Sources of Islamic law

The Holy Quran is undoubtedly the basic and primary source of Islamic law. Next in the order of importance are the traditions of the Prophet (peace be upon him). Most of the Quranic injunctions and admonitions can be correctly understood only when they are viewed in the light of what the Prophet said or what he did in the situation to which the injunction or admonition pertains.

In addition, the Prophet also provided guidance to the people in all such cases where the Quran was silent.

The third source of Islamic law is Ijma which means consensus of opinions of those who are well known for their piety and are well versed in the subject. This particular course was frequently resorted to by Hazrat Abu Bakr, who, while deciding on an issue, had to first refer to the Quran. Not finding any solution therein, he used to take recourse to the traditions of the Prophet.

If there was no precedent in the traditions he would then consult his companions and the issue used to be decided by consensus. The Quran specifically advised the Prophet to consult his companions in the conduct of affairs (3:159). It also treats those who do their work through consultation as the people being rightly guided (42:38).

The fourth source of Islamic law is Ijtihad which means the use of one's judgment or common sense while deciding an issue. When the Prophet appointed Muaad bin Jabal as the governor of Yemen, he asked him how would he decide various issues that might be brought before him for adjudication. Jabal replied that he would decide them in the light of what the Quran said in regard to the matters at issue.

Then the Prophet asked him what would he do if he couldn't find the appropriate solution or answer in the Quran. Jabal said that he would refer to the traditions of the Prophet. The Prophet again asked him what he would do if he couldn't find any answer or solution in the traditions. Jabal replied that he will use his own judgment which was approved by the Prophet.

Thus, the use of Ijtihad which was sanctioned by the Prophet became another source of Islamic law. And it was this particular source that played a vital role in the evolution and development of Islamic jurisprudence. Recourse to this source was unfortunately discontinued after the 11th century A.D. It may also be pointed out that the Quran too emphasizes the use of intelligence and common sense whether it be in matters of faith or otherwise (67:10).

The fifth source, popularly known as Qiyas i.e. reasoning by analogy, originated in the days of Hazrat Umar as caliph. The caliph, while instructing Abu Musa Ashaari about the procedure he had to follow while deciding various issues that might be brought before him, directed "when you do not find any judgment or issue in the Quran or traditions and are in doubt about it, ponder over the question and ponder again.

Then look for edicts on similar issues and decide accordingly." This obviously implied generalization of a particular dictum on the basis of community of features. In other words, the decision or ruling already given on an issue had to be followed in giving decisions on all issues having the same features coming up for decision thereafter.

The practice of citation of case law in the present day judicial proceedings is based exactly on the same principle. A decision given by a superior court in one case is followed by the lower courts in all subsequent cases involving the same issues arising out of similar facts under the same law. Qiyas, it may be added, is not the same thing as Ijtihad, one can take recourse to Ijtihad without there being any edict on the like or similar issue.

The Quran is the last book of guidance from Allah. We cannot expect any more divine guidance to come. It is also a fact that the Quran is a complete code of life, providing guidance in respect of every aspect of life. This guidance is, however, provided through injunctions, admonitions and enunciation of principles, mostly in broad terms. This is so because human society is not a static entity or object.

Human society has undergone radical changes in a short span of time. That's why most of the guidance provided to human beings is not so specific or minute in details. Neither the Quran nor the traditions provide specific solutions to all the problems and issues that can possibly confront us in life. That's why the Prophet asked Muaad bin Jabal about what he would do if he couldn't find any solution to an issue in the Quran or in traditions.

We cannot avoid changes specially those occurring in various aspects of socio-economic life. The Quran rather supports continuous improvement and progress in the right direction (2:148) (13:11) (20:114). Nor can we bypass or cross the limits imposed by the Quran and traditions in the form of principles and guidelines. But at the same time, the Quran and traditions provide enough guidance in this regard (29:69).

With the aid of Ijma, Ijtihad and Qiyas we can suitably adjust our responses to such changes or work out solutions to the new problems within the parameters laid down by the Quran and he traditions. For example, Hazrat Umar changed the rate of Jizyah when the circumstances so demanded. Likewise, we cannot abolish zakat or change its rate but we can regulate or reformulate the methods of its collection and spending within the limits of the guidelines provided by the Quran and tradition.

It is time we started taking recourse to the two important sources of Islamic law, namely, Ijma and Ijtihad wherever practicable. The principles of Qiyas are already being followed in the judicial proceedings. But we need recourse to Ijma and Ijtihad to resolve issues mostly on which there is no consensus such as the social rights of men and women in the changed situation, interest-free banking system, consent marriage, rajam and divorce through three pronouncements, etc. If we go on keeping these issues unresolved for an indefinite period, the chances are that the very claim that the Quran is a complete code of life may be challenged by its own followers.

Thus, Ijma, Ijtihad and Qiyas are the most useful sources of Islamic law, which, if properly utilized, can meet the requirements of relevant situations at all times. Ijma, however, does not mean mere expression of several opinions in unison, nor Ijtihad implies mere exercise of discretion or an emotional or whimsical decision.

Ijma implies the agreement of persons of piety and learning over an issue after thoroughly examining the pros and cons of the matter in the light of Divine guidance. Likewise, Ijtihad implies exercise of judgment based on careful consideration of all the aspects and the pros and cons of the issue in the light of relevant guidance, and the use of reasoning and common sense while arriving at the conclusion.

While taking recourse to Ijtihad in regard to certain social rights and obligations of men and women, the Quranic guidance such as guarding of modesty (33:35) avoiding indecency (42:37) avoiding excesses (5:87), maintaining balance (55:8), observing the principles of moderation (2:143) and not with-holding from others things that are due to them (11:85) cannot be ignored.

Some people are of the view that persons capable of exercising Ijtihad are no longer available and this probably could be the main reason for discontinuance of recourse to Ijtihad. But the fact remains that Muaad bin Jabal who was allowed by the Prophet to exercise Ijtihad was a young, though learned and well informed, person from Khazraj tribe.

Destroying Pitcairn

"We had to destroy the village in order to save it," as some US officer allegedly said during the Vietnam War. British justice is now about to do the same thing to the Pitcairn Islanders.

In an attempt to avert that outcome, defence lawyer Paul Dacre recently told the 'Pitcairn Island Supreme Court', sitting in Wellington, New Zealand, that it had no jurisdiction over the 47 people who live on the world's most remote inhabited island. They were, he claimed, effectively a sovereign community, because the mutineers of HMS Bounty who settled the South Pacific island in 1790 had severed their ties to Britain when they burned the ship and hid themselves on Pitcairn to escape the wrath of the British navy.

Dacre wrapped it up in legal language - "The Pitcairn community remains a self-governing community, a community which can exercise its own sovereignty over itself and...has a set of rules and regulations which cover the situation which allegedly occurred on the island" - but his plea is a desperation measure that is bound to fail, since Britain has actually governed the island for many generations. However, the situation' is truly desperate: about half the adult men of this 'sovereign community' face trial before the court next year on charges of rape, indecent assault and gross indecency going back over decades.

The investigation was triggered in 1999 by a 15-year-old girl who claimed to have been raped by a visiting New Zealander. A British policewoman, Constable Gail Cox of the Kent Police, was sent to the tiny, inbred island (there are only four family names) to investigate, and gradually other girls came forward with accounts of sexual mistreatment as well. The investigation broadened, and eventually detectives spoke to every woman who had lived on Pitcairn in the past twenty years, travelling to New Zealand, Australia and Britain. Then they brought charges against thirteen men, about half of the adult male Pitcairn Islanders in the world.

The seven men who currently live and work in New Zealand have already been charged; the six who are at home will soon be extradited and brought to New Zealand. The island's women have petitioned against the men being removed from Pitcairn for trial, since without them there won't be enough able-bodied men to get the long-boats that are the only link with passing cruise-ships down the slipways into the sea and back up again. (There is no airstrip and no harbour.) If the men facing trial are all jailed, it will end the Pitcairn community's 200-year history.

With few men to do the heavy work of cutting wood, harvesting sugar-cane, and fishing for shark at home, and little money being sent back from those working in New Zealand, the island would probably have to be abandoned. On the other hand, the alleged crimes are very serious, in one case involving the abuse of a three-year-old girl, and at least some of the charges against some of the men are probably valid. Nobody would quibble if the British authorities acted this way against a gang of sexually abusive men operating in south London, but is it really the appropriate response for a tiny and unique community in the South Pacific?

To understand all is not to forgive all, but a bit of understanding rarely hurts. This is a community descended from the original nine mutineers who set Captain Bligh and the loyal members of HMS Bounty's crew adrift in a lifeboat.-Copyright

Serious lapses of security

It is amazing indeed that within one fortnight of December there have been two abortive attempts on the life of General Musharraf - and that both these incidents have more or less taken place in the same area of Rawalpindi that is in the recently constructed Ammar Chowk which historically happens to be part of an old neighbourhood called Jhanda Chichi.

This whole area is situated in the very heart of the cantonment area which is also the inner sanctum of the Pakistan Army as well as of the Pakistan Air Force.

For reasons of location it has given rise to a lot of speculation both in Pakistan and abroad as to how could such serious security lapses occur in what is otherwise considered an ultra-secure and highly militarized area.

Rawalpindi district consists of two parts - the civilian municipal area which adjoins Islamabad (the Federal area) and the Islamabad airport (whose original name was Chaklala airport) and which lies within the municipal limits of Rawalpindi and is therefore Punjab territory having been acquired for defence uses by the air force as a military airfield before independence.

The cantonment area of Rawalpindi lies between the municipal areas and the rural area which is the jurisdiction of the Rawalpindi district council. The entire area is studded with military and air force installations. There are several military workshops situated in the area. There is the location of the headquarters of the 10th corps, then there is the MES detachment, and the location of the famous 111 brigade and the headquarters of the joint chiefs' secretariat.

Since Islamabad Airport is quite close to this vicinity, over the years the roads in this area have become very busy thoroughfares. Once upon a time the headquarters of PTV was also located in the area till it shifted to Islamabad. There is a great deal of movement of vehicles and public making it quite difficult to organize security in the area.

But organizing security nonetheless is an absolutely essential prerequisite for any district administration with the sort of VIPs and other movements which can of course be regulated but not stopped. The question naturally arises as to whether or not the general's security was up to the mark.

Having served as deputy commissioner of Rawalpindi in the early seventies(1970 to 1972) I can recount a few elements that go towards developing a neat and effective package of security for the VIPs and particularly for a head of state. In those days we had the unenviable task of providing security cover for General Yahya Khan in his capacity as President of Pakistan.

The East Pakistan crisis was gathering momentum and his government was becoming increasingly controversial in its handling of the political crisis that had arisen after the general elections of 1970. The only thing that took us through in those times without a serious incident of the sort that has happened in the current month was that we were part of an administration that was extremely compact and which maintained a very high state of alert.

We worked under the commissioner of Rawalpindi Division, Mirza Rafiq Inayat, who was a source of mature advice. The DIG Police was Mirza Abbas, a most outstanding police officer I ever had the opportunity of working with. The Senior Superintendent of Police was Malik Mohammad Nawaz another superb police officer with a very high integrity record coupled with great efficiency and goodness.

During this time it was the foremost duty of the civil administration individually as well as collectively to provide 100 per cent security to the president and all other VIPs mentioned in the Blue Book relating to security matters. What did the civil administration consist of? The essential elements were the commissioner, the DIG police, the deputy commissioner, and the senior superintendent police.

It indeed was a team with a lot of team spirit and with built-in checks and balances. When trouble started from Lahore in 1971 with the landing and burning of an Indian Fokker aircraft the DIG, the SSP and I spent several months quelling the student trouble.

What is the civil administration today? The commissioner and the deputy commissioner have been swept out of office into oblivion and there is a raw and inexperienced nazim in his place whom the police do not even take seriously. On the civil side we still have a remnant of the deputy commissioner who is called the DCO and is supposed to coordinate everything except law and order in the district.

We used to cover everything - bridges, roads, lanes, even houses and other buildings that were considered to be suspect. If anything went wrong it was not only the provincial government in Lahore and the President's House in Rawalpindi but also the GHQ that used to be breathing down our necks.

In troubled times it is extremely important to draw the right conclusions. There are obvious advantages in adopting the path of pragmatism. There can be wisdom even in adopting the trial and error route. Yes there is the need for checks and balances and the foursome devised by the practical and pragmatic British in the form of the Commissioner, the DIG police, the deputy commissioner and the superintendent of police were together the checks and the balances on each other that gave the government all the options and the spot information that produced good governance.

Ever since the district magistrate was withdrawn from the field administration, things have been going wrong in the districts of Pakistan. There have been a series of incidents of ghastly proportions throughout the length and breadth of the country. There was that carnage in Quetta some months ago at a centrally located Imambargah. There was the holocaust in Sialkot jail not long ago where the police opened fire on unarmed judges and prisoners without committing contempt of court.

But the Rawalpindi incidents of December 14 and 25 are indeed the last straw on the camel's back. It is about time things were corrected.