Governing Diversity – Democratic Solutions in Multicultural Societies
Edited by Razmik Panossian, Bruce Berman and Anne Linscott
Shari’a, the State, and Identity Politics
– Anver M. Emon
History has shown that demands to implement Shari‘a or Islamic law are not solely claims for religious freedom. In a post-colonial context, Shari‘a has become a symbol of political identity, its historical doctrines used to invest individual and community identity with a determinate and objective “Islamic” content — one often positioned against the perceived emptiness of the liberal individual. This policy paper argues that the international community should adopt policies that enhance its knowledge of Islam and Islamic law. It must engage in and facilitate dialogue with the multiple voices of Islam and Islamic law without favoring one over another. To favour one is to ignore how each voice represents certain interests at stake which, if ignored, may perpetuate the antagonisms that exist in the world today.
Understanding the Muslim world is often an elusive task, and to generalize about it is not only naïve but very likely counterproductive. However, for Muslim communities and countries, one issue that often assumes significant symbolic power, domestically and internationally, is the role of Shari‘a in society.
In Ontario, Canada, for instance, a vociferous and often polemical debate occurred about the use of Shari‘a-based family law arbitration.
The recent civil conflict in Somalia witnessed the Islamic Courts Union, a group of Somali Islamists that rebelled against the interim parliament of Somalia on a Shari‘a-based platform.
The new constitutions of Afghanistan and Iraq expressly incorporate Islamic law into both legal systems.
Finally, at the time of writing, a Muslim cleric in Pakistan threatens to institute his own Shari‘a tribunals as an act of defiance against President Pervez Musharraf’s regime.
Whether used as a form of political opposition, a mode of dispute resolution – or both – Shari‘a often invokes anxiety regarding its potential effects socially and politically, domestically and internationally. The challenge of understanding the role of Islamic law in Muslim societies is to recognize that while the state may enforce Shari‘a norms, the nature and scope of those norms are often defined in light of the masses who invoke Islam as a symbol of political identity for themselves, whether as individuals or members of a community or state. The meaning of Shari‘a takes shape through institutions of government immersed within a context of, not one single, but contested, Shari‘a values. Whether the government in a Muslim society can change or alter the legal landscape is not, therefore, simply a function of its constitutional or coercive power, but rather stems from the legitimacy it can and does derive from its people. Effective engagement on Shari‘arelated issues requires that those of us in countries such as Canada:
Understand the multiplicity of Shari‘a voices in the Muslim world.
Empower Muslim voices from below to engage in a horizontal dialogue with each other about the meaning, definition, and significance of Shari‘a for themselves and their society.
Enable a vertical dialogue between the Muslim voices below and the centres of state power to facilitate a mutually meaningful discourse about what Shari‘a means in society amidst other competing interests of local, domestic, and international concern.
To illustrate how these recommendations can breed new realms of understanding and engagement, this paper will focus on the ways in which Muslim countries incorporate Islamic law in their rule of law systems and how the adjudication of Islamic law disputes reveal and provide avenues for more nuanced policies promoting good governance and rights protection.
The Constitutional Context of Islamic Law: The Case of Religious Freedom
Various majority Muslim countries may specify in their constitutions that Islam is the state religion, although that is not always the case. Some countries with significant Muslim populations specifically state that the government is secular, keeping religion and state law distinct. Aside from designating Islam as the state religion, some Muslim nations also state that Islam is either “a” source or “the” source of law in the country, thereby bringing into sharp focus the constitutional significance of violating a precept of Shari‘a law.
Protecting the Interests of Religious Minorities
To protect the interests of religious minorities, Muslim state constitutions may include equality clauses that protect individuals from religious discrimination.
“People are equal in human dignity, and citizens shall be equal in public rights and duties before the law, without discrimination as to race, origin, language, religion, or belief.”
(— Article 18 of Bahrain’s constitution)
“All persons are equal before the law. No person may be discriminated against on account of race, ethnic origin, language, colour, sex, religion, disability, political belief or opinion, or social or economic status or any other factor….”
(— Article 14 of Eritrea’s constitution)
Generally, equality clauses are listed among the earliest provisions of “basic rights” and occur without limitation or restriction.
Specific Provisions for Religious Freedom
Muslim countries may also include provisions protecting religious freedom specifically.
“The State shall guarantee the freedom of belief and the freedom of practice of religious rites.”
(— Article 46 of Egypt’s constitution)
“The State guarantees all persons the freedom of worship, each according to his/her own religion or belief.”
(— Article 29(2) of Indonesia’s constitution)
Other countries adopting this unrestrictive approach include Bosnia-Herzegovina, Eritrea, Mali, and Morocco.
Constitutional Ambiguity Regarding Religious Freedom
Some Muslim countries may, however, qualify the scope of religious freedom.
Bahrain’s constitution reads: “Freedom of conscience is absolute.” The next sentence, however, follows up with, “The State shall guarantee the inviolability of places of worship and the freedom to perform religious rites and to hold religious processions and meetings in accordance with the customs observed in the country.”
(— Article 22)
Kuwait’s constitution also reads, “Freedom of belief is absolute.” The next sentence then states, “The State protects the freedom of practising religion in accordance with established customs, provided that it does not conflict with public policy or morals.”
(— Article 35)
Both examples illustrate how a statement of absolute freedom is coupled with ambiguous limiting language about “customs,” “public policy” and “morals”. Who decides what those customs, morals, and public policies are? To suggest the government alone defines them is to ignore the prevailing context and culture that gives those words meaning at the social, institutional, legal, and political levels.
Case Study: The Afghan Apostasy Case and the Limits of Rights Talk
The 2006 apostasy trial in Afghanistan – in which an Afghan man, Abdul Rahman, was indicted for converting from Islam to Christianity – illustrates how Shari‘a in modern Muslim states reflects, in part, local context and, in part, government institutions and practice. If the country embraced no official religion, his conversion should not have been a problem.
However, Abdul Rahman’s apostasy presented a capital, or death penalty, case for the newly re-established Afghan state, which is constitutionally defined as an Islamic Republic, and upholds Islam and Islamic law as governing principles.
When Abdul Rahman was tried as an apostate, he could not invoke his religious freedom under Article 2(2): for the court to free him on that ground would violate Article 3, given that the pre-modern rules of Shari‘a prohibit apostasy as a capital crime. Under historical Shari‘a doctrine, an apostate was given time to repent; if he did not repent, he was subjected to execution. Any law or judicial decision that allows a Muslim to convert to another faith might be construed as violating Article 3’s requirement that all law be Shari‘a compliant, where Shari‘a is substantively defined to include pre-modern rules governing the treatment of apostates from Islam.
But the real question is: why is Shari‘a defined in that fashion?
Article 2 of Afghanistan’s constitution recognizes Islam as the country’s official religion, but also provides protection for religious minorities.
“Followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of law” (— Article 2(2)).
Those limits, though, are defined in part by another section of the constitution which states: “In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam.” (— Article 3).
Islam as Part of Afghanistan’s History of Resistance
The use of historical Islamic terms and concepts to define the national ethos is perhaps not surprising given the recent memory of violence in Afghanistan, during which the fight against Soviet occupation was often framed in Islamically meaningful language and resulted in both sacrifice and success.
Afghanistan’s history is framed in religious terms of resistance and sacrifice, which renders the language of Islamic values, and even law, a mode of expression and identity, political and otherwise. The respected political theorist Roxanne Euben has argued that the Muslim fundamentalist’s resort to early Islamic tradition may provide a communitarian foundation for identity in a way that allows a people or nation, such as Afghanistan, to assert an authentic identity in a quickly globalizing world. Within the realm of Islamic thought, pre-modern rules of Shari‘a arguably provide determinate and objective points of reference for asserting such an identity as both authentic and organic. In a situation like the Afghan apostate case, pre-modern rules of Shari‘a provide more than rules of decision; they constitute a foundation for national and political identity in a state that has already resisted and is currently contending with occupying forces that have undermined its sovereignty. Indeed, eventually, even to acquit Abdul Rahman, the Afghan court relied on a pre-modern Islamic legal defence — i.e. insanity.
The preamble to the Afghan constitution invokes both its history of occupation and Islamic language of resistance as part of the guiding spirit of the nation.
“Realizing the injustice and shortcoming of the past, and the numerous troubles imposed on our country; while acknowledging the sacrifices and the historic struggles, rightful jihad and just resistance of all people of Afghanistan, and respecting the high position of the martyrs for the freedom of Afghanistan….”
The Ruling: Balancing Shari’a with Internal and International Pressures
The insanity ruling might be perceived by those in the West as implying that anyone in Afghanistan who abandons the Islamic faith must by definition be insane, thereby only emphasizing the limited religious freedom in the country. Another reading of the case, however, illustrates how the judge used technical rules of pre-modern Shari‘a in light of Afghanistan’s constitutional structure and the context of politicized Shari‘a to decide the case while upholding a nascent government. The Afghan constitution proclaims the independence of the judiciary, an institutional value well respected in contemporary theories of democracy and the rule of law. However, this independence is qualified in cases where a court imposes an execution sentence on a defendant. Specifically, Article 129(2) states: “All specific decisions of the courts are enforceable, except for capital punishment, which is conditional upon approval of the President.”
If the judge in Abdul Rahman’s case found him guilty of apostasy and sentenced him to death, the judge would have forced a confrontation with the executive, namely President Hamid Karzai. Karzai was already under considerable international pressure to intervene in Abdul Rahman’s case. If Karzai had then disapproved of the court’s death sentence, he arguably would have set a dangerous precedent of executive interference with the judiciary, potentially undermining the public’s confidence in the independence of the judiciary, the integrity of the President’s office, and even the democratic aspirations of the Afghan government.
By finding Abdul Rahman insane, the judge preserved Abdul Rahman’s life, upheld the constitutional commitment to Shari‘a law, avoided a conflict with the executive and defused the immediate consternation of the international community.
The examples of Muslim constitutions, and the Afghan apostate case more specifically, demonstrate the importance of understanding how Muslims’ claims to observe the Shari‘a are substantially more than an assertion for religious freedom. They show that such claims are embedded in a contest over competing claims of political identity in an international system of markets, states, and regionalisms. The medieval rules of Shari‘a provide determinate, objective points of reference to construct an “authentic” Islamic political identity. This political identity is then parlayed into a claim against the institutions of government, where implementing Shari‘a is instrumental, for instance, in defining the identity of a nation, claiming regional autonomy in Muslim Mindanao, or seeking limited legal autonomy, as in the Shari‘a debates in Ontario, Canada.
To enable Muslim voices to dialogue horizontally with each other, and vertically with the modern state, the international community can play a significant role as facilitator. But to do so, it must not only intend to play this role, but also be perceived as playing it as an informed and respectful party. A policy of being informed and respectful seems to be common sense but the fact remains that governments across the globe have illustrated little understanding and awareness of the history of Islam and the way that history crystallizes in a given country.
To be effective, the international community should consider the following policies:
Learn about and support ongoing research on Islam, Islamic law and the particularities of the Muslim world.
Recognize the difference between experts and political representatives. Expertise in Islam and Islamic law is distinct from politically representing a community of Muslims. Contemporary Muslim leaders are often trained in intellectually conservative Islamic schools in the Muslim world, or even are Western-trained engineers, scientists and doctors, lacking critical training in the human sciences. They often represent communities rather than reflect considered study of Islamic history, law, and society. The international community should not confuse the claims of political representatives with the analysis of academic experts.
Identify the interests at stake in the competing voices on Islam and the Muslim world. In countries such as Canada, Muslim organizations occupy various positions on the political spectrum; yet their names suggest they represent the Muslims of Canada en toto. There has been and likely will always be a multiplicity of voices about Islam and Islamic law. To be informed and respectful will require the international community to recognize that each voice has a particular interest at stake. The challenge to the international community, therefore, is not to find the most appealing voice to consult, but instead to recognize and respect the interests at stake in each voice, and chart a course of engagement that encourages dialogue amongst the voices and with the state.