has said "In Sunni Islam, a fatwa is nothing more than an opinion. It is just a view of a mufti and is not binding in India." There is a binding rule that saves the fatwa pronouncements from creating judicial havoc, whether within a Muslim country or at the level of the Islamic world in general: it is unanimously agreed that a fatwā is only binding on its author. This was underlined by Sheikh Abdul Mohsen Al-Obeikan, vice-minister of Justice of Saudi Arabia, in an interview with the Arabic daily "Asharq al awsat", as recently as on July 9, 2006, in a discussion of the legal value of a fatwā by the Islamic Fiqh Academy (IFA) on the subject of misyar marriage (Nikah Misyar or "travellers' marriage").

Defense of freedom of religion is a common responsibility of all citizens of the state of Jammu and Kashmir and making sure that the instrument of 'Fatwa' is not used for non religious purposes is a binding duty of every Muslim in the habitat. 


Author is London based Secretary General of JKCHR – NGO in Special Consultative Status with the United Nations.  Email

 \n 
 dr-nazirgilani at jkchr.com

 
 
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