November 2002

 Q: A female starts menstruating while fasting. How should she conduct herself? What if she stops menstruating during fasting?
 A: If her menses commenced while fasting, she can eat (not in public). If her menses stopped in the day, she should abstain from eating, drinking, etc. but (in both instances) make up for the day by keeping a Qadhaa fast after Ramadhaan. (Aalamgiri vol. 1 pg. 214; Rashidiyya)

 Q: Is it permissible for a female who is fasting but expecting her periods to use tampons?
 A: It is not permissible for a female to insert a tampon whilst fasting. She may insert it before commencing the fast at Sehri time. (Fataawa Raheemiyyah vol.2 pg.38; Rahimiyya)

 Q: Is it permissible to take an injection while fasting and does that nullify the fast?
 A: It is permissible to take an injection during fasting. The injection does not nullify the fast. (Ahsanul Fataawa vol.4 pg.432)

 Q: I am an asthma patient. Is it permissible for me to use the inhaler during fasting? The inhaler contains salbutamol (liquid medication). If it is not permissible, what should I do when I get an asthma attack during fasting?
 A: Since the inhaler contains a medication (salbutamol), the use of it in the state of fasting will invalidate the fast. We advise you take medication at the time of Sahri to avoid an asthma attack. However, should you get the attack during fasting, if there is no adequate alternative which does not break the fast, you may use the inhaler and make-up for that fast later (make Qadhaa).

 Q: What is the Shar’ee position of Taraweeh? Do women also have to perform Taraweeh?
 A: To perform 20 Rakaats Taraweeh is Sunnat-e-Muakkadah (emphasized Sunnat) for both males and females. (Raddul Mukhtaar vol.2 pg.43; HM Saeed)

 Q: Apart from the practice of the Sahaaba (Radhiallaahu Ánhum) performing 20 Rakaats Taraweeh, is there any confirmation of 20 Rakaats from the practice of Rasulullah (Sallallaahu Álayhi Wasallam) himself?
 A: Yes, Ibn Ábbaas (Radhiallaahu Ánhu) narrates that Rasulullah (Sallallaahu Álayhi Wasallam) used to perform 20 Rakaats in Ramadaan besides Witr. (Al-Musannaf ibn Abi Shayba vol. 2 pg. 164; Darul Taj)

 Q: In Saudi Arabia, if Ramadhaan commences one or two days before South Africa, a person who commences his Ramadhaan in SA and spends Eid in Saudi Arabia would fast only 28/29 days. Similarly, if a person commences his Ramadhaan in Saudi Arabia and upon returning to SA before Eid, if the moon is not sighted after the 29th fast, he would have fasted 31 days. What must be done in such situations?
 A: In the first situation, if Ramadhaan commenced in Saudia Arabia two days before South Africa, the person should make Eid with the people in Saudi Arabia and later make-up for one fast. In the second situation, he must keep the 31st fast and make Eid with the people in South Africa. (Ahsanul Fataawa vol.4 pg.433)

 Q: What is the ruling of a Muslim adult who does not fast in Ramadaan without any valid Sharée reason and eats in public?
 A: Fasting is a salient feature of Islam. To openly eat during Ramadaan is a major sin. In an Islamic country the ruler will order such a person to be imprisoned or punished. (Ahsanul Fataawa vol. 1 pg. 37)

 Q: What is the ruling for a person who commenced fasting in the morning but broke the fast without any valid Sharée reason?
 A: Such a person will have to make Qadhaa (make-up) for the missed fast as well as give Kaffarah (compensation) for breaking the fast.

 Kaffaarah (compensation) for breaking the fast is to free a slave. If that is not possible then one must fast for two months (60 days) in succession. If that is also not possible then one must feed 60 poor people. (Shaami vol. 3 pg. 390; Lebanon)

Q: A difference of opinion exists in our town regarding the exact time of Iftaar. Some are of the opinion that it is necessary to open fast immediately after sunset based on the Hadith of Bukhari that ‘people will continue in prosperity so long as they make Ta’jeel (be quick) in breaking the fast.’ Others are of the opinion that as a matter of precaution, the fast should be opened a few minutes after actual sunset, as the time in the Muazzin’s clock or the perpetual timetable, may not be absolutely correct. Kindly comment.
 A: The Fuqahaa have stated that it is Waajib to exercise precaution in breaking fast. (Tahtaawi; Karachi pg.370). Ibn Nujaym states, ‘Ta’jeel (to be quick) which is desired in breaking fast is before the stars appear.’ (Bahrur Raaiq vol.4 pg.292) In view of the above, it is not necessary to break fast immediately after sunset in order to achieve the virtue mentioned in the Hadith. The virtue will still be achieved even though there is a slight delay.

 The Hadith of Bukhari referred to in your questionnaire is explained by Ibn Hajr (Rahmatullaahi Alayhi) in Fathul Baari (vol.4 pg.191) as follows: ‘The Christians and Jews used to delay their fast until the stars were apparent, hence, we should contradict them, i.e. we should not delay to that extent.’

 Furthermore, we have queried the matter with the relevant experts, they too are of the opinion that the timetables are not accurate and there is a variation of at least two (2) minutes. Therefore, our advice is to exercise precaution by waiting at least five (5) minutes after the given time in our perpetual timetable.

 Q: Kindly explain when does vomit invalidate fasting.
 A: The Fuqahaa have explained different types of vomit. We hereby simplify them as follows: Uninduced (involuntary) or induced. Each of the two could either be mouthful or less than a mouthful. Thus, there exist four possible cases: (a) Uninduced - mouthful, (b) Uninduced - less than a mouthful, (c) Induced - mouthful, (d) Induced - less than a mouthful.

 The vomit in each of these cases could either: a) Exit from the mouth, b) Unintentionally swallowed, c) Intentionally swallowed.

 Only two situations invalidate the fast, a) Uninduced - mouthful - intentionally swallowed, b) Induced - mouthful irrespective of whether it is swallowed or not. (Darse Tirmidhi vol.2; Darul Uloom Karachi)

MUSLIM PERSONAL LAW - SPECIAL FEATURE

 Many Muslims, both Ulama and professionals, have contributed to the drafting of the proposed Muslim Personal Law bill. We do not question their intentions, and are confident that all had the best interest of the Ummah in mind. However, the time has arrived to seriously reconsider the involvement of the Ulama in the Muslim Personal Law. The need for this reappraisal arises from the fact that the Ulama were not fully informed of the detailed dynamics of such a dispensation.

 The Ulama had extensive discussions with Muslim lawyers, and other professionals on the issue. Nevertheless, one crucial aspect was not fully canvassed, namely, the constitutional implications of the Bill.  By the grace of Allah Ta’ala, the Ummah is not only blessed with Ulama, but also with professionals, who, together with being experts in their fields, have a deep sense of commitment to Islamic values. After discussions with experts in the constitutional law field,  many Ulama felt the serious and urgent need to distance themselves from the proposed Bill. Details of one of these discussions with a renowned constitutional expert in the presence of many leading Ulama of the country can be found on our website. We encourage every Muslim who is a South African citizen  to read that discussion in an endervour to have a profound understanding of the Muslim Personal Law in the context of the South African constitution.

 For the benefit of the Muslim public, we wish to highlight a few salient points as it pertains to the interpretation and application of the Bill (if passed) which  hitherto was not fully canvassed. It is these critical concerns which make it imperative for the Ulama and all Muslims to disassociate themselves from the proposed Bill. What you find below is a synopis in a question and answer format which brings out some of the major concerns.

 Dear reader, it is possible that you may not understand the contents in one reading. We request you to ponder deeply and try to understand by reading the contents a few times. If you have any difficulty in understanding, you may contact us.

 Q: We are given the impression that the MPL (Muslim Personal Law) will soon be recognized, kindly comment.
 A: That impression is incorrect. The MPL has to pass many channels before it can be recognized. The following is a chart which explains the likely procedure.

 a) Project Committee: Prepare a proposal, b) South African Law Reform Commission: Examine the proposals, c) Minister of Justice: Evaluate the proposals in terms of the Constitution. The Justice Ministry might hand it over to the Justice Portfolio Committee if it thinks the project is worthwhile, d) Justice Portfolio Committee: Evaluate the proposal in terms of the Constitution and might submit a Bill to Parliament for approval, e) National Assembly and National Council Of Provinces voting on the Bill. The parliament consists of the National Assembly which has 500 members and the National Council of Provinces which has 90 members.

 At every step of the way, changes and modifications could be made to the Bill. It is likely that drastic changes could be made particularly at stage d. Thus far, the MPL is merely at the first stage. The Project Committee has merely prepared a set of proposals.

 Q: Will the proposals for the MPL be accepted as is or will there be changes?
 A: There will in all likelihood be changes along the way. To expand on the answer above, according to procedure, the proposals will be handed over to the Minister of Justice. His advisers will evaluate the proposals in terms of the Constitution and they would make amendments to the proposals to be consistent with the Constitution or government policy. It is important to note that the Constitution is the Supreme Law of the Land; law or conduct inconsistent with it is invalid and the obligations imposed by it must be fulfilled. The proposal will then go to the Justice Portfolio committee for further evaluation in terms of its desirability and its constitutionality.

 The lawyers in the Department of Justice and the members of the Justice Portfolio Committee take their constitutional mandate very seriously and they will make modifications, additions and subtractions to the proposals for the MPL. In brief, the MPL proposals will be modified so as to pass constitutional muster. It is clear that what one gets from the Project commitee is not what he will necessarily get at the end.

 Q: What are some of the negative aspects of having the MPL recognized?
 A: There are many negative factors of having the MPL recognized. The greatest danger is that it will interfere with Divine Law. The concept of perceived injustice between the spouses in the MPL can be challenged in the Constitutional court. According to the Shari’ah, only a male has the right to issue divorce. A female may challenge that at a constitutional level as that violates principles of equality. Section 9(1) of the Constitution states, ‘The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds including race, gender, sex...’

 Based on this section, even homosexuals have a claim for equal rights and privileges.

 Q: As you are aware, the indigenous people of South Africa have their own customary laws, for example, Lobola, etc. and that has been given importance by the courts on many instances. Is Shari’ah Law not analogous to African Customary Law? If Lobola can be recognized, why will Shari’ah Law, polygamy, etc. not be recognized?
 A: There is a major difference between African Customary Law and Shari’ah Law. From a political point of view, both will not necessarily achieve the same level of recognition. African Customary Law is practiced by many South African citizens. Muslims on the other hand are in a minority.

 Furthermore, inspite of the greater influence of African customary law, that too poses the threat of being challenged under the Constitution. An article appeared in the Sunday Times of October 13 2002, ‘Commission hears views on Customary Law’. The commission was interviewing a contender Judge Lex Mpati for the post of deputy President of the Appeal Court of Bloemfontein. This is one of the most influential positions of leadership in the judiciary of South Africa. Mr Mpati was asked about Lobola, he responded by saying, ‘it was not ‘good law for primogeniture to continue.’ It must also be understood that the attitude of the judiciary is always being reviewed and revised. Shari’ah Law will be at the mercy of such revisions. What guarantee do we have that Shari’ah will not be contaminated, chopped and changed?

 Q: What is the problem should the MPL be accepted?
 A: It is clear the laws of Shari’ah pertaining to gender will be subservient to the interpretation of the Constitution. The Constitutional Court has stated repeatedly that statutes and laws have to be interpreted against the Constitution. A statute has to be interpreted in a way that is consistent with the Constitution and its overall purpose and objectives. The Constitution allows for the development of the common law, customary law and religious law but only so far as these laws are consistent with the Constitution. The Constitution calls on the courts to recognise and develop these systems of laws (for example the common law) against the Constitution. Please note that if the Constitutional Court or the High Court interprets the MPL statute in terms of the Constitution and it is against the Shari’ah, that will be jurisprudence and every court is bound by that. Challenging the constitution’s interpretation of unfair discrimination is a huge and mammoth task. It is similar to Imaan challenging Kufr.

 Q: What are some of the interpretation problems of Shari’ah that in all likelihood will arise?
 A: The Constitutional Court has over the past few years given expression to particular views on equality, justice and human rights. Some of these conceptions (for example on gender issues) go against Shariah principles. The Constitutional Court in terms of its mandate would interpret MPL in a way which develops the MPL consistent with the Constitution, or it could rule the MPL provisions unconstitutional on equality grounds. For example, it could say that if a man can issue three talaqs, under its equality jurisprudence, a women should be able to do the same. Either of these rulings would be against Shariah.

 Q: How will the MPL be interpreted by the judiciary?
 A: The courts of South Africa will now become the ultimate arbiter over Sharia principles. In fulfilling their role of interpretation, the judiciary will interpret MPL not against Shariah as an independent value system but against the Constitution and its overarching principles and objects. This is an untenable situation.

 Q: According to the provision in the MPL statute, there will be a Muslim judge and two Muslim assessors, which Madhab will they follow in issuing a ruling?
 A: Regardless of which Madhab the judge employs, the important thing to understand is that the interpretation has to be consistent with the Constitution particularly the Bill of Rights. Under the Bill of Rights, the constitutional Court has defined the right to human dignity as a pre-eminent principle. The Constitution proclaims, ‘Everyone has inherent dignity and the right to have their dignity respected. Human dignity is defined as respecting the uniqueness of each individual to develop him or her individual talents in an optimal fashion.’ When you look at the jurisprudence of the Constitutional Court, you will find that many of the provisions in MPL would be interpreted in a way that makes it consistent with the Court’s interpretation of human dignity which is against the principles of shariah.

 Q: Will there be any difference if Muslim judges preside over cases of the MPL and there be Muslim assessors with a Muslim judge?
 A: It should not be understood that a Muslim judge presiding over a dispute is going to issue an independent Shar’ee ruling. Every judge is bound to follow the rules of the judiciary according to the Constitution. If the Muslim judge is not an Aalim of Shari’ah, then it is not expected of him to issue a ruling according to Shari’ah.

 The Draft Bill makes provision for Muslim assessors and that a ruling will be issued according to the majority opinion - two Muslim assessors or one assessor and the Muslim Judge. There is a likely constitutional problem with this provision.

 Deciding on matters of law is the sole prerogative of the Judge. The assessors cannot do that. They will only decide on questions of facts. It is important to note that separation of powers is a pre-eminent principle in the South African Constitution. Under this conception, the legislature makes laws, the executive enforces the law and the judiciary adjudicates over disputes. The sharing of judicial power between the judge and assessors would undermine the powers of the judiciary.

 Q. Why do you think proceeding with the MPL would be a problem?
 A. Under the Constitution, it would be difficult to force a particular party to accede to the application of religious law against their consent. Let us assume that a couple agreed in terms of a marriage contract to regulate their marriage relations in terms of their Shariah principles. At the time of dissolution of marriage, one party could argue that they have changed their religious beliefs. To force them to adhere to a particular religious view amounts to a violation of their constitutional rights. It is inconceivable that a court will compel an individual to be bound to adhere to a set of religious beliefs against their wishes.

 Q: What is your advice to us, simple minded people regarding the MPL?
 A: In view of the great dangers posed by proceeding with the MPL, we should distance ourselves from the proceedings and raise our voices against that. The laws of the Shari’ah are immutable and sancrosanct. We should not allow Shari’ah to be tampered with. Remember, the MPL must be understood in the context of the South African Constitution within which it will operate. The danger is that the Constitution is going to engage us rather than we engaging the constitution.

 WARNING !! WARNING !! WARNING !!

 We place on record our objections to the attitude of the members of the Project committee. They do not possess the necessary Shari’ah knowledge as well as constitutional expertise to attend to such a delicate issue.

The Ulama fraternity are disgusted with their procedures. They seem to have an agenda to drive forward the MPL notwithstanding the great dangers it presents to the prestine purity of Shari’ah. The project committee will have workshops to try to convince you that the MPL has the blessing of great Ulama. That is not so. Also, do not be deceived by them lawyering the MPL. We must be truthful and realistic. Remember, your duty is to take your guidance from Muttaqi and pious local Ulama who understand the local situation better than foreign Ulama. Do not be deceived by references of foreign Ulama cited by the Project committee. Every Muslim is duty bound to raise his voice against the proceedings of the MPL.

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