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JUSA

Jamiatul Ulama

south africa

COUNCIL OF MUSLIM THEOLOGIANS

22 Dhul Qidah 1441 AH / 14 Jul 2020

UUCSA Statement on the High Court Proceedings in the Application for Special Accommodation for Religious Places of Worship under Lockdown

 

UUCSA STATEMENT ON THE PROCEEDINGS OF THE HIGH COURT CHALLENGE ON THE CLOSURE OF ALL RELIGIOUS PLACES OF WORSHIP AND THE SPECIAL ACCOMMODATION REQUESTED BY THE APPLICANTS

 

All praise is due to Allah (swt) and may His choicest salutations continue to descend upon our Master and Leader Mohammed (saw).

 

The United Ulama Council of South Africa (UUCSA), an umbrella body representing nine Ulama formations in South Africa took a majority-decision (eight out of nine) to become Amicus Curiae (a friend of the court). The Jamiatul Ulama KZN did not support the decision.

 

A friend of the court is a party who provides facts, and in the discretion of the court, evidence, to assist the court in making an informed decision.

 

The case itself was brought by the Applicants, the As Saadiqeen Islamic Centre and two Alims who work there. As Saadiqeen relied on the Fatwa’s of Mufti A.S. Desai, Mufti A.K. Hoosen and Mufti Chatagami for its application against the President, the Minister of Health and the Minister of Cooperative Governance and Traditional Affairs.

 

With each response in their papers, in the weeks leading up to the hearing, and including on the day of the hearing, the applicants changed their position on the Masaajid and their interpretation of the fiqh that they relied upon several times.

 

UUCSA feared a misrepresentation of the Shariah, and therefore applied to be a friend of the court because it felt obliged to represent the Shariah openly, honestly and consistently, illustrating the Maqasid Al Shariah and the expert advice it relied upon for the stance it has adopted.

 

UUCSA considers the views of the Applicants to be beliefs within the framework of the Shariah. However, UUCSA felt that the applicants had not given enough consideration to the overriding societal harm that might ensue if there was an unprepared, maverick application for a court-sanctioned opening of all places of worship.

 

A brief overview of the views held by UUCSA and the Applicant is as follows:

 

UUCSA VIEW APPLICANT’S ORIGINAL VIEWS
The virus is contagious. The virus is not contagious
The virus can be spread from the Masjid The virus does not enter the Masjid.
A Muslim is obliged to protect himself from the virus and has a duty not to potentially endanger others Mosques are clean and wudhu is made before salaah which provides some protection from the virus
It is permissible to read salaah at home under conditions such as a pandemic It is fardh to read salaah with Jamaat in the masjid irrespective of the conditions such as pandemics.

This changed on the day of the hearing, to a view that it is only obligatory on a community to keep the masjids “open” with 3 adult male congregants and 4 male congregants for Jumu’ah.

Suspend congregations in the masjid Continue with multiple masjid congregations of 20 each regardless of the circumstances
The lockdown regulations pertaining to all places of worship are meant to protect all faith adherents and other citizens. Government has not infringed on the right to religion. We remain free to practice our religion The lockdown regulations are an excessive violation of a Muslim’s constitutional rights
Don’t trade charity for a personal gain, no matter how noble. If opened for congregational prayers, places of worship and mosques can be used as feeding stations and COVID-19 testing stations and for abused women and children to seek shelter.

 

It was precisely as a result of UUCSA’s involvement as amicus that the applicant was compelled to change its erroneous view that it is fard to perform salaah in congregation in a masjid. This is a departure from the preferred Hanafi view that  salaah in congregation in the masjid is an emphasised though non-obligatory Sunnah.

UUCSA pointed out to the court that the Shariah position presented by the applicants regarding the impermissibility of reading salaah in congregation anywhere other than a masjid was incorrect.

 

It was necessary to do so, more particularly under the circumstances to prevent the image of Islam from being unintentionally distorted by the views, no matter how sincerely held, by one portion of our community.

 

UUCSA submitted to the court that the ‘preservation of life’ is one of the fundamental values espoused by Islam. Muslims are obliged to adopt necessary precautions aimed at preventing the spread of the virus even if it means that they have to strictly limit the number of people attending the masaajid for congregational prayers and even if it means, as it has turned to be, to suspend congregational prayers in mosques temporarily until advised otherwise by government.

 

The unrestricted flow of people to the Masjid during a pandemic may have the unintended consequence of extending the period for several months or more during which Muslims are unable to access masaajid and offer Jamaah or Jummuah salaah. Singapore relaxed their lockdown too soon and are now under a more draconian lockdown.

 

The applicants in their papers swayed from one position to another.

 

Applicants Changing Opinions on the Matter:
  •  They started with an original position of absolute compulsion to perform fardh salaah in the masjid in congregation for every adult, and declaring that it is forbidden to close the masaajid.
  • This was followed by a call for opening all places of prayer, i.e. mosques, temples, synagogues churches, temples, prayer halls, public parks etc.
  • They then said that salaah in congregation is only compulsory on those who hear the adhaan, unamplified. (Heard without the use of a loud speaker system)
  • In court, they then said that they would accept a situation of four adult males, with masks, are separated by a distancing of Musalees, and it could be the same four people, selected from the Imam, Muazzin and trustees.

 

UUCSA on the other hand, consistently expanded on an Islamic maxim that advocates safeguarding public interest and repelling harm (jalb al-maşālih wa daf’e al-mafasid) as a legitimate ground for preventing unhindered access to the Masjid.

 

When safeguarding public interest and repelling harm was compromised in other parts of the world, we witnessed the exponential spread of the virus. In the UK for instance, ‘emerging evidence’ suggests that the coronavirus is having a disproportionate impact on Muslims, partly due to the more frequent and more vibrant social interaction within the community. Muslims in the UK constitute 2% of the community, yet make up 25% of reported Covid-19 fatalities.

 

A similar pattern is emerging in South Africa where 12 of the 65 deaths, or 18% of deaths in South Africa, as of 22 April 2020 are Muslim.

 

UUCSA by its involvement dispelled the potentially dangerous notion that the Muslim Community as a whole were taking the government to court, especially in circumstances where the government was acting in the best interests of all its citizens.

 

If the application was construed as the uncontested position of Muslims in South Africa, it would have firstly, and most importantly, been an inaccurate presentation of the values of Islam. It would have also resulted in strained relations with the government which has been emphatically proud of its long and shared history with Muslims.

 

UUCSA’s decision to become a friend of the court, also counters the negative stereotyping (which has already begun and need not be repeated here) that has inevitably resulted from a part of our community seeking a type of exceptional treatment over 60 million other citizens. We are not different to our fellow citizens and we must stand with them, now more than ever.

 

Unfortunately, our attempt at safeguarding Muslim Interests in the form of Muslim lives, health, wealth and reputation, has been characterised by some as an attempt to oppose the opening of the Masaajid. This is not correct. While we must guard against an unfettered restriction of our rights, we must consider restrictions in the appropriate context. We must not forget our obligations to society and our responsibility to avoid harm to others. Islam enjoins us to do so.

 

The Applicants arguments presented in their papers were contradictory:

 

  • The Applicant requested allowing a magistrate to prescribe conditions for a permit including limiting the amount of congregants that may be present at the masjid at any time. Is this not effectively delegating the right of access to the masjid to a magistrate? If limiting mass congregations in the masaajid deprives Muslims of their religious rights as contended by the Applicants, is the same right not compromised by allowing only a select few to attend the masjid? Will this not inadvertently contribute to the fragmentation within the community and disputes at local masaajid of who attends and who does not?

 

  • The applicant agreed that basic screening maybe necessary at the entry point of a masjid. How do we reconcile this with the fact that the applicant in their original papers did not believe that the disease is contagious? How and who will conduct this screening in mosques that elect to remain open from the approximate 850 masjids around the country?  Will this screening be adequate given that individuals who are asymptomatic can infect others? Will this false sense of security not expose the congregation to infection?

 

  • Furthermore, the sources that the Applicants rely upon, say that you must follow Allah’s law and open Allah’s house. In the application, the applicants ask a ‘secular court’ to delegate to a magistrate, to decide under what conditions a mosque may open.

 

  • The applicants say in court that they will accept the distancing of musalees in the mosque, while the sources that they rely upon consider distancing to be Haraam, and suggest in these circumstances that musalees read Salaah at home.

 

  • The applicants Advocate says in court that they are law abiding citizens, while outside of court the applicants Attorney calls for Muslims to defy the government regulations. Defying the government regulations is a crime and can lead to arrest and prosecution.

 

Again UUCSA has been consistent from before the lockdown. The state contended, and UUCSA agreed, that the rights sought to be protected are the right to life, the right to dignity, the right to access to healthcare and the right to an environment not harmful to ones health. These Maqaasid of the Shariah are also entrenched in the bill of rights of the South African constitution.  

UUCSA’s sincere attempt at safeguarding the image and beauty of Islam and illustrating the merciful conduct of our beloved Prophet Muhammed (SAW) has been interpreted as an attempt to oppose the “opening of the masaajid”.

 

We live in unprecedented times which calls for equally unprecedented measures even if they are unpopular.  Adopting these extreme measures have understandably caused a great deal of pain and difficulty. Yet the pain and difficulty is necessary if we want to protect lives and if want to return to normality as soon as possible.

 

Leadership demands from us an uncompromising adherence to established Islamic principles as espoused by the leading scholars of the world. A Muslim jurist takes into account all relevant information, including medical, economic, spiritual and the political and balancing competing considerations before making a determination, with a priority for the preservation of deen and life.

 

The fact that Ulama called for limiting mass congregations in the masaajid even before the government announced a ban on religious congregations shows that our response to the pandemic is not based on some kind of grudging subservience to the lockdown regulations but rather in conformance with the spirit and essence of Islamic teachings of social responsibility.

 

Alhamdulillah, by the strength, sabr, and wisdom provided by Allah (swt), despite repeated provocation, the majority of Ulama have abstained from belittling, demeaning and vilifying those who hold a different view. We appeal to Muslims in South Africa to mirror Islamic teachings of tolerance, respect, brotherhood and sisterhood. Our challenge is to join hands so that we can together help the vulnerable, poor and sick in these trying times.

 

UUCSA would like to place on record that apart from legal representation, we did not send any representative members to court on the understanding that it would not be “essential”.

 

The President announced last night, that there will be no lifting of the lockdown restrictions on gatherings at sports, cultural and religious events, including places of worship. He also introduced a five level system where depending on the spread of the virus in different localities, the lockdown regulations could be eased for those specific locations with low risks of spread. We ask all Muslims to continue to abide by the regulations.

 

We implore our Creator to unite our hearts and to protect us from casting ourselves to destruction through our own hands; and to appreciate that with rights comes responsibilities and obligations to others. We humbly request all to use the opportunity of the blessed month of Ramadhaan, sad as it may be without our masaajid for now, to reflect and make sincere dua that Allah (swt) opens our Masaajid for us.

 

Yaum ul Jumuah, 30 Shabaan 1441 / 24 April 2020

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