THE RULE OF LAW AND CONSTITUTIONALISM IN ISLAM

By : Professor Nur Ahmad Fadhil Lubis, Ph.D
THE RULE OF LAW AND CONSTITUTIONALISM
IN ISLAM

(A Working Paper Presented at the Conference on
'Democracy and the Rule of Law', University of Maryland)


    Constitutionalism, and its close concept of ‘the rule of law’ makes reference to the idea of ‘law’, inasmuch as constitutionalism requires the conduct of different organs of the state vis-à-vis citizens, as well as vis-à-vis each other, be regulated by laws, or rules (which may be or may not be written). For this reason, it is convenient to begin the inquiry into the possible foundations of constitutionalism in Islamic values and Muslim thought and deal subsequently with the question what the (Islamic) law is, and the place it has in society. It is here one would hope to be able to discover foundations for constitutionalism (or a certain version thereof) in Islam.

A.    SHARI’AH AND FIQH
The Muslims refer to their religion as din al-islam,  a term which is used by al-Qur’an. Theologically din is defined by divine institution (wad’ ilahi) which guides rational beings, by their choosing and submitting to it, to salvation here and in the hereafter. It thus means ‘religion’ in the broadest sense, and it is different from shari’ah and fiqh, two terms that are often translated into ‘Islamic law’ and need further clarification.
The din is generally understood by Muslims as covering three things: islam with its five pillars, iman with its five (some believe six) pillars, and ihsan (virtues). These three make up the basic elements of Islamic din.
There can be no doubt that the essence of Islam is tawhid, the act of affirming Allah to be the One, Absolute, transcendent Creator, Lord and Master of the whole universe. Tawhid is that which gives Islamic civilization its identity, which binds all its constituents together and thus makes  them an integrated entity. In binding disparate elements together, the essence of civilization impresses them with its own mold. It recasts them so as to harmonize with and mutually support other elements. Without necessarily changing their nature, the essence transforms, the elements making up a civilization, giving them their new character as constitutive of that civilization.
God, in His love and mercy, revealed to man His will. ‘Unto every people, the Qur’an affirms, God has sent prophets to teach them the divine imperatives in their own tongue’ (Q, 14:4). Reason and revelation are ‘two open books’ available to mankind to discern the divine imperative. Although human reasoning is fallible, yet is trustworthy as an avenue of truth, since it can reconsider and correct its previous findings. Although revelation is not fallible, man’s understanding of it is not free from mistakes, and therefore stands to be corrected by reason. The two sources thus become equivalent in the sense that no contradiction between them can be ever final. Where there is fault, reconsideration by reason is the only recourse. Fortunately, it is an open, free, public, self-conscious, and critical avenue.
Shari’ah is originally referred to a path trodden by camels to a water source. Water is unavoidable source of life, especially in the desert area such as Arabia in which Islam was born. The shari’ah is later used by Qur’an to mean a straight path, as in 45:18. ‘Then We put on a straight path in your affairs, so follow it and do not follow the desires of those who have no knowledge. Islamically, therefore, it is understood as the sum total of Islamic injunctions which were revealed to the Prophet and which are recorded in the Qur’an as well as deducible from the Prophet’s divinely-guided lifestyle (sunnah).    
    Its religious character is due to the Muslim belief that it derives from divinely inspired sources and represents God’s will for the proper ordering of all human activities. In Isla God is the sole, ultimate law-giver (shari’). Given the absence of a living prophet, all law worthy of the name must therefore be derived from texts that contain divine revelation or possess authority grounded on that revelation. Classical Muslim jurisprudents regarded the effort to discover divine law through these texts exceedingly demanding, since it requires one to grapple with an enormous array of difficult text-criticism and hermeneutic issues.
    Except in a few cases, the letter of the prescriptive elaboration of the values of Islam was declared sacrosanct and hence absolutely unalterable. The qualities of eternity and immutability belonged to the values or principles behind the prescriptive elaboration, not the legal form given them by translation of the purposes of law into legislative prescriptions. Eternity and absoluteness belonged, in the main, to the axiological postulates. With the exception of these postulates and directions, all deontological elaboration were open to reinterpretation by humans. The openness was dictated by ever-changing conditions and situations of human life which demanded in turn a readiness on the part of the law to meet them in pursuit of its eternal objectives. The shari’ah was divine and eternal not in its letter but in its spirit. The letter of the law was honored because of derivation from that which is divine and eternal.
    To govern the process of translation of the values of Islam into legislative prescriptions, and to enable the shari’ah to accommodate the changing human conditions, revelation provided both the principles of laws and the mechanism for its renewal. The fundamental principles, the values, and groundwork for both the law and the methodology for its dynamic development were given by Islam under divine authority. Muslims invented the science of usul al-fiqh to systematize development of the law to meet new situations and problems, to institutionalize the continuous adaptation of the law to historical change. It was the task of usul al-fiqh to distinguish between the changeable and the changeless, to develop  a methodology out of the relevant principles laid down in the Qur’an and the Sunnah for governing change. Usul al-fiqh arose in order to establish criteria of validity for the development of new laws from the sources in the revelation.
    Meanwhile the overall understanding undertaken by Muslims, especially the learned ones, of the provisions of the shari’ah is called fiqh, which literally means a true understanding and deep comprehension of what is intended. Technically, however, fiqh refers to the science of deducing Islamic laws from evidence found in the sources of Islamic law. The prime sources of Islamic law are the Qur’an and the Sunnah of the Prophet, in which the shari’ah situates.
    The Islamic tradition carefully distinguishes the articulation of the divine categorization by human scholars from the categorization themselves. The former is called fiqh, the latter – as it has already been noted – shari’ah. Fiqh, which means ‘deep understanding’, clearly the human scholars as its subject, while the subject of the shari’ah – the shari’ah-giver, or shari’ah-maker (al-shari’) is ultimately God. The shari’ah is thus the object of the understanding that human scholars seek as such is distinct from the understanding itself. It is under the heading of fiqhk, rather than shari’ah that the actual articulations of the divine characterizations by human scholars are to be placed, since these articulations represent or express the scholars’ understanding of the shari’ah. The hesitation of the Islamic tradition to identity these articulations with the shari’ah as such arises from an acknowledgment  that they are fallible, and therefore sometimes be erroneous. The fact that the articulations of different scholars or schools can contradict each other bears testimony to this fallibility.
    The task of articulating the divine categorization of human acts is to be undertaken in accordance with a body of carefully worked out methodological principles. These principles are elaborated in a special science known as ‘ilm usul al-fiqh, the science of the principles underlying (or foundations) of fiqh. Its practitioners are called, in Arabic, usuliyyun. Alongside this science stands the actual articulation of the divine categorization, to produce fiqh. These two sciences together constitute complementary parts of a single enterprise, one that endeavors to discover and expound the shari’ah.
    So are the words, shari’ah and fiqh refer to the same thing, or sometimes different? If different, what is the difference? For some scholars, they take these two words are referring to the same entity, even with slight different emphasis. For others, the two words point to two different entities, however closely related they are. Some scholars, for example, points out three differences between the two:
1). Shari’ah is the body of revealed ‘laws’ found both in the Qur’an and in the Sunnah, while fiqh is a body of laws deduced from shari’ah to cover specific situations not directly treated in the shari’ah law;
2). Shari’ah is fixed and unchangeable, whereas fiqh changes according to the circumstances under which it is applied;
3). The laws of shari’ah, for the most part, general; they lay down basic principles. In contrast, the laws of fiqh tend to be specific, they demonstrate how the basic principles of shari’ah should be applied in given circumstances. 

B.    THE RULE OF LAW AND CONSTITUTIONALISM
The rule of law is generally understood as the largely formal or procedural properties of a well-ordered legal system (Audi, 1995:699). Commonly, these properties are thought to include a prohibition of arbitrary power (the lawgiver is also the subject of the laws); laws that are general, prospective, clear, and consistent (capable of guiding conduct); and tribunal (courts) that reasonably accessible and fairly structured to hear and determine legal claims. Contemporary discussions of the rule of law focus on two major questions: (a) to what extent is conformity to the rule of law is essential to the very idea of a legal system, and (b) what is the connection between the rule of law and the substantive moral value of a legal system?
What is the meaning of ‘constitutionalism’ in the context of Islamic legal political thought? Other terms which may have sometimes been used as equivalents of constitutionalism in Western languages include ‘rule of law’, ‘rechsstaat’, and ‘l’etat de droit’. Some of these terms have natural sounding equivalents in Arabic, the Islamic language: such as dawlat al-qanun will do very nicely for rechsstaat, and the same can be said for hukm al-qanun for ‘rule of law’. Constitutionalism, however, has no readily identifiable Arabic equivalent, but some come up with the term dusturiyyah,  so a constitution is translated as al-qanun al-dusturi.
In Western political thought, terms such as ‘constitutionalism’, ‘rule of law’, and the like have come to express meaning which are richer, and more complex, than what is suggested by etymology, or mere juxtaposition of words. The is usually the mark of terms and concepts that have come to play a pivotal role in the theory of the subject-matter in which the term is used. Such terms invariably carry a greater semantic burden that is suggested by their linguistic derivation or the sum of their parts. The same can be said for the terms and concepts born and elaborated within the tradition of Islamic thought. However, this does not mean that the other civilization does not known entirely issues and ideals fall under the concept. Themes which are found in constitutionalism, such as ruling in accordance with the law, the right that people have to oppose unjust rule, liberties with rulers are not permitted to infringe on, and other similar concerns, have existed in Muslim legal-political thought since the earliest times.
Among concepts that play an important role in recent Western political thought and practices, the ideas of ‘constitutionalism’ does not appear to be essentially contested outside European areas. However, some questions continue to be raised about the consequence of constitutionalism for the functioning of democracy, and the extent to which constitutionalism may be thought to impose restrictions on liberty – the liberty of ordinary citizens, government officials, or even the liberty of future generations. But all of this takes place within the framework of a broad agreement on what constitutionalism basically means.
    Two ideas are basic to constitutionalism: (a) the limitation of the State versus society in the form of respect for a set of human rights covering not only civic rights but also political and economic rights, (b) the implementation of separation of powers within the state. These two ideas are closely related. According to Lane (1996:25), the first functions as ‘external principle’ which restricts state power with respect to civil society, while the second functions as an ‘internal principle’ which ensures that no body (organ or person) in the state completely prevails over the others.
    Let us begin with the questions of rights, for this is easier that the question of the different branches of government, and the relations which may be hold between them. What rights individuals have in Islam? How does the Islamic scheme of individual (and human) rights compare to other schemes? It is commonplace to say that Islam is not one thing to all who profess to believe in it, or practice it. This is true in many respects, but the subject of rights stands out as an area in which drastically different interpretations of the faith are possible. In this sense, we may look at the writings of Mawdudi, an Islamic thinker of considerable fame and influence, whose al-Khilafah wa al-Muluk (1975) enumerates no fewer than 13 rights which citizens hold against the government. They include the right to life, dignity, privacy, property, due process, equality before the law, freedom of belief, freedom of assembly, and freedom of religious persecution. Many, or most, of the rights which he elaborates are supported by reference to fairly unequivocal Qur’anic verses.
    The same spirit seems to be operative also in many of the Islamic human rights scheme that have been made public. The documents in question tend to be guarded, on account of their being potentially addressed to an international audience. Still, many inconsistencies, obfuscations, and equivocations are to be found in several places, especially in the areas of freedom of thought, treatment of non-Muslims, and women’s rights. For example, whereas the English version of article XX (a) of the Universal Islamic Declaration of Human Rights (UIDHR)says that the husband owes his wife means of support ‘in the event of divorce’, the Arabic version of the same article uses the phrase ‘if he divorces her’. What the English version passes over in silence is, of course, the troublesome problem of the unconditional right to divorce, which most classical fiqh opinions have given to men. In addition, the Arabic version invokes the notion of qiwamah (authority which men have over women), something which the English version omits altogether.
    In short, we can say that the shari’ah and fiqh offer a rich and varied field in which human rights can be grounded. Depending on how shari’ah is interpreted, and fiqh is extracted, there may be limitations, serious omissions, and shortcomings which our modern ethical sensibilities cannot accept. But one probably should not judge Islamic shari’ah or fiqh (or other religious traditions, for that matter) harshly. After all, we could not have been able to ascertain the vision of one humanity, whose members are equal in worth and dignity, endowed with inalienable human rights, regardless of gender, race, or social positions, had we not ‘stood on the shoulders’ prophets, who were the first the announce the equality of all humans in sight of God, the Just Creator.

C.    CONSTITUTIONAL CHANGE: INDONESIAN CASE
One thing is important to express before dealing with the issue of Islam and constitutionalism in Indonesia, namely the fact that there is no mention of any opposition to constitutionalism both when the preparatory commission for independence was doing its tasks which included the designing of a constitution, and when Indonesian independence was proclaimed in August 17, 1945 and the draft constitution with certain changes was promulgated a day after.
The disagreement seems to begin on the issue of the ideological basis of this new nation-state which subsequently the commission into two general camps, which one strove for an ‘Islamic’ state, and the other struggled for a secular state. A compromise was later reached by the special commission specially set up to settle the issue. The compromise was recorded and signed by all the members of the commission on June 22, 1945. In it, there is a statement that the state is based on ‘belief in God, with an obligation to observe the Islamic shari’ah by its adherents’. When this became an official preamble of the constitution of the new state of Indonesia, the second half of the sentence (or what is known in Indonesia as ‘the seven words’) were erased.
The omission of ‘shari’ah’ from the Constitution does not stop some segments of Indonesian Muslims to fight for it. When Soekarno changed the structure of the state into more a totalitarian government, in July 5, 1959, by returning to the first Constitution, he did mention the Jakarta Charter. It rekindled certain hope among its exponents, however their high hope was soon vanished when Soekarno did not care less about implementing the Constitution, let alone the Jakarta Charter.
After the fall of Soekarno and when Soeharto just started to found a new constitutional government, some Muslim politicians in the parliament pursued their goals of legalizing the content of Jakarta Charter, but failed. On June 29, 1968, celebrations commemorating the Jakarta Charter were held in Jakarta, which emphasized, among others, the position of the Charter to the 1945 Constitution. Not only their demand was turned down, but also many Muslim leaders have to lose their political positions.
The political climat3e changed quite dramatically in mid eighties. Soeharto found himself not in a quite stable position, which subsequently forced him to approach the Muslims. He appeased the Muslims by enacting ‘Islamic’ laws, strengthening the existing ‘Islamic’ institutions, especially the Islamic ‘agama’ courts of justice, legalizing new Islamic institutions, such as Islamic banks and insurance. Regardless the debates on who’s coopting whom, this new political climate gave a new era for Islamic activism in this biggest Muslim populous country in the world today.
The collapse of the New Order regime in May 1998 has ushered in some new hopes for the implementation of Islamic values and the application of shari’ah in Indonesia. Numerous Muslim groups and Indonesian figures consider this as a golden opportunity to struggle for a fuller incorporation of Islamic values into Indonesian life. These aspirations are actually gaining in significance because, with the political liberalization in the wake of Soeharto’s fall, each individual or group is free to express their goals and interest. In addition, the political shift from an authoritarian to amore democratic order, including the possibility of amending the Constitution, has given the Indonesian people a fresh beginning for rebuilding the nation and consolidating their existence.
However, as time passes by, it turns out that the so-called political Islam was not a favorite choice of Indonesian people at large. The 1999 general election, so far considered as the most democratic election in Indonesia, does not place the ‘Islamic political parties’ in leading positions. In contrast, it was the PDIP, a nationalist secular party, that got the highest number of votes. During the process of constitutional changes, which have taken place four times in annual meetings of the Assembly, the demands of the some ‘Islamic’ parties to revive the content of Jakarta Charter, was failed. However, the promulgation of ‘Islamic’ origin legal concepts and values have been increasing lately. This points out the reality that one should be aware and careful not to be confused between ‘law-in-books’ and ‘law-in-action’. Indonesian case may be not that far from what happened in new states in Central Asia. As has been pointed out by the study on the constitutional ideals and practices in Central Asia and Uzbekistan, Rebecca Bichel (1997) concluded that the cloning of the U. S. Constitution in Uzbekistan rather than fostering indigenous democracy, chose to emphasize the formation of democratic institutions at the expense of democratic ideals, has resulted in creating constitutional fiction and legal disguise to hide on-going abuses of human rights and authoritarian regime.


 Nur A. Fadhil Lubis
Professor of Islamic Law
State Institute of Islamic Studies
North Sumatra – Medan
Indonesia
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