Saturday, March 9, 2019

Ijma ; Sources of Sharia


Ijma’

(Consensus of Legal Opinion)
  • Definition
  • Conditions for the validity of ijma’
  • Types of ijma’
  • Proof of Ijma’ as a source of law
  • Basis (sanad)of ijma’

Definition

Literal meaning:
-determination, resolution, and agreement upon something

Technical meaning:
“the agreement of the mujtahids (jurists) from among community of Muhammad (peace beupon him) after his death in a certain period of time upon a rule of Islamic law.”

Conditions for the validity of ijma’

  • The agreement must take place among mujtahids. A mujtahid is a person who is qualified to exercise ijtihad.
  • The agreement must be unanimous.
  • The mujtahids must belong to the Islamic community.
  •  The agreement of mujtahids must be held after the death of Allah’s Messenger (peace be upon him).
  • The agreement must be among the mujtahids of one period, even though some mujtahids of subsequent periods may differ from them.
  •  The agreement should be held on a rule of Islamic law (in legal matter).
  • The mujtahids should have relied upon a sanad for deriving their opinion. Sanad is the evidence (proof) upon which the mujtahids rely on, for arriving upon an agreement.

Types of Ijma’

There are two types of ijma’:

 Explicit Ijma’ (ijma’ sarih):

“one in which the legal opinions of all the mujtahids of one period converge in relation tolegal issue and each one of them states his opinion explicitly.”This is realized sometimes by their meeting in one place and examining an issue in question and finally, they express a unanimous opinion. 
It may also take place when an issue occurred and every mujtahid gives the same legal opinion.

 Silent or tacit ijma’ (ijma’ sukuti):

It takes place when some mujtahid, one or more, give a legal opinion with regard to
a specific rule about a particular legal issue, then the rest of them are informed of this
opinion and they keep silent and they neither acknowledge it nor object to it.

Position of Ijma’ as a Source of Islamic Law

Position of express ijma’

The majority of Muslim jurists, particularly the jurists of four well-known schools of law, are in agreement that express ijma’ is an authoritative source of Islamic law.
It is incumbent on the Muslim to follow the legal rule of Islamic law that derived from ijma’
as similar to the rule established by the text of the Qur’an and the Sunnah. 

The legal rule based on ijma’ is definitive and it is not permitted to oppose it.
In addition, the mujtahids are not allowed to exercise ijtihad on the legal issue that has been settled through ijma’. 

Proof and Justification of Ijma’ as a Source of Islamic Law 


It is established by the Qur’an and the Sunnah.

The Qur’an: O ye who believe! Obey Allah and Obey the Messenger and those charged with authority among you. If ye differ in anything among yourselves, refer it to Allah and His Messenger…” (al-Nisa’(4):59)among you. If ye differ in anything among yourselves, refer it to Allah and His Messenger…” (al-Nisa’(4):59)

O ye who believe! Obey Allah and Obey the Messenger and those charged with authority
among you. If ye differ in anything among yourselves, refer it to Allah and His Messenger…”
(al-Nisa’(4):59)

“ O ye who believe! Obey Allah and Obey the Messenger and those charged with authority among you. If ye differ in anything among yourselves, refer it to Allah and His Messenger…”(al-Nisa’(4):59)

The Sunnah;There are many Sunnahs indicated that the Muslim community is infallible in their agreement. Although each of this Sunnah is probable if it stands independently but collectively they are definitive and convey the same idea. This make adherence to ijma’ is obligatory on the Muslims. There are many Sunnahs indicated that the Muslim community is infallible in their agreement.
Although each of this Sunnah is probable if it stands independently but collectively they are definitive and convey the same idea. This make adherence to ijma’ is obligatory on the Muslims.

“My community will not agree on mistake.”“My people will not agree on an error”I prayed to Allah, the Exalted, that my community may not agree on error, and He gave it to me.”
“Allah’s hand is over the community”

The position of silent ijma’

The Muslim jurists have different of opinion regarding the position of silent ijma’.
The first view is the view of Imam Shafi’i and the Malikis. They holds that the silent ijma’ is not considered to be ijma’ nor a probable proof. The argument 
regarding the position of silent ijma’.Silence cannot be considered as consent to the opinion expressed by others. Since no statement can be attributed to a silent person. Possibly he might have kept his silent due to respect for the one who expressed the opinion, for fear of that person, or he could not form his opinion about that problem and so on. respect for the one who expressed the opinion.

The second view, the majority of the Hanafi juristsand some of the Hanbali jurists maintainsthat silent ijama’ is an ijma’ like an explicit ijma’. It is legally binding and definitivesource. The argument is that silence is an evidence of consent if there is no circumstantial evidence that indicated otherwise, and if there is no any constraint to express the opinion. It is improbable that the jurists abstain from pronouncing a correct rule of Islamic law.The third group is the opinion of some juristsof the Hanafi and Shafi’i. They hold that silent
ijma’ is not ijma’ but it is a probable proof 
of the Hanafi and Shafi’i.The argument of this view is that ijma’ is the agreement of all mujtahids, but silent ijma’ does not fulfill this condition. However, it is considered as a proof because the opinion expressed by some jurists is not opposed by anyone. agreement of all mujtahids, 

Basis of ijma’ (sanad al-ijma’)

  • The legal theorists hold that there must be some proof to which the mujtahis refer to in their agreement. proof to which the mujtahis refer to in their agreement.
  • They are in agreement that the Qur’an and the Sunnah can be a proof for ijma’. E.g. of ijma’ based on the Qur’an;
  • The prohibition of marriage with grandmother and granddaughter. This ijma’ is relied on the verse “Prohibited to you (for marriage) your mothers, daughters…” (al-Nisa’(4):23).
  • The jurists hold that the meaning of mother is an origin and daughter is a branch. Sunnah can be a proof for ijma’.E.g. of ijma’ based on the Qur’an;
  • The prohibition of marriage with grandmother and granddaughter. This ijma’ has relied on the verse “Prohibited to you (for marriage) your mothers, daughters…” (al-Nisa’(4):23).
  • The jurists hold that the meaning of mother is an origin and daughter is a branch. E.g. of ijma’ based on the Sunnah. Ijma’ on the portion of grandmother in inheritance is one-sixth. This ijma’ is based on the Sunnah where the Messenger awarded one-sixth to the grandmother.
  • However, the jurists have different of opinion regarding to other proof like qiyas and public interest ( regarding to other proof like qiyas and public interest (maslahah).  

Friday, March 8, 2019

Pakistan and FATF's grey list

Pakistan and FATF's grey list

Introduction 

FATF stands for Financial Action Task Force. It is an inter-governmental body established in 1989 with its headquarters in Paris

Objectives


FATF was established to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, curtailing terror financing and other related threats to the integrity of the international financial system.

FATF and Pakistan:

FATF has placed Pakistan on the grey list in June 2018 (which means that Pakistan is not doing enough to combat terror financing and money laundering) 

Impacts of FATF's grey-listing on Pakistan



  1. It has affected the international image of Pakistan
  2. Economic fallout (institutes like IMF, World Bank would not lend us money and if they would impose more stringent conditions)
  3. Diplomatic isolation (as countries like China and Saudia Arabia have decided not stand with us)
  4. Decrease in foreign investment
  5. In case of failure would be placed on blacklist along with Iran and North Korea


Reasons behind Pakistan's enlisting in FATF's grey list

  1. USA's pressure to promote her interests and to gauge her Afghan policy since the country has already moved out of the list back in 2015.
  2. Failure of the government in implementing National Action plan thoroughly
  3. Presence of extremist groups

Current Scenario

Is Colonial mentality impeding Pakistan’s Progress?


Is Colonial mentality impeding Pakistan’s Progress?



Outlines:

Introduction
Background
1. Colonial legacy of dependency and its drawbacks
A. Economic dependency
B. Military dependency
C. Industrial dependency
D. Political dependency
2. Macaulay’s colonial system of education and its impacts
A. Educational legacy of colonialism
B. Cultural legacy
C. Psychological legacy
3. Feudal inheritance from imperialism and its effects
A. Feudal psyche and narrow traditions
B. Feudals as privileged class
C. Feudal class and its impacts on politics
4. Colonial legacy of imbalanced power structure and its disasters
A. Colonial legacy of military fiscalism
B. Shaping of political and bureaucratic power relations
Conclusion
Pakistan got its freedom from British Empire in 1947, but according to Jinnah it was a “mutilated and moth-eaten Pakistan”. Imperialism had done much damage to the economy, culture and politics of sub-continent that it was a Herculean task for Pakistan to become a developed modern state. In this entire scenario, legacy of colonialism has always been haunting the different strata of Pakistani society. On one hand Neo-colonialist mentality of west has been plundering the wealth of Pakistan even after her independence, on other hand political leadership of Pakistan, who accepted the colonial doctrine of superior west and sought refuge in western dependency, they also have added to the injuries of under-developed nation. Macaulay’s education system has damaged the cultural and intellectual identity resulting in feeling of inferiority towards local wisdom. Roots of feudalism, another colonial legacy, have become stronger with passage of time. Privileged feudals have shaped the society in such way that has resultantly damaged the culture, politics and economy of Pakistan. Military fiscalism, bureaucratic parentalism and sectarianism, imposed by the imperialists, have in one or other way hindered the growth of Pakistan.
British colonialists during their reign in sub-continent propagated the idea that natives were un-cultured and uncivilized people. According to them the main cause of the under-development of India was that they were devoid of scientist and rational thinking and Indian people were more inclined to dogma and blind faith. According to colonialists, it was they who brought the light of modernity and progress to these isolated and static regions. Post-colonialist research has completely denied the colonialist thinking and researchers believe that when Britishers came to India for trade at that time Mughal Empire was one of the richest empires of the world, dominating the 50% of the world trade with a huge network of textile industry. It has also been established now that the immense wealth, which had been exploited form Indian was the main reason behind the development of Europe.
Colonials developed a myth that economically week natives cannot survive without western support. Famous colonialist James Harrington said for Indians “they are yet babes that cannot live without sucking the breasts of their mother”. They assumed that rich Europe is the only savior for eastern people. In this way they justified their imperialist designs. This colonial mentality of dependency on west has mired Pakistan since 1947.Pakistan has been heavily dependent on western aid to get rid of her own economic miseries. Pakistan has received about $78.3 billion between 1948 and 2016 from USA, £665 million ( from 2009–2013) from U.K. All this foreign aid has a heavy cost which Pakistan has to pay in the shape of circular debts. It is necessary for Pakistan to get rid of dependency for restructuring Pakistan’s economy to make it self-sufficient over time.
This colonial policy of dependency has been expanding from economic assistance to military assistance. United States has provided nearly $67 to Pakistan between 1951 and 2011. A large amount of military aid has been provided during authoritarian rules in Pakistan. U.S has been encouraging these dictators through military aid to achieve her own national interests. Foreign military aid has badly affected not only the balance of power in Pakistan but also the foreign policy. It is pressing need for Pakistan to cut foreign military assistance for future development.
Following the colonial psychology of imperialism, ruling class of Pakistan began to peruse the western policy since inception. From the early years till now Pakistan has been following the policy of import substitution. Pakistan is still lacking behind in technological advancement, but no such policy is being adopted to develop own industrial and technological base in Pakistan. China, Japan and India have developed only due to their local industry. Pakistan has huge potential for the technology in energy sector, in IT sector and in Textile sector. But heavy investments are made by multinational companies in different sectors. There are about 40,000 multi-national companies (MNCs) in Pakistan. Local industry of Pakistan cannot compete with monopoly of these multinational giants. Due to this exploitation of multinational companies Pakistan gets very little share from her own natural resources and contribution to revenue is very little. Pakistan needs to support local industry for growth and development.
During the colonial era the native Indians were not free to formulate their own political policies. Same is case with neo-colonial relation between Pakistan and United States of America. During First and Second World War, British imperialists forced natives to fight their war against Fascism. Following the colonial mentality General Zia was forced to support the American war against Russia in Afghanistan. By supporting this war Zia sowed the seeds of fundamentalism and intolerance into peaceful society of Pakistan. After the devastating event of 9/11, Musharraf government was dragged into war against terror. With support of war against terrorism and following the neo-liberal agenda, an unending wave of terrorism spread all over the country. These wounds of intolerance and terrorism, gifts of neo-colonial policy, have completely devastated the very fabric of the society of Pakistan. Pakistan needs an independent foreign policy to achieve goals of progress and prosperity.
One of the important legacies of Colonialism is Western education introduced by Lord Macaulay to produce an educated Indian class which would serve the imperial interests of colonials. Western knowledge contained scientific, philosophical, technological information along with a great variety of other fields of information but it was not Macaulay’s purpose to produce scientists and philosophers among native people which can work for their own development. Same colonial legacies have been followed in education system of Pakistan. Knowledge is acquired to seek career and serve interests of a particular class. Pakistan’s education system is unable to produce scholars, philosophers and scientists and poor country heavily depends on borrowed knowledge.
Macaulay’s education project rejected the earlier project of Sir Earnest Jones. Sir Earnest Jones worked tirelessly to translate eastern literature and native wisdom. Macaulay gave the impression that wisdom only belonged to English speaking people. A person who did not know English was treated as philistine and incompetent. Same mentality of Macaulay is still haunting Pakistani society. One is required to learn English to prove his mettle. All this has added to the inferiority complex of people who possess folk wisdom and great potential for advancement. Indian history is rich with creative literature, produced through folk wisdom, but race for learning foreign language has only added to cultural and literary decline.
It is also due to the colonial psychology that a great deal of skilled Pakistanis prefers to work abroad in Western countries. Brain drain has a huge impact not only on economy of Pakistan culture is also affected by this psyche. Primary purpose to settle in west might be to get better living facilities but underling motives are to become part of “superior” western culture. This rejection of indigenous culture has resulted in inferiority complex among citizens of Pakistan. Only because of this mentality our local talent gets appreciation only after getting reward from West.
Mughal system of mansabdari was based on non-hereditary transferable land. Land belonged to king and mansabdar was a mere revenue collector for state. It was during the colonial era that petty chiefs of post Mughal era were given permanent lands. In this way a new privileged class of landlords emerged whose purpose was to serve the interests of colonizers by collecting revenue and offering loyalty to British masters. It was irony of the history that Europe made industrial advancement by abolishing feudal system but in sub-continent they strengthened the feudal system to serve colonial interests. With emergence of new state in 1947 this privileged class had become so strong that it was almost impossible to abolish feudalism in Pakistan.. According to writer M.Masud, “The hari and the zamindar represent two extremes of mankind; one lives in the height of depravity and misery, the other in the height of luxury and extravagance”
It was in the interest of this feudal class to maintain and perpetuate status-quo and resultantly Pakistan could not become an industrial state. Feudals have become so powerful that they are considered as “state within state”. These feudals have their own system of law and justice based on narrow minded traditions. Often these laws are in conflict with state laws. The evil practices of Karo Kari(honour killing), Watta Satta( exchange marriage) Vanni, Swara and Haq bakshi(marriage with Quran) are rampant among this feudal setup. Education system is completely under control of these feudals. It is in their class interest to maintain illiteracy and ignorance among poor villagers. Infrastructure, health conditions, living standard and all other indicators of social prosperity are in dilapidated condition.
A large part of political parties of Pakistan consists of these feudal lords. With a large vote bank of their peasants and poor villagers only these feudals get elected in elections. Various famous feudal families have such a strong hold in their areas that they have been unbeatable for decades. In this whole setup it becomes so difficult for a lower class or middle class contender to win elections. Democracy can survive only through new people with new ideas. With same feudals and same faces in assemblies year after year, country gets same policies and agendas which serve the interest of this feudal class.
Feudal have become such a strong privileged class that when they are elected to assemblies they make laws of their own class interests. Laws like exemption of income tax on agriculture income reminds the old privileged system of 18th century France. Accountability laws like plea bargain and voluntary return after making corruption also provide them escape door. In short feudal system has shaped the society in such way that only rich can enjoy the fruits and poor has to suffer.
Another colonial practice is military fiscalism inherited by Pakistani leadership after partition. In order to subjugate the local people British colonizers spent a huge amount of collected revenue on military. British masters only spent 3% of total revenue on education and health. Famous educational and social institutes in British era were developed by local Muslim, Hindu and Parsi reformers like Sir Syed Ahmed Khan, Eduljee Dinshaw and Sir Gangaram. Following the same path of colonialists, Pakistani leadership, instead spending budget on education and health, has been spending heavily on military expenditure. According to statistics Pakistan’s education budget is lowest in south Asia, where as military budget in year 2017 is approximately Rs 920 billion. Annual public expenditure on education is only 1.8% of the GDP and expenditure on health is 1.1% of GDP. In contrast annual defense expenditure is about 23.9% of the annual budget of Pakistan. This shows that like colonialists, eradication of poverty and provision of better health condition has never been the priority of ruling class of Pakistan.
In absence of democratic set up, during the colonial era there emerged a powerful military and civil bureaucratic class which devised the political and economic policies accordingly. After independence Pakistan also faced this imbalanced power structure. Democracy could not thrive for almost three decades as the powerful civil-military bureaucracy derailed the political process of democracy. Long civil-military bureaucratic set up, led Pakistan to civil war and division of the country in 1971 and its continuation poses a serious threat to the security of remaining parts of Pakistan. It is necessary for democracy and development that Pakistan should to reshape and do away with colonial power structure.
Pakistan, since independence, has been struggling to become a modern social welfare state .But Pakistan’s past legacy and its ills have unfortunately been dragging Pakistan towards disaster and destruction. Pakistan got rid of Colonialism but trapped into post-colonial policies of powerful imperialists. Post colonialism exploitation led the country towards economic, military and political dependency in turn country faced several challenges of circular debts, weak industrial base, terrorism and sectarianism. Education policy of British era could not help produce a scientific and rational class who could contribute towards progress. Rather English education brought cultural and intellectual decline along with Inferiority complex. Feudalism, legacy of British Raj, added fuel to the fire by championing status quo. Uneven power set up, gift of colonialism, damaged the democratic process of the country. Architectures of the future have to get rid of ill mentality of past. For those who cannot change their mind cannot change anything.
By 
CSP Shamsher Ali Seelro 

Thursday, March 7, 2019

Hybrid Warfare

Hybrid warfare is a term that identifies the usage of multifaceted techniques by states and non-state actors so to attain certain strategic objectives against a country.
The term 'hybrid warfare' though seems new but in reality and in its operation is not an ark one. Many people do tend to comprehend hybrid and 5th generation warfare one or the same thing, however; a basic distinction do exists between the two. The 5th generation warfare is specifically used to identify the media warfare especially the propaganda that is propagated through social media. However, on the other hand, hybrid warfare is the combination of all these things. It implies not only the usage of media; print, electronic and social but also implies and involves violent activities like trans-national terrorism, use of unmannned vehicles and threats of wars by other states. 
Pakistan has tasted the bitterness of this warfare for the first time in 1971. The New Delhi’s promotion of Mujib’s six points, encompassing the narrative of genocide against Bengalis, training of Mukti Bahini and the direct involvement of Indian and Soviet governments that paved the way for the dismemberment of East Pakistan has been the outcome of the same hybrid war.
Besides, in the contemporary world, the crisis of Ukraine is the perfect example to understand the instruments of this hybrid warfare. The blatant narrative building, unending cyber-attacks and the support of anonymous-separatist militia by Russia against the Ukrainian government is true vindication that how much sophisticated and dangerous this hybrid warfare is!
But as of now, Pakistan too is being faced by an unending turmoil of this hybrid warfare. The inception of various movements in the mainland’s of Baluchistan and ex-FATA has been a manifestation of this hybrid warfare which tends to forestall the progress of China Pakistan Economic Corridor.

Therefore, it is necessary that due consideration should be given to the National Action Plan and new rules of engagement should be developed so to monitor the media in a more appropriate way. Moreover, stringent action against the terrorist organization and radical groups in terms of the financial domain should be carried out in full vigor so to deter not the hybrid warfare but also to prevent the embarrassment of FATF’s grey-list.