Islam and Elections

2004 Report (Continued)


Session V-Islam and Constitutions

Moderated by Mohamed Charfi, the fifth session asked participants to consider what is meant by an ?Islamic republic.? Must a government be based explicitly on Islam in order to satisfy Islamic moral and political values? Can a constitution supporting pluralism and according respect to Islam adequately provide for the realization of Islamic political goals?

Charfi introduced the topic for this session as one that can be explored under two broad categories. The first considers the concept of constitutions in Islamic legal thought and history, and the second examines the place of Islam in the constitutions of contemporary Muslim states. In relation to the first category, he pointed out that if the Sahifa, or Constitution of Medina, can indeed be classified as a constitution, then it may be considered as one of the world?s earliest. The Sahifa aimed primarily at regulating relations between the Muslim and non-Muslim communities in a number of areas, and enshrined the principle of dhimma whereby non-Muslims are guaranteed rights and freedoms as protected minorities of the state.16 It is arguable that the document is too limited in scope to serve as an adequate blueprint for today?s more complex Muslim states. That said, there have been various attempts in modern times that have employed the Islamic concept of shura to develop an Islamic constitution relying entirely on Islamic sources, namely the Qur?an and the sunna. For example, in 1978, al-Azhar endeavoured to formulate a model Islamic constitution that would be applicable to all Muslim states; this idea, however, was not widely adopted. The experiment raises specific questions about the plausibility of adopting a constitution derived entirely from Islamic sources yet wide enough in scope to frame a modern state.

Regarding the place of Islam in modern constitutions in the Muslim world, Charfi suggested that constitutions tend to represent one of three main types:

  1. Those in which the state is conjoined with religion. In Saudi Arabia, for example, the Qur?an and the sunna are regarded as the constitution of the monarchical state, and political participation is practically nonexistent. Iran may also fall in this category, but to a lesser extent; there is a democratic system in place, but it is ultimately controlled by nonelected religious councils.
  2. Constitutions in which there is a clear separation between religion and the state, including those of many sub-Saharan African states that are multi-religious but generally considered Muslim countries because of their membership in the Organization of the Islamic Conference. Another example is Turkey, an independent state since the collapse of the Ottoman Empire, where an Islamic majority party governs a secular country without seeking to impose Islamic laws.
  3. Those constitutions taking an intermediary stance?as in the majority of Muslim countries?in which Islam is constitutionally declared to be ?the religion of the state,? but the degree to which laws of the state are tied to Islam varies. In the case of Egypt, the constitution simply requires law to be ?derived from the religion,? leaving room for divergence from Islamic law per se.

Participants were asked to consider the effectiveness of all three types of constitutions, as well as the extent to which the law and those formulating it should be bound by Islamic jurisprudence.

Fatima Gailani spoke on the validity of the concept of a constitution in Islam in the context of her experiences as a member of the Afghani constitutional commission of the Loya Jirga. She explained that the claim of some Muslims that ?the Qur?an??and the sunna, in the eyes of some??is our constitution? (al-Qur?an dusturuna) is not a mere slogan. It is rather a deeply held belief premised on the idea that Islam is a way of life encompassing all aspects of a Muslim?s existence. She added that on matters of governance, however, the Qur?an is neither categoric nor absolute?thus the need to develop modern and practical constitutions in the Muslim world.17

Asef Bayat argued that it would be an over-generalization to assume that Muslims worldwide endorse the opinion that the Qur?an is their constitution. Many Muslims would in fact find this a dangerous notion, with negative consequences for both the state and for Islam?primarily, a confusion of the sacred and political realms. A constitution is neither sacred nor immutable; by treating the Qur?an as a constitution, it becomes subject to popular debate, as a constitution must be. Such a position, Bayat asserted, violates the divine sanctity of the Qur?an as the unchallengeable Word of God.

Essam El-Eryan contested Bayat?s position, maintaining that the Muslim claim that ?the Qur?an is our constitution? is both widespread and must be understood as an ideological expression of Muslim identity. However, it does not preclude the existence of a formal constitution provided that such a constitution is tailored to the needs of Muslims and their faith. El-Eryan consented that constitutions must reflect the specificities of their cultural and civilizational contexts; as such, there cannot be a single constitution that is applicable to all societies. From a Muslim perspective, he added, the very idea of a universal constitution would be a gross simplification of God?s magnificence. El-Eryan stated that the only universal characteristic of a constitution should be its guarantee of the turnover of power; all other aspects should be culturally relative.

In support of El-Eryan?s view, Abdel-Monem Abul Futuh reminded participants that Muslims were governed for fourteen centuries based on Islam alone. This long heritage should be drawn upon when formulating contemporary systems of governance in the Islamic world. Moreover, Muslims have a duty to rule in accordance with God?s law, which is supreme to all man-made laws.

Ghazi Suliman expressed reservations with regard to the points raised by El-Eryan and Abul Futuh. On the basis of the Qur?an and the practice of the Prophet, and alluding to the points raised earlier by Fatima Gailani, he insisted that Islam requires Muslims to organize their earthly affairs as they see fit, provided, of course, that they do not violate central premises of the Qur?an. The Qur?an itself, he added, is eternal and valid for all times; but the same cannot be said for historical Islamic practices. Suliman then returned to the subject of the Constitution of Medina, arguing that this document, like other historical documents such as the treaty of Hudaibiya, is entirely context specific.18 These traditions may guide not only Muslims, but humanity as a whole, in formulating contemporary rules of governance, but they cannot be deemed perfect models. Muslims are also counseled by a Prophetic saying to rule according to their realities, as they are ?more aware of the conditions of [their] world.?19 Suliman reminded participants that a constitution pertains to worldly affairs: it sets out the structure of the state and its institutions and includes guidelines that delineate the rights and duties of the state vis-?-vis its citizens. Anil Seal endorsed this view, again calling attention to the need for a solution that is relevant for all Muslims?both in Muslim-majority and Muslim-minority states.

Marina Ottoway attempted to find some middle ground on the question of whether an ?Islamic? constitution is a viable alternative to one that respects Islam and its principles but is not based solely on Islamic laws. Muslim constitutions need not be secular, she suggested; rather they must be based on the consent of the various political groups, provided all parties understand exactly to what they are consenting. The current practice in Muslim countries of enshrining constitutional rights and freedoms that are ?subject to Islamic law? is too ambiguous; without specifying what constitutes ?Islamic law,? parties are effectively being asked to sign a blank check. This, she explained, will inevitably lead to problems, given that there is no agreement among Muslims on interpretation of the law.

Asef Bayat pointed out that defining the precise scope of the shari?a is all the more pertinent given that many of the concerns regarding the viability of Islam and democracy have little to do with doctrinal or ideological conviction, and more to do with issues of power. He argued that the majority of Muslims do want a democratic participatory system; and yet throughout the Muslim world, this desire is suppressed by those in power. Bayat stated that it is possible to construct democratic systems in Muslim societies, although this requires popular opinion to recognize that the democratic ideal is, in principle, Islamic.

Seri Ahmad Sarji offered the Malaysian constitution as a model that embodies universal pluralistic values, while registering absolute respect for Islam and adequately providing for Islamic political activity. He explained that the Malaysian constitution specifies that Islam is the religion of the state, but that other religions are equally recognized and protected. Among other methods, the constitution guarantees Islam by stipulating the establishment of shari?a courts and Islamic economic, educational, and financial institutions. Like all other constitutions, however, the Malaysian constitution is ultimately held to be a social contract beneficial to all citizens. For this reason, non-Muslim Malaysians, who are excluded from religious laws pertaining only to Muslims, consider themselves party to the constitution and adhere to its provisions, especially because it guarantees them freedom from discrimination in all aspects of their lives. The Malaysian constitution cannot be amended easily, yet citizens have full recourse to the courts on constitutional matters; what?s more, the constitution was indeed recently amended to eliminate gender discrimination. This was not, Seri Ahmad Sarji explained, perceived as contravening Islam, rather as developing and reinforcing Islam as defined by the Malaysian people in relation to their participatory constitutional framework. Mohamed Charfi added that constitutional frameworks in countries like Morocco and Tunisia have similarly allowed for considerable reform of laws that negatively impact women. The Tunisian legal system has, since the 1950s, taken significant steps to reinterpret, rather than reject, Islamic laws on marriage, especially polygamy.

For his part, His Royal Highness Prince Hassan reminded participants that legitimacy is entirely different from legality or constitutionality. What is of true substance, and indeed authority, he stated, is legitimacy. Prince Hassan declared that in Iraq, we must have the moral courage to face the real issue: if Shi?ites and Sunnis felt that their views were respected, he said, there would be no need to put pressure on their leaders to push for expedient solutions like the interim Iraqi constitution.20 Prince Hassan insisted that Muslim people have a fundamental right to govern themselves according to their beliefs and heritage. He acknowledged that varying interpretations of Islam exist in the Muslim world and that this can be problematic. He stressed that the shari?a should not be treated as a kind of ?infectious disease,? simply because it does not conform to Western views of governance. He added that despite European claims of rejecting a theocracy, the existence of the Vatican demonstrates that, even in the West, secularism is not absolute. Prince Hassan continued that we should not seek the separation of religion and state, but rather work toward the elevation of religious views so as to enable people of faith to respond to the challenges of modernity. He proposed a participatory framework in the form of an independent moral authority, which might be positioned in any or all of Islam?s holy cities in Iraq, Saudi Arabia, or Palestine. The proposed moral authority would not be a Vatican-type state, but one that would be independent of political interference and charged with interpreting shari?a in a manner incorporating the views of all Islamic schools of thought, without prejudice against new interpretations of the law based on ijtihad.21

Some participants, including Richard Bulliet, professor of history at Columbia University, acknowledged that the development and elaboration of a structure of authority in Islam is a matter of pressing concern, especially for future generations of Muslims. He therefore welcomed the idea of an Islamic moral authority. He expressed concern, however, over the issue of granting Muslim scholars, including some who currently represent the interests of governments, a monopoly on religious knowledge and authority.

Other participants, including Abdel-Monem Abul Futuh, cautioned that Muslims today are the victims of two strands of extremism. The first is a secular extremism, which seeks to impose Western-style secularism as the only valid model for good governance in the Muslim world. The second strand represents traditional Islamic extremism, which tries to force Islam into every aspect of life, no matter how trivial. The juxtaposition of these two extremes is what raises the question ?what is Islam???and consequently the need to formalize a single vision of Islamic law and doctrine. Abul Futuh asserted that there is ultimately only one Islam. Although Muslims pride themselves on the differences that exist within the religion, these differences subsist only with respect to the details. There is unity within the diversity.

Prince Hassan acknowledged that according to Islam, diversity in the context of human transactions (mu?amilat) is encouraged, but this principle does not extend to matters of belief. He further highlighted that ?belief? cannot be limited only to aspects of worship, but must encompass all issues relating to the dignity of human life. Respecting the dignity of all human beings as mandated by the Qur?an is an absolute Islamic principle from which there can be no diversions or difference of opinion. In Prince Hassan?s view, by according adequate respect for the dignity of all human beings (as an expression of Islamic belief), the Islamic moral authority he was proposing would not only guarantee unity among Muslims, but would also ensure the ideal of good governance throughout Muslim countries.

The session then briefly considered the definition of an Islamic republic. Syed Shahabuddin questioned whether an Islamic republic must engage in propagating the religion (da?wa) or undertake the task of ?enjoining the good and repressing the prohibited? (al-amr bil?ma?ruf wal-nahiy ?an al-munkar). If so, how are these activities, described in classical treatises on statecraft, to be defined? Must public education, financial institutions, and the mass media also be Islamized? Should the Islamic republic act as the guardian of the welfare of Muslim minorities and/or populations around the world?

Bahman Baktiari, professor of political science at the University of Maine, raised the question of leadership, arguing that there is a need to define basic concepts and principles to determine who may or may not become a leader of an Islamic republic. He also suggested that participants clarify the concept of Muslim citizenship: what is an ideal Muslim citizen? Can citizenship in a Muslim country be defined in a way that does not emphasize religion?

The session concluded with participants recognizing the limitations of the Constitution of Medina as a practicable model for today?s Muslim states but agreeing that written constitutions have a basis in Islam and are therefore not only permissible, but desirable. Participants also agreed that modern Muslim constitutions must respect the ideals of democracy and the rule of law, without violating the principles of Islam. Despite a consensus that Muslim constitutions should reflect Islamic values of just and good governance, no consensus was reached regarding how to put these principles into practice.

Participants also remained divided as to whether a constitution should declare Islam as the religion of the state and premise all laws on the shari?a, or whether it should pronounce Islam as the (or one of several) official religion(s) while recognizing the rights of all citizens, including Muslims, to observe as they see fit.

No concurrence was reached as to whether the establishment of an inclusive Islamic moral authority would bolster political legitimacy in Muslim countries by surmounting doctrinal discord among Muslims and promoting consensus on fundamental principles.

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© 2006, The Center for Dialogues: Islamic World - U.S. - The West

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