Islam in World Cultures: Comparative Perspectives - Islamic Books ...

2 7 4Islam i n World Cult u r e sThis is practical, guaranteed, just and fair minority rights in action and avoidsthe application of the abuse and cruelty of the democracy of numbers—a seeminglyinherited phenomenon in virtually all democracies. One may wonder whythe aforementioned system [of Singapore] is not considered seriously. Instead,systems of a secular imposed value and administrative system appear to receiveapparent favour. (Toffar A.H. 1422/2001, 19)This appeal to legal pluralism was a popular option because it seemed to indicatethat Islamic law would not be forced to adapt and change. For differentreasons, Ebrahim Moosa supported such a notion against a uniform, authoritarianlegal code, but not one ranged against civil liberties and the inherentequality between men and women (Moosa 1996b, 150). The idea of a parallellegal system appeared attractive, but it neatly avoided the conflict between humanrights and Islamic law that had already been raised in public discourse(Cachalia 1991, 48). Legal pluralism remained an idealized option, but thecalls for a new interpretation of Islamic law from a human rights perspectivemarked the difference between the views of Toffar and Moosa.Without calling for a separate parallel system of Muslim Personal law asToffar did, other Muslims have also appealed to the Limitation of Rightswithin the constitution: “the rights in the Bill of Rights may be limited only interms of law or general application to the extent that the limitation is reasonableand justifiable in an open and democratic society based on human dignity,equality and freedom” (Article 36.1). Those who advocated a system oflaw directly taken from the books of fiqh for the South African legislature arguedthat the limitation clause should apply to Muslim personal law. The interimconstitution may have given the impression that customary or religiouslaws pertaining to personal matters would not be subject to a Bill of Rights,and Toffar believed that the absence of a specific clause such as 15.3.b citedabove should guide the interpretation of Muslim personal law in the interimconstitution. This particular model was followed in Zimbabwe, where personallaws originating from customary practices were exempt from equalityprovisions in the rest of the constitution. According to Najma Moosa, such apresumption was plausible but unacceptable in the interim constitution(Moosa 1998, 202). To clear any such presumption, the final South Africanconstitution specified the limits of Muslim personal law by introducing thelimitation clause under Article 15.While Ebrahim Moosa and others argued that elements of Muslim personallaw would have to take into consideration the principles of the constitution,and accordingly revised, neotraditionalist religious scholars generally resistedsuch reinterpretation under any circumstances. The Muslim Personal LawBoard collapsed in the face of this irreconcilable difference in outlook. Thenew committee entrusted with formulating a solution faced a difficult task.