Constitutional Law in Islam

CONSTITUTIONAL LAW, THE RULE OF LAW AND SYSTEMS OF GOVERNANCE IN ISLAM

Professor Dr Shad Saleem Faruqi Professor of Law, Universiti Teknologi, Mara

Introduction It is not very reliable to measure the depth of the sea at low tide. Likewise, civilisations, religions and cultures cannot be safely evaluated at a low point in their history. Since September 11, 2001 Islam is widely perceived to be at its lowest ebb. A miasma of shame and sadness surrounds the life of most Muslims due to the tragic events of the last few years – the fanaticism of the Taliban in Afghanistan, the suspected involvement of Muslims in the September 11 tragedy, the sentencing by a Syariah court in Nigeria of an adultress to death by stoning, the enactment of “hudud laws” prescribing amputation and stoning to death by the Malaysian states of Kelantan and Terengganu. The two states of the Malaysian federation are controlled by a Muslim party (PAS) that interprets Islamic law in the most conservative, literal and heartless manner. At the economic front the Arab Human Development Report 2002 released in Cairo on July 2 paints a bleak picture of economic and intellectual stagnation in Arab societies. A UN Report indicates that out of 47 low income countries, 25 are Muslim majority countries. A large number of non-Muslims of the world, specially in the North-Atlantic countries, stereotype the 57 or so Muslim majority nations as backward-looking, oppressed by religion and inhumanely governed. Islam is associated with terrorism and with jihad – which concept is wrongly interpreted to refer exclusively to holy war even though it refers to any struggle, including a struggle with oneself. The Saddams, Osamas, Mullah Omars and Shaik Yassins of Muslim societies bring Islam a great deal of adverse publicity. The violence and ferment in Chechnya, Kosovo, Kashmir, Afghanistan, Pakistan, Iraq, Palestine, Mindanao and Indonesia continue to cause loss of lives without any proportionate gain in politics or economics. In such a scenario any fair assessment of Islamic civilisation is difficult. Much Western commentary on Islam is marked by a number of errors. First, in dealing with Muslims, there is a willing confusion in Western commentary between the faith and the faithful. The wrongs of Muslims are attributed to their religion. Thus, acts of terrorism in Kashmir, Palestine, Chechnya and Mindanao that are fuelled 1

largely by historical, political and economic grievances are attributed to Islamic fundamentalism. In fact in most of these crucibles of conflict, the struggle has nothing to do with Islam. The violence is about long standing political, territorial and economic problems. But it is assigned to Islam. At the same time acts of aggression and injustice e.g. the brutalisation, dehumanisation and demonisation of Palestinians is not pinned on the lapel of Judaism and Christianity - and rightly so. The holocaust in Germany, the ethnic cleansing in former Yugoslavia, the pulverisation of Afghanistan, and before that of Vietnam, Laos, Kampuchea and Japan, the shooting down of an Iranian civilian plane by the United States are not attributed – and rightly so – to Christianity. When Saddam tries to manufacture a bomb, the appellation “Islamic bomb” is used to describe his object. But the American bombs that have devastated twenty countries since World War Two are rightly not described as “Christian” or “Caucasian” bombs. Second, the wide chasm in all systems between theory and reality must always be borne in mind. International commentary on Islam tends to evaluate Islam by reference to the ground or gutter realities of post-colonial Muslim societies. But it judges North Atlantic, Christian and Caucasian societies by reference to their pristine ideals. In fact the gap between Islamic and Western societies on a large number of issues – e.g. human rights – is narrower than we think, provided practice is compared with practice and theory with theory. Third, Islam is not a homogenous or monolithic religion. There are as many faces of Islam as there are of Christianity, Judaism and Hinduism. In a similar vein one can say that there are many varieties of democratic, capitalist or socialist systems. In evaluating Islam, the commentator can choose any paradigm. He/she can focus on the archconservative, fundamentalist and radical versions of Islam found in Taliban’s Afghanistan, Saudi Arabia or Pakistan. Or he/she can look at the softer, modernistic, tolerant versions of religion in Malaysia, Bangladesh and Turkey. One can seek to be a gutter inspector or one can give a softer, sympathetic assessment of the possibilities without being trapped in any particular territorial or time-frame. I wish to attempt the latter. Islam – Terrorism or Tolerance? After the horrendous killings of September 11, 2001 it has become fashionable to associate Islam with terrorism. The caricaturing and demonisation of Muslims and Muslim-nations is, of course, not new but has lately become a popular and profitable pastime. Samuel Huntington’s thesis of “civilisations at odds” has been metamorphosed into a “clash between good and evil” and “between civilized and uncivilized people.” Does Islam promote violence and terrorism? Are Muslims in a perpetual state of war with non-Muslims? Does Islam allow the taking of hostages and the killing of innocents? Does it encourage suicide? If Islam is a religion of mercy as claimed by many Muslims, then how can we explain the clear connection between Muslims and terrorist movements in many parts of Southeast and Central Asia, Afghanistan, Africa and the Middle East? The answers to these questions are not easy but must, nevertheless, be attempted. A few cautious generalizations are proposed.

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Sanctity of life: Islam is a religion of tolerance and peace and its cardinal principles amply demonstrate this belief.1 The very name of Islam comes from the root word ‘salama’ which means peace. Islam is a religion which is based upon achieving peace through submission to the will of Allah. Islam stresses the sanctity of human life. The Holy Qur’an in Surah 5:32 lays down that “anyone who saves one life, it is as if he has saved the whole of mankind and anyone who has killed another person (except in lieu of murder or mischief on earth) it is as if he has killed the whole of mankind.” Prophet Muhammad (peace be upon him) once listed murder as the second of the major sins2 and he warned that on the Day of Judgment “ the first case to be adjudicated between people on the Day of Judgment will be those of bloodshed.”3 Even in times of war, Allah forbids extremism. In Surah 2:190 it is stated “And fight in the way of Allah those who fight you. But do not transgress the limits. Truly Allah loves not the transgressors.” It is reported to us by Ahmed that Prophet Muhammad (s.a.w.) once said “those who go to extremes are destroyed.” Suicide bombing is undoubtedly one such extreme. Prophet Muhammad (s.a.w.) advised his followers: “Do not betray, do not be excessive, do not kill a newborn child,”4 And he also said “whoever has killed a person having a treaty with Muslims shall not smell the fragrance of Paradise, though the fragrance is found for a span of forty years.”5 He forbade punishment with fire.6 Surah an-Nissaa 4:29-30 is explicit about the principle that Islam forbids suicide. The messenger of Allah once said: “He who kills himself with anything, Allah will torment him with that in the fire of hell.” In the light of the above it can be stated categorically that inciting terror in the hearts of defenseless civilians, destruction of civilian properties and maiming of innocent people are forbidden and detestable acts in Islam. Tolerance: All religions contain a message of tolerance towards other human beings. History is, however, full of examples of the most horrible atrocities committed in the name of religion by adherents of one religion against followers of another. Persecution of the faithful by atheists and agnostics is also a recurrent event in history. Despite these facts, the civilizing and central role of religions in the life of human beings cannot be denied. In this part of the note Islam’s attitude towards other religions will be highlighted. 1

This is not to deny that those seeking to vilify Islam can discover materials that extol war and violence. A “gutter inspector” can find such ammunition in every religious text. Refer for example to Catholic Asian News of December 2001/January 2002 at pages 11-12 that quotes (and explains in context) many passages in the Old Testament that call for killing and destruction of property. Reference may be made to Jos 6; Jos 8; 1 Sam 15: 1-3; 1 Sam 15: 24-26. 2 Saheeh Al-Bukhari # 6871 and Saheeh Muslim # 88. 3 Saheeh Muslim # 1678 and Saheeh Al-Bukhari # 6533. 4 Saheeh Muslim # 1731, Al-Tirmizi # 1408. 5 Al-Bukhari # 3166; Ibn Majah # 2686. 6 Abu Dawood # 2675.

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In the Holy Qur’an, Surah Al-Baqarah (2:256) it is stated: “Let there be no compulsion in religion”. In Surah Al-Kafirun (109:1-6) it is stated: “O you that reject Faith: … To you be your way and to me mine.” In Surah Yunus (10:99) the Holy Qur’an reminds us that Allah SWT could have made the entire mankind alike and so no compulsion should be employed to change people from one belief to another. “If it had been thy Lord’s will, they would all have believed, all who are on earth. Will you then compel mankind against their will to believe?” Islam shows the highest respect for Judaism and Christianity. In Surah Al-Baqarah (2:136) it is stated “… we believe in Allah, and in that which has been revealed to us and in that which was revealed to Ibrahim and Ismail and Ishaq and Yaqub and the tribes and in that which was given to Musa and Isa and in that which was given to all the prophets from the Lord. We do not make any distinction between any of them and to Him do we submit.”7 Respect for all previous prophets is part of a Muslim’s articles of faith. In the sixth year of Hijrah, Prophet Muhammad S.A.W. granted to the monks of St. Catherine, near Mount Sinar, a charter of rights:8 “(1) They were not to be unfairly taxed (2) no bishop was to be driven out of his bishopric (3) no Christian was to be forced to reject his religion (4) no monk was to be expelled from his monastery (5) no pilgrim was to be detained from his pilgrimage (6) nor were the Christian churches to be pulled down for the sake of building mosques or houses for Muslims (7) Christian women married to Muslims were to enjoy their own religion (8) if the Christians should stand in need of assistance for the repair of their churches or any other matter pertaining to their religion, the Muslims were to assist them.” Similar treaties with the Jews of Medina and the Christians of Najran in Yemen were signed.9 Ameer Ali says of the treaty at Najran: “Has any conquering race of faith given to its subject nationalities a better guarantee than is to be found in the words of the Prophet?”10 Even idol-worshippers are not to be abused. Surah An’am (6:108) states: “Do not abuse those whom they worship besides Allah.” Surah Al-Tauba (9:6) commands that “if any pagan asks you for asylum, grant it to him so that he may listen to the word of Allah and then escort him to where he can be secure.” If enemies from other countries attack the non-Muslims in an Islamic state, Muslims are asked to fight in order to protect the freedom of religious worship of the non-Muslims. Non-Muslims have the right to keep their languages and customs, to establish their schools and colleges and to be visited by missionaries. In the Turkish empire, Christians 7

The equivalent Christian name for Ibrahim R.A. is Abraham; for Ismail R.A. is Ishmael; for Yaqub R.A. is Jacob; for Musa R.A. is Moses; and for Nabi Isa is Jesus Christ. 8 Ibn Hisham, Sirah, p. 718 9 Hamidullah, Introduction to Islam, IIFSO Publication, Kuwait, p. 171 10 Ameer Ali, The Spirit of Islam, London, 1992, p. 273.

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were represented in the Council. In the Mughal Empire state aid was given to build and restore Hindu temples. In Egypt the oldest churches were built during the pre-colonial (Islamic) period.11 If a non-Muslim minor is taken a prisoner of war and if his parents die, the child has the right to continue with the religion of his father.12 There is historical evidence of long periods of peace and harmony between Muslims and non-Muslims through much of Muslim history. This is in contrast with the shameful record of Jew-baiting throughout Europe; discrimination against Catholics; the holocaust against Jews; and massacre of Muslim Bosnians on several occasions in the last three centuries. Malaysia is a shining example of how a Muslim country can embrace pluralism and endeavour to build a cultural mosaic rather than a melting pot. Malaysia also demonstrates how modernity and religiosity can go hand in hand and how middle paths can be forged between religious and secular militancy. In sum, the general history of Islam is one of tolerance towards other religions. No doubt there are a few incidents of repression but these do not match the brutality of the Inquisition, the long and barbaric history of Jew-bashing in Europe, the oppressive practices of European and American colonizers in Mexico, Latin America, Africa and Asia, the annihilation of indigenous peoples in three continents and the enslavement and dehumanization of Africans. The world is little aware that Bosnian Muslims have been the victim of genocide throughout the last three centuries. For example from 1941 to 1945 about 100,000 Bosnian Muslims were slaughtered. In the Balkan Wars of 1912-14, around 13,000 Muslims were forcibly converted to Christianity and over 3,000 were killed. No one was punished for these crimes. One is left wondering whether the collective amnesia of the European nations towards these monstrosities contributed to the slaughters and ethnic cleansings of the last decade13 Terrorism is not a monopoly of Muslims: Terrorism is as old as the times. Muslims have no monopoly over it especially if we are to view the aberration in all its manifestations. In a learned paper Prof. Dr. Ataullah Bogdan Kopanski of UIAM has surveyed terrorism in history.14 He has correctly pointed out that throughout the ages people have suffered the ravages of terrorism. To the ancients of Rome the Kelts and Germans were terrorists. The Huns, the Vikings, Scottish rebels against Edward II, the Christian crusaders, the Nazis, the ‘American patriots’ who fought against the British, the republicans who fought against the monarchists in France between 1793-1795 were all variously described as terrorists. The European Union has a list of terrorist groups that 11

See Abdur Rahman Doi, Non-Muslims Under Shariah, 1979, p. 77-82. Ibid, p. 81. 13 Alijah Gordon, Bosnia: Testament to War Crimes As Told by Survivors, Malaysian Sociological Research Institute, 1993, pp. xv-xxix. 14 Prof. Dr. Ataullah Bogdan Kopanski, “Terrorism in History.” Unpublished paper at a one-day Seminar on Terrorism on 15 November 2001 organised by the International Islamic University, Malaysia. 12

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includes the Basque separatist group ETA and the Irish Republican Army. The US list includes Kahane Chai, Liberation Tigers of Tamil, National Liberation Army (ELN), Real IRA, Revolutionary Armed Forces of Columbia (FARC), Revolutionary Nuclei, Peru’s Shining Path and United Self Defence Forces of Columbia. There are other unlisted groups like Germany’s Baader Meinhof gang and the outlawed Cambodian Freedom Fighters whose members include an American citizen15. The U.K. has outlawed Sikh groups Babbar Khalsa and the International Sikh Youth Foundation; 17 November Revolutionary Organisation (N17) and the Revolutionary People’s Liberation Party. Muslim militants around the world are regarded as terrorists. But, due to American and Jewish domination of the media, not much is heard of Zionist terrorism in the Near East between 1944-1948.16 Even lesser is heard of ongoing state-sponsored terrorism by Israel in the Middle East and periodic forays by the United States into Sudan, Somalia, Iraq and Afghanistan. All that can be said is that those who are in power are always exempted from the charge of atrocities of terror. It is often the retaliating victims who are branded as terrorists. Thus Israeli policy of assassinations of Palestinian leaders, its slaughter of thousands of refugees in Sabra, Chatilla and Jenin, its indiscriminate bombing of civilian areas using Apaches and F-16s supplied by the US, its murder of stone-throwing children, the brutal and collective punishment it inflicts on Palestinians who reside in camps or villages inhabited by leaders of the intifada, and its bombing of an Iraqi nuclear plant would satisfy any definition of a terrorist act. Likewise American hijacking of a plane over the Suez, American shooting-down of a civilian Iranian plane, US bombing of civilian targets in Sudan, Libya, Somalia and Afghanistan, the American bombing of Vietnam, Laos, Kampuchea, and the devastation of Hiroshima and Nagasaki were terrorist attacks that escaped condemnation. In early 2002 the BJP dominated government in the Indian state of Gujrat colluded with Hindu extremists to butcher more than a thousand Muslims. The world took little note because the victims were mostly Muslims. There can, however, be no doubt that there are terrorist individuals and terrorist groups within the Muslim ummah. Many of them clothe their missions in Islamic religious vocabulary. But in relation to them a few observations need to be made. First, we need to distinguish the faith from the misguided actions of some of the faithful. Terrorists constitute a small, lunatic fringe of Muslim society. Unfortunately, however, their words and deeds are given such concentrated publicity by sections of the Western media that viewers and readers begin to associate the evils committed by Muslim wrongdoers with Islam the religion. Second, it is not fair to judge Islam by reference merely to the ground realities of postcolonial Islamic societies while evaluating Western civilization by reference to its pristine ideals. Theory must be compared with theory; reality with reality. When the Western world exploits and demeans Asia and Africa through colonialism; practices slavery and apartheid; annihilates indigenous groups in three continents and supports genocide in Yugoslavia, Palestine and Iraq, these atrocities are not pinned (and rightly so) on the lapel 15

NST, February 19, 2002, W5. An Official UN Report (A Summary of Zionist Terrorism in the the Near East – 1944-1948 prepared for Dr. Ralph Bunche, UN Mediator for Palestine) lists 259 incidents of terrorist attacks by Jewish Stern gangs

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of Christianity. Nazi and Serbian atrocities and brutal dictatorships in many Christian countries in Africa and Latin America are not attributed to Christianity but Saddam’s atrocities and Taliban’s fanaticism are laid at the door of Islam. Countries with Christian majorities like Brazil, Argentina, Guatemala, Peru, Chile, Nicaragua and Colombia and political leaders like Hitler, Mussolini, Franco, Pinochet and Videla have been guilty of the worst possible human rights abuses. Their sins were never laid at the door of their religion – and rightly so. When Saddam tries to manufacture a bomb, it is an Islamic bomb. But the bombs that devastated Hiroshima and Nagasaki and tens of other countries were not Christian bombs. Third, there are many forms of terrorism. War is the ultimate form of terrorism and the American-European record of involvement in this form of savagery is hardly worthy of praise. Indiscriminate bombing of weak and poor nations brings terror to innocent civilians. No one committed to peace and justice can note without dismay that the United States has since Word War Two bombed the following 20 countries: China (1945-46, 1950-53), Korea (1950-53), Guatemala (1954, 1967-69), Indonesia (1958), Cuba (195960), the Belgian Congo (1964), Peru (1965), Laos (1964-73), Vietnam (1961-73), Cambodia (1969-70), Grenada (1983), Libya (1986), El Salvador (1980s), Nicaragua (1980s), Panama (1989), Iraq (1991 to present), Somalia (1990s), Sudan (1998), Yugoslavia (1999) and Afghanistan (2000 to present). Terrorism can have an economic dimension as in attempts to impoverish, strangulate or starve whole populations through blockades, trade embargoes or interference with water supply. Once we view terrorism in all its manifestations, it becomes apparent that Muslims have no monopoly over terrorism. Due to American and Jewish domination of the media, not much is known of Zionist terrorism in the Near East between 1944 and 1948. Even lesser is heard of ongoing state terrorism by Israel in the Middle East and periodic forays by the United States in 20 countries since Word war II. Rightly nobody blamed Judaism and Christianity for these cruel acts. Fourth, most of the terrorists who belong to the Muslim faith are not engaged in a struggle for Islam. Except for Afghanistan’s Taliban which had a very obscurantist and medieval view of Islam, most other so-called “Muslim groups” are primarily motivated by historical, political and economic grievances. Foremost in this category are “Islamic groups” in Palestine, Lebanon, Kashmir, Central Asia and Mindanao. Religion provides them a rallying point. But the root causes of their rebellion are economic and cultural. Fifth, like the rest of humanity the Muslims of Palestine are entitled to human rights and human dignity. Those who condemn these dispossessed, suffering and starving people need to ask themselves why the Palestinians have descended to such depths of desperation that they are prepared to kill and be killed in the most horrible ways possible. Perhaps the life of people in occupied Palestine is so intolerable that the Palestinians have no other choice but to die on their feet than to live on their knees.

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The concept of jihad: The concept of jihad or religious struggle does not necessarily refer to holy war. It could be a war of words, an effort to make the doctrines of Islam accepted and acceptable. Jihad could take place by persuasion. The Qur’an enjoins: “Invite (all) to the way of the Lord with wisdom and beautiful preaching; and argue with them in ways that are best and most gracious” (xvi: 125). According to a famous saying the best jihad is by the one who strives against his own self for Allah. (Sahih Ibn Hibban # 4862). In Surah Al-Furqan 25:52 it is stated “So obey not the disbelievers, but make a great jihad against them (by preaching) with (the Qur’an)”. Islamic Law of War The great non-Muslim jurist, C.G. Weeramantry, in his study of Islamic jurisprudence17 has pointed out that modern humanitarian law is seeking to build increasing protections for civilians, non-combatants and prisoners of war. Many centuries earlier, Islamic international law worked out a set of principles in relation to the treatment of enemies in war. Among the acts forbidden in war were: a) b) c) d) e) f) g) h) i)

cruel ways of killing killing of non-combatants killing of prisoners of war mutilation of human beings as well as beasts unnecessary destruction of harvests and cutting of trees adultery and fornication with captive women killing of envoys even in retaliation massacre in the vanquished territory the use of poisonous weapons

Weeramantry points out that along with principles now incorporated in the Geneva Conventions, the Islamic law books contained other principles not yet incorporated in modern conventions. These principles have been collected from numerous works of authority, and from the Qur’an itself. Prisoners of War: At the battle of Badr the prophet ordered, “Take heed of the recommendation to treat the prisoners fairly.” At the termination of hostilities it was recommended that prisoners be released either gratuitously or on ransom. Non-combatants: The prophet forbade the killing of women and children. “Do not kill any old person, any child or any woman,” runs one tradition (Sunnah Abu Daud).18 “Do not kill the monks in the monasteries,” runs another, and “Do not kill the people who are sitting in places of worship,” (Ibn Hanbal, Musnad) states a third. Others who were protected were traders, merchants, contractors and the like who did not take part in actual fighting.

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C.G. Weeramantry, Islamic Jurisprudence, An International Perspective, Macmillan, 1988, pp. 134-148. Saheeh Muslim # 1744; Saheeh Al-Bukhari # 3015; Bukhari, English Translation, vol. 4, p. 160, No. 258.

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Conduct on the field of battle: Unnecessarily cruel ways of killing were expressly forbidden. So was mutilation. Enemy territory and property: Time and again the Islamic literature relating to the rules of war expresses a concern for the preservation of natural vegetation, crops and livestock. The laws of war, as stated by Malik in the Muwatta, prohibit the slaying of flocks and the destruction of beehives. Public Law Doctrines in Islam Historical Perspective: It is generally believed that the theory and practice of constitutionalism originated in the West. Generations of students of public law have uncritically accepted the orthodox belief that the seeds of constitutional and administrative law were planted in Europe and North America by such historical documents as England’s Magna Carta in 1215, Hungary’s Great Golden Bull of 1222, England’s Bill of Rights in 1689, France’s Declaration of the Rights of Man and the Citizen in 1789 and the United States’ Declaration of Independence in 1776. The ideas of the 'inalienable rights of human beings' and of 'limited sovereignty' are attributed to John Locke. He is seen as the pioneer in Western thought of such concepts as 'trusteeship of power for the benefit of the governed' and the 'removability of the ruler if the ruler fails to keep to his trust'. But these ideas were basic propositions of Islamic political thought hundreds of years before John Locke and Maitland popularised them.19 Similarly Rousseau's idea of the 'general will' is very similar to the Islamic idea that the community as a whole, through the means of consensus, determines the law in cases of doubt. Most textbooks, Western and Eastern, trace the idea of the rule of law to Dicey. The doctrine of separation of powers is attributed to Montesquieu and Madison. The roots of judicial independence are said to be anchored in England's Act of Settlement 1701. Constitutionalism in earnest is seen as having begun only after the launching of the United States Constitution in 1787. The common law courts in England are seen as the architects of personal liberties. Judicial review on constitutional grounds is generally seen as a monument constructed by the American Supreme Court in Marbury v Madison (1803). Much of this credit is justified. In our times, democracy, constitutionalism and rule of law have thrived best in the West. Europe and America may not have invented these "pillars of

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It is well known that Locke while at Oxford attended lectures of Edward Peacocke, the first Professor of Arabic Studies at Oxford. Rousseau, in the later phases of his life, came under strong Islamic influences and wrote admiringly about Islam and Prophet Muhammad (s.a.w.) in his Social Contract (1968 ed., Book IV, pp. 87-8 & 179). Montesquieu was greatly influenced by Ibn Khaldun. For further discussion of Islamic influences on European law, see C.G. Weeramantry, Islamic Jurisprudence: An International Perspective, Macmillan, 1988, esp. pp. 94 ff.

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civilised political conduct" but they sure have perfected and patented them and articulated and exported them far and wide. Nevertheless, for historical accuracy, it needs to be pointed out that the ideas of limited government and constitutionalism were not born in the crucible of Western political philosophy but in the religious doctrines of the East. Hundreds of years before the Magna Carta and the Bill of Rights, human dignity and freedom were sanctified in the doctrines of most religions - especially of the Judeo-Christian-Islamic tradition.20 The section below will concentrate on the forgotten contribution of Islam to constitutional and administrative law. Islamic Constitutional Law: The idea of a written Constitution was known to the State of Medina that Prophet Muhammad (s.a.w.) had established. The Medina Constitution was, perhaps, one of the earliest constitutional documents in the world. No State Sovereignty: The dominant approach in Western jurisprudence is to link sovereignty with the state or with a person or group exercising ultimate authority within a state's territory. Hegel, Hobbes, Austin, Bentham and Bodin subscribe to the view that sovereignty is "the highest power over citizens and subjects, unrestrained by law." According to Austin the powers of the human sovereign are unlimited, illimitable, indivisible and continuous. The Islamic concept of sovereignty is similarly absolutist. But whereas Austin insisted on a determinate human superior to occupy the seat of sovereignty, in Islam sovereignty lies with Allah and no human being or human agency can claim absolute power. The law in Islam precedes the state both logically and in terms of time and the state exists for enforcing the Shariah or 'the right path'. In an Islamic system supremacy cannot be assigned to a human Constitution or to a Parliament. It is Allah who is the Cherisher and Sustainer of the worlds.21 In Islam, as sovereignty belongs only to Allah22, the state and its functionaries are not above the law. Politically this rules out all forms of absolutism. Legally it paves the way for the development of constitutional and administrative law to limit state powers and to enforce accountability. In Islamic theory the government is a "limited government". There is a strong commitment to the rule of law and to an independent judiciary. There is no theoretical possibility, as in many modern legal systems and in many modern theories like those of Bodin, Hegel, Hobbes, Austin, Bentham and Kelsen, of a supreme Parliament or and absolutist ruler. Fundamental rights as defined by the Shari’ah are entrenched and the legislature and the executive cannot amend or repeal what Allah (S.W.T.) has decreed. The "flexibility" and amendability of constitutional safeguards in many countries are in contrast with the certainty and visibility of Islam's basic texts. Weeramanty is of the view

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Shad Saleem Faruqi, "Human Rights in Legal And Political Philosophy", INSAF – The Journal of the Malaysian Bar, vol. XXI, No. 1, Dec. 1992, pp. 1-19.

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Holy Quran Surah 1 Ayat 2; Surah 12 Ayat 40; Surah 43 Ayat 85; Surah 18 Ayat 26; Surah 9 Ayat 129; Surah 3 Ayat 26; Surah 59 Ayat 23; Surah 114 Ayat 2; Surah 57 Ayat 5. 22 Surah 6: 57 & 62; Surah 3: 26; Surah 5: 45, 47, 48 & 50; Surah 12: 40; Surah 28: 88.

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that the thinking of both Locke and Rousseau on the limitations on state sovereignty may have been influenced by Islam. The Government As A Trustee: Islam supports the idea of answerability and accountability of' public authorities to the law. The Holy Qur'an commands the Muslim ruler "to render fback his trusts to those to whom they are due": Surah alNisa' (4): 58. Islam requires that power be used scrupulously towards the fulfillment of objectives enshrined in the Shari’ah. It requires ruler and ruled alike to be virtuous and ethical. It requires the state to establish all that is right (al-ma'ruf) and to eliminate all that is wrong (al-munkar): Surah al-Hajj (2): 41. In Islam human beings are the trustees of Allah (S.W.T.). The trusteeship is collectively entrusted to the believers and the right to rule belongs to the whole community. The ruler rules by virtue of the trust the community has delegated to him. This "popular viceregency", in Maududi's phrase, "forms the basis of democracy in an Islamic state". The ruler is duty bound by the Holy Qur'an to conduct public affairs by mutual consultation, subject of course to the overriding duty to obey and enforce the Shari'ah: (Holy Qur'an Surah al-Shura (42): 38; Surah Al-‘Imran (3):159). Inherent in the people’s right to be consulted is the right to watch over of the government and to differ with the rulers on issues of policy. The Holy Qur'an clearly envisages situations in which the believers cannot settle their differences through consultation and exhorts them in those circumstances to turn to Allah (S.W.T.) and His Apostle for guidance: (Surah al-Nisa' (4):59). Citizen's Duty To Obey Law Is Conditional: All Muslim have a duty to obey those in authority. "Oh you who believe! Obey Allah, and obey the Messenger, and those charged with authority among you...": Surah al-Nisa' (4):59. But this duty is not absolute and unconditional. If the ruler commands something that is contrary to the Shari’ah, the community has a right to disobey his command. According to a famous Hadith "there is no obedience to man in the disobedience of the Creator". The head of the state being the representative (wakil) of the community, the representee (muwakkil) is entitled to supervise and ensure the proper fulfillment of the contract (wakalah). The first Caliph, Abu Bakr As-Siddiq (R.A.A.) declared after his election: "Cooperate with me if I am right; set me right if I go astray… Obey me as long as I obey God and His Prophet. If I disobey Him and His Prophet obey me not". If the ruler abuses his authority or violates the trust reposed in him, his authority can be withdrawn. The community may impeach the ruler before the courts and have him declared disqualified to lead. These ideas seem very similar to the later theories of Locke, Rousseau and Maitland which emphasised 'limited sovereignty' and 'trusteeship of power'. Rousseau's notion of the General Will similarly echoes the Islamic idea that in cases of doubt, the community's consensus determines the law on the point. The State and The Law Are Not Ends In Themselves: Unlike Western constitutional theory which distrusts political power, in Islam power is not seen as an inevitably corrupting thing. The government is seen as a necessary instrument to "check those evils which cannot be eradicated merely by the Book". Yet the law and the state are not seen as ends themselves but as means of promoting the goals of the Shari’ah.

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Fundamental Rights: In Islamic political theory, human rights have been given an honourable place and it is noteworthy that not only political but also socio-economic rights have been given legitimacy.23 The poor, the orphan, the widow and the needy have rights to state protection irrespective of their religion. Squatters on public lands have an equitable right to the fruit of their labour under the principle of ihya al-mawat. In a variation of the modern concept of a welfare state, the duty to help the needy does not fall solely on the shoulders of the state. Individuals have a judicially enforceable duty to help their poor relatives. Individuals also have a duty to contribute to Islamic funds for the poor. There is strong emphasis on dignity and equality. Neither race nor economic standing entitles one to any superiority. Only devotion to Allah and moral uprightness qualify one for superiority over another. In the criminal process there is a legal presumption of innocence. There is right to due process during interrogation and trial. Islamic justice prohibits someone other than the offender from being responsible for a crime.24 "No soul commits [an evil] but against itself, and no bearer of burden bears the burden of another": Surah al-An'am (6):164. Mohammad Hashim Kamali in his book Freedom of Expression in Islam (1994) informs us that Islamic theory supports the idea of rights and fundamental rights. The rulers are supposed to rule through consultation. Implicit in the right to be consulted is the right to disagree with the governors, to give sincere advice, to exercise personal reasoning and to express an opinion. There is freedom of religion and freedom of association. There is a right to privacy. Human rights theory in Islam is, however, marked by differences of perception from the “West” on a human being’s place in society, his relationship with a divine order of things, his duties to society, to the established order, to his community, to his family and to himself. The West is motivated by a militant brand of secularism or rationalism that denies any significant place for religious considerations in the human rights discourse. In Islam the law and practice of fundamental liberties is subjected to religious and ethical considerations. The Western version of human rights tends to emphasise the individual and his rights against society. In many areas, Islam subjects individual rights and liberties to collective welfare. For example, there is no right to property over “public lands” like lakes, rivers, forests and mines. These must be used only for the benefit of the community. Western theory puts a premium on political and civil rights (“negative liberties”). Islam emphasizes socio-economic and “positive” rights. It has a very strong welfare ethic.

23

See Shad S. Faruqi, supra, pp. 2-4. Contrast this with a recent German decision in which a delinquent child, who was born in Germany, but whose parents were immigrants, was deported from Germany along with his parents.

24

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Western theory is rights-based. Islamic thinking is that rights must go hand in hand with duties to the state, to the community and to oneself. Rights per se have no value. It is what rights are for. It is the use to which they are put and the sense of responsibility with which they are exercised. Further, a distinction is made between rights and dignity. As in Kantian morality the concept of dignity generates duties both to others and to oneself. In Western theory the state is seen as the main violator of human rights. In Islam the belief is that the threat to human rights and dignity comes as much from private centres of power as from wielders of public authority. Establishment of Justice: The establishment and enforcement of justice is a duty of the highest order in Islam. "0 you who believe, be maintainers of justice, bearers of witness to Allah even if it is against yourselves or your parents or close relatives": Surah al-Nisa' (4):135. Judicial Independence: Independence of the judiciary is a cardinal principle of Islam. The Shari' ah envisages a competent, committed and courageous judiciary. The theory of ijtihad requires the judges to be independent in the exercise of personal reasoning. The subordination of the state, the ruler and the officials of the state to the ordinary law and the subjection of them to the ordinary courts necessitate independence and security of tenure for judges in an Islamic society. The Electoral Process: In the Holy Qur'an, Prophet Muhammad (s.a.w.) was commanded to administer the state in consultation with the people: (Surah Al-'Imran (3): 159). In Islamic history the process of election called bay'ah is recognised as the means of electing the chief of the community. The election of the imam may be direct or it may be through the representatives of the people, the ulu al-amr. There is no hereditary succession to public office in Islam. Islamic theory offers an interesting contrast to modern-day competitive politics in which candidates jostle with each other to obtain a nomination and then conduct a vigorous and expensive camping to win (or buy) over the voters. The Islamic ideal is that public office should not be sought. It should be accepted as a trust only when offered. Form of Government: The ideal Islamic system of government is somewhere in between the British parliamentary system and the American system of independent government. The Amir many be popularly elected (as in Iran) but he is not separate from and independent of the legislature. However, as he was elected by the people, he cannot be dismissed by the legislature on a vote of no-confidence. The Rule of Law: Sovereignty of the state is denied in Islam. Islamic law is a divinely ordained system which precedes the Islamic State and regulates its functioning. The state and the ruler hold authority as delegates and as trustees under the sovereignty of God. They are subject to the law of Allah25 and are not allowed to issue commands contrary to the requirements of the Shariah. This means that the government is required to act according to the law and state powers are limited by the law. Furthermore, the validity of 25

Surah 2 Ayat 30; Surah 38 Ayat 26.

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human law in an Islamic state is dependent on the law meeting the prescribed standards of Islam. Unlike modern natural law theories which treat natural law as a mere ideal; violation of which does not affect the validity of positive law, the Islamic Shariah is not a mere advice, admonition or distant goal. It is the supreme law in a state and anything violating it is not entitled to the legitimacy of law.26 The rule of law is an essential principle of Islam. But unlike Dicey's narrow concept which emphasised 'due process' and 'government according to the law', the Islamic concept of rule of law foresaw hundreds of years ago the need to give to the ideal a socioeconomic dimension. In Islam the rule of law goes beyond the requirement of legality to the requirement of just legality; it goes beyond political and legal rights to socio-economic rights. Individuals have a duty to help their relatives, their neighbours, the wayfarers, the poor, the orphans and the needy. The state is made the guardian of all those who have no guardian. Doctrine of Separation of Powers: Islamic political theory does not emphasise Montesquieu’s strict separation of powers amongst the various organs of the state. But the functional independence of the judiciary is treated as of great importance subject to the power of the Amir to order a re-trial if injustice has resulted. Western political theory places great importance on separation (Montesquieu) or on check and balance (Madison). But in practice neither strict separation nor check and balance are working well in most liberal democracies. Western constitutional theory does not permit the executive to order a re-trial of a case already concluded. But the same effect is achieved (it is submitted in a more unsatisfactory way) by granting the Head of State wide powers to grant pardons, reprieves etc. The power of pardon is contrary to the spirit of Islam. The Duty to Consult: The Ruler is duty bound to conduct public affairs by mutual consultation. This paves the way for a whole regime of consultative processes in the making of laws and the framing of policies. The Right to Information: The right to be consulted would imply right of access to basic information about the affairs of state. Openness and transparency in government would be supported by Islamic theory. Principles of Judicial Review of Administrative Action: The doctrine of ultra vires and the common law principle of audi alteram partem (no person should be condemned unheard) have their equivalent in Islarnic jurisprudence. Every accused is allowed a prior hearing and an opportunity to defend himself. In Pakistan v Public At Large PLD 1989 SC 304 and in Re Passport Act PLD 1989 SC 39, the courts in Pakistan relied on the Holy Qur' an and the Hadith to subject Pakistani legislation to the rules of natural justice. This took natural justice far beyond what the common law requires. In the UK the rules of natural justice have no applicability to the legislative function: Bates v Lord Hailshm [1972] 1 WLR 1373. The rule against bias is also accepted in Islamic public law. 26

Surah 5 Ayat 48.

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The Holy Qur'an enjoins that punishment must be equivalent to the suffering inflicted. "The recompense for an injury is an injury equal thereto": Surah al-Shura (42):40. This principle of equivalence is similar to the French doctrine of "proportionality" and the rule of "Wednesbury unreasonableness" in England. Remedies In Administrative Law: In the area of judicial review of administrative discretion, though the writer has not been able to find any references to the "prerogative orders or writs", Islamic public law is not lacking in methods and procedures to enable wrongs to be challenged as in modern public law.27 There is clear evidence of "review" (al-isti'naf) and "judicial reconsideration" (l'adah al-nazar) in a host of circumstances such as when the judge departs from the clear injunctions of the Qur'an, Sunnah and ijma'. Generally, the judgment of a qadi is final and there is no appeal from it. This is because of the idea of the inviolability of the ijtihad of a competent mujtahid and the immunity of ijtihad against arbitrary intervention and review. But there being a fundamental duty to do justice, Islamic public law does supply internal and external "corrective mechanisms" to the judicial process. Firstly, the qadi who pronounces a judgment has the authority to reconsider his own decision if, upon reflection, it appears to him that it is defective. Unlike judges in Westem-based legal systems, the qadi need not wait for the aggrieved party to apply to him before commencing the I'adah al-nazar (lit. reconsideration). Secondly, there is power of review (al-isti'naf) before a separate tribunal. It is exercised, inter alia, if the personal reasoning of a kadi is a clear violation of the Qur'an, the Sunna and ijma' or amounts to gross error of judgment or a manifest miscarriage of justice or because of suspicion of personal bias. But the decision is not reviewable simply on the ground that the reviewing qadi disagrees with it. The ijtihad of one competent qadi is not reversible by the ijtihad of another. The reviewing tribunal may consist of the head of state (for administration of justice in accordance with the law is one of the basic obligations of the imam) or of regular courts and tribunals which have been appointed by the head of state in accordance with siyasah shar'iyyah (shariah-oriented policy). Locus Standi: The Islamic state as well as every citizen of such a state are duty bound to enjoin what is right and forbid what is wrong: Surah al-'Irnran (3):104 and 110; Surah alhajj (22):41. Viewing this is the perspective of the law on locus standi, it is arguable that individual citizens or a class of citizens who go to the courts to seek justice, or to stand up for what is right and oppose what is wrong, should be treated by the law as public benefactors and not as busybodies to be denied locus standi and turned away. The Ombudsman Principle: The ombudsman principle which is usually attributed to the genius of the Scandinavians may have had its origin in Middle Eastern civilisations. During the Caliphate of Hazrat Ali (R.A.A.) from 35-40 Hijrah or 656661 A.D. a system of Mazalim courts was fully in operation to adjudicate disputes between citizens and the administration. The Diwan al-Mazalim was a powerful tribunal which performed the dual function of a general administrative tribunal to hear disputes 27

Mohammad Hashim Kamali, “Appellate Review and Judicial Independence in Islamic Law”. Copy of Public Lecture delivered at the International Islamic Univesity, Malsysia on 5th March 1991.

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between the citizen and the state as well as to entertain appeals from decisions of the Shari'ah courts. Proceedings Against The State: In Islam the state or the ruler are not entitled to immunities and privileges normally granted to the Head of State or the government in modem constitutional law. The qadi can accept a suit against the very person of the Amir and try him in open court. Islamic Jurisprudence The Idea of Law: Western natural lawyers of the "classical" natural law persuasion trace law to a superior, metaphysical source. But they are not in agreement on whether the "superior source" is God, Nature, Reason or General Will. This brand of natural law has, however, gone out of fashion in the West and has been replaced by positivism, historical and sociological approaches which free law from metaphysics and insist that laws are man-made. Austinian positivism, for example, treats law as the command of the sovereign backed by sanction. Salmond, another positivist, describes law as the body of principles recognised and applied by the state in the administration of justice. The historical school in Germany identifies law with custom and volksgeist (spirit of the people). The sociologists in the USA emphasize the role of associations and groups and point out that the centre of gravity of the legislative process lies not in Parliament but in society. Islam's concept of law is close to the "classical" natural law tradition of the West. The basic principles of Islam are of divine origin sent to human beings through revelation.28 These principles are believed to be universal, eternal and unchangeable. They are of superior validity to positive law. Separation Between Law and Morality: Contrary to the central thesis of positivism that there is a fundamental distinction between the 'is' and the 'ought', in Islam there is no separation between law and morals. Islam is treated not only as a religion but also as a political and legal system which encompasses all duties of human beings to God and fellow-humans. The influence of morality over the whole field of civil obligations is very strong. The criteria of morality are not utility, the opinion of the people in the jury box or the current notions of propriety. The criterion of morality is objective, impersonal and external. It rests on the Holy Qur’an and the Hadith. Enforcement of Morality: In Islam the state has a clear-cut duty to foster morality; to promote all that is right and forbid all that is wrong.29 Positivism's separation between law and morals and its indifference towards immoral laws (legality is one thing; morality another) is repugnant to Islam. Legal liberalism’s belief that morality is not definable; its

28

Surah 4 Ayat 105; Surah 57 Ayat 25. The laws given by Prophet Muhammad (s.a.w.) also fall in the category of what Allah has revealed; Surah 53 Ayat 3 & 4; Surah 59 Ayat 7. 29 Surah 22 Ayat 41; Surah 3 Ayat 104.

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reluctance to intrude into private lives; its `harm to others’ test; its opposition to state paternalism are unlikely to find acceptance in Islamic jurisprudence. Nevertheless it must be noted that Islam does not require the machinery of the state to be employed to enforce everything virtuous and prevent everything that is undesirable. There is no need to convert every moral rule into a legally binding command. Many Islamic duties like prayer are left to the individual conscience because they are matters between the Creator and His subjects. Role of human law: Does Islam recognize a role for positive law? There is some controversy on the point. Some writers assert that God alone is the law-giver and His words alone are to be obeyed. He perfected the religion of Islam. All other legal pronouncements exist only as interpretations of the words of Allah. The state has no power to legislate. It exists only to apply the Shariah. It is humbly submitted that the above point of view is too narrow. Though ultimate law is divine, the role of human beings and society in making the law is not denied. Islamic law consist of divinely imposed obligations as well as commands of positive law (wad'i) provided the latter are within the limits permitted by God. An elected legislature is permitted to legislate and the Caliph or the Imam is able to decree administrative regulations within the limits of the Shariah in order to promote justice. They have a controlled and limited freedom in respect of legislation. Can secular laws and syariah co-exist? The answer to this is a qualified “yes”. The state has undoubted authority to legislate to achieve justice and to meet the demands of society. But it lacks sovereignty and its discretion is constrained by the perimeters supplied by religion. It is submitted that this is not a radically different position from the one that exists in countries with written and supreme Constitutions. Is Islamic Law Static?: It is part of Islamic belief that the Holy Qura’n and the Hadith supply the core, essential values on which all Islamic societies must be built. Because these values emanate from a superior or absolute source, they transcend time and territory and are immutable and eternally valid. They supply the permanent foundation on which the detailed and derivative rules of an Islamic legal, political, economic and social system must be built. Are these derivative secondary rules capable of growth and adaptation to the needs of different societies and different times? It is submitted that innovation (ibda) is not totally prohibited in Islam provided that the solutions found to satisfy the new needs of society conform to the Holy Qura’n and the Sunna. The existence of such sources of Islamic law as Ijma (consensus) and Qiyas (analogical deduction) give some scope for reaching solutions to new problems by evolution of new principles. The gates of ijtihad (independent reasoning) are not, and never can be, closed though of course only the mujtahid (the Islamic jurist) has the right to use independent reasoning and that too within the limits of the Shariah. However it must be noted that being a mujtahid is not a matter of

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belonging to a priestly aristocracy. Anyone who has acquired learning and has gained the respect and acceptance of the community is entitled to provide religious leadership. In Islamic jurisprudence detailed rules of legal reasoning and scores of legal maxims have been evolved. Abu Hanifa developed the notion of istihsan or juristic preference. By acceptance of the better of two possible solutions, legal norms can be established through personal reasoning. Malik developed the notion of istislah (public good). If the law is silent on a particular point, then the decision can be based on principles of public interest. Al-Shafii developed the notion of istishab - the presumption that what existed in the past continues to exist today. It is clear that ijma, giyas, istihsan, istislah along with many legal maxims established by the jurists permit interpretation of Islamic law to encompass new problems and challenges coming to the fore. Role of Sanction: The imperative theory of law (law is a command) promoted by English positivism finds its correspondence in Islamic jurisprudence. The importance of sanctions in a legal system underlined by Bentham, Austin and Kelsen is evidenced in Islam. But the concept of sanction is different. Sanctions may be in this life or in the hereafter. Further, the idea of "reward" is emphasized in Islam. Obedience to law is based not only on fear but also on the anticipation of the blessings and rewards of compliance. Islam and Kelsen's Grundnorm: Kelsen's theory of the hierarchy of norms with a grundnorm at the apex reflects an Islamic perspective of the legal system. Like Islam, Kelsen does not support the distinction between public and private law. All norms - public or private - must be traceable to and derivable from the grundnorm of the legal order. However, Kelsen's belief that the grundnorm may not be the same everywhere is not acceptable in Islam. A Muslim society must be premised on the sovereignty of Allah and the supremacy of the Holy Qur’an. This means that. the grundnorm in Islamic society is predetermined and its content and divinely established. Islam and Pragmatism: The pragmatism of the sociological school ("that is best which works best") is out of line with the Islamic approach. In Islam just ends must be achieved through just means. It is not sufficient that the end-product is desirable if the means to achieve it are immoral. In Islam, law and institutions must not only achieve just consequences; they must also have a just and moral content. Islam is opposed to the tendency in sociological jurisprudence to displace moral truths with a melange of "social values" or "jural postulates of the time and place". Islam does not allow the forsaking of religion and reason for the pursuit of "relevance". Sociological analysis to measure the consequences and effectiveness of law will be permitted in Islam. But ultimate choices will have to be based on ethics. Judicial Activism: The central role that the sociologists (specially the realists) assign to judicial activism does not find support in Islam. The Islamic judge must be a mujtahid and in his interpretation of Islamic law he must be guided by the Shariah and the Fiqh.

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For obvious reasons an Islamic judge cannot emulate his common-law brothers in granting legitimacy to the emerging claims and expectations of right-to-die advocates and those who claim a constitutional right to abortions, pornography, blasphemy, same-sex marriages and autonomy in matters of sexual choice. But it must also be noted that like the realists, Islam does not support rigid adherence to the doctrine of binding judicial precedent. The ijtihad of one mujtahid cannot be set aside by another jurist simply because of disagreement of views. Also, the Islamic judge has greater freedom than his/her common law colleague to act in an inquisitorial manner and to subject written law to the considerations of equity. Values: Muslims believe that Islamic values are transcendental. This contrasts with the sociological school's idea that "jural postulates" or legal ideals vary according to time and place. In its attempt to be empirical, the sociological school seeks to derive evaluative criteria from social experience. It bids the jurist to "face the facts" of society and to engineer the legal system to accommodate the emerging demands, claims and expectations that have manifested themselves in society. Islam, on the other hand, does not accept a phenomenan just because it is widespread. A thing does not become right just because it was, or because it is or because it is going to be. The yardstick of evaluation must be supplied by the Shariah. The reality must be changed to conform to the ideal rather than the ideal changed to conform to the reality. Similarly, the relativism of the historical school is not in accordance with Islamic fiqh The criterion of the historical school, "is it right for us", cannot be used in Islam. Whatever is forbidden, (for example intoxication and usury) cannot be justified simply by reference to "local conditions" or expedience. Another contrast between historical jurisprudence and Islam is that the historical school emphasises the uniqueness of national law and institution whereas Islam asserts the universality of values and laws. Islam is opposed to the "perverse new virtue" of "value relativism" which urges people to be non-judgmental on issues of right and wrong. The tendency in Western jurisprudence (other than of the classical natural law persuasion) to dismiss universal, eternal and absolute values has led to a downgrading of the concept of justice and has prevented people from talking with any conviction about good and evil. Rejection of absolute values has often led to a rejection of all values. Belief in relativity has led to the acceptance of the idea that nothing is good or bad but thinking makes it so. Rejection of religion and tradition has led to a situation where "belief in nothing leads to a belief in anything!". While modern Western philosophers dismiss traditional values as "dated rhetoric". Islam promotes "eternal verities" and reasserts moral truths over relativistic values. Customary Rules: The role of custom (urf) is recognised in Islamic law. Though many ancient customs were abolished others that did not violate Islamic precepts continued to be applied in Islamic societies. Indeed, in the area of contracts and obligations, customs and practices were significant aspects of Islamic law.

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However unlike Savigny's thesis which glorified and exalted the volksgeist, in Islam custom in not law per se. There is no assumption that customs reflect justice; that volksgeist leads to volksrecht. Customs must always be tested by reference to the basic precepts of religion. Islam, Democracy and Rule of Law — The Case of Malaysia Malaysia has a supreme Constitution that provides for a parliamentary system of government, a constitutional monarchy, a federal-state division of powers, a chapter on fundamental rights, a partly rigid, partly flexible Constitution, an independent judiciary and an impartial public service. The Constitution confers special, overriding powers on the federal executive and the federal legislature during times of subversion and emergency. The basic charter entrenches affirmative action policies in favour of the indigenous Malays and the Natives of Sabah and Sarawak. It adopts Islam as the religion of the federation but with freedom to all communities to practice their faiths in peace and harmony. There is much in the theory and practice of the Malaysian Constitution that takes Malaysia outside of democratic norms. Critics can point to the armory of preventive detention laws, continuing state of emergency since 1964, executive control over speech, assembly and association and several episodes reflecting badly on judicial independence and integrity. On the other hand there is in Malaysia’s 45 years of constitutional history much that is worthy of emulation by friends and foes alike. Malaysia offers an example of a moderate, enlightened and tolerant Muslim society that embraces modernity and encompasses democracy and a relatively liberal system of values. The laws permit other religions and cultures to flourish along with Islam. Secularism and religion are permitted to co-exist side by side. Despite significant legal restraints on personal liberty and freedom of speech, a number of other fundamental rights are working very well. Among them are protection against slavery (Article 6); protection against backdated criminal laws and repeated trials (Article 7); freedom of religion (Article 11); freedom of movement (Article 9); rights in respect of education (Article 12); and the right to property (Article 13). The success of socio-economic measures and social welfare policies have brought human dignity and the graces of life to many who were living on the fringes of existence at the time of independence. The standard of living is one of the highest in Asia. The vast opportunities for upward social mobility that are available to members of all races are unmatched in Asia. Despite a continuing state of emergency since 1964, the regular courts have never been replaced and remain in operation. Habeas corpus has never been suspended. Judicial enforcement of human rights though not effective because of the existence of wide, subjective powers in security legislation is, nevertheless, always a possibility and for that reason a restraining influence on the executive. Judicial review is possible because of the

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existence of a supreme Constitution that confers power on the courts to scrutinise state action on the ground of unconstitutionality. There are hundreds of judicially decided cases in which the actions of federal and state executive, local authorities, the police and statutory bodies have been declared ultra vires or in breach of natural justice. Since Merdeka (independence) fourteen pieces of federal and state legislation have been declared unconstitutional by the superior courts, some on the ground of human rights violations. Ouster clauses are disregarded by the courts in most areas of public law. Constitutional jurisprudence on substantive due process is still in its infancy. But the courts are vigorous in enforcing the procedural requirements of the law in most areas involving personal liberty. For instance, a very large number of appeals succeed under the Dangerous Drugs Special Preventive Measures Act on the slightest procedural error. A Human Rights Commission has recently been set up. Despite its limitations and infancy, legal aid helps to improve access to justice for the poor. Sex equality is being vigorously promoted in Malaysian society. The Constitution was recently amended to ban gender discrimination. In the work place, in schools, in universities, women are easily outnumbering men. Malaysia was one of the earliest in this region to enact laws like the Domestic Violence Act. Workers’ rights are protected by an enlightened set of legal and administrative policies and devices. Social security measures, disablement benefits, pensions, medical facilities, scholarships, car and housing loans are made available to workers. An Industrial Court and a full-fledged Ministry guard workers’ rights and maintain industrial peace. Legislation exists to safeguard the rights and interests of consumers, the aged, the disabled and the retired. The government spends millions of ringgit to provide pensions to retired public servants. Malaysia is an excellent example of religious and cultural tolerance. At the time of independence, citizenship rights were granted to millions of applicants from migrant communities. The Chinese and the Tamils were allowed to preserve their culture, language and religion. Chinese and Tamil schools exist with government support. Mosques, temples, churches and gurdwaras dot the Malaysian landscape. Citizens celebrate each others’ religious and cultural festivals. Unlike in some neighbouring countries, minorities are not required to adopt the culture and names of the majority community. Hate crimes against minority groups are unknown. No minority group or region is up in arms against the established order. Instead of creating a “melting pot”, Malaysia has painstakingly weaved a rich cultural mosaic. The plurality of lifestyles this engenders has given rise to an extraordinarily multi-faceted society. There is legal pluralism in that civil courts exist side by side with syariah and customary courts.

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Constitutional guarantees of the rights of the States, especially Sabah and Sarawak, have given to pluralism a territorial dimension. Despite many restraints on freedom of association, a large number of political parties survive and thrive and contest periodic elections at federal and state levels. Out of 35 political parties nationwide, 25 are opposition groups. Four of them are represented in the federal Parliament. General Elections have been held ten times at regular intervals. The electoral process has resulted in peaceful change of power at the state level several times. This points to the integrity of the electoral process. Elections are free though they have been criticized as not fair. No one is coerced to vote in any particular way. There is no election violence as in many neighbouring countries. The rainbow coalition that has ruled the country for the last 45 years is built on an overwhelming spirit of accommodation between the races, a moderateness of spirit, an absence of the kind of passion, zeal and ideological convictions that in other multireligious and multi-racial countries like India, Sri Lanka, (former) Yugoslavia, Greece, Northern Ireland and Lebanon have left a heritage of bitterness. Except for 1969, there has been no serious racial or religious violence. The law and order situation is favourable for the enjoyment of life, liberty and the pursuit of happiness. People live and move about without fear. They have security of expectations. This is in contrast with many liberal societies where there is unlimited free speech but no “freedom to live without fear”. Unlike many other Asian and African societies, the army and the police are under civilian control. There is no compulsory draft. A very large number of non-governmental organizations (NGOs) exist and some of them have a tremendous impact on the course of legislation and policy formulation. Many register under the Companies Act to avoid controls under the Societies Act. The effectiveness of many NGOs like the Bar Council of Malaya rebuts the allegation that Malaysian society lives by government or politics alone. As an integral whole it brings about many important developments on its own. Though the mainstream press and the government-owned or licensed TV channels are restrained in matters of political and economic reporting, alternative sources of information do exist. In particular, books, journals and magazines print a great deal of critical material. Unlike newspapers and TV, books are not subject to a licensing requirement. The increasing sophistication of information technology and the advent of fax machines, e-mail, internet and foreign TV channels have made the dissemination of information virtually uncontrollable. Private radio and TV stations are now permitted. CNN reaches into many homes. The country’s efforts at “social engineering” have had a clear impact. At the economic level, there is poverty but no absolute poverty. A welfare net exists for the hard core poor.

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Scholarships, loans, low-cost housing, free medical care, price subsidies and price control of essential commodities help to ensure that the basic necessities of the population are met. Poverty has been greatly reduced. This has positive human rights implications because formal rights are not enough. Rights must function as well; they must find correspondence in social and economic reality. More than most Asian societies, Malaysia corresponds with the ideals of the International Covenant on Economic, Social and Cultural Rights (1976). Education up to secondary level is absolutely free and this has obvious implications for upward mobility for the disadvantaged. The literacy rate is about 83 per cent. Despite recent economic control on capital flights, the country permits economic freedoms of the widest latitude. There is unlimited opportunity for trade and commerce, for career choices, for foreign travel and for owning property in Malaysia or abroad. Malaysia has a large self-confident middle class that is enjoying the fruits of peace, prosperity and a relatively open society. After about forty years of judicial conservatism (save for a short-lived period of judicial activism in the mid-eighties) winds of change are blowing in the arena of public law. A stirring of new constitutional jurisprudence is clearly evident in Malaysia’s superior courts. Up to the mid-nineties the tendency was to reduce constitutional law issues to issues of ultra vires and natural justice. Now ultra vires and natural justice are being anchored in the constitutional promise of liberty and equality. A few weeks ago the highest court, in granting habeas corpus to a number of preventive detainees, broke new ground by asserting that the ministerial satisfaction to order detention can, in some circumstances, be subjected to an objective test. The era of Liversidge v Anderson may finally be coming to an end in Malaysia. The Constitution is moving from the peripheries to the center. Whether, in the years to come, the Constitution’s imperatives will become the aspirations of the people; whether the nation’s document of destiny will become its chart and compass, its sail and anchor – that remains to be seen. All in all Malaysia offers a good example of an Asian and a Muslim society that can preserve the best of its religious, cultural and moral traditions and yet keep its windows open to the world. Lately, the demand for an Islamic state has raised concerns among the non-Muslims. But there is no reason to believe that any radical shift to the right is going to take place. Conclusion

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1. Despite many differences between Islam and prevailing Western ideologies, it is submitted that Islamic law is replete with principles that are quite consistent with modern notions of constitutionalism. The ideal of a limited government and the quest for openness and accountability, trust and transparency in public life are important elements in Islamic public law. Students of law, who are steeped in the tradition of British common law can pick up a lesson or two from the theory of Islamic constitutional and administrative law. The great task of reviving and giving effect to the doctrines, mechanisms and institutions of Islamic public law falls on the shoulders of Muslim jurists. 2. It is also submitted that the principles of tolerance, pluralism and justice as espoused by Islam (as well as by other religions) are in harmony with modern theories of good governance. Islam’s de-emphasis on national or racial factors and its concept of the universal ummah are quite in line with the processes of globalization and modernisation. 3. The wide chasm between the glorious precepts of the religion and the practices of 57 or so Muslim societies is, indeed, troubling and a cause of shame. But it must be remembered that such a gap exists in most Western or Christian societies. Let us not forget the brutal manner in which Europe ruled (and America is now ruling) the world. Many Latin American countries with Christian populations are or have been military dictatorships. Many African countries consumed by tribal violence and genocide and suffering from economic deprivation are Christian majority countries. Muslim societies were not always backward. Today they lag by a few decades behind socially and technologically advanced Western ones. 4. Some areas pose special challenges for the Muslim jurist. Foremost is the area of women’s rights in such matters as polygamy, male right to pronounce unilateral divorce and distribution of property. It is submitted that juristic approaches are available in these areas to harmonise Islamic law with contemporary notions of justice and gender equality. Unfortunately these approaches are not given the attention they deserve. It must be remembered that Islam liberated women long before they were recognised as legal entities in European civilizations. Islam gave women a personality separate from their husbands, a right to divorce their spouses, a right to own property, a right to maintain their identity after marriage. It sought to minimize their sexual exploitation by recommending (to both sexes) modesty in manner of dressing and caution in matters of socialization. Admittedly this is antithetical to the modern trend of empowering women by encouraging their autonomy in all matters including manner of dress, choice of professions, careers as models, beauty contestants, film actresses, night club performers and.sex workers. The darker side of this liberation is that it accentuates women’s sexuality and perpetuates their exploitation by drawing them into industries that bring income but cause loss of dignity. The media exploits women. Pornography demeans them. Advertisements depict them as sex objects. The consumer and fashion culture imposes on women subtle pressures to keep up with the latest bizarre fashions, cover themselves with cosmetics, starve themselves to emulate the media’s Barbie Doll concept of beauty, consume slimming tablets and adopt expensive diets. Islam guards against these possibilities by de-emphasising sexual attributes. It requires modesty in dressing from

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both sexes. Unfortunately this has been overzealously interpreted by many to include the veil and the purdah. 5. Issues of apostasy and the imposition of penalties like cutting of hands and stoning to death for hudud offences pose severe problems for a modern and just theory of Islamic criminal law. It is submitted that in this area juristic opinion and interpretations are available to reconcile the sacred injunctions with secular understandings of justice and proportionality. These interpretations are marginalized and mocked by the archconservative elements in Islamic societies. 6. Muslim-baiting and demonisation of Islam are fashionable and growing industries in the West. Even before September 11, American, European and the Philippines’ media portrayed Islam and Muslims in the most negative light. Anyone who attacks Islam is immediately lionized and rewarded. Blasphemous publications against Islam are regarded as expressions of free speech. But the principle of free speech is forgotten if a publication dares to attack Jewish brutalities in Palestine or vilifies other religions. Many of the prejudices against Islam are grounded in ignorance. Muslims must engage their critics and articulate the Muslim point of view rationally. In this age of media technology this is a challenge that can be met. What is a much more difficult task is to defeat the purveyor of deliberate and vicious fabrications. There are a number of internet sites totally dedicated to demonizing Islam. Who owns and operates these sites can be guessed. What is more difficult to understand is what they seek to achieve with such vilification. Many observers like the Canadian Islamic Congress are drawing analogies to the misrepresentations about Jews in such early twentieth century literature as Mein Kampf where gross exaggeration and dehumanization proved to be fatally dangerous for six million Jews: cic@canadianislamic congress.com. German academic Gunther Grass says that beliefs about Islam in the West and the current climate of hate bring us very close to a situation not unlike that which prompted Germany’s infamous “kristallnacht” in 1938. Once the enemy has been so dehumanized and portrayed as demonic and parasitical, what further justification is needed to persecute and finally exterminate it? Muslims must confront this vicious propaganda against Islam but in a manner that is rational and non-violent. And they must not stoop to the depths of their adversaries. 7. Perhaps the greatest challenge to Islam comes not from without but from within. The 1.2 billion Muslim community has a small but powerful minority that seeks to monopolise the interpretation of Islam and be the sole and exclusive voice for Muslims. It seeks to maintain power by silencing anyone who expresses opinions different from its interpretation. The voices of reconciliation between tradition and modernity, between Islam and democracy, Islamism and nationalism, Islam and the West are often silenced by self proclaimed ustads, mullahs, and ulemmas who use the threat of declaring dissidents as murtads to silence all opposition. Some of these ulemmas are learned. But a fair number are literate but not broadly educated. They need to be engagaed and persuaded. The

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greatest challenge for the Muslim scholar is to emancipate Islam from the clutches of those who interpret the texts literally and not purposively, mechanically and not morally. The law is divine, transcendental and infallible. But not its human interpretations. _________________________________

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