Daily Times

The great thing about being at Harvard is that not only can you find any book from any period in Islamic history but you can interact with scholars who have spent their entire lives studying in minutest detail the law of Islam i.e. Sharia Canon.  On Friday I had the opportunity of meeting a true scholar of medieval Islamic law who has dug deep into the archives and is an authority on the subject.  I placed before him the text of the 2nd Constitutional Amendment to the Pakistani Constitution that declares Ahmadi Non-Muslims and asked him whether such an amendment can be sustained in the eyes of Islamic law. His answer was that while there is a consensus amongst the Ahle-Sunnah that there would be no prophets after the Holy Prophet (PBUH), by the same token classical Islamic jurisprudence does not allow for takfir on the basis of mere denial of a consensus by the community.  He then suggested that I should obtain a translation of Iqtisad-fil-Itiqad, the classic written by Imam Al Ghazali on the issue of belief and disbelief in the 11th century.

It must be remembered that Imam Al Ghazali believed in the absolute and unqualified finality of prophet hood just like any orthodox Sunni Muslim.  He considered any other interpretation to be wrong from his point of view and believed that there was Ijmah-ul-Ummahor the consensus of the believers on the issue.  However he makes an observation that seems to be prescient given what has happened to the Ahmadi community in Pakistan. He says that there is bound to be disagreement on the issue but so long as a person does not outright negate a verse of the Quran but merely disagrees with Ijma-ul-ummah, he or she cannot be declared Non-Muslim.  The denial of Ijmah does not turn a person who says the Kalima out of the fold of Islam.  Al Ghazali is the most celebrated Sunni figure in history.  Indeed he is championed by the orthodoxy for what is viewed as his contribution in preserving orthodox Islam from rationalists and philosophers.  So Al Ghazali is by no means a liberal figure in Islamic history.  His works are widely read in Madrassas around the Muslim world.

Pakistan’s decision to declare Ahmadis Non-Muslims in 1974 does not only rebel against common sense but is a violation of time honoured Islamic legal tradition which does not allow takfir simply on the basis of Ijma-ul-Ummah

The 2nd Amendment to the Pakistani Constitution therefore vitiates the very orthodoxy it deems to protect.  It is also an example of what happens when a Muslim states attempts to legislate on the basis of faith – it goes horribly wrong. The only legal precedent in Islamic history for such state led excommunication is actually Minha-al-Mamun.  It was a practice instituted by Caliph Mamun which persecuted Sunni Ulema for not believing in the doctrine of the createdness of the Quran.  Some of the greatest jurists of Islam were tortured and abused by the Abbasid state for refusing to accept this state sponsored persecution. Amongst them was none other than Imam Ahmad Bin Hanbal, the founder of the Hanbali School.  Those who refused to accept the state definition of a Muslim were declared Non-Muslim and were stopped from holding key offices in the state. Sounds familiar?   Ironic that Ahl-e-Sunnah in Pakistan have adopted the ways and methods of Mamun who persecuted Sunnis in his realm. What Pakistan has been doing to Ahmadis including the oaths required by Muslims to get even the passport has strange parallels to Minha-al-Mamun.  Given that classical Islam always existed beyond state’s purview and was never drawn into a close connection with the Caliphal authority,  the classical Sunni view is precisely what  Al Ghazali listed two centuries after Minha-al-Mamun. In doing so Al Ghazali merely reaffirmed the idea of personal conscience, religious freedom and the Quranic verse “La-ikrah-fid-deen” – there is no compulsion in religion.

Allama Iqbal had once called Al Ghazali the Kant of Islam and he was right. He did so because he promoted creativity, intuition and mysticism over legal formalism and rationality.  Fair enough but the same Iqbal also spoke in legal and formal terms.  Perhaps that was first and foremost Iqbal’s problem in approaching Islam.  Despite his thorough study of Al Ghazali, he missed the point entirely. Freedom of conscience cannot be denied under Islam and ijmah cannot be enforced on an individual. He missed this point most notably when in the last years of his life he turned against the Ahmadis and wanted them declared Non-Muslim.

In contrast, it may be stated that while Jinnah, being trained entirely in English legal tradition, probably never studied Al Ghazali but he instinctively got the point about freedom of conscience.  That is why when people asked him to turn the Ahmadis out of the Muslim League, he refused to do so, saying that he was no one to declare someone a Non-Muslim if they call themselves a Muslim.  Such was his influence that even Shabbir Ahmad Usmani, who considered Ahmadis not just Non-Muslims but worthy of death, was forced to explain to his colleagues in Deoband that Muslim League is a political party and not a religious one and therefore Ahmadis are in it because they consider themselves Muslims. Well Pakistan too is a worldly state and not a theocracy.  Its decision to declare Ahmadis Non-Muslims in 1974 does not only rebel against common sense but is a violation of time honoured Islamic legal tradition which does not allow takfir simply on the basis of Ijma-ul-Ummah. It is about time Pakistan revisited this travesty in the name of the great faith of Islam which does not permit any such thing.

The writer is a practising lawyer and a Visiting Fellow at Harvard Law School in Cambridge MA, USA. He blogs at http://globallegalforum.blogspot.com and his twitter handle is @therealylh

Published in Daily Times, February 12^th 2018.