2004 Report (Continued)
The fourth session, moderated by Fatima Gailani, addressed the role of rights and freedoms in governance in the Muslim world. How should rights and freedoms be defined in relation to Islam? Should they be granted according to citizenship, religious affiliation, or simply humanity? Are rights and freedoms absolute? If not, how should limits be determined in particular cultural or political situations?
Fatima Gailani introduced the session by reminding participants of the urgency of the issue of rights and freedoms in Afghanistan and elsewhere. Questions of governance, she said, have a real and living presence, as well as an immediate effect upon the lives of citizens throughout the Muslim world.
Seri Ahmad Sarji insisted on the need for constitutional as well as institutional provisions to safeguard rights and freedoms, however defined. These safeguards must not only work negatively, as protections against violation, but also positively, to support the growth and development of citizens’ rights. He underscored the need for the establishment of an independent judiciary and a commission on human rights—two institutions with the capacity to guarantee these rights, and thereby the real existence of democracy, by actively holding violators accountable in a way that mere constitutional provisions cannot.
In response to Seri Ahmad Sarji’s concerns, Essam El-Eryan and Abdel-Monem Abul Futuh, the two representatives from Egypt’s Muslim Brotherhood, returned to a theme addressed in the previous session: the need to establish socially and culturally appropriate limits on rights and freedoms, rather than accepting them as absolutes. Both men emphasized that freedoms engender responsibilities to the community as well as rights for the individual citizen. By way of illustration, El-Eryan contrasted the Western liberal tradition, which sees the individual as the basic unit of society and provides him or her almost unlimited rights, with the Islamic perspective, which sees the family as the societal base and modulates individual rights to support familial structures. (Syed Shahabuddin later countered this assertion, stating that God’s gift of free choice makes the individual accountable on the Day of Judgment; consequently, Islamic thought does center on the individual, and this focus must be equally evident in any governmental system that identifies itself as Islamic.) At present, El-Eryan continued, the insistence of the West, and particularly the United States, on enforcing one model of democracy and one definition of rights and freedoms has made consideration of local contexts extremely difficult. This imposition is backfiring, he claimed, threatening to alienate people in the Muslim world and elsewhere from democracy in all its forms, all the while diminishing world security.
Anil Seal requested that participants address their comments to the Muslim world in toto, including those (most of the world’s Muslims) who do not live in predominantly Muslim states.13 Reflecting Prince Hassan’s suggestion, Seal proposed that the discussion shift from systems of government toward systems of governance as the means by which Islam can continue to make its particular contribution to the world in both minority as well as majority situations. In this way, he argued, participants might better resolve the issue of how to link Islam and good governance to ensure that citizens’ rights and freedoms are respected.
Marina Ottaway expressed reservations about the idea held by many participants that citizens’ freedoms and rights should be granted so long as they are not in contradiction with Islamic law. Accord that rests on such vaguely defined terms—“contradiction” and “Islamic law”—is misleading, because it defers the deep disagreements that will arise through the application of these rights in concrete situations. Is there truly a consensus as to what “Islamic law” means, and what list of rights and freedoms it supports? If so, doesn’t this consensus contradict the notion of context-specific systems of governance? If not, how will differing interpretations of Islamic law, both within and between states, be addressed? Above all, she asked, who will serve as the interpreter, particularly in light of various participants’ comments regarding the need for jurisprudential reform?
Mohammed Abdullahi Abubaker noted that acceptance of pluralism in terms of non-Muslims living within Muslim societies also includes acknowledgement that Muslim countries participate in the larger global community. Consequently, one way to generate such a list of rights and freedoms might involve examining a document produced by this global community to determine which rights listed therein conform to Islamic principles. Due to its prominent position on the world stage, the Universal Declaration on Human Rights might be the best document for this purpose. However, the questions of who should undertake this examination, and whether its findings would be valid for all Muslim countries, the Muslim world in toto, or individual countries in accordance with local cultural norms, remained unresolved.
In a similar vein, Syed Shahabuddin noted that every clause of the Convention on the Elimination of All Forms of Discrimination against Women, adopted in 1979 by the United Nations General Assembly—excepting a clause prohibiting polygamy—is entirely in accord with Islamic principles.14 He questioned those in the Muslim world who express reluctance to sign such international conventions, reminding participants that ijma‘, the consensus of humankind, reflects the will of God. Although the concept of ijma‘ is often taken to refer specifically to the consensus of the Prophet’s community, Ibrahim Sulayman Olawole, Legal Officer for the Independent National Electoral Commission of Nigeria, cited the Quranic verse that states that God has created humanity as different nations, ethnicities, and religious communities in order that they might all come to know and live harmoniously with one another.15 It is not only Muslims, but the human community as a whole that requires consideration, Olawole claimed.
Several participants addressed the question of whether the contemporary Islamic jurisprudential system is equipped to confront issues of participatory governance, democratic structures, and rights and freedoms. Yousif al-Khoei, a representative from the al-Khoei Foundation in London, suggested that Muslim jurists of all branches need space in which to adapt to the contemporary situation on their own terms. History provides numerous examples of the capacity of jurisprudents to intelligently reconcile the traditions of Islamic legal interpretation, fiqh, with the reality of the times. For example, slavery is no longer treated as a contemporary issue in books of legal interpretation. However, to be accepted as legitimate, the impetus driving a reconciliation of fiqh with pluralism and participatory governance must come from within the community, rather than as a result of outside political pressures.
Sudanese scholar Khalid Al-Mubarak asserted, on the contrary, that the provincialism and ignorance of many clerics renders them incapable of formulating judicious positions with regard to democratic practices and forms of governance. It is not clear when this will change; meanwhile, providing jurisprudents with veto power would be dangerous for good governance and human rights. He further noted that the focus on reconciling Islamic jurisprudence with systems of participatory governance overlooks the utilization of local, non-shari‘a forms of participatory government in the contemporary Muslim world. If institutions such as the Loya Jirga in Afghanistan and the Diwaniyya in Kuwait are accepted despite their non-Islamic roots, why is there such a deeply perceived need to identify democracy as Islamic?
From a consideration of rights and freedoms in the abstract, the discussion turned toward more concrete articulations, including the fundamental right of citizens to elections with credibility enough that both victors and losers respect the results. Felipe Sahagun, a journalist for the Spanish newspaper El Mundo, noted that elections serve as a vehicle for maintaining the real functionality of a democracy, but are only as good as the constitutional framework under which they are held. If either the party in power or the opposition does not recognize the authority of the constitution, elections are meaningless, and a fundamental right of citizens—to elect and install a government that reflects the popular will—is denied. Sahagun proposed a schema for categorizing democracies based on their demonstrated willingness to adhere to this right: formal, institutional, and cultural. Formal democracies meet merely the technical definition, that of holding elections. Institutional democracies offer greater guarantees to their citizens of protection from the excesses of the executive via independent judiciaries, human rights commissions, and independent media. Cultural democracies, however, are those in which the principles of participatory governance are so deeply ingrained that the system is able to right itself and resume functionality, rather than suffer breakdown, after any attempted violation; hence their citizens’ fundamental rights are never jeopardized.
Despite general consensus on the need to hold valid elections, safeguard the well-being of the community (whether the umma or the body of citizens of a particular country), and provide real guarantees of rights and freedoms, the session closed without full accord on either the precise delineation of such rights and freedoms or their universality. Ghazi Suliman pointed out that the global community has reached consensus on a number of human rights charters; the critical question for Muslims is whether they consider themselves part of this international community. If so, there should be no need for such terms as “Islamic rights” and “Islamic freedoms.” In this view, the use of such terms serves to avoid committing to the preservation of human rights while falsely promoting a sense of Muslims as a special group. Some Muslim participants, including Abdel-Monem Abul Futuh, expressed reservations regarding the charters, arguing that while the obligation to respect human rights is universal, those rights might be articulated differently in an Islamic context. Nouri Mohammed provided the example of hudud, the six corporal punishments mentioned explicitly in the Qur’an, as an illustration of the twin principles of realism and morality. Realism addresses the need to punish the wrongdoer and deter others, while morality leavens punishment with forgiveness for those who repent and outlines strict guidelines for conviction to avoid unjust sentencing. Hence Islamic jurisprudence would not consider the death penalty a human rights violation, while in many Western nations the death penalty does violate cultural notions of human rights. The session closed on these points of disagreement, reflecting the varied positions held by workshop participants.Back to the top.