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Murdoch University Electronic Journal of Law |
Constitutionalism and Syar´i`ah
Author:
Nadirsyah Hosen S.Ag, GDIS, LLM, MA (Hons)
Lecturer, State University of Islamic Studies (UIN) Syarif
Hidayatullah JakartaIssue:
Volume 11, Number 1 (March 2004)
Contents
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Acknowledgement: The author would like to thank Associate Professor Gary F. Bell of National University of Singapore, Mr. Ian Usman Lewis of the ADF School of Languages, and the anonymous referee for their comments on the draft. All opinions and errors are, of course, those of the author.
24. The president and the prime
minister divide the functions and executive power of the president of the
Although the law is of divine provenance, the actual construction of the law is a human activity, and its results represent the law of God as humanly understood. Since the law does not descend from heaven ready-made, it is the human understanding of the law—the human fiqh (literally meaning understanding)—that must be normative for society.[21]
All laws
articulated and applied in a state are thoroughly human, and should be treated
as such. Consequently, any codification of
‘What will you do if a matter is referred to you for judgement?’ Mu’az said, ‘I will judge according to the Book of Allah.’ The Prophet asked, ‘What if you find no solution in the Book of Allah?’ Mu’az said, ‘Then I will judge by the Sunnah of the Prophet.’ The Prophet asked: ‘And what if you do not find it in the Sunnah of the Prophet?’ Mu’az said: ‘Then I will make ijtih¢ad to formulate my own judgement.’ The Prophet patted Mu’az ’s chest and said: ‘Praise be to Allah Who has guided the messenger of His prophet to that which pleases him and His Messenger’.[28]
Narrated ‘Imran: ‘We performed Hajj al-Tamattu’ in the lifetime of Allah’s Apostle and then the Qur’¢an was revealed (regarding Hajj al-Tamattu’) and somebody [‘Umar] said what he wished (regarding Hajj al-Tamattu’) according to his own opinion (ra’y)’.[30]
Yahya related to me from Malik, from Ibn Syihab, that Muhammad ibn Abdillah ibn al-Haris ibn Nawfal ibn ‘Abd al-Muttalib told him that he had heard Sa’d ibn Abi Waqqas and al-Dahhak ibn Qays discussing tamattu’ (performing ‘umrahfirst, then Hajj) in between ‘umrah and Hajj. Al-Dahhak ibn Qays said, ‘Only someone who is ignorant of what Allah, the Exalted and Glorified, says would do that.’ Whereupon Sa’d said, ‘How wrong is what you have just said, son of my brother!’ al-Dahhak said, ‘’Umar ibn al-Khattab forbade that,’ and Sa’d said, ‘The Messenger of Allah, may Allah bless him and grant him peace, did it, and we did it with him’.[31]
In many facets, and its general format, the Iranian constitution resembles the 1958 French constitution. The way Islamic content has been injected into provisions with French antecedents can be illustrated by comparing the treatment of national sovereignty in article 56 of the Iranian constitution with article 3 of the French constitution. The French version establishes that sovereignty rests on the will of the people as expressed through referendums and enjoins interference with the exercise of popular sovereignty. It begins: “National sovereignty belongs to the people, which shall exercise this sovereignty through its representatives by means of referendums. No section of the people, nor any individual, may attribute to themselves or himself the exercise thereof.” In Chapter 5 of the Iranian constitution under the heading “The Right of National Sovereignty and the Powers Derived from It” one sees in article 56 the Islamized version of the same provision, in which the theological tenet that God is Supreme Ruler is inserted and the French provisions enjoining interferences—this time with Divine Sovereignty—have been incongruously retained: “Absolute sovereignty over the world and mankind is God’s and He alone has determined the social destiny of human beings. None shall take away this God-given right from another person or make use of it to serve his special personal or group interest.” Wanting to retain the provision for popular referendums, the authors of the Iranian constitution relegated it to article 59, by which placement the clash between the idea that national sovereignty is exercised by the people via referendums and the idea that sovereignty is the exclusive province of the deity has been rendered less obvious. The incongruity remains: there is no room for popular sovereignty exercised via referendum in a system based on the theological premise of divine rule, which at the very least should mean that God’s laws are binding and not subject to modification by any human agency, such as popular referendums involve.[52]
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[1] J. Lane, Constitutions and Political Theory, Manchester, Manchester University Press, 1996, p. 25; see also Francis D. Wormuth, The Origins of Modern Constitutionalism, New York, Harper & Brothers, 1949.
[2] Louis Henkin, ‘Elements of Constitutionalism’, Occasional Paper Series, Center for the Study of Human Rights, 1994.
[3] Dario Castiglione, ‘The
Political Theory of the Constitution’, in Richard Bellamy and Dario Castiglione (eds.), Constitutionalism in Transformation,
[4] Alan S. Rosenbaum (ed.), Constitutionalism: The
Philosophical Dimension,
[5] Graham Hassal
and Cheryl Saunders, Asia-Pacific Constitutional Systems, Cambridge,
Cambridge University Press, 2002, p. 42; see also Said Amir
Arjomand, ‘Religion and Constitutionalism in Western
History and in Modern Iran and Pakistan’, in Arjomand
(ed), The Political Dimensions of Religion, Albany, State University of
New York Press, 1993, p. 69-99. The tension between church and state in the Western
tradition is evident in all European constitutional traditions, and in the
constitutions of colonial states such as the
[6] See Ann Elizabeth Mayer, ‘Conundrums in Constitutionalism: Islamic Monarchies in an Era of Transition’, 1 UCLA J. Islamic & Near E.L. 183, 2002.
[7] In April 2000, a major international conference on Islam and Constitutionalism, held by Islamic Legal Studies Program, Faculty of Law, Harvard University. The papers will be edited by Sohail Hashmi and Houchang Chehabi and published by Harvard University Press (forthcoming).
[8] See Muhammad Khalid Masud, Shatibi’s Philosophy of Islamic Law, Pakistan, Islamic Research Institute, 1995, p. 17.
[9] See M. Abd al-Qadir Abu Faris, al-Nizam al-Siy¢as´I f´I al-Isl¢am,
[10] See Ahmad Syalabi, al-Siy¢asah fi al-Fikr al-Isl¢am´i, al-Q¢ahirah, Nah®dah al-Misriyah, 1983.
[11] “This day, I have perfected your religion for you, completed My Favour upon you, and have chosen for you Islam as your religion” (QS 5:3).
[12] See ‘Abdurrahman Taj, al-Siy¢asah al-Syar'iyah wa al-Fiqh al-Isl¢am´i, al-Q¢ahirah, D¢ar al-Ta’rif, 1953; see also Muhammad Asad, The Principles of State and Government in Islam, Kuala Lumpur, Islamic Book Trust, 1980.
[13] Mayer, above n 6, p. 206.
[14] ‘Ali ‘Abd al-Raziq (1888-1966) was the most controversial Islamic political thinker in the twentieth century. His book al-Isl¢am wa U®sul al-®Hukm, written in 1925 invited wide criticism from Muslim world. He was then condemned and isolated the ‘ulam¢a council of al-Azhar, and also dismissed from his position as judge and prohibited from assuming a position in the government. Raziq disagreed with many ‘ulam¢a who considered the establishment of khil¢afah as obligatory for Muslims and therefore it would sinful if it were not carried out. He could not find any strong foundation to support this belief.
[15] Bassam Tibi, The Challenge of
Fundamentalism: Political Islam and the
[16] Full text of Constitution of the
[17] See Article 2 of the 1982 Constitution.
[18] Article 75 of the 1982 Constitution.
[19] Article 101 of the 1982 Constitution.
[20] Article 24 of the 1982 Constitution.
[21] Bernard
Weiss, The Spirit of Islamic Law,
[22] Khaled Abou El Fadl, ‘Constitutionalism and the Islamic Sunni Legacy,’ 1 UCLA J. Islamic & Near E.L. 67, 2002.
[23] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, the
Islamic Text Society,
[24] Ibid., p. 367; Hans Wehr, A Dictionary of Modern Written Arabic, Macdonald & Evans LTD, London, 1974, p. 142-143.
[25] Sayf al-Diin al-Amidi was a noted scholar who wrote al-I®hk¢am f´I U®s¢ul al-A®hk¢am. After the first edition of this work appeared, Professor Bernard Weiss of the University of Utah published an exhaustive study of al-Amidi’s work in a volume entitled, The Search for God’s Will: Islamic Jurisprudence in the Writings of Sayf al-D´in al-£Amid´i, University of Utah Press, 1992, 745 pages.
[26] Sayf al-Din al-Amidi, al-I®hk¢am f´I U®s¢ul al-A®hk¢am
Vol. 4,
[27] Abu Hamid Muhammad al-Gazali, al-Musta®sf¢a min ‘Ilm al-U®s¢ul, Vol. 4, al-Madinah al-Munawwarah, al-Jami’ah al-Islamiyah, n.d., p. 4; see also Taha Jabir al-Alwani, ‘The Crisis of Thought and Ijtihad,’ American Journal of Islamic Social Sciences, Vol. 10, No. 2, 1993, p. 237.
[28] Abu Dawud Sulaiman, Sunan Ab´i D¢aw¢ud, Beirut, al-Maktabah al-‘Ashriyah (book al-Aq®dçiyah, ®Hadi¯s Number [HN]: 3,119); Abu Muhammad al-Darimi, Sunan al-D¢arim´i, Cairo, Dar al-Kitab al-‘Arabi, (book al-Muqaddimah, HN: 168); Al-Tirmizi, Sunan at-Tirmiz´i, Beirut, Dar al-Fikr, (book al-A®hk¢am, HN: 1,249); A®hmad bin ®Hanbal, Musnad al-Im¢am A®hmad, Riyad, al-Maktabah al-Islami, (book Musnad al-An®s¢ar, HN: 21,000); see also Taha Jabir al-‘Alwani, Source Methodology in Islamic Jurisprudence, The International Institute of Islamic Thought, USA, pp. 12-13.
[29]Muhammad Ma’ruf al-Dawalibi uses these
classifications in his book al-Madkhal il¢a ‘Ilm
al-U®s¢ul al-Fiqh,
[30]Abu ‘Abd Allah Muhammad bin Isma`il
bin Ibrahim bin al-Mugirah
bin Bukhari, ®Sa®hi®h Bukh¢ar´i, book al-®Hajj, Dar al-Qalam,
[31]Abu ‘Abd Allah Malik, al-Muwa®tta`, book al-®Hajj, al-Syirkah al-‘Alamiyah, 1993, HN: 671; see also al-Darimi, book al-Man¢asik, HN: 1,745.
[32]Fazlur Rahman, Islamic
Methodology in History,
[33] Ahmad Hasan, The Early Development of Islamic Jurisprudence,
[34] The decision of Umar bin Khattab to suspend ®hadd penalty (penalty prescribed by the Qur’¢an and the Sunnah) of amputation of hand during famine is an example of Istihsan (juristic preference). Here positive law of Islam was suspended as an exceptional measure in an exceptional situation. Isti®hs¢an is considered as a method of seeking facility and ease in legal injunctions and is in accord with the Qur’¢an (2:185). This suggests that Companions of the Prophet were not merely literalist. On the contrary, their rulings were often based on their understanding of the spirit and purpose of the Syar´i`ah.
[35] More information can be found in Musdah Mulia, Negara Islam: Pemikiran Politik Husain Haikal,
[36]See Nathan J. Brown, Constitutions in a Non-Constitutional World: Arab Basic Laws and the Prospects for Accountable Government, Albany, NY , State University of New York Press, 2002, p. 162.
[37] Azizah Y. al-Hibri, “Islamic Constitutionalism and the Concept of
Democracy” in Fred Dallmayr (ed.), Border
Crossings: Toward a Comparative Political Theory,
[38] Azizah
Y. al-Hibri, Islamic and American Constitutional Law:
Borrowing Possibilities or a History of Borrowing? 1 U.
[39] El Fadl, above n 22;See also Anver Emon, ‘Reflections on the “Constitution of Medina”: An Essay on Methodology and Ideology in Islamic Legal History’, 1 UCLA J. Islamic & Near E.L. 103 (2002)
[40] H. Patrick Glenn, Legal
Traditions of the World,
[41] El Fadl, above n 22.
[42] Taqi al-Din Ibn Taimiyah, Majmu’
al-Fat¢aw¢a,
[43] Yusuf al-Qardawi, Madkhal li Darasah al-Syar´i`ah, p. 75.
[44] Kamali, above n 23,p. 408.
[45] Full text of the Charter of Medina can be found in http://islamic-world.net/islamic-state/macharter.htm
[46] Charles Kurzman, ‘Liberal Islam: Prospects and Challenges’, Journal
[47] See, for example,
Kevin Boyle and Adel Omar Sherif (eds), Human Rights and Democracy: the Role of the
Supreme Constitutional Court of Egypt,
[48] Clark Benner Lombardi, ‘Islamic
Law as a Source of Constitutional Law in
[49] See Clark Benner Lombardi, ‘State Law as Islamic Law in Modern Egypt: The Amendment of Article 2 of the Egyptian Constitution and the Article 2 of Jurisprudence of the Supreme Constitutional Court of Egypt”, PhD Thesis, Columbia University, 2001; see also Maurits S. Berger, ‘Conflicts Law and Public Policy in Egyptian Family Law: Islamic Law Through the Backdoor’, 50 Am. J. Comp. L. 555, Summer 2002.
[50] See Abdulaziz Abdulhussein Sachedina, The Just Ruler (al-Sultan al-Adil) in Shiite Islam : the
Comprehensive Authority of the Jurist in Imamite
Jurisprudence,
[51] Ann Elizabeth Mayer, ‘The Fundamentalist Impact on Law, Politics, and Constitutions in Iran, Pakistan and Sudan’, in Martin E. Marty and R. Scott Appleby (eds.), Fundamentalisms and the State, Chicago, The University of Chicago Press, 1993, p. 118.
[52]Ibid, pp. 118-9.
[53] Chibli Mallat, The Renewal of
Islamic Law,
[54] Of the big seven political parties in 1999, PBB, which won 2 percent, campaigned in favor of state enforcement of the Syar´i`ah. If PBB’s votes are combined with those for PPP, the pro-formal Syar´i`ah total rises to 12 percent (71 seats), a 28 percent decline since 1955.
[55] At the moment, NU is the biggest Islamic organisation numbering thirty million supporters. More
information can be found in Greg Barton and Greg Fealy
(eds), Nahdlatul Ulama: Traditionalist Islam and Modernity in Indonesia (Monash:
Monash Asia Institute, Monash University, 1996); see also
[56] See Hazairin, Demokrasi Pancasila,
[57] See Todung Mulya Lubis,
‘Constitutional Reforms’ in Hadi Soesastro
(et.al), Governance in Indonesia: Challenges
Facing the Megawati Presidency,