I am writing this email to enquire from Mufti Saheb in light of concerns from some Ulama on fatwas of irtidaad being passed on other Ulama. I wanted to know what is the Islamic procedure if one is accused of apostasy and the recourse the person according to Fiqh. Or what is the shuroot before a person can be declared a murtad. Should the matter be referred to a Qadhi or Haakim for the issue to be heard by both parties? If so, does Mufti saheb have a suggestion on who qualifies to be a Qadhi or Haakim on this issue? Should it be someone with an Ijaazat in Qadhaa? Or alternatively, can it be a panel of Muftis from the official Lajnat of Muftis to preside over such matter or any matters involving matters requiring an Islamic judgment concerning disputes or accusations of Irtitdaad.
In the introduction of the Kitaab, Ikfaarul Mulhideen, authored by Hadhrat Allaamah Anwar Shah Kashmiri (Rahmatullah alayh), Hadhrat Maulana Yusuf Binnuri (Rahmatullah alayh) states:
“In our age the Mulhideen and Zanaadaqah enjoy total freedom (of expression), hence they refute with greater audacity the Fataawa of Takfeer of the Ahl-e-Haqq. They describe these Fataawa and the terms kaafir, murtad, mulhid, zindeeq and jaahil as being abuse (vulgar words). They say that the Ulama know only swear words. The reality is that just as Salaat, Zakaat, Saum and Hajj are of the fundamental Ahkaam and Ibaadaat of Islam, so too are kufr, nifaaq, ilhaad, irtidaad and fisq among the foundational ahkaam of Islam. In the Deen these acts have specific meanings. The Qur’aan Kareem and Nabi Kareem (Alayhis Salaato Was Salaam) have categorically affirmed these. It is the obligation of the Ulama of the Ummah to show the Ummah the occasions that these terms (mulhid, kaafir, etc.) are used………………….If the limits of Imaan and Kufr are not elucidated and specified then the difference between Imaan and Kufr will be eliminated and the Deen of Islam will become an orphaned baby, and Jannat and Jahannam will become fairy tales. Therefore, the Ulama of this Ummah will apply the Fatwa of Kufr regardless of what happens, regardless of criticism. They will not care for anyone’s criticism and insults. They will apply the Fatwa of kufr to anyone who deserves it…. ‘They do not fear the insults of any insulter.’ (Qur’aan) Kaafir, Faasiq, Mulhid, Murtad, etc. are ahkaam and attributes of the Shariah and will be applicable to the beliefs of individuals and organizations. If these terms are correctly applied, it will be jahaalat or religiosity (bad-deeni) to describe them as terms of abuse. When the Ulama-e-Haqq make Takfeer of any group (organization), they (the Ulama) do not make them kaafir. They of their own volition become kaafir by their voluntary adoption of kufr beliefs, statements and acts. Thus they make themselves kaafir. The Ulama merely expose their kufr. The touchstone (kasoti, criterion, the instrument of recognition) does not make gold false. It merely shows that it (the metal) is false (and not gold). Therefore it is shameful ignorance to say that the Ulama only render people kaafir.” Allah Ta’ala states in the Qur’aan Majeed: “Verily, those who commit ilhaad in Our Aayaat, they cannot remain hidden from Us. Is that person who will be cast into the Fire better than the one who will come on the Day of Qiyaamah in safety? Do as you please. Verily, He (Allah) sees whatever you are doing.” Presenting the tafseer of the term Yulhidoona mentioned in this Aayat, Hadhrat Abdullah Ibn Abbaas (Radhiyallahu anhu) said: “They misappropriate the Kalaam of Allah (using it wrongfully). Qaadhi Abu Yusuf (Rahmatullah alayh) said: “So is it with the zanaadaqah who commit ilhaad whilst they professed Islam.” Miyar Sayyid states in Sharh Mawaaqif: “Remember! That refrain, ‘Do not proclaim the people of the Qiblah are kaafir’, is the opinion of Shaikh Abul Hasan Ash’ari and Fuqaha. However, when we investigate the Aqaaid of deviant sects we find numerous such beliefs which are absolutely kufr, e.g.
(1)Existence of gods besides Allah Ta’ala.
(2) Hulool (incarnation) of Allah Ta’ala into a human being
(3) Denial of the Nubuwwat of Muhammad (Sallallahu alayhi wasallam)
(4) Abusing and denigrating Rasulullah (Sallallahu alayhi wasallam)
(5) Proclaiming the prohibitions of the Shariah to be halaal
(6) Abolishing the Faraaidh of the Shariah, etc.
Therefore we are not in agreement with this principle of Shaikh Ash’ari. On the contrary, if any Muslim sect (group/organization) adopts such beliefs, statements and practices which are kufr, then we shall most assuredly proclaim them kaafir even if they perform Salaat facing the Qiblah and regard themselves to be Muslims.” Hadhrat Shah Abdul Aziz (Rahmatullah alayh) states:
“The meaning of ‘Ahl-e-Qiblah’ does not refer to every person who faces the Qiblah when performing Salaat. This term refers to those people who do not refute the Essentials of the Deen (Dhururiyaat-e-Deen). The term Qiblah in this context is synonymous with ‘Deen’. Thus it means the people who believe in the Deen. It does not refer to a person who only faces the Qiblah when performing Salaat. There is no doubt in the fact that the Imaan of a person on Kitaabullah and the Ambiya is not valid if he denies these kinds of Aqaaid and Ahkaam (i.e. the Dhururiyaat-e-Deen).”
(End of excerpts from Ikfaarul Mulhideen) The above is a very brief presentation of the meaning of Ahl-e-Qiblah. A whole volume could be compiled on this topic. After this brief introduction , we now turn to your queries.
1) If the kufr of a person is confirmed, then undoubtedly he has become a kaafir. If this person disseminates his kufr idea, belief or practice, then it is obligatory on the Ulama to expose him in order to safeguard the Imaan of the masses.
2) If the kufr is stated in privacy, without the person disseminating his kufr view, then those in contact with him should explain his folly in privacy. They should endeavour to divest him of his kufr idea and urge him to repent and renew his Imaan.
3) The declaration of kufr, ilhaad, irtidaad, etc. is reliant on confirmation of the kufr of the person.
4) Firstly, in our scenario there is no Qaadhi with coercive power. In fact there is no Qaadhi appointed by the Jamaatul Muslimeen. The Muslim community in South Africa is severely splintered. Every organization is independent of the other. If a group of Muslims appoints someone as their qaadhi, this will never be binding on others who are independent and who reject that organization or that person being qaadhi. A valid Qaadhi is in fact appointed by the Ameerul Mu’mineen. However, since the Institution of Khilaafat is non-existent, the question of such an appointment does not develop.
5) The Muslim community is currently in absolute disarray and hopelessly fragmented in a myriad of splinter groups. There is no hope of succeeding in appointing a Qaadhi for the community or for even a substantial segment of the community.
6) There is in fact no ‘official’ Lajnah of Muftis in South Africa. All Darul Iftas and Ulama groupings are today self-appointed.
7) However, there are many Muslims who follow specific Ulama or Ulama bodies. They do turn to such institutions for Shar’i directives. The Ulama are acting in this role although they are devoid of the power of enforcing their rulings on even their own followers.
8) In the current scenario, only such Ulama will be able to preside over issues, on whom their respective constituencies have confidence. There is no possibility whatsoever for the appointment of a national Qaadhi or a grand mufti. Such appointments will be mere paper appointments, futile and ineffective. May Allah Ta’ala keep you with aafiyat.