P L d 2000 s c 225 (Riba prohibition stayed)

 

Having attempted a summary of the historical position, which has emerged upon hearing of these appeals, for the better part of some five months, further analysis of the concept of Riba at the etymological and epistemological levels follows:

 

 

 

3. The judgment of the Federal Shariat Court (FSC), in appeal before us, has drawn on a good number of lexical sources of the Arabic language, purporting to define and demonstrate the concept of Riba. Copious references have been made by Tanzil-ur-Rehman, CJ, who has authored the judgment of the Court, inter alia, to Lanes’s Arabic-English Lexicon, Imam Raghib al-Isfehani’s ‘Mufradat-ul-Qur’an’, Md. Murtaza al-Zubaydi’s ‘Tajul-Aroos Min’ Jawahar-ul-Qamoos’, “Arabic English Dictionary”, by Stiengass, “A dictionary of Islam” from Thomas Patrick Hughes, Imam Tabri’s ‘Tafseer-e-Tabri”, Ibn-al-Athir’s well-known work ‘Kitab-alNihayah fi-Gharib-al-Hadith wa’1-Athar’, Ibn ‘Arabi’s ‘Ahkam-al-Qur’an, Imam Fakhrud-Din- A1 Razi’s ‘Tafsir al Kabir’ and ‘Ahkam al-Qur’an of Al-Jassas. Of these the definition of Riba in “A dictionary of Islam” by Thomas . Patrick Hughes may, specifically, be noted here. The author, evidently, mindful of both the Riba al-Nasi’ah (Riba in loans) and Riba al-Fadl (Riba in trade) aspects of the prohibition, to a large extent, correctly treats Riba to be:--

 

 

 

“A term in Muslim Law defined as an excess according to a legal standard of measurement or weight, in one or two homogenous articles opposed to each other in a contract of exchange in which such excess is stipulated as an obligatory condition on one of the parties without any return.. The word Riba appears to have the same meaning as the Hebrew ‘Neshec’, which included gain, whether from the loan of money or goods or property of any kind. In Mosaic Law, conditions of gain for the loan of money or goods were rigorously prohibited.”

 

 

 

The quoted definition is also remarkably similar to the succinct description in Abd al-Rahman al-Jaziri’s famous compilation al-Fiqh-ala-al-Madhahib al-Arba’ah, which says:

 

 

 

“Riba is one of those unsound (Fasid) transactions which have been severely prohibited (Nahyan Mughallazan). It literally means increase ....However, in Fiqh terminology, Riba means an increase in one of two homogenous eqdivalents being exchanged without this increase being accompanied by a return. It is classified into two categories. First, Riba al-Nasia’ah------

 

 

 

The second category is Riba al-Fadl…………….. “

 

 

 

Anyway, either definition draws, directly or indirectly, upon the Qur’an and Sunnah, the first of those, while speaking of Riba and Bai (sale), putting them in juxtaposition with each other and the second, unfolding the notion of Riba al-Fadl. Each is a happy blending of the thoughts attributed to great thinkers. of the likes of al-Sarakhsi who, terming Riba, in its literal sense, as “excess” goes on to define it, in its technical (Shari’ah) sense as “the stipulated excess without a counter-value in Bai”, Imam Tabri, who construes Riba as that increase which the owner of a valuable property (Mal) receives from his debtor for giving him time to pay off his debt and Ibne ‘Arabi for whom Riba denotes every increase in lieu of which there passes no consideration in the way of property (Mal). Be it mentioned here, albeit in passing, that Bai (sale) in Fiqh (Islamic Jurisprudence) is a word of wide connotations and includes virtually all exchanges, even loans. It is for this reason that upon the (explicit) prohibition of Riba the non-believers maintained that Bai was also like Riba and the Almighty retorted, “but Allah has permitted (profit on) Bai and prohibited Riba”. More of this later.

 

 

 

4. Speaking strictly, no further augmentation of the FSC references appears to be necessary. However, to provide a self-contained exposition of the subject and elaborating upon the theme, much like other works, in the Advanced Learner Arabic-English Dictionary (Pub. 1989, London) the word Riba, as a noun, is stated to be the equivalent of “excess” “addition” or “surplus”, its verb denoting “to increase, to multiply, to exceed, to exact more than was due, to practise usury”. In “Lisan-ul-Arab” to Allama Ibne Manzur Al-Afriqi, Riba signifies the “excess” or “surplus”, which accrues on a loan or the (predictable) profit generated thereon. In his work entitled, Tahzeeb, Abu Mansur-A1 Azhari similarly describes Riba as the “excess” or the “surplus”, which accrues on a loan or the (foreseeable) profit generated by a loanable fund.

 

 

 

5. Similar results follow when the word Riba is examined, contextually, as found employed in the Qur’an itself. Such is the epistemological dimension, employed to discover and verify the purport and significance of the institution of Riba. In the Qur’an, the word signifies “to rise”, “at a height”, (II:265;XXIII:50); “to increase”, “to prosper”, (II:276;XXX:39); “to swell”, (XIII:17); “to nurture”, “to raise”, (XXVI:18; XVII:24); “to grow”, (XII:5); and “augmentation” or “increase in power”, (XVI:92;LXIX:10). The Federal Shariat Court records, and apparently correctly, that the term Riba, in its various linguistic forms, occurs at about twenty places in the Qur’an.

 

 

 

6. In short, theoretically, Riba, as a noun, signifies an excess or addition, but never a decrease or depletion, and with reference to a loan an excess payable or an increase chargeable over and above the principal amount or thing borrowed or lent. The quantum bf the addition or premium, large or small, much as the purpose, productive or consumptive, as dilated upon in the exhaustive judgments of my brothers, remains contextually irrelevant. It is in this perspective that the Qur’an disallowed all accruals in the way Riba and permitted, but not without reservations, only returns of the principals then due (al-Baqarah II:278-281, hereinafter reproduced), Prophet Muhammad (s.a.a.w.s.), explicity repeating the command in his celebrated sermon on the occasion of Hajjat-ul-Wida also reproduced but somewhat later). The broader implication of Riba, is inclusive also of exchanges other than in money, again ordained in the Qur’an and Sunnah, as hinted above, is elsewhere more elaborately reflected.

 

 

 

7. The Qur’anic prohibition against Riba, in the background of preexisting restrictions applicable to Ahl-e-Kitab (people of the Scripture i.e., Jews and Christians), for “there is no change in religion”, (Al-Qur’an) which, evolutionary processes and man-made deviations apart, has remained the came since Adam, was gradual, first as pointers and then as the strictest of the commandments. Such, in chronological order, as reflected in the “Blue-print of Islamic Financial System”, based -on the report of the International Institute of Islamic Economics (IIIE), placed on the record by Dr. Sayyid Tahir, Director-General, IIIE, International Islamic University, Islamabad, are these:

 

 

 

1st Revelation (5 Years before Hijrah)

 

 

 

Caution was addressed to the believers to the effect that Riba remained an anathema as heretobefore:

 

 

 

“That which ye lay out in usury in order that it may increase on (other) people’s wealth hath no increase with Allah: but that which ye give in charity, seeking Allah’s pleasure, hath increase manifold”. (al-Room XXX:39).

 

 

 

2nd Revelation (Early Madni Period around 2 A.H.)

 

 

 

Historically, in the beginning, in response to provocations of the Jews, Allah (s.w.t.) recounted their major sins that invited his wrath upon them. However, as in most other cases, these Ayaat indirectly served the purpose of bringing the does and don’t to the notice of Muslims:

 

 

 

“Because of the inequity (repression) of the Jews. We forbade them for good; and wholesome which were (before) made lawful unto them, in that they hindered many from Allah’s way: 160

 

 

 

And of their taking usury when they were forbidden it, and of their devouring men’s substance wrongfully;---We have prepared for those of them who disbelieve a painful doom: 161.

 

 

 

But those among them who are firm in knowledge and the believers (who) believe in that which is revealed unto thee, and that which was revealed before thee, especially the diligent in prayer and those who pay the poor-due, the believers in Allah and the Last Day: to them shall We surely give a great reward.” 162

 

 

 

(al-Nisa IV: 160---162).

 

 

 

Pertinently, with the advent of Jesus (p.b.u.h.) the divine favours were restored, thus:

 

 

 

“And He will teach him (Jesus) the Book and wisdom, and the. Torah and the Gospel: 48

 

 

 

“And will make him a messenger unto the children of Israel, (he, when descended, saying): Lo! I come unto you with a sign from your Lord. Lo! I fashion for you out of clay the likeness of a bird, and I breathe into it and it is a bird, by Allah’s leave. I heal him who was born blind, and the leper, and I raise the dead, by Allah’s leave. And I announce unto you what ye have eaten and what lies stored in your houses. Lo!. Herein verily is a portent for you, if ye did believe: 49

 

 

 

“And (I come) confirming that which was before me of the Torah, and to make lawful some of that which was forbidden unto you. I come unto you with a sign from your Lord, so keep your duty to Allah and obey me.” 50

 

 

 

(Aal-e-Imran 111:48 --- 50).

 

 

 

3rd Revelation (Shawwal 3 AH, after the Ghazwah of Ohud)

 

 

 

Riba was prohibited, in express terms, for the Muslims on this occasion.

 

 

 

“O ye who believe! Devour not usury, doubling and quadrupling. Observe’ your duty to Allah, that ye may prosper: 130

 

 

 

And ward off (from yourselves) the Fire prepared for disbelievers: 131

 

 

 

And obey Allah and the Apostle, that ye may find mercy: 132

 

 

 

And one with another for forgiveness from your Lord, and for a Paradise as wide as are the heavens and the earth, prepared for the righteous: 133

 

 

 

Those who spend (in alms) alike in ease and in adversity, those who control their wrath and are forgiving toward mankind; Allah loveth the good: 134

 

 

 

And those who, when they do an evil thing or wrong their (own) selves, remember Allah and implore forgiveness for their sins--Who forgiveth sins save Allah only?---and will not knowingly repeat (the wrong) they did: 135

 

 

 

The reward of such will be forgiveness from their Lord, and Gardens underneath which rivers flow, wherein they will abide for ever---a bountiful reward for those who act (righteously)!” 136

 

 

 

(Aal-e-Imran III:, 130 --- 136).

 

 

 

4th Revelation (Shorter after Aale Imran III:130-136)

 

 

 

Adversaries of Islam called into question the preceding decree in Aal-eImran 111:130 by drawing parallel between profit (in trading) and Riba. Moreover, while application of the decree to fresh transactions was obvious, some of the companions of the Prophet (s.a.a.w.s.) were not clear about handling the then existing Riba-based debts and the Riba already appropriated. These issues came to be addressed in the following Ayaat:

 

 

 

“Those who swallow usury cannot rise up-save as he ariseth whom the devil hath prostrated by (his) touch. That is because they say: Trade is just like usury; whereas Allah permitteth trading and forbiddeth usury. He unto whom an admonition from his Lord cometh and (he) refraineth (in obedience thereto), he shall keep (the profits of) that which is past, and his affair (henceforth) is with  Allah hath blighted usury and made alms-giving fruitful. Allah loveth not the impious and guilty: 276

 

 

 

Lo! Those who believe and do good works and establish worship and pay the poor-due, their reward is with their Lord and there shall no fear come upon them neither shall they grieve. “ 277

 

 

 

(al-Baqarah II: 275---277).

 

 

 

5th Revelation 9 or 10 AH before Hu”at-ul-Widaa’---The Farewell Pilgrimage)

 

 

 

Two newly Muslim .families, one from Makkah and the other from the tribe of Thaqeef, reportedly, quarrelled over a Ribawi debt contracted before they embraced Islam. The creditors sought exception to the Ahkam in force at the time or, perhaps, immediate settlement of accounts. The matter came to be settled by Allah (s.w.t.) as follows:---

 

 

 

“O ye who believe! Observe your duty to Allah, and give up what remaineth (due to you) from usury, if ye are (in truth) believers. 278

 

 

 

And if ye do not, then be warned of war (against you) from Allah and His messenger. And if ye repent then ye have your principal without interest). Wrong not and ye shall not be wronged 279

 

 

 

And if the debtor is in straitened circumstances, then (let there be) postponement to (the time of) ease; and that if ye remit it (the capital) as charity such would be better for you if ye did not know: 280

 

 

 

And guard yourselves against the Day when ye shall be brought back to Allah. Then shall every soul be paid in full that which it earned, and none shall be wronged.” 281

 

 

 

(Al-Baqarah II: 278---281).

 

 

 

Compare here the following from the New Testament:

 

 

 

“If you love only the people who love you, why should you receive a blessing? Even sinners love those who love them”! 32

 

 

 

“And if you do good only to those who do good to you, why should you receive a blessing? Even sinners do that!” 33

 

 

 

“And if you lend only to those from whom you hope to get it back, why should you receive a blessing? Even sinners lend to sinners, to get back the same amount! 34

 

 

 

“No! Love your enemies and do good to them; lend and expect nothing back. You will then have a great reward, and you will be sons of the Most High God. For he is good to the ungrateful and the wicked.” 35

 

 

 

“Be merciful just as your Father is merciful”. 36

 

 

 

(Luke 6:32--36).

 

 

 

8. It is significant that the Qur’an has studiously refrained from defining the term Riba since to define is to limit and restrict. The Qur’an being the last Book descended upon the ultimate amongst the Prophets, was to enure for the benefit of the creation till the end of time and, thus, had to cater to the ever-evolving new forms and dimensions of Riba. Indeed, as to the all enveloping paradigms of Riba it was so prophesised more than fourteen centuries ago:

 

 

 

Narration is from Abu Hurayrah: The Prophet (s.a.a.w.s.) said:

 

 

 

“There will certainly come a time for mankind when every one will take Riba and if he does not do so, its dust will reach him”. (Abu Daud).

 

 

 

Having said as much, the Qur’anic verses on Riba are still singularly explicit as to the deducible meanings, implications and ingredients of Riba, on the one hand and the level or extent of the prohibition thereof, on the other. In the result, as seen, a clear distinction is crafted between the principals lent and the accruals thereon, the first alone being recoverable, recovery being tampered with grace and conversion into Sadaqah, or charity, still better: (Al-Baqarah II: 275, 279 and 280) and the second prohibited in the strongest of terms, the equal of which is no where to be found even in the Qur’an:

 

 

 

“If ye do not, take notice of war from Allah and His Apostle: but if ye turn back, ye shall have your capitals: deals not unjustly and ye shall not be dealt with unjustly.”

 

 

 

(al Baqarah II: 279).

 

 

 

Yet, productivity of capital is recognized though only when it is employed in trade, commerce, industry or any other fruitful activity, with varying and uncertain (including negative) returns to the investor. Still, mere variability or unpredictability of gains or even risks in an undertaking would not suffice; the pursuit must be lawful, for one of the most pronounced uncertainties (Gharar), is in gambling (Qimar), which itself is prohibited. The essence of the Nasus, against Riba, lies in a denunciation of hoarding and drawing gains from idle capital with reference to its holder for the time being, because, notionally, all things in Islam belong to Allah and man is only entrusted with the transitory use thereof, an incident, which led Muslims, over the centuries, to dedicate their tangible assets to Allah by way of Waqf (Trust), reserving, at the maximum, a life interest, in whole or in part, for personal use or use of their progenies. Indeed the prohibition is a manifestation, inter alia, of two other Qur’anic mandates namely, a recommendation to expend, towards good and charitable causes, all the excess that there be in the way of wealth, after having catered to one’s (short or long term) requirements:

 

 

 

“They ask thee (O Muhammad) how much they are to spend (in the way of Allah); say:

 

 

 

“What is beyond your needs” (11:219)

 

 

 

and an emphasis on creative activity culminating in the declaration;

 

 

 

“For man there is only that to achieve which he labours”

 

 

 

(XXXIX:53).

 

 

 

9. The distinction between Riba and productive employment of assets being illuminated, thus, that very circumstance occasioned the singularly terse but meaningful Qur’anic dictum:

 

 

 

“Such (the affliction already noted) would befall them because of their saying that (profit on) Bai’ or trading is the same as Riba, but Allah has permitted Bai’ and prohibited Riba.”

 

 

 

(Al Baqrah II: 275).

 

 

 

10. The commonly known form of Riba, at the advent of Islam, was Riba al-Nasi’ah (Riba in lieu of delay/period = increase in loan) or, as some would call it, Riba al-Jahiliyyah, (Riba of the age of ignorance), which signified an excess or gain obtained in a time related money advance or against delay in payment thereof. While this was, essentially, related to a myriad of monetary transactions, the Qur’an, as elaborated upon by the Prophet of Islam, expanded the concept to include stipulated increases in exchanges of articles, susceptible to measure, weight and, in one view, even storability or, at the minimum, things of value or of fundamental utility, conveniently classified as Riba al-Fadl (Riba in trade), exemplified in the under-noted traditions, originating, inter alia, from Abu Saeed Khudri (r. a. a.):

 

 

 

“It is on the authority of Abu Saeed Dkudri (r. a. a.) that the Prophet (s.a.a.w.s.) said: ‘Don’t trade gold for gold or silver for silver except on the basis of Waznamm-bi-ivazn (weight), Mithlamm-bimithl like for like) and Sawa’amm-bi-sawaa’ (equal for equal).’

 

 

 

(Muslim, 2966).

 

 

 

It is on the authority of Abu Saeed Khudri (r.a.a.) who reported that the Prophet (s.a.a.w.s.) said: “While exchanging gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates and salt for salt, do so on Mithlamm-bi-mithl (like for like) and Yadamm-bi-yad (hand to hand or on spot) basis. Thus, whosoever gave more or demanded more, verily he dealt in Riba. Both the taker and the giver are equal i.e., equally guilty---in this regard.”

 

 

 

(Muslim, 2971).

 

 

 

Obadah b. Samett (r.a.a.) directly reports the Prophet (s.a.a.w:s.)’ as saying: “Buy and sell gold for gold, silver for silver, dates for dates, wheat for wheat, salt for salt and barley for barley on the Mithlamm-bi-mithl (like for like) basis. Whosoever gave more or took more, verily he made a Riba deal. However, trade gold for silver as you wish subject to the condition that the exchange be Yadamm-bi-yadd (on spot). Trade wheat for dates or barley for dates also likewise.” (Tirmizee, 1161).

 

 

 

Question immediately arises as to whether the admonition, administered in the Ahadith, was confined only to the six articles described or such articles were a genus, from which a principle emerged. Most jurists agreed that the six items, mentioned, were only illustrative but some said the articles referred to qualities of weighability or measurability and all that satisfied the requirements was and is covered but others identified monetary value or storeability/edibility as the criteria to determine the applicability of the rule. The leading exponent of the first of these constructions is Imam Abu Hanifa (r.a.a.) whereas the second is attributed to those subscribing to the thinking of Imams Malik (r.a.a.) and ShafeY(r.a.a.), the former apparently broadening the category to which Riba al-Fadl would extend while the latter, not unreasonably, constricting it. M. Umer Chapra in his treatise, “Towards a Just Monetary System” is explicit as well as incisive when he disserts upon the parameters of Riba al-Fadl, thus:

 

 

 

“On the basis of the characteristic of gold and silver as commodity money, it has been generally concluded that all commodities used as money enter the sweep of Riba al-Fadl. With respect to the other four items, there is a difference of opinion. One opinion argues that since all four commodities are sold by weight or measure (Hanafi, Hanbali, Imami and Zaydi), therefore, all items which are so saleable would be subject to Riba al-Fadl. A second opinion is that since all four items are edible, Riba al-Fadl would be involved in all commodities which have the characteristic of edibility Shafi’i and Hanbali). A third opinion is that since these items are necessary for subsistence and are storeable (without being spoilt), therefore, all items that sustain life and are storeable are subject to Riba al- Fadl (Maliki). The Zahiri school, however, confines Riba al-Fadl to only the six commodities specifically mentioned by the Prophet. It is, however, the only school, and minority, to be so restrictive. A fourth, but perhaps a more plausible, explanation is that all the six commodities were used as money in and around Madinah, particularly among the bedouins, and, therefore, Riba al-Fadl would be involved in the exchange of any goods against cash or any commodity which is used as money.”