Ways to Strengthen the Democratic Transformation in Egypt
A conference held in cooperation between
Cairo Institute for Human Rights Studies, the United Nations
Democracy Fund (UNDEF) and Foundation for International Relations and Foreign
Dialogue (FRIDE) – Spain
26 – 27 July 2011
Cairo, Egypt – Semiramis Hotel
Status of Islamic Law in the New Constitution
Gamal al-Banna
Islamic
Thinker
Introduction
As Article 2 of the
constitution mandates that the principles of Islamic law are the prime source
of legislation, it is natural when seeking to draft a new constitution, to
return to these principles to see if they may clarify the status of Islam
vis-à-vis the constitution or how a constitution written in accordance with the
principles of Islamic law should look.
That is what we are
seeking to do in this paper, but first we make an observation about our
understanding of Islam. True Islam is the Quran and those parts of the Sunna
that are consistent with it. The words of Quranic exegetes, hadith scholars, or
jurisprudents may not be taken as Islam itself, but rather as indicative of
their understanding of Islam in their own particular circumstances; their understanding
might be sound, or it might not. Thus, we will not refer to Mawardi’s al-Ahkam
al-Sultaniya or to Ibn Taymiyya’s al-Siyasa al-Sharaiya,
although these constitute the two principle sources for studies of Islam and
governance or political rule. Rather, our principal source of reference will be
the Quran and those parts of the Sunna consistent with it.
We may also find an
additional source in events in the golden period of Islam, from the Prophet’s
rule in Medina (10 years), to Abu Bakr’s rule (2.5 years), and finally to Omar
Ibn al-Khattab’s rule (10 years). When Omar was stabbed, the Rightly Guided
Caliphate perished along with him. Here I disagree with the widespread opinion
that the Rightly Guided Caliphate persisted until Ali Ibn Abi Taleb’s death,
although the scope of this paper does not allow me to expound on this.
Meanings of governance
in Islam
Islam is a call to
guidance, aimed at guiding people by letting them know God, His prophets, His
books, belief in resurrection after life, and a trial of judgment that will
rectify the failure of human judgment to achieve perfect justice in this world.
Islam issues its appeal to individuals using wisdom and gentle exhortation;
when an individual believes, Islam has realized its goal.
This nature and this
objective differ greatly from the nature of governance, which is a practice
aimed at order. At times the means may be compulsion, while at other times they
may be the blandishments of office or status. It is noteworthy that the Quran
does not mention the word “state” (Dawla) in its political sense even
once, whereas it speaks of “the nation” (Umma) in nearly 50 places.
Although Islam as a
faith, which is paramount, does not comprise governance, Islamic law (Sharia),
the second half of Islam, contains numerous references to rule, some of which
carry the meaning of necessity or authorization, and others which refer to
exclusion and prohibition, and usually only in the broadest terms. It is thus
clear that Islam, though it did not aim to create a state, is not free of
allusions to the state, to ensure that any governance should be wise
governance.
However, these
references are all part of law, not of doctrine. This distinction is important
because Islamic law can be considered in light of the extent to which its
tenets achieve the objective of revelation, which is justice or welfare. If it
happens that the developments of an age have superseded these tenets, they must
be altered in a way that achieves justice. This is what Omar Ibn al-Khatttab
discovered at a very early date in Islam.
Quranic verses about
rule indicate that it is concluded through a voluntary agreement between the
nominee for office and the mass of people. A covenant between two parties
regarding the performance of a certain deed, the term for this agreement (Bay’a)
comes from the root meaning both to buy and to sell, or to exchange. An
agreement between seller and buyer was customarily sealed by one striking the
hands of the other.
Quranic verses also
stipulate that governance should be managed through consultation; the ruler may
not act independently according to his own will. This requires the creation of
a mechanism by which consultation is practiced.
General principles of
Islamic law
We can understand
through references in the Quran and from the caliphate of Abu Bakr and Omar Ibn
al-Khattab that the state inspired by Islam has the following features:
1. The Islamic state is a state of sovereignty of
the law, and the law is the Quran.
This means:
A. The state is not an individual dictatorship, or
a state of one party or one class, or a military state.
B. No person is above the law or beyond its
reaches.
C. No person is denied the protection of the law.
D. There is no discrimination before the law; all
are equal before it.
E. There is no regard for any measure or action
issued in violation of the law.
F. All forms of allegiance—professional, familial,
national, sectoral, etc.—are subsumed by allegiance to the law.
G. There is only one law to which all people are subject
without discrimination.
2. That the law is the Quran does not mean that the
nation is not the source of authority. The sole limit on this traditional
formulation, found in numerous democratic constitutions, is that authority be
within the broad framework of the Quran. Sovereignty belongs to the Quran, as
divine guidance, but the authority to understand, apply, practice, interpret,
establish, etc. is the nation, which God has left as His successor on earth.
There is a difference between authority and sovereignty, and it is a grave mistake
to confuse the two.
This is important
because God, through the sovereignty of the Quran, sought to guarantee the
liberty of the Islamic nation and the Muslim individual from the authority of
tyrants, rulers, and those who exploit claims and slogans such as “the
sovereignty of the people.” In fact, the sovereignty of the law leads to the
sovereignty of the individual who obeys the law. Without the stipulation that
the nation is the source of authority, authority may devolve on to the ruler
and he may become a dictator, even if he claims to rule by the Quran.
3. Observance of the Quran does not mean observance
of the opinions of exegetes, hadith scholars, and imams, but rather the
faithful application of Quranic texts without force or mendaciousness in light
of the Quran’s own interpretation and the interpretation of the hadith in light
of the Quran.
Between rule by law and
rule by votes
On the occasion of its
50th anniversary in 1955, the Egyptian National Bank invited the political writer
F. A. Hayek, who had become famed in Europe following the publication of his
book, The Road to Serfdom, to give a lecture to mark the
occasion. He chose as his topic the political ideal of the rule of law.
He compared the rule of
law to democracy, noting that the rule of law was the ideal for all
philosophers and thinkers. In Athens the term used to describe, it was
'Isonomia'. A forgotten word that receded as “democracy” gained prominence. By
the time the term democracy appeared in dictionaries of the sixteenth century,
it was translated as “equality before the law,” “government of the law,” or
“sovereignty of the law.”
Hayek went on to say:
We find isonomia used by
Plato in quite deliberate contrast to democracy rather than in vindication of
it. In the light of this development, the famous passages in Aristotle’s
politics in which he discusses the different kinds of democracy appear in
effect as a defense of the ideal of isonomia. It is well known how he stresses
that it is more proper that the law should govern than any of the citizens.
Moreover, that the persons holding supreme power, should be appointed only as
guardians and servants of the law, and particularly how he condemns the kind of
government under which, the people govern and not the law, and where,
everything is determined by a majority vote and not by law. Such a government,
according to him cannot be regarded as that of a free state, for when the
government is not in the laws, and then there is no free state, for law ought
to be supreme over all things. He even contended that any such establishment
which centered all power in votes or people could not “properly speaking be
called a democracy, for their decrees cannot be general in their
extent”. Together with the equally famous passage in his Rhetoric’s in which he
argues that “it is of great moment that well drawn laws should themselves
define all the points they can, and leave as few as may be for the decision of
the judges.”[1]
From this, it is clear
the idea of the rule of law takes precedence over the idea of rule by votes,
which is the genuine, practical guarantor of democracy. What led Europe to fail
in the application of this ideal was its inability to achieve a positive law to
act as a perfect judge, rather than as an advocate for the interests of the
group that established it, as is seen in Roman law. This made all roads lead to
Rome; or Napoleonic law, which embodied the interests of the rising
bourgeoisie; or Soviet law, which made the party leadership the authority on
the permitted and prohibited. Yet, this inability does not apply to Islam since
the Quran provides this law, in the understanding discussed above and with the
safeguards outlined.
Islamic safeguards to
protect the civil nature of the state
The establishment of a
state is not the role of Islam or its doctrine, which is an appeal to guidance.
Such directives as are found in Islamic law, if taken from the Quran and the
age of the first two caliphs, may be considered guarantees for the civil nature
of the state because they do not aim for “Islamic rule” but rather good
governance. Thus, it does much to guarantee the achievement of a civil state in
a way that goes beyond even the most modern states. This includes:
1. Following the Medina charter established by the
Prophet upon his arrival to Medina, it is a state of citizenship. The charter
states that the Ansar (the indigenous residents of Medina), the immigrants (the
Muslim residents of Mecca who took refuge in Medina), and the Jews (who made an
alliance with the Ansar) are one nation (umma), defending the city,
Muslims with their religion and Jews with theirs. This charter made “one
nation” out of these three groups. That is, both the immigrants and the Jew
were members of this nation. There is no other meaning for this but
citizenship.
2. Freedom of thought and belief: In more than 100
verses, the Quran upheld the freedom of belief. For example “Say: ‘The truth is
from your Lord; so let whosoever will believe, and let whosoever will
disbelieve’”; “No compulsion is there in religion”; “And if thy Lord had
willed, whoever is in the earth would have believed, all of them, all together.
Wouldst thou then constrain the people, until they are believers?” Nor did the
Quran give the Prophet authority over the believers. He is not the controller
or even the trustee of believers; he is the messenger, the harbinger, the
informer of God. The best evidence that Islam accepts freedom of belief is that
the Quran mentioned apostasy repeatedly without specifying a worldly punishment
for it, leaving the matter to God.
As for the claims and
interpretations of jurisprudents, they cannot be taken as evidence because they
are merely an expression of their understanding of the Quran in a particular
circumstance and culture and under the rule of authoritarian tyrannies. As for
the hadith related by Akrama, the protector of Ibn Abbas, which states, “He who
alters his religion shall be killed,” it should not be accepted. Even before
us, Imam Muslim excluded it from his hadith compendium; moreover, it is
impossible for a hadith to contradict the Quran.
3. Principle of religious pluralism: Among the
directives—indeed, the rules—affirmed by the Quran are beliefs in all the
prophets's existence, those mentioned by name in the Quran and those not
mentioned. Islam is the only religion that requires believers to believe in all
prophets and not distinguish among them. The Kafirun chapter of the Quran
recognized and confirmed religious pluralism, stating:
A. Non-Muslims (unbelievers) will not abandon their
religion.
B. Muslims will not enter the religion of the
unbelievers.
C. There remains only recognition of this
pluralism: “To you your religion, and to me my religion.”
There are further appeals
for pluralism in the Quran: “...and say, ‘We believe in what has been sent down
to us, and what has been sent down to you; our God and your God is One, and to
Him we have surrendered.’”
Finally, let us recall
the speech given by Abu Bakr following his election as a way to link the
present of the nation to its glorious past: “I have been given charge over you,
but I am not the best of you. If I do right, support me; if I do wrong, resist
me. Obey me as long as I obey God and His prophet, and if I disobey God and His
prophet, you owe me no obedience.” This succinctly captures the right of the
people to oppose the ruler if he does wrong. If he does right—if he rules by
the law or a constitution and not by his own autonomous will—the people are
bound to obedience, but if he does wrong by them, he is owed no obedience.
These three sentences perfectly summarize the elements of democracy, and
perhaps can be cited in the constitution when mentioning the relationship
between the ruler and the ruled.
[1] F.A.
Hayek, “The Political Ideal of the Rule of Law,” National Bank of Egypt,
Fiftieth Anniversary, 1955, Commemoration Lectures, Cairo, p. 7.
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