The question is would discriminatory policies noted in classical texts of Islamic state be acceptable in the modern era.
By Ahmad Farouk Musa, FMT
To many Muslims and especially the Islamists, the term secular is a very repugnant term and this abhorrence to anything secular stems mainly from the previously bitter experience of secularism in Turkey that had led to the dissolution of the Ottoman Caliphate, the last Caliphate in the Muslim world.
The fall of the Ottoman Caliphate led to some Muslim scholars to push for a new entity known as an Islamic state. The concept of an Islamic state was not known in the Islamic world before that. The main proponent for an Islamic state was none other than Muhammad Rashid Redha, a great Muslim reformer in the early 20th century. The main intention of Redha was to stem the onslaught of Western imperialism.
History has shown that while secularism was born in the West, its values spread across the world in many different continents and societies. According to Louay Safi, a scholar at the International Institute of Islamic Thought, secularism denotes a set of notions and values whose aim is to ensure that the state is neither engaged in promoting specific religious beliefs and values, nor uses its powers and offices to persecute religion.
To prevent state officials from using their political authority to impose a narrow set of religious attitudes and values on the larger society, and to foreclose the possibility of using religious symbols to agitate one religious community against another, a separation must be made between political authorities from religious affiliation.
The Islamic state conundrum
It is an unshakeable belief among many Islamists that the establishment of an Islamic state must be the first and foremost agenda in any political struggle. It is only when an Islamic state is established that hudud penal code could be implemented.
Since the issue of Islamic state and hudud is intertwined and will become more prominent every time the general election is around the corner, it would be pertinent for us to revisit this issue. To many proponents of Islamic state, in particular those in the Islamic party PAS, the concept of Islamic state is basically a replica of the medieval ideas promoted by al-Mawardi in al-Ahkam as-Sultaniyyah (The Ordinances of Government).
Barring the Erdoganists in PAS, the ulama wing has been preaching this medieval concept that has been ingrained even in the younger generations, especially among the religious educated. It basically fails to tackle some fundamental issues in the 21st century. It fails to discuss the concept of constitutionalism, human rights and citizenship as an integrated framework that is very fundamental in modern states. It is of note that it is constitutionalism that provides a legal and political framework for the preservation of human rights, freedom and equality among its citizens.
However in an Islamic state as envisioned by many Islamists – the religious educated especially – citizenship is classified between Muslim and dhimmis, namely non-Muslims who pledged submission to Muslim authority and therefore granted protection in exchange for a payment of a special tax known as jizyah. Dhimmis are basically the opposite of harbis that generally mean non-Muslims who are hostile to Islam.
In classical texts of Islamic state like Mawardi’s al-Ahkam as-Sultaniyyah, the dhimmis are prevented from riding horses or donkeys within the city limits. In modern days, this may be equivalent to driving cars in the city. And that they wear distinctive clothing in public and bells around their necks when visiting pubic bathing facilities. The question is, would such discriminatory policies be acceptable in the modern era?
It must also be acknowledged that an Islamic state will surely be based on Islamic values. This would entail banning all forbidden things in the Quran. Many Muslim ideologues like Mawdudi, for example, believe that it is impossible for such a state to limit its framework because it is a totalitarian state encompassing the whole human life and moral theory. So nobody has the right to stand up against the state and thwart any encroachment of the state in personal matters. Obviously this is very similar to a fascist state.
Going by the current discourse in Malaysia, one gets the impression that the priority of an Islamic state is then to impose a set of rules known as hudud. This obsession with hudud stems from the understanding that hudud is divine law in the Quran that is imposed upon believers. Many people believe that hudud is a set of codified law that can be imposed without resorting to human agency at all. This is an obvious fallacy since the Quran only lays down some basic texts that require human agency to interpret them.
The formulation, adoption and implementation of legislation are always matters of human judgment and reasoning. Therefore their intended implementation is subject to human error and fallibility and can always be challenged and questioned. The problem will arise when such laws are deemed sacred and of God’s divine will and any sort of criticism will be deemed as heresy.
On this matter, Prof Hashim Kamali has argued that hudud Allah in the Quran is a broad concept that is neither confined to punishments nor to a legal framework. It provides a comprehensive set of guidelines on moral, legal and religious themes. Whenever the Quran specified punishments for the offences, it also made provisions for repentance and reformation, whereas juristic doctrine has either left this totally out or reduced it to a mechanical formality that can hardly be said to be reflective of the original teachings of the Quran.
On another note, not only is hudud in direct conflict with the Federal Constitution but in the context of a multiracial and multi-religious society, such a proposition also raises the issue of whether the nation should be governed by two sets of laws: one for Muslims and the other for non-Muslims.
The real problem of having laws such as hudud is that it is presented as mandated by the divine will of God. This makes such laws immune to any criticisms whereas in reality they were merely the product of some literal interpretations of a certain group of scholars that failed to see the maqasid or higher intentions of such laws in attaining the ideals of justice. Criticisms against such laws have been made by many Muslim intellectuals such as Prof Hashim Kamali and until today, have not received any rebuttals from the proponents of hudud.
Syariah must neither be privileged nor enforced as a source of state law and policy simply because they are believed to be the will of God. Prof Abdullahi Ahmed An-Naim argued in “Islam and the Secular State” that the belief of even the vast majority of citizens that these principles are binding as a matter of Islamic religious obligation should remain the basis of individual and collective observance among believers. But that cannot be accepted as sufficient reason for the enforcement by the state because they would then apply to citizens who may not share that belief.
Why a secular state
Secularism does not mean the exclusion of religion from the public life of a society. The misconception that it does, is one of the reasons many Muslims tend to be hostile towards the concept.
Calling for a state to be secular is not similar in any way to the call for secularising the society. A state should be secular in the sense that it is neutral to all the differing religious doctrines. As Abdullahi An-Naim argued, state neutrality is necessary for true conviction to be the driving force of religious and social practice, without fear of those who control the state.
A secular state must embrace democracy. And democracy cannot be based on syariah law, as that, on the contrary, would denote a theocracy. A secular state would allow every living Muslim a true freedom. Freedom to pray and fast as he or she ought to, freedom to follow in the footsteps of the Prophet as he or she sees fit and freedom to submit to the will of God as he or she understands it.
Mustafa Akyol in his book “Islam Without Extremes: A Muslim Case for Liberty” wrote a chapter on Freedom to Sin. In it he argued that Muslims should rethink the meaning of the phrase “amar ma’ruf nahi munkar” or simply “commanding the good, forbidding the wrong”. They need to make a clear distinction between “crime” and “sin”. While combating crime can be made via legal means, sins should only be through civil means like preaching.