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

 

 

 

The argument having been disposed of, thus, it may, nonetheless, bear mention here that what Imam Malik and the other Jurists, under reference, meant when they described Riba al-Jahiliyyah, as above, was no more than spotlighting the ultimate shape, which a transaction qualifying as Riba al-Jahiliyyah finally assumed. This may be demonstrated immediately: the quoted narration could involve firstly, that the loan, taken initially, did not carry any interest whatsoever which, if such was the case, would normally be improbable for a subsequent such imposition of Riba, as under discussion. Secondly, the transaction may have covered a situation where, in actuality, a smaller sum was contracted but a larger, one, was shown to be payable at a -late point of time and in case of non-payment, within time, the stipulation narrated may Have come into play. This could take various, forms.- . One such may have been to set the imposition in motion .whore, -in the case of a Bai Mu’ajjal (credit sale), the contracted money was riot required at the time appointed and the creditor (seller) became .entitled to clamp the- predetermined or other penalty. A similar situation has -been recorded. by Qatadah Ibn Di’amah, a tabi’I (d.120 A.H.) This, in also another context, is recounted by Imran Ahsan Khan Nyazee in “The Concept of Riba, and Islamic Banking” as follows:

 

 

 

“A credit sale is one where the buyer acquires the goods sold and promised to pay later after a determined period. It is to be expected that the seller in such a case will charge -a slightly higher price than he would if the payment was made in cash. Thus, the seller and the buyer used to agree upon a period within which the payment would be made and the excess in price was not stipulated separately...

 

 

 

Increase at the end of the period of payment.---When this period was over the seller demanded his money from the buyer saying: `Will you pay or increase the amount due in lieu of further delay.’ In case they agreed upon a further delay, the buyer not being in a position to pay or not wanting to pay for some other reason, the amount due would be increase or even doubled.”

 

 

 

A third situation may have been, as appears frequently to be the case with money-lenders, throughout the various phases of history, the charging of a periodic return, such as on monthly, quarterly, half-yearly or yearly basis, with an ultimate date of return of the principal, timely non-return, generating the penalty of further interest, as reported by Imam Malik. While Mussanaf Abdul Razzak (d. 211 A.H.) and Mussanaf Ibne Sheba (d. 235 A.H.) also describe Riba al-Nasi’ah transactions, it is Imam Fakhruddin Razi’s (534/ 1149-606/ 1209). report, which identifies Riba al-Nasi’ah in the precise terms preceding. Such is as appears below:

 

 

 

“Riba al-Nasia was a type well known and widely used in Jahilliyah. It was that (lenders) provided valuables on condition that every month they would take a specified value, but the original valuable would remain intact. When the period of loan concluded (lenders) would demand from the debtor the original value loaned. But if return was not possible for him, they increased in the right and time. This Is the Riba they practised in Jahiliyah. (Al-Tafseerul Kabir Razi, Vo1.7, p.91; Matba Bahria 1938).”

 

 

 

Look, therefore, whatever way one may even Riba al-Jahifyyah was nothing but the common interest not unknown to mankind throughout the passage of time. Indeed Imam Abu Bakar A1 Jassas (d. 370 A.H.), in “Ahkamul Qur’an”, has generally, elaborated upon Riba al Jahiliyyah in these words:---

 

 

 

“That, which the Arabs understood as Riba and, mutually, treated as such, was only this: lending Dirhams (silver coins) and Dinars (gold coins) for a fixed term and, by mutual agreement, stipulating an increase thereon---This was introduced to and well known amongst them---So Allah Almighty voided their trading in interest---And together with that some modes of sale and purchase were also declared as null.”

 

 

 

24. It appears proper here to relate the historical background, inclusive of the social, economic and political circumstances in pre-Islamic Arabia to appreciate the true meanings and connotations of the concept of Riba, as understood and practised in those times and in that area. The Arabian society of the time comprised of nomadic tribes, pastoral groups and settled communities. They inter-acted with one another as also with the outside world. Makkah, on account of its location and being the venue of Ka’ba, occupied a central place in this arrangement. It was located in a barren valley and had been, for centuries, a stopover for trade caravans (large congregations of travellers carrying merchandise i.e., exports and imports, coming and going, when emanating from Makkah itself, as frequently as twice every year), that travelled through the Hijaz, either going North or North East to Syria or Iraq or South to Yemen. Makkah had no agricultural surplus but was endowed with the spring of Zemzem, thus, catering to a rare commodity in that environment namely, water. Over the ages, the territory around Makkah came to be held as sacred, its focal point being the Ka’ba. It was an incident of such sanctity that, while the Makkans dealt freely in Ribawi transactions yet they never considered Riba as free of taint. For this precise reason, when the Ka’ba got burnt, near about the time of the Prophet’s s.a.a.w.s.) birth, then custodian of the Ka’ba, the Prophet’s (s.a.a.w.s.) grandfather, Abdul Mutalib, did not entertain any money for its repair, except such as was demonstrated to be free of Riba. In this environment, life and property were rendered safe and secure within the precincts of Makkah. The city, thus, the sacred destination of pilgrims and on the trade route of caravans, becoming a natural haven for pilgrims and merchants, Makkans were, thereby, facilitated in accumulating merchant capital. So generated, the capital was utilized in financing the merchandise for those very caravans, largely passing through but also originating from, Makkah and in pastoral-agricultural pursuits, the last of which introduced the Makkan capitalists to Taif, which virtually became their summer resort.

 

 

 

Banu Thaqif of Taif indulged heavily in interest-oriented transactions and it was a dispute regarding such transactions with Bani Mughirah of Makkah, which led the Prophet (s.a.a.w.s.), to enforce the prohibition in all firmness (8 A.H.) also drawing upon the covenants, precluding Ribawi dealings, in the treaty with the Taifites. Reverting, as to the deployment of the merchant capital and whether the same was for consumption or productive purposes M. Abu Zahrah in Buhuth if al-Riba reports:

 

 

 

“There is absolutely no evidence to support the contention that the Riba of al-Jahiliyyah was on consumption and not on development loans. In fact the loans for which a research scholar finds support in history are production loans. The circumstances of the Arabs, the position of Makkah and the trade of Quraysh, all lend support to the assertion that the loans were for production and not consumption purposes.”

 

 

 

Much to the same effect is the refrain of Abraham Udovitch in his “Partnership and Profit in Medieval Islam” when he says:

 

 

 

“Any assertion that medieval credit was for consumption only, and not for production is just as untenable with reference to the medieval Near East.”

 

 

 

Be that as it may, because interest or usury, in a large measure, was at the back of these transactions, the same helped concentrating wealth in fewer and fewer hands, causing disruption in the clan based social structure. Indeed many a Makkans, who thrived partly upon usury and partly upon trade and commerce later came to play prominent roles in Islam. They included the Prophet’s uncle, Abbas bin Abdul Muttalib (r.a.a.), his son-in-law, Usman bin Affan (r.a.a.), his favoured general, Khalid bin Walid (r.a.a.) and the celebrated Abdul Rahman bin Awf (r.a.a.), etc. It was in this state of things that the prohibition of Riba was, systematically, ordained in the Qur’an and the Prophet of Islam, on the occasion of Hajjat-ul-Wida (the last pilgrimage, 9th Zil Hijjah, 10 A.H.), before a large congregation of over a hundred thousand pilgrims, inter alia, declared:

 

 

 

“Behold! All practices of paganism and ignorance are now under my feet.

 

 

 

The blood revenges of the days of ignorance are remitted. The first claim on blood I abolish is that of “ibne Harith who was murdered in the tribe of Saad and whom Hudhail killed.

 

 

 

Usury is forbidden but ye would be entitled to recover your principals. Wrong not and ye shall not be wronged. Allah has decreed that there should be no usury and I make beginning by remitting the amount of interest which Abbas Abd Al-Mutalib has to receive.”

 

Note that the highlighted words and phrases are a repetition of Al-Baqarah II: 278---281, indicating, as above stated, that such verses from A1 Baqarah must have been revealed earlier, thus, contradicting the alleged lament of Caliph Omer (r.a.a.) that the last verses on Riba were too close to the Prophet’s (s.a.a.w.s.) recall, resulting in lack of time (the Holy Prophet lived for 81 days even after the farewell pilgrimage) to enlarge thereupon.

 

 

 

As to the remitted interest accumulated in favour of Abbas Abd AlMutalib, who reportedly embraced Islam a little prior to the bloodless conquest of Makkah (Ramadan 20, 8 A.H.). Dr. M. Umer Chapra in “Towards a Just Monetary System” observes:

 

 

 

“This was interest on business loans extended to Bani Thaqif tribe. This tribe had not taken the loans from Abbas and others for fulfilling consumption needs but for expanding their business. “

 

           

 

In the foregoing background, it is futile to urge that the various forms of Riba were not known at the time of the Qur’anic revelations or that only one form had come to be prohibited. Indeed, as pointed out by Thomas Patrick Hughes (ibid), the Old Testament had operated to proscribe usurious transactions in Chattekas well and the Arabs, in turn, would contrive excesses in exchanges between similar or dissimilar things in ready as well as forward transactions, a practice which was countered by the Shariah, through the institution of Riba al-Fadl. Now, the Fuqaha represented the dominant culture of their times and it is inconceivable that they could ignore the most obvious forms of interest then prevalent, no different than those which continue to be commercially in vogue to this day. The very wide  consensus amongst the Ulema, irrespective of time and location, as regards the prohibition of Riba and their manifest agreement that such was to be rooted out, totally and irrevocably, suggests that at no time or place the Fuqaha had any doubts as to ingredients and connotations of Riba. Indeed the Prophet of Islam (s.a.a.w.s.) had himself amplified, in the most specific of terms, all that was intended to be prohibited something, which had come to be crystallised in the only, and yet conditional, Qur’anic permission:

 

 

 

“And if you do it not, then be apprised of war from God and His Messenger, but if you repent (and give up interest) then you shall have your capitals; Deal not unjustly (with others) nor shall ye be dealt with unjustly. 279.

 

 

 

“And if (any debtor) be in straitened circumstances, then let there be respite until (he is in) ease; but that if you forego it (even the capital) (as charity) it is better for you ye only knew. 280

 

 

 

And fear the Day wherein you shall return to God; each one shall be measured back in full what he earned and they shall not be wronged.” 281

 

 

 

(al-Baqarah II: 279---281)

 

 

 

25. It is next contended by Mr. Riaz-ul-Hassan Gillani and some other proponents of curtailing the meanings and implications of Riba, that the Qur’an speaks not merely of Riba but of al-Riba, thus, identifying and singling out the Riba which was prevalent at its advent namely, Riba al Jahiliyyah and none other and for that reason alone bank and other kinds of interest, evolving in course of time, do not qualify as al-Riba. The argument can brook little further consideration in the face of the now established proposition that the Qur’an and Sunnah embrace all unearned additions and increases (i.e., without counter-values) over and above the principals exchanged (“you shall have your capitals” Al-Baqarah) and, thus, bank and other modern forms of interest equally fall within the fold of Riba. Besides, even the argument’s present angle over-looks the peculiar mode in which the Qur’anic diction is couched. The syllable “al” does not seem to have been added to restrict the prohibition only to the Riba prevalent in the then Arab Society or even the known world: On the contrary, other similar pre-fixes in the Book e.g., al-Khimr and al-Fahisha, as identified by the Federal Shariat Court, would indicate that neither the liquor used in the then Arab Society alone was prohibited nor were immoralities restricted to those, which prevailed amongst the Arabs at the time. Note also that similar use of the pre-fix “al” in Riba al-nasi’ah (Riba in loans) and Riba al-Fadl (Riba in trade) neither signifies a particular loan nor a specific trade. Besides, as already said, Islam did not come to reform a particular people, race or clime nor is it confined to any particular period or time. Its massage is universal and timeless.

 

 

 

26. Another argument advanced has a two-fold dimension and impact. Firstly, it is urged that Riba al-Jahiliyyah (confined within the limited connotations, as above contended) having alone been prohibited (haram) for Muslims as well as non-Muslims in Darul Islam and Riba al-Fadl, in contradistinction, being detested or disapproved (makrooh) for Muslims but freely permitted to the rest, any enunciation, holding bank or other modern day interest to be encompassed within the prohibition, would only allow benefits to non-Muslims at the expense of the Muslim population of an Islamic State. Expediently, as inherent in this reasoning, is hardly a consideration in applying the rules of interpretation. Even otherwise, the argument, in its own terms, is untenable for the simple reason that if banking and other interest is found covered within the four corners of Riba al-Jahiliyyah or Riba al-Nasi’ah the same, as discussed below, would .equally be prohibited amongst the Muslim as well as the non-Muslim components of Darul Islam. The other limb of the argument, which may now be taken up, is to the effect that there can be no Ribawi transaction between a Muslim arid a Harbi nor does the. prohibition of Riba cover transactions exclusive to the populace of Darul Harb, irrespective of the components of believers and non-believers therein. In context, two Ahadith of the Holy Prophet (s.a.a.w.s.) may be quoted and such are recorded, thus:---

 

 

 

“there is no Riba between ahlul harb and ahlul Islam”. “There is no Riba between a Muslim and a harbi within the bounds of darulharb”.

 

 

 

Irrespective of the authenticity of the quoted Ahadith, an aspect which need not detain us here, the argument revolves around the question as to who is a harbi .and what is meant by Darul Harb. For obvious reasons, zimmis, that is to say, non-Muslim citizens of a Muslim State and mustamin viz., other non-Muslims, who, for the time being, with the permission of a Muslim State, happen to be in such a State do not fill the character of being harbi (hostile, war-like), a word which, in its pristine sense, should signify an enemy alien. Correspondingly, the expression Darul Harb literally abode or country of the enemy) may not denote every non-Muslim State. There has been a difference of opinion, amongst jurists, as to this, some going as far as to find even the seas and the oceans degenerated into Darul Harb. Imam Abu Hanifa (r.a.a.) has spelled out three attributes for treating a polity as Darul Harb: one promulgation therein of laws ordained by non-believers (interpreted to mean effect disappearance of Sharia’ah rules and practices); two, contiguity of the area with Darul Harb and three, non survival therein of a free and peaceable subsistence for Muslims and zimmis, as emanating from a previous Islamic legal order. The Sahibeen (his disciples, meaning Imams Muhammad and Abu Yousuf, great jurists in their own rights), however, hold that Darul Islam turns into Darul Harb merely upon the emergence of non-believers’ legal order. This is all very well where nonbelievers come to hold sway in Darul Islam and such relegates to Darul Harb. But, that kind of thing never happened during the days of the Prophet (s.a.a.w.s.) as Islam was then in the ascendant. Thus, Darul Harb, at the time, could arguably be a non-Muslim legal entity at war with the Muslim State. The category, in all likelihood, also would not extend to a nonMuslim entity without any pretentions to wage war with the then world of Islam. With all respect, what was true at the advent of Islam should also be true now. Therefore, the expression, may cover only such a non-Muslim State as be at war either with the entire world of Islam or with the particular Muslim State, of which a Muslim citizen is either located in such Darul Harb or is found have contracted a Ribawi loan with any of his non-Muslim harbi counterparts. It follows, as a corollary, that people, frequenting the planet, are classifiable in the under-noted categories:--

 

 

 

(a) Muslims.    

 

 

 

(b) Zimmis (non-Muslim citizens of a Muslim State).

 

 

 

 (c) Mustamin (non-Muslims who, by permission, happen, temporarily, to be in a Muslim State).

 

 

 

(d)        Non-Muslims who are neither Zimmis nor Mustamin. They should fall in one or the other of the following sub-headings:---

 

 

 

(i)         Those, who somehow are located within the precincts of a Muslim State;

 

 

 

(ii)        Those who are citizens of a non-Muslim State;

 

 

 

(iii)       Those who are citizens (resident or otherwise) of a State at war (actual or potential) with the Muslim State.

 

 

 

The last-mentioned alone (d)(iii), should fill the character of Harbis and the State they belong to qualify as Darul Harb. A process of elimination would also reveal that there must also have been, and should subsist yet, a big chunk of neutral territory, neither qualifying as Darul Islam nor filling the character of Darul Harb, covered by (d)(ii) above. A priori it follows that the Prophet (s.a.a.w.s.), in the ahadis, above-quoted, may only have been referring to ostensible Ribawi dealings between Muslims and their said (at (d)(iii) above) harbi counterparts, either within or without the bounds of Darul Harb. .May it also be noted here that there is a consensus amongst jurists that Riba as between Muslim and Zimmi citizens of a Muslim State, (the rule extending to Mustamin), is as much prohibited as amongst Muslims themselves. Indeed, by and large, the usual civil rights and obligations as also criminal or penal liabilities extend to all such people (Zimmi and Mustamin), if duly located, except dealings in and consumption of wines and pork, the last two excluded because such may not have come to be prohibited for them according to their religious practices.

 

 

 

A long drawn debate has, historically, regard amongst other Muslim Scholars of the then British India, some of whom appear to have condoned payments of interest received by Muslims from banks and other institutions of non-Muslim States, ostensibly treating the latter as Darul Harb and such British or other institutions as harbi. Interestingly, while some other jurists treated British India as Darul Islam, saying that many of the Shuaere Islam (precepts and practices of Islam) still continued to be in vogue there, they yet exempted interest and ex gratia receipts from the British Government, provided only that the Muslim recipients did not notionally regard the same as Riba. The same held good for similar receipts from British Indian institutions of which Muslim(s) were not owners, in whole or in part. Most, in effect, treated non-Muslims and their exclusive institutions as Harbi and refrained from labelling unearned returns upon the capital deployed with such non-Muslims and related institutions as Riba. These Fatawa (legal opinions on debatable issues) are not only of doubtful authority but have also occasioned allegations and counter-allegations of mala fides, concerning the author Ulema, subscribing to different schools of thought. Hakeem Hashmi, propounding the astounding theory that bank interest is nothing but Mudarabah, in his “Tablighee Silsila” 62 and 63 under the title, “Musalman our Sood” has, in purported support. quoted from and named names of Ulema from the British Indian interlude, which do not make a pleasant reading. Bulk of these quoted Fatawa, also elsewhere available, hold that whereas it is permissible for Muslims, in Muslim and non-Muslim countries alike, to lend against interest to non-Muslims, located other than the Darul Islam, it remains impermissible for some, but permissible for other jurists, to borrow from such non-Muslims in consideration for payment of interest. In other words, gain from the resulting transactions is deemed acceptable but there is a difference of opinion as to outgoings/defrayals upon Muslim borrowings, over and above. the principal sums borrowed- A diluted version of this thinking is to the effect that whereas such incoming interest may be suffered, apparently, on grounds of necessity, the same may only be utilized towards alms-giving or other charitable objects, implying thereby that while Muslims, as is their present day wont, may continue to squander their other possessions in self serving pastimes, the most questionable part of their incomes be allocated to the worthiest of causes, upstaging it beyond all recognition from its actual lowly station. An extension of some the foregoing dicta, as regards the present day India and its Muslim citizens, is reflected in “Jadid Bankari Aur Islam” by Md. Nizamuddin Rizvi. With greatest respect, such-like enunciations, wholly misconstrue the Qur’an and Sunnah, palpably ignore the treaties concluded by the Holy Prophet (s.a.a.w.s.) (e.g. with the Christians of Najran and the polytheists of Taif) and the Khulfa-e-Rashideen (the first four pious Caliphs) with non-Muslim tribes and other political entities, envisaging voiding of such treaties themselves in the event the non-Muslim signatories to the same did not observe the prohibition as to Riba even amongst themselves and recklessly engender free flow of Muslim owned capital to non-Muslim individuals, institutions and States alike. It is a direct consequence of this kind of flawed approach that all Muslim finance that matters, currently, stands parked either in non-Muslim organizations or their States. To whose advantage, it need hardly be asked!

 

 

 

Be that as it may, the compounded result has been a’ virtual legislation of Riba between Muslims and non-Muslims., on the one hand and their respective countries on the other. Not only this, the message that has passed equates the absolute prohibition of Riba in Islam to a qualified one, as seems to have prevailed amongst the Jews, who made a distinction between themselves and strangers in the matter of Ribawi transactions, something, which one or the other of the schools of thought in Islam would term as a later day deviation from the original text of the Old Testament, that in this view probably carried a similar prohibition, as revealed in the Qur’an.