The shari'ah and the rule of law – Islamic governance for the 21st century

Wakil Abu Mujahid

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