The shari'ah and the rule of law – Islamic governance for the 21st century
The year 2011 ended with an irreversibly
changed Middle East where the hegemony of several dictators collapsed
at the hands of their oppressed populations. The Syrian and Yemeni
peoples' immense sacrifice and desire for change continue into 2012.
There is little doubt that the world will further witness the collapse
of other dictatorial regimes in the region.
Whilst the Muslims of the Middle East
continue to sacrifice their sweat and blood for liberation from the
shackles of dictatorship, the debate about the aftermath continues. In
Egypt, for example, although the Ancien Régime remains largely
intact, parliamentary elections were conducted at the end of November
2011 and the presidential election is expected to be held in July 2012.
Nevertheless, the question of the form and character of the system of
governance is far from settled. Although the role of Islam in the state
will be inevitable, its extent of influence remains far from clear.
The Anglo-French-American triple
alliance has added to the mist of confusion, as they painstakingly
attempt to hijack the spirit of the protesters in order to install a new
generation of rulers who would ensure the security and furtherance of
Western interests in the region.
In such cataclysmic circumstances, the
subject of whether Islam can deliver the rule of law under the shari'ah
is in the minds of millions of Muslims. After all, nobody wants to
return to the repressive days of Mubarak, Ben Ali and Gaddafi. People
want an accountable, transparent, fair and just authority.
This article explores how the Islamic
shari'ah can realise the hopes and aspirations of the millions of
protesters in the Arab spring by ensuring that the rule of law is
established. This article surveys the illustrious Islamic history and
highlights how Islamic rule guaranteed the rule of law many centuries
before the Europeans even dreamt of such standards. It is argued that
the rule of law in the Muslim world can only be instituted under Islamic
rule.
Definition of the "rule of law"
Prior to launching into defining the
rule of law, it is important that certain misconceptions are dispelled.
One such fallacy is the argument by many Western politicians that the
rule of law is the monopoly of Western secular democracy. [1] For
example, Thomas Bingham, the former lord chief justice of the English
courts said, "There has been much debate whether the rule of law can exist without democracy. Some have argued that it can". [2] Bingham's assumption is premised on an erroneous notion that good governance can only be the result of democracy.
The West has hitherto paraded democracy
as the only system available to mankind but failed to convince the
Muslim world that democracy is the panacea for all its ills. As Mark
Welton quite aptly recognises, "Democracy... is a high-value term
loaded with positive connotations for Americans and Europeans. But the
same term, used so indiscriminately by Western politicians, is also
widely perceived in the Arab Middle East as a codeword, a "guise for
Western efforts to re-conquer Arab territories and plunder their natural
resources". [3]
The Islamic legal and historical sources
strongly rebut the suggestion that the rule of law is the sole
possession of the West. As Welton elucidates, "...the concept
embodied in the term "rule of law" is in fact a legal and political
value shared by both the West and Islam, and if properly refined, can
provide a useful framework for more effective discourse and
understanding between these two traditions".
So what do we commonly understand by the
principle of the rule of law? Let us look at Bingham's definition.
Bingham asserts that under the rule of law "all persons and
authorities within the state, whether public or private, should be bound
by and entitled to the benefit of laws publicly and prospectively
promulgated and publicly administered in the courts". [4] Islam in
principle has no objection to this definition insofar as this definition
can manifest within the Islamic legal and political framework. [5]
The rule of law necessitates that law is
accessible and clear so that citizens of a state are aware of the
boundaries of the law, which they must obey. The rule of law also
applies to government and guarantees certain basic rights such as
presumption of innocence until proven guilty, not to be arbitrarily
detained without due process and right to fair trial in an independent
court. All the executive and judicial organs of a state must uphold the
rule of law because nobody is above the law. [6]
Brief analysis of the system of governance in Islam
It is well known that the system of
governance in Islam is the Khilafah (caliphate). This system is well
rooted both in the Islamic shari'ah and the history of Islam. It is a
system that is quite unlike the Western democratic paradigm. The Prophet
Muhammad صلى الله عليه وسلم said, "The Prophets ruled over the
children of Israel; whenever a prophet died, another prophet succeeded
him, but there will be no more prophet after me. There will soon be
khulafah and they will number many. Fulfil the bayah [i.e. pledge of
allegiance] to them one after another and give them their dues for Allah
will verily account them about what He سبحانه وتعالى entrusted them
with". [7]
The Khalifah is the guardian of the
people and his task is to ensure that the shari'ah is implemented so
that justice prevails. Allah says,
وَإِنْ حَكَمْتَ فَاحْكُمْ بَيْنَهُمْ بِالْقِسْطِ ۚ إِنَّ اللَّهَ يُحِبُّ الْمُقْسِطِينَ
"And if you judge, judge with justice between them. Verily, Allah loves those who act justly". [8]
Under the Khilafah, there is no separate
legislature because the power of legislation lay not in man but in the
Creator of man. Allah says,
فَاحْكُمْ بَيْنَهُمْ بِمَا أَنْزَلَ اللَّهُ
"So judge between them by what Allah has revealed..." [9]
Allah also says,
إِنِ الْحُكْمُ إِلَّا لِلَّهِ
"The command (or the judgement) is for none but Allah". [10]
Sovereignty belongs to the laws of
Allah, the shari'ah, not the people. It is the Khalifah who implements
the shari'ah in the lands of Islam. As imam Abu'l Hasan al-Mawardi (died
450 AH) states, "Imamate is prescribed to succeed prophethood as a
means of protecting the deen [Islam] and of managing the affairs of this
world". [11]
The rule of law is therefore established on the basis of the shari'ah. As Welton states,
"The Islamic world, too, has a devotion to the rule of law that has
prevailed through much of its history and, while severely impaired in
the nineteenth and twentieth centuries by Western colonialism and its
aftermath, has resurfaced as a desired virtue, fully compatible with
Islamic law and tradition". [12]
How the shari'ah guarantees the rule of law
This section of the article seeks to
illustrate what role the people, the Khalifah and the judiciary play in
establishing the rule of law under shari'ah.
a) The people
Allah سبحانه وتعالى says,
يَا
أَيُّهَا الَّذِينَ آمَنُوا أَطِيعُوا اللَّهَ وَأَطِيعُوا الرَّسُولَ
وَأُولِي الْأَمْرِ مِنْكُمْ ۖ فَإِنْ تَنَازَعْتُمْ فِي شَيْءٍ فَرُدُّوهُ
إِلَى اللَّهِ وَالرَّسُولِ
"O you who believe! Obey
Allah and obey the Messenger (Muhammad), and those of you (Muslims) who
are in authority. (And) if you differ in anything amongst yourselves,
refer it to Allah and His Messenger". [13]
Allah has thus obliged Muslims to obey the ruler who rules by the shari'ah.
Moreover, the Prophet Muhammad صلى الله عليه وسلم said,
"A Muslim is obliged to hear and obey whether he likes it or not,
except when he is required to do something that is sinful, in which
case, there is no obligation to hear or to obey". [14] Unlike
democracies where obedience to the law of the land requires coercion by
the state, Muslims historically lived by and obeyed the laws of Islam by
and large without the need for coercion. This is because respect for
and obedience to the laws of Islam is a matter of doctrinal and creedal
obligation upon Muslims, which was the reason behind the success of the
Khilafah. Thus, when Allah ordains upon Muslims to obey their rightful
ruler, there is no option but to observe this command. This principle is
well established in Islam from numerous ayat and ahadith.
b) The Khalifah
It is beyond the scope of this paper to
elucidate the process of electing the Khalifah; however, it suffices to
say that the majority of the classical scholars of Islam are unified on
the view that the Khalifah assumes authority by approval and authority
of the people. As imam al-Mawardi asserts, "...it is necessary for
the electors to agree to his Imamate and that once agreed, it comes into
effect because Imamate is a contractual agreement and it is not brought
into being except by the contracting partner". [15] The post-colonial despotic rulers of the Muslim world are therefore an anomaly in the history of Muslims.
The first Khalifah of Islam, Abu Bakr (RA), in his inaugural address said, "O
People, I have been appointed over you, though I am not the best among
you. If I do well, then help me. And if I act wrongly, then correct
me... If I disobey Allah and His Messenger, then I have no right to your
obedience".
The second Khalifah of Islam, 'Umar bin al-Khattab (RA) enunciated the attributes required of a Khalifah, "By
Allah, O Ibn 'Abbas, only the strong person without violence, the one
who is gentle without being weak, the one who is economical but without
being miserly, and the one who is generous without being wasteful is
worthy of this affair". [16]
The above abundantly illustrate that the
Khalifah (and thus his executive subordinates) is required to be
mindful of his obligations to the people and the shari'ah. He cannot be
above the law but rather is subject to the law like everyone else.
The Khalifah fulfils, amongst the myriad of other obligations, the following as part of his responsibilities. The Khalifah must:
1. guard and protect Islam and its way
of life against external influences and ensure that innovations do not
creep into the pure message of Islam;
2. establish justice where disputes arise between litigants so that the strong does not oppress the weak;
3. implement the Islamic hadd punishment (i.e. criminal laws) so that the prohibitions of Islam are not violated;
4. possess the appropriate defence
capabilities in order to defend the territories of the Islamic state and
its citizens against external attacks;
5. manage the fiscal affairs of the
state and collect the taxes prescribed by the shari'ah e.g. kharaj,
zakah, jizya and ushur etc;
6. manage the funds of the treasury
(Bait-ul-Mal), invest in public projects he considers necessary without
being wasteful and pay the public sector employees' salaries from the
treasury; and
7. assume personal responsibility over
the affairs of the people and execute the policies of the ummah without
overreliance on delegation of authority.
Provided that the Khalifah conducts
himself in accordance with the shari'ah as abovementioned, he would be
deemed to have discharged his obligation to Allah and the people.
c) The judges
The Khilafah also has a strong judiciary
which implements the laws of Islam, dispenses justice and keeps the
executive accountable. Everybody under the shari'ah is equal before the
law and judgment is pronounced without fear or favour. Principally,
there are three types of judges in Islam: [17]
1. the Qadi settles disputes between people in private law matters and implements the penal codes;
2. the Muhtasib is responsible for
dealing with communitywide issues that affect the public and wider
society, e.g. unscrupulous traders who harm the wider public; and
3. the Mazaalim is responsible for
investigating and settling the disputes between the ruler and the ruled.
Essentially, this judge keeps the executive accountable and in checks.
When the Prophet صلى الله عليه وسلم was
the head of the Islamic state in Medina, he was petitioned to intercede
for a noble lady who had committed theft, but the Prophet صلى الله عليه
وسلم said, "The nations before [us] were destroyed because if a
noble person committed theft, they used to leave him, but if a weak
person amongst them committed theft, they used to inflict the legal
punishment on him. By Allah, if Fatima, the daughter of Muhammad,
committed theft, Muhammad would cut off her hand!" [18]
This hadith illustrates that even if the
Prophet's daughter had committed a crime, notwithstanding his position
as the head of the Islamic state, he would have implemented the same
criminal punishment upon his daughter without favour. Such approach is
inimical to the rulers that litter the Muslim world today whereby the
rulers, their families and their entourage enjoy unbridled favour and
effectively operate above the law. This is a direct result of the
absence of the shari'ah in the Muslim world.
There are detailed rules in Islam
pertaining to the appointment of judges, the discussion of which is
beyond the scope of this paper. However, let us again invoke the words
of the second Khalifah of Islam, 'Umar bin al-Khattab (RA) when he
outlined the attributes a judge requires in an Islamic court. He said, "The
task of the judiciary is an undisputed obligation and a sunnah to be
followed. Seek to comprehend when people have recourse to you, for it is
no use to speak of a right if it is not put into effect. See that your
face, your justice and your sitting are the same between people, such
that the lord does not hope for your partiality, nor the weak despair of
your justice..." [19]
These words of wisdom essentially
outline the justice one can expect to see under Islam. The Khalifah or
the judiciary have no room to depart from this boundary and will be
accounted by the people if any departure from the rule of law is
apparent to the citizens. The Umayyad Khalifah 'Umar bin Abdul Aziz (RA)
once said "Rulers usually appoint people to watch over their
subjects. I appoint you as a watcher over me and my behaviour. If you
find me at fault in word or action guide me and stop me from doing it".
The judiciary is principally responsible
for accounting state officials, including the Khalifah and his
governors, in cases of wrongdoings. [20] The remit of such judges is
wide enough to serve the purpose. Imam al-Mawardi maintains that such
persons have the authority to investigate abuse of power by rulers
against the ruled, and to hold them to account for the injustice they
may have inflicted. Such powers may be invoked by the judges
irrespective of whether or not the citizens complain against the
official concerned. [21]
During the early Umayyad era, there were
some incidence of official misconduct whereby the citizens were
deprived of the rights they were entitled to. However, these were not
tolerable in Islam and thus Khalifah 'Umar bin Abdul Aziz (RA)
instituted formal procedures to investigate wrongdoings by officials, to
the extent that he returned the goods that were seized by members of
his tribe to their rightful owners. In the sight of 'Umar members of his
tribe were no different from the citizens of the Islamic state whose
rights were violated. As imam al-Mawardi recorded in his treatise, "he
would reject all such wrong doing and would maintain respect for just
and fair practices or re-establish such practices if necessary".
[22] This practice of accounting state officials for abuse of power was
carried out, in varying degrees, during the Abbasid era, for example,
under al-Mahdi, al-Hadi, ar-Rashid, al-Ma'mun and al-Muhtadi.
The history of Islam contains abundant
examples where abuse of power by state officials were investigated and
remedied by judges. Such a judge may, amongst other matters, deal with:
1. abuse by tax officials, e.g., if they
miscalculate the tax due from individuals and overtax. In such cases,
the judge would order the return of the amount due back to the
individual who overpaid;
2. allegations of deficiency, delay or
negligence towards the payment of salaries of state employees who
receive their salaries from the treasury. In such circumstances, the
judge concerned would investigate and rectify any errors and ensure that
their salaries are paid in a timely manner;
3. the restitution of private property
seized unlawfully by state officials, even if he was a governor. The
judge is obliged to investigate such allegations of seizure of property
and effect restitution after conducting his investigation; and
4. unlawful seizure of property by one
powerful individual from another due to his weakness. Upon investigating
such complaints, restitution will be effected in accordance with the
judge's findings.
The rule of law deficit in the West
The West has over the past few decades
lectured countries around the world to institutionalise democracy, the
rule of law, justice and equality. However, the USA and the UK have been
exposed in recent years for not practising what they preach. For
example, both the USA and the UK have been systematically involved in
practices such as "extraordinary rendition", torture of terror suspects,
indefinite detention without charge, unjust treatment of foreign
nationals and intrusive spying on Muslims. As one American academic
commented,
"Virtually every significant
government security initiative implicating civil liberties – including
penalizing speech, ethnic profiling, guilt by association, the use of
administrative measures to avoid the safeguards of the criminal process,
and preventive detention – has originated in a measure targeted at
noncitizens". [23]
Yet, this deficit of the rule of law is
not just limited to the above. In June 2007, it emerged that Tony Blair
had pulled the plug off a major fraud investigation by the Serious Fraud
Office against the British arms manufacturer BAE Systems. It was
reported that BAE secretly paid £1 billion to Prince Bandar of Saudi
Arabia as "secret commission", thus effectively bribing the Saudis to
place the largest defence contract worth £43 billion, known as the
al-Yamamah deal. [24] It was allegedly in Britain's "national interest"
to terminate this SFO investigation, thus sacrificing the rule of law
under the pretext of Britain's oft-quoted "national interest".
Similarly, on the eve of Bill Clinton's
departure from office, he pardoned 140 convicted criminals/fugitives.
Those pardoned included US billionaire Marc Rich, who was at living
abroad to avoid prosecution by US authorities. It was alleged that Marc
Rich made handsome donations to the Democrats to secure the pardon. [25]
This "cash for pardon deal" scandal raised many doubts over America's
hollow claims that the US upholds rule of law. Needless to say, examples
of abuse of power are quite common in the 21st century Wild West.
Conclusion
The above discourse evidently
illustrates that the shari'ah has put in place all the ingredients
necessary for establishing the rule of law, which is much needed in
today's turbulent Muslim world. History is testament to the fact that
Islam had established an enviable civilisation under its rule. There is
no reason why this cannot return. On the other hand, the tired and
baseless suggestion that only democracy is the way forward for Muslims
is hardly foolproof. Western politicians must wake up to the slogan in
Tahrir Square, ash-shab yurid isqat an-nizam (the people want to bring down the regime).
References
[1] Lord Goldsmith QC, "Government and the Rule of Law in the Modern
Age", lecture given on 22 February 2006 (former British
Attorney-General)[2] Thomas Bingham, the Sixth Sir David Williams Lecture (lecture given in 2006), p-35
[3] Mark David Welton, Islam, the West, and the Rule of Law, 19 Pace Int'l L. Rev. 169 (2007), p-172
[4] Bingham, p-5
[5] By deploying a common definition in this discourse vis-à-vis the rule of law, this paper is not intended to be an appeasement to the critics of Islam. To the contrary, Muslims advocating the shari'ah believe that Islam is inherently superior to any man-made systems because Islam originated from the Creator and not from the minds of weak men.
[6] This article excludes any discussion of a legislature because such a body is incompatible with the Islamic political and legal philosophy.
[7] Imam al-Nawawi, Riyad us Salihin (National Hijra Council, 1992), hadith no-657
[8] Qur'an: 5-42
[9] Qur'an: 5-48
[10] Qur'an: 12-40
[11] Abu'l Hasan al Mawardi, Al-Ahkam As-Sultaniyyah (Ta-Ha Publications, London, 2005 reprint), p-10
[12] Welton, p-173
[13] Qur'an: 4-59
[14] Imam al-Nawawi, hadith no-664 (reported in Bukhari and Muslim)
[15] al-Mawardi, p-15-16
[16] ibid, p-21-22
[17] Taqiuddin an-Nabhani, the Ruling System in Islam (Nidham ul Hukm fil Islam) (Khilafah Publications, London), p-205
[18] Narrated in Bukhari and Muslim
[19] al-Mawardi, p-108
[20] This is comparable to the public law remedies that Western citizens often invoke against public authorities.
[21] al-Mawardi, p-121
[22] ibid, p-118
[23] Bingham, p-15
[24] The Guardian, 7 Jun 2007
[25] BBC News, 22 Feb 2001
Source: www.khilafah.com
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