Federal Shari’ah Court of Pakistan: Land Reforms, Interest (Riba’) & Islamic Banking

[These are rough notes from the second day’s morning session of Historical, Intellectual and Spiritual Approaches to Islam conducted by Shaykh Kamaluddin Ahmed (db) in Karachi, during Jan, 2017]


Let’s see what the output of a Jurist ‘alim was because Mufti Taqi Usmani (db) got 22 years of case writing. I should also tell you, so you don’t think it’s too much, there are a very few cases that have gone to the Federal Shari’ah Court, and there are very few of those that appealed in front of the Shari’ah Appellate Bench. If there was a regular Judge, 22 years would mean a whole encyclopedia of cases, but, because we are talking about the Shari’ah Court, they were very few, and even less in the Shari’ah Appellate Bench. He lives in Karachi, teaches here, he would just have to occasionally go to Islamabad because the number of cases in those 20 years that came in front in his record were very few. But still, over 20 years, it makes a few volumes and it’s a very fascinating and interesting read, but at times can be very technical.

Land Reforms

Land Reform is a concept. From a purely Secular and Social Science perspective, Land Reform has been viewed in Political Science, Economics, Public Policy and Development Studies as something that’s good. If you look at the history everywhere in the world, even in Western Europe, for many centuries in the middle ages or in the medieval period, it was an age of what they call Feudalism. In Feudalism, you had very few people who owned massive — I’m not saying acres, but hectares or whatever would be even beyond that — massive lands and estates. In America also these were the slave estates. The whole Trans-Atlantic Slave Trade was because you needed slaves. Why did you need so many slaves? Because you have hectares of lands in Louisiana, and you need slaves to work those lands. Whether it’s America, whether it’s Europe, whether it’s Africa, whether it’s India, whether it’s Asia; this is the global history of humanity.

The way this sorted itself out in Europe was through periods of revolutions. What happened, if I tell you a very gross simplification of your history, is that Feudalism led to Mercantilism. The Mercantile Middle Class then led these revolutions to take the political power, and overtime they were able to solve this through very violent revolutions. A lot of bloodshed and deaths took place in these revolutions. This took place much later in the Muslim world. The Muslim world may have done something similar, but before they could do that, there was colonialism. When the colonialists came in, they loved this system because they were the ultimate land owners. They wanted to own the whole country. When the colonial power comes, they basically become the land owners of the entire country that they have occupied. Therefore, they kept this system in place. It was only when colonialism ended, which coincides with World War II, so you can think 1945, then all of a sudden this becomes an issue. 1945 is way late in the game. All the other places, like America and Europe, had sorted this issue out by now.

Now I’m going to look at the Muslim world, and I’m specifically going to look at Pakistan. Here you have, what you call, the jagirdars and nawabs in Sindh. You have to go outside the city to experience this phenomenon. It’s slightly different, it has a different style; in Sindh there are a lot of land owners, same is the case in Punjab, Baluchistan and KPK. But it’s all a bit different where it takes place. Part of your political system is because of that. The reason, and if there are any PPP supporters here I’m not commenting on that, but PPP’s vote-base is feudal serfs and slaves, basically modern type slaves, who work the lands. They will always vote for the candidate the land owner tells them to vote for. That’s why PPP in Sindh is going to go on forever.

Another very interesting thing is that in other countries many times the land reforms were carried out by the military because those militaries were professional militaries which had no landed interests. The Pakistani military is also in the land game and they also have deep landed interests, so that couldn’t happen here. Otherwise, because you need to do land reform so late in the day, you need a very strong man, almost like a dictatorial rule, so General Musharraf could have done this in his time. But of course he didn’t do it because either he himself or his other buddy-generals who propped him up into power were all big land owners. So he is not going to take on this big power group because he needs their support to remain the Chief Executive.

But what did happen in Pakistan in 1959, General Ayub Khan began this process of Land reforms — this is, at least in terms of intentions, probably one of the better things, Allahu Alam. Then in 1972, again under martial law, he promulgated this thing called the Land Reform Regulation and in 1977 that became the Land Reforms Act. It has a precursor to this in the British period in 1887, which is the Punjab Tenancy Act.

What goes on in land reforms? The notion is to take away the land of the land owners. This is where the problem is going to come now. Because you want to do land redistribution. One way is to make the peasant farmers who work the lands, owners themselves. They will have small little farms that would be enough for their own and their family’s needs. There are also other ways in which governments do this.

In 1959, 2.5 million acres were claimed by the government and 0.65 of those were redistributed among farmers. The condition was that the farmers were themselves small land owners, that they themselves only had farms that were less that 12.5 acres. 0.2 million acres went to the government. If you know your statistics, if you know your maths, there’s a big discrepancy here.

  • 2.5 million acres were claimed
  • 0.65 went to the farmers
  • 0.2 government says that’s all we took
  • 1.65 was not accounted for

I tried my best, I even asked this one Economist, because I presented a paper on this once in a conference, we could not figure out where in the world the other 1.65 million acres went. Because they give out these statistics and government just reports it. There are no comments, there’s no explanation, there are no footnotes, and going back to 1959, there’s no one we could interview who would have known. But it’s just the audacity of them to even put this, I mean you are putting up false figures, anybody could read this. Allahu Aalam, but critics say that the 1.65 went to the army.

After that people started resisting land reforms, that if you are taking them from me to give them to the farmers, that’s one thing. But you took 2.5 from all of us, and you only gave 0.65 to the farmers, and the army and government took the rest. As you can imagine, people started resisting it anyway because there is nothing more dear to a Pakistani than his land.

I can tell you an anecdote about this. Once we went to go buy some land for our project in Lahore, Mahad al-Ihsan. I met this person, and literally word-for-word this is what he told me, he said zameen maa ki tarha hai, koi apni maa ko bechta hai? Literally, in English it means that land is like one’s mother, does anybody sell their own mother? What he said to me, I will never forget it, that too about selling for market-rate price. Imagine how a person like that would feel if the government says we will take it from you and give it to the poor. So you can imagine that there was a lot of resistance.

In 1972, another 1.3 million acres were claimed. In 1977, another 1.8 were claimed. Just to show you how long these cases went, and I have tried to put it slightly out of order for you, there was a family by the name of Kazi Bash [?], they claimed in 1952, that means before the Land Reforms Act by General Ayub, there’s also no way to be sure because in Pakistan documents can be forged. The online audience is stunned. I mean, I’m sorry but this is how this country is.

So in 1952, according to what they filed, they claimed that before the Land Reforms Act, we made a waqf or a Trust. So it’s not private property. It’s 1020 acres that we made into an endowment. That was the way they were arguing in their case that it should not have been taken from them because it was an endowment and that was an exception in the Act that they will not take that land that was made an endowment or a waqf or a Trust. In 1977, nonetheless, after the final thing that I told you was the Land Reforms Act, the government took their land.

  • 102 acres (10%) of their land was left with them
  • 918 acres (90%) were taken
  • 250 acres were given to the peasants
  • the rest was taken by the government

These people appealed to the Federal Shari’ah Court in February, 1979. Then the case dragged on. Mufti Taqi Usmani (db) came in 1980 and he was the one on the bench who ruled on this case. This is one of the earliest cases to come to the Federal Shari’ah Court. It was a private citizen going to the court arguing that the Land Reforms Act is against Islam. Why? Because Islam accepts private property. Islam accepts that if there is something that’s someone’s property, you cannot take it away, what’s called ghassab, you cannot usurp someone’s private property no matter how noble the intention might be. This is basically their argument.

Then there were other cases that people filed in High Court. A KPK land owner filed a case in the Peshawar High Court, and the Peshawar High Court declared, although the Peshawar High Court, strictly speaking, constitutionally, doesn’t even have the authority to decide what’s Islamic or un-Islamic. If they want to address that question, they are supposed to refer the matter to the Federal Shari’ah Court. But without referring it, they themselves declared land reforms to be un-Islamic. Then the Kazi Bash guy also made that part of his case, because that’s what we call legal precedence, that the High Court has also said that it’s un-Islamic, therefore I’m taking it to Federal Shari’ah Court, you people should say that it’s un-Islamic and therefore I get my land back. This is just to show you how this case started.

Arguments Presented by the Government

We are basically suing the government. The government made two arguments in defense of the Land Reforms Act. There are just two, I am not presenting just two of them, but they made two and only two arguments. From Islamic Law perspective, you would think the case is now in Federal Shari’ah Court, because now it’s a case of Islamic Law, the government should also bring in many verses of Qur’an, quotes from mufassireen, many ahadith, hadith commentaries, previous Jurists’ opinions and past fatwas. One verse, that’s it. Just one verse of Qur’an al-Kareem, that’s the level of the government’s ability to argue its case in the Federal Shari’ah Court, and I don’t think the government’s ability has gotten much better in the last 20-30 years.

The first reason they gave was this verse:

Indeed the Earth belongs to Allah, He should bequeath it to whom He wills from His creatures. [7:128]

That’s correct. But what does that have to do with Land Reforms Act? Allah (swt) didn’t make the Land Reforms Act, you i.e. government made the Land Reforms Act. You are supposed to defend it. Interestingly, what they were trying to say, although I don’t think they even realized this, this would be what would be called pure, classical, communist Marxism which is that there is no such thing as owning land. That’s what, strictly speaking, Marxism believes. That was the Marxist ideal that you would move to a classless society by moving to a landless society.

When Marx was writing, although it was after the Industrial Revolution, but still class was mostly based on land. His idea and his dream was to make people classless. That itself is a beautiful dream. Classless means there is equity between humanity and that’s a very Islamic concept. But he wanted to make the society, or any society that chose to be Marxist, classless by making them landless. There was no ownership allowed in private property. Don’t look at what the Soviets of the Chinese did. They are not Marxist, they are totally Capitalist, the whole world realizes that now. But just because they didn’t follow Marxism, doesn’t change what Marxism is. Just like if a Muslim doesn’t follow Islam, it doesn’t change what Islam is. Islam is what it is, even if Muslims don’t follow it. Marxism is what it is even if Chinese and Russians don’t follow it.

The reason I’m mentioning this to you is because this was the time of Zulfikar Ali Bhutto, and it enters Zia ul Haq’s time. Marxism was very much in vogue and in fashion in Karachi in intellectual circuits. The Marxists joined the government in the defense of the Land Reforms Act. Up till today, and literally there were a couple of professors from LUMS who used to and up till today hate Mufti Taqi Usmani specifically because of this ruling which I am going to show you he is about to give that the Land Reforms Act is indeed against Islam.

The second reason they gave was welfare. They tried to argue in Islamic sense of maslaha; public welfare, the public good, the greater good. So they argued with one ayah, and the concept of maslaha for the sake of public welfare.

Mufti Taqi Usmani’s Reply

First of all, he mentioned another verse:

To Allah belongs all that is in the Heavens and in the Earth. [2:284]

Are you going to do reforms of what lies in the heavens as well? Are you going to re-allot plots in samawat, just like you are claiming to re-allot plots in the ardh? So this is something else. This is referring to the dominion of Allah (swt), His absolute dominion and sovereignty over every single thing. The verse that they quoted cannot be used to negate private ownership any more than this verse can be.

Then he tried to do a reform by suggesting that they should be brought to a system of Mudarabah. It’s very long. For several pages he talks about the abuses of the Feudal class on the peasant farmers. There are so many abuses; they are paid such horrible wages, they are mistreated. All of these things should be stopped. In other words, he said that rather than take the land away from the land owner, you should criminalize their abuse of the peasant farmers and you should criminalize their economic subjugation of those peasant farmers by giving them such small compensation. And rather they should move to a Mudarabah arrangement where somebody owns the land and another person does the work, and the profit shared in ratio between the farmer and the land owner should be something that in our Shari’ah we call ma’roof, you can call it for purposes like this an economically, marketly equitable share of that profit.

But strictly speaking, the catch there, and this is why the Marxists were upset with him, is that that was just his opinion. The judgment is simply on this; is Land Reforms Act Islamic or un-Islamic? The judgement is that it is un-Islamic, and the rest of his opinion nobody followed because, to be fair also, constitutionally, that wasn’t the ambit of his case. His ruling can only carry force simply on this matter; whether Land Reforms Act is Islamic or not. That’s the only affect it has. All the other stuff he wanted would require another act. You could call it Feudal Oppression Zone Reform Act, and that would be then to make sure that the land owner doesn’t do all the mistreatment and abuse. But his own opinion doesn’t carry that enforcing power, although he wrote about it, but none of that stuff ever came into existence.

Then he mentions, because there are many ahadith, irrelevant of how much it may dismay and disappoint the Marxists, that Islam does allow private property. No doubt, that is one basic feature of Capitalism — the ownership of private property. Ownership of private property in of itself is not oppressive, remember I told you yesterday, those things that are at the level of permission may be abused. Islam will not take away the permission for that reason. For example, in the case of divorce, which we did yesterday, Allah (swt) created the permission of divorce. Of course Allah (swt) knows people will abuse and misuse that and divorce improperly, wrongly and unfairly, but that permission needs to be there.

That’s true for any system of law. When any system of law declares something legal, it doesn’t mean they are guaranteeing that the legality won’t be abused. People will abuse it, misuse it, but they will say we have no basis to declare this thing illegal. So there’s no Shar’i basis to declare ownership of private property illegal, and on the contrary, as I mentioned this to you, there’s a whole book actually and then he wrote another book on the topic, separate from his rulings. So you can read about 200-300 pages on this in Urdu, if you want. There are many ahadith that he talks about; maal in the ownership of property, in the ownership of assets; that Islam recognizes and acknowledges ownership of assets.

Then, when the government uses the welfare argument, they had tried to extract or you can even say in a way they tried to do qiyas; they tried to infer from the Islamic concept of zakat that zakat is about welfare for the poor, so we are just following the spirit of zakat when we are trying to do land reforms. His reply was that zakat doesn’t negate the ownership of the wealth. It actually only takes place when you own the wealth, and when you have owned it for one year, then you have to pay zakat. Zakat is definitely a welfare principle, but it doesn’t negate ownership of wealth.

Another thing, which is famous in Arabic, is called Muzara’a which in English is called sharecropping, and this is another very interesting debate from the very earliest debates of Islamic Jurisprudence that is Muzara’a permissible or not? Mufti Taqi Usmani’s position, and this has been the majority’s position throughout history, is that it is permissible and so he gave some of those arguments as well. It means he gave something similar, in Arabic we call this nazir; what’s the closest similar case that we can find from the lifetime of Prophet (sws) or the Khulafa-e-Rashidoon or the Salaf Saliheen? This is the order:

  • Prophet (sws)
  • Khulafa-e-Rashidoon (ra)
  • Sahaba (ra)
  • Tabi’in (rh)
  • Tabi’ Tabi’in (rh)

These are the more authoritatively precedent. So Mufti Taqi Usmani (db) found precedent for this in the time of Prophet (sws) and from Khulafa-e-Rashidoon in the time of Syedna Umar (ra) that they allowed, which is what sharecropping means, that you allow this arrangement that one party owns the land, there’s a different party that works the land and they share in the profit and produce of the product which is called the crop. This is to show you he has given a very long and detailed reply to the one verse and one principle of welfare argument presented by the government. So that was his argument and some features about his ruling. I will explain some things to you.

  1. You cannot impose limits on private ownership of any goods. For example, if a billionaire comes and he wants to buy one million acres, it’s permissible. He can do that. Again, remember permission is not the same as prescription, it’s not the same as preference, it’s not the same as recommendation, it’s not the same as obligation. Because, no doubt, other than the permission part, owning such large amounts of land is not in any way the preference of Islam, or the recommendation of Islam, and obviously not an obligation in Islam. Here, you have this principle of sadaqah, but that’s voluntary, and it has always been, you can never make it compulsory. But there are so many tax on sadaqah, and I don’t know if you know this but there are some reports by American think tanks that Pakistan is one of the philanthropic countries in the world. But that has to be voluntary. You cannot forcibly confiscate or cease a person’s land.
  2. Welfare is the responsibility of the state towards the citizens, not the private individuals. If there’s an issue that there’s a welfare concern for peasant farmers, it’s not the job of the private land owner to see to their welfare, it’s the job of the state to see to their welfare.

Then when he announces these recommendations, he tells the state, which is again outside the ambit of his case of ruling, but he tells them this is what you should be doing. There are other ways to fix this problem. And I already explained to you what were the things. He suggests a whole bunch of other reforms, but the end result and affect of this was that the Land Reforms Act was declared un-Islamic and after that no form of land reforms occurred, and one by one people tried to get their land back.

It didn’t always work out smoothly, because once the poor people have been given land how can they give it back? But the Kazi bash people got a fair amount back. To be fair to them, I mean I have never met them, but I will assume that they were more interested in the land that was unaccounted for. I don’t think people got back the land that was given to the poor, or probably they were not even bothered by that. But the unaccounted land, and probably also the land that went to the government, that must have been what they were most upset about and they got a lot of that back.

Islamic Banking

This was something that took place in 1980-1982. What I did in that paper was that I fast forwarded to 2016, which is 34 years later. Mufti Taqi Usmani (db) has been involved for the past 10-20 years in yet another area which is Islamic Banking and there’s another case that plays out a bit differently. But what I want to show you about the land reforms is that for the sake of Islamic Banking, he has perhaps developed a more refined toolkit now than he had at his own disposal in 1981-82 when he was looking at land reforms.

For the sake of Islamic Banking & Finance, which was to find some halal or interest-free alternative to all of these very complicated, western, capitalist modes and modalities of investment financing, he has done a couple of interesting things. Interestingly, then there was a whole group of new town ulema who wrote a book critiquing him for doing it. And then he wrote a whole book in response to it.

There’s another interesting anecdote, once a LUMS student came to me and he wanted to do a project on Islamic Law. He said I want to look at some recent debate. I told him to read these two books. I said I haven’t read them but these are the things that have just come out. You tell me which one do you think is right. He actually read the book in Urdu that the new town ulema had written critiquing Mufti Taqi Usmani (db) and then he read the book that Mufti Taqi wrote in response to them. Then he came to me in the office and he said it’s clear-cut completely one way, there’s no question about it. This one person has answered anything and everything they have said. He showed all the fallacies and all the flaws in the arguments. There’s nothing much to write about. I said, so just write that. So he wrote his whole senior project on that.

But in his reply what I found, and someday when I get a chance to sit with him, more beneficial things as opposed to other things that I talk to him about these days, I’ll try to raise this with him, in that book he talks about a lot of things that he didn’t do for land reforms.

One of the things he did for Islamic Banking was ifta bil madhabin akhir: You can legitimately use positions of Maliki fiqh, Shafi’i fiqh, Hanbali fiqh for this greater purpose of the war on interest. So he has done that. He has gone beyond Hanafi fiqh, which is one of the critics, not the only, but one of the major ones that the ulema wrote against him. He defended himself against that saying that there are certain cases, and that’s something that I want to show you, when required and when needed to the extent needed, we do say you can go beyond Hanafi fiqh. If you didn’t do that, you wouldn’t have this Islamic Banking & Finance. And there is a whole other area of cutting-edge usul he has used to do this.

What I wonder, and one day if I ever get a chance to catch him totally free and sit down with him, is that if he takes his new toolkit and goes back to the issue of land reforms, he might actually come up with a better, and more interesting Islamic way to figure out what to do because the issue is still there; we still have the Feudal system, we still have the oppression of the peasant farmers, we still have the horrific conditions. Everything now is exactly as bad as it was 34 years ago. The problem is he is out of the system, that I will do later with the slides, he was deliberately removed when he was taken out in 2002. There was a reason for this. This is General Musharraf, he would deliberately remove him from his position due to the interest issue.

To be fair to him (Mufti Taqi [db]), it’s not his fault really, but one of the things we explored in our paper was that part of it is class. When you have capitalist factory owners and rich people come to you as a mufti and tell you that we need you to devise a system for us, we are not saying you are going to take money from them, but there’s a motivation to do it. I know personally several rich factory owners and businessmen who go to muftis and tell them, try to make Islamic bank, try to make Islamic investment. Who has ever even gone to Mufti Taqi Usmani (db) as a spokesman for the poor?

Part of it is that a lot of these things are demand-driven, so to speak, as many things are. A lot of research in the world is demand-driven. If a pharmaceuticals company tells Harvard’s department of biochemistry that we are going to give you a $10 million grant because we need this medicine for some reason, the Harvard biochemistry department will get to work on it. But if they don’t get that grant, and they don’t get that demand, they might not work on it on their own. So the capitalist class of this country, in a good way, highest mutaqi, salih, capitalist’s of country went to different ulema and muftis, repeatedly and persistently, over decades, with this demand that we need you to come up with halal ways of investment and finance, and nobody has done that on the behalf of the feudal poor. Again, Mufti Taqi (db) is not a full-time qadhi. The full-time qadhis will take the suo motu notice and realize what’s going on with the poor anyway. But I have explained this to you, we don’t have that system anymore.

You don’t know, liberals don’t know, how many liberal values and progressive goals would be fixed if we did what I told you about reforms. A perfect case is this. There may be no force other than Islamic Law, I feel the only hope for the feudal poor is Islamic Law. But we need to somehow activate that. And unfortunately, sometimes the reason why legal research is not activated is because we know there’s no enforcement. So if I go to Mufti Taqi Usmani (db) and I tell him to work on this, he is going to do it.  We can spend days and nights, and months, cooking up and designing the perfect way to address the issue of the poor by their feudal land owners, but nobody’s going to do it. Over here, we had private sector people saying that if you designed for us the bank, we will build it, so Meezan guy built it. We had people saying if you designed for us Sukuk, we would buy it. We had people saying if you designed for us the Musharaka contract, we will start using it. We had people saying if you designed for us the Mudarabah, we will change our whole business on it. So it’s not just about the demand, it’s also about the execution.

To be fair to him, if he is thinking what should I work on? Here I can see follow-up and follow-through and project execution taking place so I’m going to work on that. Here there is nothing. I might know better than him that he is right from political science perspective, he would be even more right because nobody cares about the poor in this country. All of the interest groups; whether it’s army, feudal, capitalists, every one would resist this project. And, like I told you, the political parties are dependent on this feudal control. The day feudal system ends in Sindh is the day PPP’s monopoly ends in Sindh. Then they will have to win on their own merit; on the basis of their platform, their policies. They could still win. But they will have to do it the right way. They will not have that guaranteed voter-bank anymore. So they would also obviously resist this. That’s the sad thing.

I have to tell you another controversial topic, but now you will understand it. This is why you need Islamic Law and the State together. This isn’t some radical concept, because without the enforcing capacity of the state, Islamic Law loses its teeth. Yes, here there was some enforcement on the private sector, and as I will show you in case of interest, there was some enforcement in state also, which created space for Islamic Banks to operate.

Here, on the issue of the poor, and in terms of land reforms, again we wouldn’t do land reforms but we could find a way to solve problem that exists. Land reforms is one way to solve it, Islamic Law will find a different way. That usually doesn’t take place because we don’t have the state. There’s no enforcement mechanism, there’s no implementation mechanism. Forget state, there’s no actor in the state, there is no political actor, there is no vested interest, there is no powerbroker at all that cares about the poor in this country. That’s why you need the state.

So now I have shown you why you need Islamic Law, why you need a State, and why the State needs Islamic Law. Otherwise, a lot of the great things in our deen will not be implemented. The solution to this is through our own legal tradition, that’s my position, as opposed to political parties, or making tanzims, or trying to make khilafat. It’s never going to happen. People who had these ideas, had ikhlas, no doubt, but if you look at it honestly, they haven’t even moved one inch closer to establishing khilafat. It’s just not possible. All of their ikhlas couldn’t do it because you need more than ikhlas when it comes to fixing the world.

When it comes to fixing yourself, fixing your akhirah, fixing your relationship with Allah (swt), sometimes ikhlas is the be-all and end-all. But when it comes to the other things that people talk about — the social reality, remember I told you the fourth thing in deen is the social reality — when it comes to fixing the social reality, ikhlas is a necessary, but not a sufficient in of itself condition. You need to do it the way Allah (swt) guided you to do it. That’s called Shari’ah.

So when you hear the word Shari’ah, don’t think some medieval beware code. Shari’ah is the way and the path to attain social and economic justice in any reality, in any culture, in any society, in any time according to wish and will and guidance of Allah (swt) by a person who has ikhlas. If you don’t have Shari’ah, you can’t touch feudalism, you can’t touch corruption. You have so many things you can’t touch. Your hands are tied. You have voluntarily tied your hands from using a system that is revealed by Allah (swt) in His infinite knowledge and His infinite wisdom and His infinite mercy; al-Aleem, al-Hakim, ar-Rahim. That’s His hidayah for us.

The reason I’m stressing this now, so I used all of these words; Islamic Law, State, Shari’ah, is because other people use these three words for these radical extremist concepts. So we should not shy away from them. It’s important that the ulema should explain the proper understanding of these concepts. Otherwise, even many religious people don’t want to hear the word Islamic Law, they don’t want to hear the word Shari’ah, they don’t want to hear the word State. Because they say that’s the radicalist, and I’m, well, a normal person. Why are you giving up? Why are you abandoning all of Islamic Law and Shari’ah and State?

Understand, for 1200 years — that’s longer than Roman Empire, longer than Byzantine Empire, longer than Persian Empire, longer than Chinese Empires, longer than Khan Dynasties, and way longer than United States of America, in fact at that time the world was going through a depression, it really became the superpower shortly before and due to World War II, it’s not even a hundred years yet — we had 1200 years, we did this in the history of this ummah, we did it, we made systems of law which enacted and established Shari’ah and justice through Shari’ah across different cultures and societies, over 1200 years, with, like I told you, definitely very noticeable and serious lapses and gaps as well, across time, and across places, but overall it was still being done. If there was a gap here, it was being done somewhere else.

There’s no time in the first 1200 years where you could say it was not happening anywhere. Our current condition is like that. In our current condition, there’s no place on earth, and this is how you should frame it, not how there’s no place in the earth where thieves get their hands cut, there is Saudi Arabia. But there’s no place on earth where Shari’ah is being used to enact social and economic justice that Allah (swt) wants as a part of the hidayah of humanity. That requires much more than just cutting a thief’s hands off. But in our history, it’s there, and we did it. This is what I call reform through renewal. Not reforming Islam. Reforming society through the renewal of Islamic Law. Not reforming the Islamic Law for the renewal of society. Reforming the ills in society and economy and polity through the renewal and re-enactment of Islamic Law and Shari’ah.

Zakat

Now I’m going to the next case. The first case i.e. of land reforms, I chose to do in detail for you. The second case I did briefly. And the third thing, I just want to give you this idea about zakat. Because zakat is something that I think could be a private sector initiative. Land reforms cannot take place without the state. Although it is being done to an extent in private sector, one of the critics people have about Islamic Banking and Finance is that it has not brought about a change in the welfare, which is also something that truly an Islamic economic system can do. And that is correct. It will not bring about a change in welfare until it’s done at the majority level. That cannot be done without the state. Yes, it can be a minority level of accounts and capitals and banks, that can be done through private sector’s initiative — people who want to do tawba from riba and open up Islamic bank accounts, or businessmen who want to do tawba from interest-based financing and move to Islamic financing.

That itself is a huge, tremendous, enormous success that at least there is a path out, and this is the greatest achievement of Shaykh al-Islam Mufti Taqi Usmani (db) that he created a path out of sin. This is itself tajdeedi karnama (act of renewal) that there were people who were stuck in sin with no way out. People would say, I mean I wasn’t here, but I can imagine that people in 60’s and onwards would go to him and say that I’m a businessman and there is no way out of interest. You cannot operate other than interest. So he listened, and he got them a way out. This is tajdeed of deen. This is fard al-kifaya, this is the level of work that he did.

Next thing that people want is that they should transform the society in terms of welfare. That won’t take place unless the vast majority does it. Allah’s (swt) barakah is not going to come if just the minority makes tawba. Allah’s (swt) barakah comes on a society or a country when the vast majority makes tawba and only a minority is left in that sin. As all of you know, no matter how much Islamic banking might be growing, the vast majority of people, businesses and companies are still involved in this sin. So there also you need the state.

The third thing I told you was zakat’s ability to eliminate poverty, but at a micro level, maybe picking one particular basti or area and figuring out a way to apply zakat to them in such a way, not just that they get their medical care, or clothes, but to overtime actually uplift their income level. You take them out of the class that is known as the ultra-poor. That is something that could at least be applied on a micro level by a private sector initiative and then could be replicated, and might even one day attract interest of the state. If the state starts doing it, then it could inshaAllah eliminate poverty in the entire country, and eventually the entire ummah. It could begin at least as a private sector initiative. Much like the Islamic banking and finance has begun like that, and now that’s enough. They have all the research done, practice, experience, documents’ blueprints, that were the state ever to adopt it, it could be used all the way.

Interest

Now just to show you a bit of politics, so to speak, of Islamic law in this country. In 1991, a case came in front of the Federal Shari’ah Court, and following its constitutional mandate, it had to decide whether interest was repugnant to Islamic injunctions i.e. the Qur’an and Sunnah. In 1991, the Federal Shari’ah Court passed the decision that interest and any and all laws pertaining to and facilitating interest are repugnant to the Qur’an and Sunnah Islamic injunction. Now what happens is that immediately banks file an appeal. It’s a feature in Pakistani judicial system that things drag on, so the very vested powerbrokers want it to drag on, and it drags on till 1999 i.e. for 8 years. Which means that once it’s appealed, justice is suspended because it is called a pending appeal, otherwise it was immediately supposed to become law, like I told you, under constitution all courts have to follow it. But once you file the appeal, it’s suspended. So from 1991-99, all the banks continue to work freely because that decision was suspended.

Now what’s supposed to happen, according to the constitution in any other country, once the Supreme Court hears an appeal and passes a decision, it’s finished. That’s it. But you are going to watch how this plays out, and I will update you further on some of the latest stuff that has happened. Mufti Taqi Usmani (db) was not alone, he was one ‘alim on that three-person Shari’ah Appellate Bench of the Supreme Court. They heard the appeal, but they upheld the Federal Shari’ah Court’s ruling, therefore according to Pakistan’s own constitution, and any legal understanding in the world, it now should immediately become law.

So in 1999, appeal heard by the Shari’ah Appellate Bench of the Supreme Court upholds the Federal Shari’ah Court’s ruling and bans interest in all its form by whatever name it may be called. This was also his kamal — learning that these people use language and semantics to get out of things, like profit, because there were people operating on the PLS — Profit Loss Sharing account. It was just a marketing ploy, basically a fraud, to make you think that it wasn’t interest. As a consequence of this judgment, certain laws will cease to take effect, it means the laws that were facilitating pertaining to allowing interest, from March 31, 2000, some other laws from July 31, 2000, and all other laws permitting or condoning interest from June 30, 2001.

That’s fair enough and shows a very sophisticated level of understanding of his that if you need to roll out things, and we are making such a huge change, then you have to do it in phases. To give you the contemporary example, when the UK is going to leave the EU, it takes time. These things take time. So they basically have, like this, certain benchmarks, a certain timeline, until the complete withdrawal from EU takes place. Just like that, a complete timeline was set by the Shari’ah Appellate Bench, so if you go from 1999-2001, basically about 2 years’ timeline was given.

At this time, we had General Parvez Musharraf. So when June 30, 2002 came, it wasn’t all finished. And now he was in this awkward position that there is a standing Supreme Court ruling saying that it’s all over now. The timeline is finished. We have reached the last stage, and there is a Justice still sitting there, Mufti Taqi Usmani (db) who passed this ruling, and he is talking about this that the date has expired. So on June 11, 2002 Musharraf removes Mufti Taqi Usmani after 20 years of service from the Shari’ah Appellate Bench of the Supreme Court of Pakistan.

Another interesting thing that happens, if you remember your Pakistani politics, there was the whole judicial crisis that took place at this time. There were the PCO judges, and then people didn’t like the PCO judges, and finally when Musharraf is removed, then your Chief Justice Iftikhar Chaudhry, remember that fellow? He comes back and gets rid of all of the PCO judges. Remember the constitutional judges took hold under Pervez Musharraf, he nullifies all of them?

Next thing that he does, on June 24, 2002 — just look at the dates; June 11 and then June 24, 13 days, this is not a conspiracy theory, it’s not possible, nothing moves so fast. Go back to 1991-99 i.e. 8 years to just to hear the appeal. Within 13 days of removal of Hadrat Mufti Taqi Usmani, another bench with new judges was appointed, and within 13 days they decide to suspend the ruling. How did they suspend the ruling? They came up with a unique idea which has no constitutional basis, that we will refer it back to Federal Shari’ah Court. It had already come up to you from the Federal Shari’ah Court, you already had a standing decision on it, they come up with this thing that we will remand the case back to the Shari’ah Court so they may re-examine this, whether it is truly against the injunctions of Islam, within 13 days.

Fast forward, several years after this, first thing the Chief Justice Iftikhar Chaudhry should have done was what he did; that he removed the PCO judges. The second thing he should have done, if there was any way that Musharraf had interfered with the proper workings of Justice, he should have turned that back. The very next thing he should have done was this. He should have said that this Supreme Court ruling, which was made by those PCO judges on June 24, 2002 to remand the case back to the FSC, we as the current Supreme Court declare that null and void, and the act is back where it was, according to proper legal norms.

Chief Justice Iftikhar Chaudhry, despite all of his Harvard awards, and all of his global fame, did nothing of this sort. What would that mean? He was also just a puppet of these bankers and these powerbrokers and the major financial players. Because this is what judicial integrity demands. It’s not once or twice, this person spoke repeatedly against Musharraf, and he presents himself at that time, and still does, to the world as the Justice of integrity who rolled back everything that the military dictator did, except this. Why not? Why not this?

From 2002, as of 2015, I will tell you the latest, for these 13 years the case is pending. When it is pending, so this law which was supposed to be enacted from June 30, 2001, according to the Supreme Court ruling, all law had to immediately cease to exist. Null and void. That is still suspended because for 13 years it had been pending. What happened in 2015 and 2016, and I don’t know the latest, but in this time the government, particularly UBL, I want to name them because I have one document, so United Bank Limited, they hired this fellow Salman Akram Raja, I will name him because he has chosen to be the lawyer for this, and it is a matter of public record.

Salman Akram Raja, along with a bunch of other lawyers, are preparing a deep argument, looking at al-Azhar, looking at Mr. Javed Ahmad Ghamdi, looking at other people who basically believe interest is fine, and trying in a very, very elaborate — not like that old one-verse argument, this Salman Akram Raja guy knows his stuff — so a very elaborate document is being prepared. And when they feel that they are ready, Allahu Alam what’s going to happen, but I don’t know if anything has happened in the last 9 months. Last I kept track of this was in 2015. To the best of my knowledge, the case hasn’t happened yet, but they were preparing for the case, and again the case would be in the Federal Shari’ah Court.

What would happen? Let’s say they lose, or lets say they win, either side will appeal. Lets say they win, and the Federal Shari’ah Court decides interest is not against injunctions of Islam. Then obviously, people like us will appeal, or Mufti Taqi (db) will get people who will appeal it. How long will that appeal take? It could take 10-20 years to be held by the Supreme Court. If they lose, they will appeal. Either way, they bought their time. This is also what I was trying to tell you, which is the second part, that the reason Islamic banking and finance is not going further is not because the ulema and mashaikh don’t want it to go further. We want Madni financial system, we want to take it all the way. But you can’t do that without the state. And I have showed you the state’s obstruction in the process. The state is obstructing and preventing the process from going any further. So it is limited to minority level of financing in this country, which is a private sector initiative, but don’t underestimate that still, at least it is a way out of the sin and the evil of riba.

Sometimes when we used to do this in the university that look if I get you out of the bathroom, it’s a big thing, I got you out of nijasat. It doesn’t mean I took you all the way to Madina Munawwara. I just got you out of the bathroom. That was one big journey. Now the next step is, once you are out of the bathroom, you are out of nijasat, to find the purest type of purity, and that would be the Madni financial system. But that requires a complete overhaul. And a complete overhaul can’t be done by the muftis. It has to be done by the state, the government, by the stakeholders. But that can be done. That’s the beauty of it. It’s not that it can’t be done. For some people, they will have to take it as a part of their faith in Islam. But I’m telling you, Allah (swt) is al-Hadi. His sifat of ‘adl and hidayah are there in the Qur’an and Sunnah. It’s not just that it’s His own intrinsic attribute. He had manifested His sifat of guidance and justice through this revealed religion of deen of Islam. Any and every type of justice, fairness, equity can be discovered and adopted through the hidayah that is known as deen of Islam.

It’s not like it can’t be done, it’s not like the ulema and muftis don’t want it to be done, but it’s not going to practically happen without the people to make it happen. So this was to show you there are ulema working in these areas. There is scope for deen of Islam to make an impact on society. And I’m not trying to do a complete denial and refutation of people who try to use political or social movements. But I’m actually showing that knowledge is not entirely just academic. Even knowledge in our deen has the ability to be used and developed and applied to actually impact society.

More on Zakat

Third idea is a project that I have delayed till 2018 due to my own busyness, and due to my lack of success in being able to do this in 2015. So in 2015 I had an idea, and I will share it with you that idea, what I tried to do and how I failed to do it. That was what I have mentioned to you a couple of times about zakat; that zakat must have the ability to absolutely eliminate and eradicate poverty altogether. But obviously it would do that one step at a time. It’s like an eraser. So if I have to erase the whole board, but to check if the eraser works, that I can tell just by erasing a little bit.

Another problem is that, unfortunately, a lot of people misuse zakat, misapply zakat, and some people, without revealing to you all the details, but they use something that is called hila-e-zakat, which is kind of a legal loophole to use zakat technically in a permissible way, but it will not really help eliminate poverty. It will not be used for the spirit of zakat, but it will be used according to the letter. Obviously, every letter has been revealed by Allah (swt) to create a spirit and to create a reality. So these are the reasons why zakat may not be having the affect Allah (swt) wanted it to have.

The idea I had was that I would get a group of people; muftis, economists, social workers/NGOs, public policy, myself and we would form a working group and do some research, both in Islamic law and Islamic history, and in public policy, and economics, social work — because there is a lot of effort through the organizations in the world which are trying to combat poverty — and try to see if we can come up with ideally the best, but it may not be a single best, rather a better or more ideal way to distribute zakat which has more of an impact, which is, again, to take the poor out of their poverty. That’s the asal; to take the poor out of their poverty, not only to give the poor medicines, healthcare, clothing, shelter and elementary schools.

One reason I failed in this was because of my own lack of expertise in this area and lack of time that I could dedicate to this project.

Another reason I failed was that I went to one economist who wasn’t very religious. He was semi-practicing but seemed to be deen-friendly. But during one conversation I realized that he was upset at the limits obviously me and the muftis would place on the project in terms of Shari’ah compliance. For example, there is a place in Bangladesh called Grameen Bank, and this person Muhammad Grameen once won a Noble or a Peace Prize, or some other prize. But that was for interest-based micro-finance. And at that time a lot of people were upset with ulema who were saying interest is haram because they thought don’t you see the great benefit this can have? There have been some interest-free micro-finance initiatives even here in Pakistan, but nothing to the level of Grameen Bank, but it at least shows it can be done. So I realized from him that he would not be happy with us putting certain restrictions, which is very unfortunate because he is actually a wonderful person. But we lost him.

I went to an economist who was outwardly much more religious and practicing in deen. His view was that whatever I say would be correct because I’m an economist and you people don’t know anything about that. So we don’t need this group. I will just sit down and tell you what to do, and you people should to do it. And then he engaged in a huge, long critic of Mufti Taqi (db) and Islamic banking, so I say okay I can’t work with him. Obviously a person has to try with more than two people, I accept that. One of the reason being, like I told you, that I couldn’t devote enough time to the project.

I found it hard. The reason I’m sharing this with you is because this is also a problem; this inability of people from different backgrounds and perspectives to come together, this isn’t there in the dunya. If I was a CEO, I could easily make a committee of people from all types of different backgrounds, and just because I’m the CEO, and just for the sake of increasing the corporate profit, they will sit down and work with each other as peers. They won’t be like I’m the sales guy, or I’m the marketing guy which is better. They will all sit together and they will do it. They will be willing to outsource consulting. They will be willing to hire change-management consultants. And they will say we trust you, whatever you people say we will do it. That level of trust isn’t there.

It’s a problem whether it’s among ulema, or between ulema and other professional experts of knowledge. That problem also wasn’t there in our first 1200 years of history. Like today, in America they call it expert’s testimony. If you look at old qadhi courts, you will see experts testifying; jurists, judges, statesmen, bureaucrats, all working together, again, with large gaps and lapses, but you see it also throughout 1200 years. That’s also something that is lacking now. In fact there are literally very few such places where any such interactions can take place, call it an idea-lab, call it whatever you want. How many times will you see a mufti and an economist or a social worker and a bureaucrat sitting at one table talking about anything to do in society? It’s almost non-existent. So these interactions and engagements don’t take place, that’s why there’s no real dynamism and synergy.

So anyway, in 2018 we plan to resume and we plan to try that again. I don’t know how far it would go. It’s an idea. I will also tell you very frankly, a lot of people have tried to give us zakat for our own on-going project, and we strictly don’t take zakat. Because we don’t personally believe in using the hila-e-zakat. But with the amount of money people were trying to give in zakat, we realized that mashaAllah people have serious amounts of money to give in zakat, and apparently they trust us to use that, so maybe Allah (swt) is opening up another door for me so we could do some khidmet of the poor.

That’s a very big thing, I will be telling you about this in the afternoon. Khidmet of the poor is one big thing that is missing from the best of believers, forget ordinary people. One of the greatest attributes of the Anbiya (as) was the khidmet of the poor, suhbat of the poor, muhabbat with the poor, and mahbubiyat of the poor and rafaqat with the poor. After the Anbiya (as) this used to be the hallmark of awliya Allah. No doubt, awliya and tasawwuf is about dhikr, qurb with Allah (swt), tazkiya, purification from sins, but this was also a very big thing. And that’s one thing, because I’m also a part of the tradition of tasawwuf that we are lacking. We don’t have that.

So this is one thing, along with the other thing we did on land reforms, because I have been to the rural areas of Pakistan also, not even once or twice, I have traveled in this country. The type of poverty you see it’s ajeeb. And the poor have no friend, they have no spokesmen, they have no patron, no benefactor, they are, what you call, lawaris. Barring, you know, there are some NGOs, international and domestic organizations who are trying. But overall the picture that you get, again, it comes back to politics, because there are no real genuine social or civil movements in this country.

Q&A

The problem with sitting together of ulema and people from different professions, is it because of two separate educational systems?

This could be one reason; that we have two separate systems of education, religious learning and secular. But it’s not that simple either. People can still get together. You will have sometimes, in the name of consulting, the engineer who runs to automation technology and the sales and fine they all went to different systems, find they work in a university, but they were basically differently educated and they are willing to sit and work together. So I don’t think it’s enough to explain it. No doubt, that’s a separate topic how you can integrate religious educations with professional education. Meanwhile, I’m trying to figure out how to integrate people who have non-religious education and religious education. In fact, I think that would be the pre-requisite of integrating the systems themselves; if you cannot integrate persons, how are you going to integrate entire systems.

What about convincing a particular party to take the approach of socio-economic equality?

No doubt, that could be an effort. But that itself speaks volumes that a political party that has been around for decades would need me to go to them and give them this idea of social justice and  economic equality. That’s their job. It’s like saying why not go to the doctors and tell them they should actually heal people. If a person doesn’t realize that, and he is in that profession, that’s a big problem in of itself. But it does point out to something, which is important, which in English we call advocacy. We need people who engage in advocacy, who go to political parties, who even, I will go one step further than this, even join political parties with the intention to try to bring good policies in their platforms. It doesn’t mean I would necessarily advice anyone of you in particular to join any specific political party, but I’m saying generally as a society that might be one problem.

I don’t know enough about this in the particular context of Pakistan. But I suspect that some of these parties have a structure that’s so rigid that they may not be so welcoming to somebody who is coming in, not because of the same class, or caste, but coming in purely because they want to introduce new and interesting ideas in social justice to the party-platform. I don’t know if there will be a platform. Things may not be as bad as I might think they are. No doubt, if they are not as bad as I think they are, then there would be scope to do the kind of effort that you are talking about.

When implementing the Islamic law at the state-level, how will differences of opinions between madhahib be addressed for individuals?

I told you, when you are talking about public policy, and this is one of the major things that Mufti Taqi Usmani (db) wrote in-depth in that book, which is a response to the critic of the new town ulema on some of his positions on Islamic banking, when you are talking about public good, greater good, systemic thing, you can cross madhabs and use different tools from different toolkits. That’s not just to fight the war on interest, that would be true for any and every public policy area. As far as person ibadah, and fiqh of ibadah and wudhu, the state has nothing to do with that. So that’s not an issue. That’s not a matter that comes in front of the courts or the bureaucracy or parliament.

How can the qadhi system be implemented in this day and age?

I don’t think it will be implemented in these days. It’s not possible to revive Islamic courts because courts provide a service function to a society that wants that service function. If ever you can recreate such individuals who want such a society, and then have a society that wants that service function, then the courts will be able to come back. Otherwise, there is no other way for them to come back. That’s my answer for 2-3 similar questions: how can you bring about state-level Islamic change, how can you bring about Islamic change in the parties?

Let me open this up. You have to look at the seerah. When you talk about history, the ultimate history is the history of the life of Nabi Kareem (sws), and the history of his (sws) life is also a source of hidayah for us. So when Nabi Kareem (sws) was in the Makkan phase, which lasted 8-10 years before hijrah, in that phase he (sws) did not try to change the society around him (sws), state is still out of the question. He (sws) did not try to change any type of policies, state, structure, or system. He (sws) didn’t initiate jihad. Otherwise, when Syedna Bilal (ra) was being tortured, they could have said we will do jihad on you. When they put him (sws) in the boycott in the valley, he (sws) didn’t do jihad. He (sws) could have said, forget it, they are putting us in boycott, we refuse, we will do jihad, fine, we will die, we will become shaheed, no problem. He (sws) didn’t do that. Why? Because he (sws) was at the level of building individuals and building a community.

After hijrah, when he (sws) went to Madinah Munawwarah, he (sws) did not sit down with Sahaba Karam (ra) and plan fateh Makkah. There was no military aspect to his (sws) coming to Madinah Munawwarah. In fact, he (sws) was fleeing from conflict. The first thing he (sws) did, which Nabi Kareem (sws) had already been doing, and had almost completed even before the arrival, was to completely patch up Aws and Khazraj so that there was domestic peace and harmony within Madinah Munawwarah. Then these new people who came, the muhajiroon i.e. the Makkans, he (sws) made what is called nisbat-e-mwakhat; he (sws) joined every Muhajir (ra) with every Ansar (ra), so there was complete harmony within the ummah.

Immediately thereafter, he (sws) made peace treaties with the neighboring Jewish tribes so that there was complete harmony in the foreign relations. That’s it. He (sws) made no plan of attacking Makkah Mukaramah. He (sws) didn’t send a message to Quraysh that now we are a society, we are coming after you. He (sws) just wanted to live in peace. Then the Makkans sent the army, first in Badr, then in Uhad, and then for those of you who know, it goes on and on and on. Ultimately, finally when Nabi Kareem (sws) realized that these people will never give up, so then he (sws) went back and did fateh Makkah.

If you look at the way the seerah unfolded, where do we find ourselves now, we are in the pre-hijrah Makkan stage. There is no concept of state. We are back at the level of individuals and trying to form communities. We are not even anywhere near society, let alone polity, let alone state. That’s my reading of it. And I will tell you openly, Jama’t-e-Islami has a different reading, Tanzim-e-Islami people have a different reading, other individual ulema may give you a different reading. What can you do? Next question will come that different ulema say different things, how do you know which one to follow? Follow whoever you want on this matter.

My advice for you, that for 99% of you, you really don’t need to figure this issue out, unless you are an activist who themselves is going to bring about change, and you really are planning to dedicate your life, it’s a big commitment and dedication, to bring about a change in society and state, unless you are this person, you don’t even need to discover the question that who is right about how to bring about that change. It’s just armchair journalism that you are doing. If you truly, really are an activist who’s going to dedicate the entire rest of your life in the service and khidmet of society, then yes you meet different ulema and whichever one you feel has the correct understanding of how to bring about that change, you do it. There’s no problem. But in a non-violent way. So that’s one signal for you. You can learn a lot from Gandhi. I know this is like heresy in Pakistan and I always do it in front of you, but Gandhi accomplished more with non-violence than some Muslims accomplished using violence. You to have see.

So there are a lot of questions on this line; everybody wants the state! I don’t know if I should say more to you. Our teacher used to say only say as much as the audience can digest. But at times I cannot estimate your ability and capacity to digest. I will just say that the fikr, the concern is very good. But you have to understand, is it a real thing? Or is it just an emotional thing — how to fix the system, how to get to state, how to get to state? Or are you really going to do something about it? And if you really are going to do something about it, like I told you, start with the best non-violent way that you think. Do it. You don’t need me to answer your question to do it. I don’t have a monopoly on religion.

What I say is that you need to work on individuals and communities, if you want to know what would be my answer to that. A house is made up of walls, and a wall is made up of bricks. Nobody is ever going to build a good house without good bricks. But if somebody says I’m going to build a house without good bricks, that’s fine. Go and try. I’m not going to stop you. I’m trying to make good bricks and trying to be a good brick. If they are clever, they say if you ever become a good brick, can we use you in our wall? Or will you give us your bricks for our walls? I’m just teasing you. But these are the things that are done.

Isn’t there a benefit in academically devising a plan even if it is not being implemented at state level?

Sometimes I think the academic society would have been a big thing. In our deen, we call it itmam-e-hujjat. Otherwise people will say that, you know, if we take interest away, how are you going to run the economy? Now there’s an answer for that, forget whether someone is implementing that or not, but the fact that an answer exists, or at least there is a dawah. The critics say what you are doing is just running 10% of the banking sector, if you ran it 100% it wouldn’t work. Fine, that’s your claim. But we claim that we have a way to run it 100%, because earlier had you given us 100% we wouldn’t even have been able to run it. Now we have a way to run it. You may not like the way we will run it, you might think the way we would run it won’t work. But we have a way in which we would run it. It has been done as far as the banking and financial sector, that’s just one aspect of society. There are many other things that are there.

Just to give you an example, if you read the Pakistan’s constitution, let’s say the ulema were trying to write the constitution, what would it look like? Nobody has done that. Even sometime purely academically, were people to do it, it would be interesting. It could even start some interesting conversations. It would be a platform for discussion. It’s possible some of those groups have done that. It could very well be possible that the Jama’t-e-Islami or Tanzim-e-Islami or others may have drafted what they felt would be the right thing to do. In fact, they should have, given that that’s their field.

South African political parties are pushing for land redistribution. Is it similar to what happened here in Pakistan?

This is a slightly different situation. The questioner is asking about, when you are talking about unlawful acquisition of land in the first place, which took place in South Africa with the Dutch boards coming in and basically they created a colonialism type of state. And this is the situation in almost all of the Sub-Saharan Africa. So 100% I personally believe that, but it’s problematic. Because what you are talking about is someone’s great-great-great-great grandfather misappropriated the land. This would require a lot of ulema to sit down and deliberate over the matter. But this much I can tell you, Islam will also acknowledge facts on the ground to a certain extent. And there will have to be a level of sulah that will have to take place between the white farmers over there and those who have been, even though they are descendant of colonial oppressors, but a lot of them have now become just peace-loving citizens of Zimbabwe, in South Africa.

So one way could be to start a discussion that how could we do some type of sulah. This concept of sulah is not just between brother and brother and families. It is also something used for social justice in society. It might be that we see this white farmer, how big is his family? What is his legitimate need, based on his legitimate standard of living with a reasonable comfort level and maybe let them keep their farm to that extent, and beyond that, the rest of the land can be given to the government. But things are never that easy. Because if you give it to the government, the problem is that the government is corrupt.

That is why you need a just government in place already before you do the societal reforms, but then you would also need a just society to get the just government. It is a very tricky thing. So the people may say how do you know the government will redistribute that land equitably, and unfortunately in the cases of these African countries, the answer is no, in fact we can guarantee you that they will not give it away equitably, whatever the political party is, all their puppets and cronies will be given these pieces of land taken away from the white farmers. The point is that Islamically speaking we will not necessarily recognize the private property ownership of somebody who acquired that land through colonialism. That is not a legitimate basis of ownership.

There is a particular question about Islamic banking, but my topic today was not Islamic banking, it was about the jurisprudence of the Shari’ah courts in Pakistan and how law plays in that. This much I will say that you have two options in life.

One is to be completely free of banks and to keep your money in your drawer and to run a business on whatever existing capital you have, and have no concept of financing. Obviously, that is a safer way.

Second is that you say I need to, for whatever reason, be engaged in banks. If you say that you need to be engaged in banks, then you have only two possibilities.

  1. Those banks that everyone agrees are not Shari’ah compliant and are interest-based.
  2. Those banks that a lot of ulema have certified as Shari’ah compliant but you might not fully understand what’s the difference between them, but at least there is this difference that there are a number of ulema who say it is Shari’ah compliant.

These are the only two choices you have. There is no other choice. So I think it’s only rational that if you must engage in any type of business; personal current account or the investment relation with the bank, then obviously it’s clear that you should choose those banks that have been certified by reputable ulema, even though that certification might be contested by others, even though you might not be able to understand, because the other choice is guaranteed, all the ulema agree on that they are not Shari’ah compliant.


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