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No. 1 - Volume 2, May - August 2011 INDONESIA Law Review
Constitutional legitimacy: Sharia Law, Secularism
and the Social Compact
Zia Akhtar
1
Abstract
This article considers the general points relating to the application of Sharia
law which challenges legislators in the political instability of a number of
Middle Eastern countries. The question explored is how governments of
these countries who are facing discontent can work towards constitutional
governance. As an example comparison is made between the Islamic
Republic of Pakistan and Indonesia with the largest Muslim populations.
by criminal penalties as present in the Hudood ordinances. These codes
enforce punishments for some crimes and these were promulgated in
the early 1980s during the reign of the Pakistani conservative military
a uniform legal precedence and creates a clash between liberals and the
fundamentalists who want an all pervasive Sharia law. The Pakistani legal
canon of Islamic law has been restricted by the secular ideology of the
state which has parallels in other Asian countries with a Muslim majority.
However, there is an issue of compatibility of a secular ideology and the
application of Sharia. It needs an exposition of thought that takes account
of the enlightenment in Europe which led to the social contract theory in
the 18th century. This theory rejects the narrow interpretation of divine
authority and presents the jurist with a challenge to make modernize the
laws. In recent times Muslim academics have adopted a critical approach
against the tenets of conservatism in temporal Islam and called them
unrepresentative of the true spirit of the Sharia. The present turmoil in the
Arab countries has raised the question of legitimacy and the need arises to
evaluate the principles of the Compact of Medina, which was proclaimed
can be made contingent upon a consensus of popular sovereignty in order
to make it binding in a contract between the ruler and the governed.
Introduction
The Muslim world is in turmoil because the regimes have not absorbed
the lessons of the philosophical movement in 18th century in Europe which
nobility of birth are repressing the discontent to abort the support for popular
power the lack of a consensus is all but clear. The divine rights of kings, emirs
and sultans have showed only little in terms of change and are pressing their
notion of power through inheritance as opposed to popular mandate.
1
Member of Grays Inn . Specialist in Legal Philosphy and Constitutional law. Published in India
Law Journal; Pakistan Law Journal; Sri Lanka Journal of International Law; Journal of Malaysian and
Comparative Law ; and Bagladesh Law Journal, etc.
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Currently there is a lack of constitutional legality and an investigation
as to the cause of the recent upheaval has been launched. The purpose is to
determine how to shape a policy in which the authority is based on a genuine
observance of the Sharia and, at the same time, represents the authority in
rational exposition of the sacred law in an accountable manner, which is not
evaluate whether the modern concept of secularism can be fused with Islam
and then formulate both the temporal and spiritual power into a single law
entity. The evaluation takes Pakistan as a benchmark which was the most
populous Islamic state before Indonesia took over the title. After the partition
from India the state of Pakistan was founded in 1947, and became an Islamic
state anchored on a secular ideology. Its laws were derived from the British
new nation adopted the constitution of Government of India Act 1935 which
facilitated the inheritance of the colonial institutions into its body politic.
2
In the
1970’s Pakistan introduced the Sharia during a period when the nation was
going through a process of Islamisation. This process caused, on one side, the
those who wanted to maintain a liberal Pakistan. The challenge for the legislators
is how to enact laws which can fuse the principles of a religious birthright with
those ideals that were considered as part of a liberal tradition at the time of the
nation’s independence.
3
The methodology has to begin with the formulae of rights that enabled
Pakistan to attain a civil society and to make it a test case for the democratic
movements sweeping the Muslim world. This is a precondition for the rule
of law that Pakistan has not achieved. It is necessary to understand that the
military authority which has ruled Pakistan for most of its 62 years of existence
maintained itself by an apparatus of unchecked power. This power apparatus
has repeated itself on four times on account of “the need of the State” and left
the civil administrations paralysed by the nations contradictory ideological
principles.
Since its inception Pakistan has, in spite of being born on an Islamic ideal,
the norm in the Commonwealth.
4
The nation is ruled by English common law,
constitution which allow for the institutionalisation of Islamic law without any
expert council of Fakihs, who may formulate the practical application of these
noble expressions.
5
The preamble to the 1973 Constitution states as follows:
2
Mohammad Ali Jinnah, the founder of the state was a British barrister who was a cosmopolitan by
upbringing and had his legal practice in Bombay.
3
The Objectives Resolution was a resolution adopted on 12 March 1949 by the Constituent
Assembly of Pakistan. The resolution, proposed by the Prime Minister Liaquat Ali Khan, proclaimed that the
future constitution of Pakistan would not be modeled entirely on a European pattern but on the ideology
and democratic faith of Islam.
4
who exercises the dejure executive power and a Prime Minister who is head of the ruling party.
5
The concept of a fakih is of a legislator who is well versed in Islamic law. It is of particular
relevance in Shia Islam and has been implemented in Iran by the Council of the Valeyet Faqih who is the
ayatollah who holds the defacto power in the state. The scholar Vali Nasr contends that the ideal of an
Islamic government ruled by the Ulema ‘ legal experts’ depended upon the Greek philosopher’s Plato’s
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Whereas sovereignty over the entire Universe belongs to Almighty Allah alone,
and the authority to be exercised by the people of Pakistan within the limits
prescribed by Him is a sacred trust;
Wherein the principles of democracy, freedom, equality, tolerance and social
justice, as enunciated by Islam, shall be fully observed;
Wherein the Muslims shall be enabled to order their lives in the individual and
collective spheres in accordance with the teachings and requirements of Islam
as set out in the Holy Quran and Sunnah;
Therein shall be guaranteed fundamental rights, including equality of status,
of opportunity and before law, social, economic and political justice, and
freedom of thought, expression, belief, faith, worship, and association, subject
to law and public morality.
6
These are the statements of intention which this essay will address in
order to understand if it is possible for a cohesive body of Islamic law to exist in
a modern state. The example of Pakistan will be a necessary benchmark because
the Muslim countries from the Middle East and Malaysia are dominated by Anglo
jurisprudence. The Arab nations which did not have a common law such as the
Gulf countries (GCC) are now adopting English commercial law and shaping
their banking systems in accordance with the British trust codes.
7
In this article Indonesia has been chosen as the contrasting example and
is like Pakistan a secular Muslim state but with a Roman- Dutch code. As most
of the Indonesian archipelago was under Dutch rule from 1602 -1945 there is
a presence of the colonial concepts of law in the legal system. There are the
colonial statutes, Sharia codes and the customary law (adat) that are applied
system of precedence that is the norm in all Common law countries.
institutionalisation of an Islamic ideology can run in parallel with the secular
system. The paper will trace the origin of the schools of thought in the middle
Fundamentalisms. In the modern state the two ideologies have not worked
harmoniously and the answer can be found by exploring a formula which merges
the temporal and spiritual medium into a coherent form of jurisprudence.
Concept of an Immutable law
1. Foundations of natural law
The reasoning that Islam is a divine source of law must mean that it is
a natural law. In order for this to be established it must accord with the basic
Republic of the importance of the existence of “a specially educated `guardian` class led by a `philosopher-
6
Article 2 states that Islam is the State religion.
7
The government of the UAE has imported the common law trust concept into local investment
frameworks by establishing a trust law within the Dubai International Financial Centre (DIFC) that it set
up by Federal decree in 2004. It then promulgated the Financial Free Zone Law that provides a regulatory
framework to enact a Trust Law which may exclude the local laws. It jointly administers the application
with the London Court of International Arbitration. http://www.inhouselawyer.co.uk/index.php/united-
arab-emirates/7945-use-of-trusts-for-asset-protection-in-the-uae
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tenets as derived from an immortal source. This notion is the very anti thesis of
the materialistic determination and chimes with the ideal of a Supreme being,
a doctrine of the 13th century jurist Thomas Aquinas who set out in his Summa
Theologica
8
four kinds of natural law principles. These are the eternal, natural,
human, and divine law. He enumerated them as follows: Eternal law is the decree
of God which governs all creation; Natural law is the human “participation” in the
eternal law; Human is discovery of law by way of deliberation; and Natural law
That good is to be done and promoted,
and evil is to be avoided. All other precepts of the natural law are based on this.
The desire to live and to procreate is counted by Aquinas among those
basic (natural) ie human values on which the whole value system depends. These
are the fundamental guidelines for ‘all benefactors of mankind’. They reject
the transitional nature of state sanctions based on impulses and incremental
changes known as ‘positive law. It is only in divine law that natural law theory
in a polity, and that course of conduct is revealed in the scriptures.
This is a view that can be traced at source to Muslim civilisation that was
at its theological height in the middle ages.
9
It was then that the theories based
the period when Islamic law was developing under its basic tenets of Sharia law,
that is a fundamental belief in the sources of law which in order of precedence
are Quran and the Sunnah, ie the sayings of the Prophet per se. It is then open to
the various schools of thought to develop the subsequent methodologies to deal
with issues as they arise, according to their reasoning.
The concept of Istislah
10
in Islamic law bears some similarities to the
law deems good that which is known self-evidently to be a value, accordingly
istislah calls ‘good’ whatever
goods” from the legal precepts in the Qur’an and Sunnah: they are religion, life,
reason, lineage and property.
11
As Islam was split into the two main Sunni and Shia branches it was the
former that gained ascendency among the mainstream Muslims. Among them
the Maturidi school, the second largest body of principles of Sunni theology
posits the existence of a form of natural law.
12
This was based upon al –Maturidi
’s belief that the human mind could know of the existence of God and the major
forms of ‘good’ and ‘evil’ without the help of revelation. He gives the example
of stealing which is known to be evil by reason alone, due to man’s working
hard for his property along with such prohibitions as killing, fornication, and
8
Editor Norman Kemp Smith, Publisher: St. Martin’s Press, New York 1965.
9
The Muslim civilization had its four schools of jurisprudence come into prominence at this period
10
Oxford Dictionary of Islam states that the concept corresponds to Public interest. It is regarded
as the object and purpose of Islamic law. It cites the Hanbal school of Islamic thought used this principles
to seek the best solution in order to serve the general interest of the Muslim community. Use is limited to
11
Mawil Izzi Dien, Islamic Law: From Historical Foundations to Contemporary Practice, p. 69
12
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drinking alcohol.
The largest school of thought of Sunni Islam, the Ashari rejected the natural
law tradition. Its leading protagonist Al–Biruni, a scholar and mathematician,
viewed natural law as the ‘law of the jungle’, and argued that the antagonism
between human beings can only be overcome through studying divine scriptures,
which he believed to have been sent through prophets.
13
However, the leading theorist of the Islamic golden age Averroes (Ibn
Rushid) set out in his treatise “Justice and Jehad”
14
by way of a commentary on
Plato’s Republic, that the human mind can know of the unlawfulness of killing
commentaries.
2. Development of a Sacred law
thought which is that there is a natural law upon which a value system depends
acts which are considered as harmful and the course of conduct can be found
in the scriptures.
15
As a body of jurisprudence Sharia goes further and enacts
codes which can be set down in a framework of laws. The concept of Sharia
derives from concepts that deal with the ‘directions’ to the ruler and the process
of enactment carries a binding obligation on the state.
In his treatise Understanding Islamic Law: From Classical to Contemporary,
16
Professor Irshad Abdal-Haqq states Al-Shari’ah, is a literal term that means the
“path which the believer has to tread”. (45:13)
17
He cites the application of the
term as a reference to Islamic law as traced directly to the Qur’an, wherein the
believers
, are admonished by Allah (God) to follow the clear and right way, the
path of Shari’ah: Then we put thee on the (right) Way of religion so follow thou
that (Way), and follow not the desires of those who know not. (45:18)
The authority of Sharia stems primarily from the Quran and the Sunna
(the Sayings of the Prophet Muhammad pbuh) As there are two other sources
of law that are applied in this hierarchy which are Ijtehad (analogy) and Ijma
13
in his treatise on mineralogy, Kitab al-Jamahir (Book of Precious Stones), he is “the most exact of experimental
scientists”, while in the introduction to his study of India, he declares that “to execute our project, it has not
”Zia uddin Sardar in Science in Islamic philosophy. Routlege Encylopedia of Philosophy 2008
02-03.
14
“He is regarded as the primary interpreter of Aristotle and in his main theory was that there was
against the attacks of those who condemned it as contrary to Islam “. Ibn Rushd-The Great Muslim
sallomn.html
15
the things which are Caesar’s, and unto God the things that are God’s” (Mathew 22.21)
16
Edited by Amineh Beverly McCloud, Chapter 1, Islamic law : An Overview of its Origins an
Elements ( Altra Mira Press, 2006) Page 4
17
In his Dictionary of the Holy Quran, Abdul Mannan Omar interprets the terms as deriving from
the “Quranic root” shara’a. These derivations express Shara’a as meaning “He ordained”, “They decreed a
law or Spiritual law” and a “System of divine law, Way of belief and practice. (45:18) Quran 45: 18 ( Noor
Foundation International Inc, 2003 Pg 287)
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(consensus) it allows Islam a broad framework to interpret the verses of the
legal code in most Muslim countries. It is particularly prevalent in the personal
status law which governs a set of regulations that pertain to marriage, divorce,
inheritance, and custody of children.
The Islamic jurisprudence has developed over fourteen centuries and
there are various schools of thought who are involved in the interpretation and
application of the Sharia. There are two main branches which are the Sunni and
the Shia, but the former has more impact as 85-90 percent of all Muslims belong
to that tradition. The distinction has bearing on the geopolitical spread of the
Islamic nations with some countries in the Middle East who have most people
from the Shia denomination the most notable being Iran. The rest, including
Pakistan and Indonesia, comprise people who follow the Sunni strand of Islamic
jurisprudence.
In the Sunni category of islam there have been four main schools of
jurisprudence were founded by Imams trained in Quranic legal precepts between
by Egypt, where the great Al – Azhar university is based;
18
Saudi Arabia is
traditionally Hanbali although it has imbibed the teaching of a puritanical imam
followed and in Indonesia the Shafei school of Sunni Islam.
statutory form is set out in the Pakistan Code, but the Ministry of Justice, Law and
light of amendments, and this is done through the .
19
civil and criminal laws are both encapsulated in the form of Acts, and there is an
is no provision for juries in either branch of its jurisprudence.
20
The state has separate civil and criminal courts, the higher courts form
the middle tier and at the apex is the Supreme Court which is headed by a Chief
Justice. According to the constitution of Pakistan, the court consists of one Chief
Justice and 16 other judges. The Court has both de jure and de facto powers.
The de jure powers are sanctioned by Article 58, which allows the dismissal of
the national assembly by the President subject to the approval of the Supreme
18
The AlAzhar university is regarded as the world’s oldest university and was founded in the 7th
attacks on central Asia and the shrinkage of Muslim rule in Andalusia, Al-Azhar became the only shelter for
the scholars who were forced out of their homeland. Those scholars helped Al-Azhar to reach the apex of
its glory during the eighth and ninth centuries A.H (14th and 15th centuries A.D. http//www.islamfortoday.
com/alazhar.htm
19
The Federal Laws of Pakistan are published by the Government in a document called the Gazette
of Pakistan. The law reports are compiled in the Pakistan Legal Decisions (PLD) and the Pakistan Law
Journal (PLJ), that also contain the statutes in their statutes sections.
20
The current code is spread over twenty-one (21) volumes dating from the year 1836 C.E. Volume
twenty-one, the last published volume, contains the laws made up to the year 1988. Code volumes for the
years after 1988 are yet to be published and made available.
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Court. The de facto powers are in the gift of the Court and allow it to hear judicial
review as when the military dictatorships have abrogated the constitution and
issued Legal Framework Orders.
21
According to Article VII, Chapter 2, of the Court’s constitution judges in
the Supreme Court are appointed by the President after consultation with the
Chief Justice. The Supreme Court judge needs to be a citizen of Pakistan and, he
The seeds of an Islamic jurisprudence were sown when the military
1977.
22
In February 1979, the President who was also the Chief Martial Law
Administrator had abrogated the civilian constitution and promulgated a new
legal code for Pakistan. This was based on Islamic law and had two cornerstones,
the establishment of the Federal Shariat Court in 1980 to hear appeals arising
from the new code The Court was also vested extensive other powers and it
case under civil or Sharia law. If the latter, then the appeal process heads to this
Court, rather than to the high courts.
The powers of the FSC are extensive as it can of its own motion or through
petition by a citizen or a government (federal or provincial), examine and
determine as to whether or not a certain provision of law is repugnant to the
injunctions of Islam. An appeal against its decisions lie to the Shariat Appellate
Bench of the Supreme Court, consisting of 3 Muslim judges of the Supreme
Court and 2 Ulema (religious scholars), appointed by the President. If a certain
provision of law is declared to be repugnant to the injunctions of Islam, the
government is required to take necessary steps to amend the law so as to bring
it in conformity with the injunctions of faith.
23
The Objectives Resolution of the preamble of the FSC’s Constitution was
made a part of its substantive provisions by the insertion of Article 2A in 1985,
thereby requiring all laws to be brought into consonance with the Quran and
Sunnah. Part IX of the Constitution is entitled “Islamic Provisions” and provides
repugnant to the injunctions of Islam are to be enacted
21
during its 11 years rule by suspending the 1973 constitution and set out emergency laws by means
Provisional Constitutional orders. On both occasions they were challenged in the Supreme Court.
22
of Shariat benches as an attempt to establish the Nizam e Mustapha ( the Prophet’s system). In the absence
of a parliament under a military government General Zia decided to set up an alternative system Majlis
e Shoora in 1980.The Shoora was to act as a board of advisors to the President. All 284 members of the
Shoora were to be nominated by the President. The Pakistan Parliament under a civilian order is still
known by the title of Majlis e Shoora.
23
The court also exercises revisional jurisdiction over the criminal courts, deciding the criminal
cases that concern the Islamic injunctions. cases. The decisions of the court are binding on the High Courts
and the status of Islamic law is determined by Article 1 of the 1973 Constitution which declares that
religion. Chapter 3A establishes the Federal Shariat Court. The FSC consists of 8 Muslim judges including
the Chief Justice.. These Judges are appointed by the President of Pakistan choosing from amongst the
serving or retired judges of the Supreme Court or High Court or from amongst persons possessing the
No. 1 - Volume 2, May - August 2011 INDONESIA Law Review
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a controversial bill in the course of enacting Islamic law in that region. This bill
in 2003 and the enabling mechanism was to be the Hisba bill. The bill was
referred by the provincial governor to the President after some members of the
Assembly protested that it went against the secular ideology of Pakistan. This
brought the executive‘s intervention in the judicial alter of the Supreme Court.
wanted to outlaw the bill by calling on Chief Justice Iftikhar Chowdhary to annul
it for breaching Pakistan’s secular ideology. This brought the attempt to legislate
Sharia in Pakistan by legislative means to an end.
24
This set in motion a national crises that led to the suspension of the Chief
post. The reason was cited as misconduct of the judge and led him to being made
non functional. However, this did not mean that he resurrected the bill or asked
for it to be referred to the Supreme Court again for consideration. The General
had to wait for the Supreme Court to declare the dismissal illegal and for him
to be restored until the emergency in October in the same year which led to the
dismissal of the judge along with his colleagues for the second time to ensure
the election of the President for another term.
25
Customary Legal Codes and Militant Islam
The dramatic events that the abortive Hisba bill unfolded came in the
the instigators of the proposed legislation live. They are the ethnically distinct
Pushtons who are separate from the mainstream Pakistanis by their traditional
and rural life patterns.
26
The Pushtons who are labeled as obstructionist by the
urbane Pakistanis follow the code of Pakhtonwali, that is a code of honour that
serves as a bastion of puritanism in the Frontier province. It has a stronghold in
the mountainous badlands, which are the epicentre of the ‘war against terrorism’
that is being conducted in a pocket of the country where the indigenous people
share a porous border with Afghanistan.
The Pushtons regard themselves as brethren of those kinsmen separated
by the Khyber Pass. They are engaged in a struggle where their version of
24
186 of the Pakistan constitution the purported legislation was “an infringement of the country’s secular
constitution”. The Court ruled that two Sections viz. 2(11) and 3(2) of Hisba Bill 2006 were not deemed to
comply with the constitution of Pakistan. did not comply with the earlier opinion of the Supreme Court.
25
president is of the opinion that a judge of the Supreme Court or of a High Court (a) may be incapable
have been guilty of mis conduct, The president shall direct the Council to inquire into the matter. Acting
26
Most are sedentary or semi-sedentary farmers and perhaps two million or more are nomads.
The Pushton composition is made up of a largely tribal society, and most division are intra-tribal. This
has been the case since the time of the indigenous Durrani dynasty established in Kabul in 1747 and there
minorities/south.-Asia/patterns.html
No. 1 - Volume 2, May - August 2011 INDONESIA Law Review
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customary Islamic law collides with the moderate and often emasculated
versions of Islam of the liberal sectors of the Pakistani population. The Pushton
Administered Territorial Agencies) in Pakistan. It is from these lands that the
Taliban have emerged that are strict adherents of a Sharia code that is based
on an understanding that it has to be formulated and applied in an undiluted
manner.
The fraternal ties of the Pushtons are maintained by the preservation of
the social convention of Pakhtonwali, that for them supersedes all other laws.
This is a binding set of ethics that governs their lives and provides a bedrock
to their seminal existence as a traditional society.
27
It prescribes loyalty to the
family and tribe over that of the state. The practitioners of this code are invariably
very religious and observe Islamic tenets assiduously. The origins of this code
go back to the days of the Mughal emperor Aurangzeb, in the 18th century when
formidable military forces were required to quell Pushton nationalism.
28
The norms are enforced through the loya jirga, that acts as an informal
court made up of elders of the clans who sit in council prior to judgment. The
Pakistan government’s writ runs out in the tribal regions, which are known as
the Federally Administered Tribal Areas (FATA), and the only representative
is an agent or Malik, who are attached to seven of the largest tribes assisted
by 3 Tehsildars in each agency enforcing justice under the Frontier Criminal
29
These were promulgated in 1903 by the British, and they serve to impose
supporting information” for the authorities under the Malik or the 3 Tehsildars
acting under him in dispensing summary justice.
30
There is no recourse to appeal
to any of the courts in Peshawar the province’s capital, and this has caused the
procedures enforced under the FCR to be criticised as a fundamental breach of
human rights.
The Pushtons regard the 1519 mile border with Afghanistan demarked
against the concept of their one nation concept that was idealized by the poet
Sahibzada Abdul Latif of Khost.
31
The region has become a hot bed of support
for the Taliban insurgency since the US invasion of Afghanistan, and has been
dubbed as the ‘lawless’ territory with cross border raiding by the tribes on
However, in recent times the militancy has surfaced within Pakistan
proper in the former principality of Swat, which was given political autonomy
27
The central tenet of the code is ‘Itbar’ which means trust, or guaranteed assurance or is the
arch of society which is governed by un-written laws or conventions and ruled by consensus. http//www.
khyber.org/culture/pashtunwali.shtml
28
Khushal Khan Khattak was the leader most responsible for the nationalistic growth. 1723-1789
He was a poet warrior and spiritual leader who was a resistance leader of the people. http://www.afghan.
web.com/bio/yest/kkk.html
29
Under Chapter II the Provincial Government may appoint any Magistrate or Additional District
Magistrate without any limit of time
30
An instance of that is the application Section 393 of the Code of Criminal Procedure 1905 that
sentenced.
31
He was one of the two representatives of the Afghanistan government when the Durand treaty
was signed in 1893
No. 1 - Volume 2, May - August 2011 INDONESIA Law Review
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before the armed forces crackdown began this spring. The bone of contention is
that the Pakistani Taliban, who are composed mostly of the maadressa educated
Pushtons want to propagate the spread of Sharia all over the Pakistani state.
32
In 1947 there were only 189 maadressas in Pakistan, which by 2002 went up to
10,000-13,000 unregistered such schools with an estimated 1.7 to 1.9 million
for the out of which most cater to the dominant Sunni sect.
Criminal Law and The Liberal Backlash
Taliban and their mainstream sympathisers and the liberal rulers of Pakistan
who come from the westernised elite of the country’s English medium schools.
The bone of contention in terms of the legislation that the Pakistani state has
enforced is plank of statutes collectively known as the Hudood Ordinances.
These laws were controversial from their very inception when Gen Ziaul
Haq introduced them.
33
This was the implementation of what he believed
was the establishment of an “Islamic” system of justice in the country. These
legal instruments came into force as the Prohibition (Enforcement of Hadd)
Ordinance, 1979 – Ordinance VII of 1979; and Enforcement of Hadd Ordinance,
1979 Ordinance VIII of 1979. The third is divided into four sections that regulate
propriety; qazaf [false accusations of adultery); adultery; and prohibitions.
34
In essence the Hudood is one of the four categories of punishment
in Islamic Penal Law, which exists in addition to Qiyas, that corresponds to
retribution; Diyya compensation paid to the heirs of the victim, and Tazir that
is punishment usually corporal administered at the discretion of the judge. The
wrongful allegations of impropriety, drinking alcohol, blasphemy and apostasy.
“claims of God,” and therefore the sovereign has a responsibility to punish them.
for prosecution rested on the victim. This includes murder, which was treated
as a private dispute between the murderer and the victim’s heirs. The heirs had
the right to compensation called diya and to demand execution of the murderer
i.e. qisas, but they could also choose to forgive.
35
The criticisms levelled at their imposition in Pakistan was that ordinances
make no distinction between adultery and rape and, an example, is that a
woman who is a victim of rape must bring before an Islamic court the testimony
of four males adults who witnessed to and can testify the act was carried out
using violence. According to the ordinances, if the victim is unable to produce
32
Islamic seminaries teach mostly Islamic subjects leading to graduation as a cleric (called maulvi,
maulana or mulla) in Pakistan.They were colleges of learning in the middle east in the 11th century, and
33
General Zia’s Martial Law Proclamation stated that all orders, ordinances and Martial law
regulations were to become law, when he assumed power. Gazette of Pakistan, Extraordinary Part I, 5th
July, 1977.
34
qazf in conformity with the stated objectives of the Constitution and the injunctions of Islam
35
mo2/scarves/hudud.html
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imprisonment.
36
In Pakistan the case of Zafra Bibi
37
a case went to trial against the
complainant who had alleged that she had been raped. Zafran Bibi after 13 years
of marriage to Naimat Khan of Kari Sher Khan village in Kohat who had been
convicted of murder and awarded 25-years imprisonment. She continued to live
with her in-laws and was harassed on numerous occasions by her husband’s
brother, Jamal Khan. She complained about her behaviour to her mother-in-law
Zar Bibi, who instead laid the blame squarely on the young woman’s shoulders
and ordered Zafran to mend her ways.
She was subsequently raped by Jamal Khan, and the matter was buried
again, but when she became pregnant she had no option but to complain direct
to the authorities. The ordinances facilitated her trial under adultery and she
was convicted of Zina. However, as the campaign to change the laws gathered
momentum and the knowledge of her ordeal became news it was the Federal
Shariat Court that overruled the appellant court’s ruling, quashed her conviction
and released her. The Court ruled that the woman if coerced into committing
Zina shall not be liable under the Hud laws.
This was a landmark judgment and the Hudood ordinances have since been
deemed obsolete based on the charge that this portion of Sharia is incompatible
interpretation of Hudood laws which punishes the complainant were vindicated
provision has made amendments to the Hudood laws by bringing rape under
the Pakistan Penal Code, 1860 (as amended in 1965 and 1980) which is not
based on Sharia law.
There is a senior scholar on Islamic law Gerhard Endress who has stated
that at the time of advent of Islam, several social reforms happened in which a
new system of marriage and family, including legal restrictions such as restriction
of the practice of polygamy was conceived . Endress says: , “The social system
... build up a new system of marriage, family and inheritance; this system treated
women as an individual too and guaranteed social security to her as well as to her
children. Legally controlled polygamy was an important advance on the various
it was only by this provision (backed up by severe punishment for adultery), that the
“
38
Comparison with Indonesia
1. Secular state framework
The constitution of Indonesia (Undang Undang Dasar) was framed in 1945
after the country gained independence from Dutch rule. The jurisprudence is
36
The Council of Islamic Ideology (CII) in 13/12/05 agreed to amend the controversial Hudood
ordinances to bring it in accordance not only with the Quran but also the Penal Code and the Criminal
Procedures Code, a CII press release said. This last decision is very important, given the results of a survey
which revealed there are around 200,000 pending cases linked to the ordinances. In Lahore alone, the
Federal Court must pass judgment on 1,400 cases: this has led to the unjust detention of those awaiting
Amendment) Act in 2006.
37
http:www. Dawn.com/2002/08/21/top12. tom
38
Gerhard Endress, Islam: An Introduction to Islam, Columbia University Press, 1988, p.31
No. 1 - Volume 2, May - August 2011 INDONESIA Law Review
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based upon Dutch colonial law, Islamic law, and adat (customary law) and all
three exist up until today. From the Dutch the civil code (Burgerlijk Wetbook)
and the Civil Procedure Law (Het Indische Reglement) have been inherited .
Pancasila: the belief in One God Almighty, that the country’s humanity was just
and civilized, that Indonesia is a unitary whole, that democracy should be guided
by the wisdom of representative deliberation, and that all Indonesians should
enjoy social justice. This is underscored by Article 29 of the Constitution.
require “the belief in One God Almighty and obligate Muslims to conform to
Sharia law” but this was not accepted by the ‘founding fathers’ of the new state
who omitted the second part after much deliberation.
In August 2002 there was another attempt to have the Article amended
in August 2002 but it was unsuccessful as the religious parties did not gain
as one of the principles of the Pancasila but it was not passed by the Peoples
Consultative Assembly . To some theorists it has shown that Indonesia practices
the substantive approach to Sharia as opposed to the formal approach.
39
During the period 1999-2002 the Indonesian constitution went through
many reforms some of which limited the powers of the executive level of
the President and Vice President who exercised power during two terms. It
prescribes a strong executive branch where the President and Vice President
40
The Indonesian judicial system comprises of four types of courts which
are: the Courts of General Jurisdiction,
41
the Religious Courts, the Military Courts
and the State Administrative Courts. In addition there are several types of courts
under the oversight of the Supreme Court (Mahkamah Agung). The Religious
courts settle religious jurisdiction and their role has been expanding from the
economic sphere where they adjudicate in matters of charitable and personal
status laws.
39
In Religion and the Indonesian Constitution : A recent debate. Journal of South Asian
Studies. Pages 419-440 October 2005. National University of Singapore the author Nadirsyah Hosen
substantive approach as “ an emancipated understanding of the Syriah , stressing its original meaning as
a ‘path’ or ‘guide’ rather than a detailed legal guide”. He advocates the recovery of Ijtihad as a process of
independent legal reasoning in order to do justice both to modern needs and the classical origins of the
concept.
40
The 1945 Constitution provides for a number of constitutional bodies two of the most important
are the People’s Consultative Assembly (Majelis Permusyawaratan Rakyat or MPR) and the House of
People’s Representatives (Dewan Perwakilan Rakyat or DPR). The DPR is 500-strong and consists of
elected and appointed representatives whose main function is to make legislation and hold the President
and his ministers accountable.
41
There are about 250 State Courts throughout Indonesia, each with its own territorial jurisdiction.
In the Appeal process the State Court decides before the High Court (Pengadilan Tinggi), of which there are
around 20 throughout Indonesia. The High Court serves as a district court of appeal and appellants cans
in some instances raise an appeal to the Supreme Court located in Jakarta. The Supreme Court can hear
also a State Administrative Court (Pengadilan Tata Usaha Negara) which hears administrative law cases
of the Constitutional Court (Mahkamah Konstitusi). Among other matters, this Court has the jurisdiction to
hear cases involving the constitutionality of particular legislation, invalidating a general election, as well as
impeachments against the President.
No. 1 - Volume 2, May - August 2011 INDONESIA Law Review
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There is an increasing body of laws that the Religious Courts are now
covering and according to the treatise Sharia Law as a System of Governance in
Indonesia: The Development of Islamic Financial Law by H Juwana, Y Barlinti
and YK Dewi
42
as follows: The application of Islamic law in Indonesia prior to
Independence was impeded by the application of the Receptie Theorie 1929 which
is included in Article 2 that the Islamic law only applied where one of the parties
to the disputes was a Muslim
.
They then elaborated on the development of Sharia law in Indonesia
by broadening the jurisdiction of the Religious courts to include hearing of
commercial disputes. Juwana et al cite the Law no 3 of 2006 amending the
Religious Courts Act Article 49 to increase the powers of these courts in the
The Islamic economic activities continue to be based on currently applicable
regulation. However, endeavors continue to be made for the improvement of
regulations dealing with their Islamic economic activities.
charitable law augments the personal status law that has been implemented
by way of family law reforms. However, the controversy and the infringement
of fundamental rights arise when the criminal law codes are introduced in the
jurisprudence of the state. It is this area that has caused the collision of ideals.
2. Policing and Imposing Corporal Punishment
In 2001 the Indonesian government enacted the Special Autonomy Law
in the Aceh province.
43
This implementation has allowed the administration of
the criminal justice system into the management of the Aceh authorities. This
Hisbah,) and the sentencing and the
sanctions that are applicable in accordance with Sharia law. The courts have
imposed the punishments as prescribed in the form of whipping, warnings and
shaming of people convicted of crime or immorality.
The issues that have been brought to light have been by western human
rights organizations who have accused the Aceh government of a brutal
prepared a damning report in which they accused the authorities of conducting
fundamental rights violations. The 89 page report Policing Morality: Abuses in
the Application of Sharia in Aceh, Indonesia,
44
was released on December 1
st
2010. The report documents the experiences of people accused of violating
Sharia laws prohibiting “seclusion” and imposing public dress requirements
on Muslims and is critical of these rules and the strict interpretation of Islamic
norms of public decency.
charitable giving, to gambling, to Islamic ritual and modest Muslim behaviour.
applied to wealthy or politically connected individuals. This is the latest and
landscape which is reminiscent of the clash between the Islamic trends
42
43
Special Autonomy Law on Nanggroe Aceh Darussalam (NAD) law no 18 of 2001. www.kbri-
canberra.org.au/s.../aceh/aceh_specautonomy.htm - Cached - Similar
44
www.hrw.org/en/news/.../indonesia-local-sharia-laws-violate-rights-aceh
No. 1 - Volume 2, May - August 2011 INDONESIA Law Review
~ 120 ~
and liberal doctrines of tolerance for diversity that has been played out in
Pakistan.
Emergence of a Critical Theory
The incompatibilities between the way that Islamic law is practised in
many countries and the interpretation of universal human rights documents
has led Tariq Ramadan,
45
a leading jurist based at Oxford University to state that
there should be an international moratorium on the Hudood laws until greater
scholarly consensus can be reached. He sets out his doubts about the various
texts and their respective “degrees of recognized authenticity, that make reference
to corporal punishments” and the sum total of the Islamic scriptural sources on
the penal laws that can be encapsulated as the hudood laws. These he casts as
based upon the possible interpretations and the clear divergences (al ikhtilâf)
in the history of the Islamic law and in the contemporary era.
Ramadhan states as follows “Considering that the opinions of most scholars,
regarding the comprehension of the texts and the application of hudûd, are neither
explicit nor unanimous (indeed there is not even a clear majority), and bearing in
mind that political systems and the state of the majority Muslim societies do not
guarantee a just and equal treatment of individuals before the law, it is our moral
obligation and religious responsibility to demand for the immediate suspension of
the application of the hudûd which is inaccurately accepted as an application of
“Islamic sharî’a”. This call doubles itself with a series of basic questions addressed
to the body of Islamic religious authorities of the world, whatever their tradition
”
He then enquires as to what are the conditions (shurût) stipulated for each
of the penalties by the sources themselves, the consensus of the scholars (al ijmâ’),
and the divergences on the stipulations and what “extenuating circumstances”
were sometimes elaborated by religious authorities throughout history, or
as follows “What are the socio-political context (al wâqi’) that was always
considered by the ulamâ’ as one of the conditions needed for the application of
hudûd. The importance of this question is such that it demands special treatment
(and participation within the debate from intellectuals, notably those who are
specialized in the social sciences). In which context today is it possible to apply
hudûd? What would be the required conditions in terms of political systems and
the application of the general legislation: freedom of expression, equality before
the law, public education, eradication of poverty and social exclusion? Which are,
in this domain, the areas of divergence between the legal schools and the ulamâ’
and on what are these disagreements based? Studying these questions are meant
to clarify the terms of the debate with regards to the interpretative latitudes
offered by the texts, while simultaneously taking into account the determining
state of contemporary societies and their evolution. This intra-community
in keeping solemnly with the objectives of the Islamic message. On the whole, this
must allow us to respond to the questions of what is applicable (and according
45
Tariq Ramadan. An International call for a Moratorium on corporal Punishment , stoning and the
No. 1 - Volume 2, May - August 2011 INDONESIA Law Review
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to which methods) and what is no longer applicable (considering the required
conditions are impossible to reestablish as well as the fact that societal evolution
is clearly moving away from the required ideal). This undertaking requires, from
within, rigour, time and establishing spaces of dialogue and debate, nationally and
internationally, between the ulamâ’, Muslim intellectuals and inside the Muslim
communities since this matter is not only about a relationship to the texts, but
penalties that sanction legal approximations and injustices such as is the case
today. A moratorium would impose and allow a basic debate to unfold in serenity,
without using it as an excuse to manipulate Islam. All injustices made legal in the
name of Islam must stop immediately.”
46
Social Compact and the First Islamic Constitution
However, in order to discover if there can be an implementation of
the “Had” laws in the modern world the intellectual ferment in the west that
separated religion and politics has to be analysed. The post renaissance period
was the dawn of legal philosophy which began to mirror that being witnessed
in science and technology. It was an attempt to rationalise society and man’s
corridors of power surfaced. The originating ideas for civil society that rejected
D’Alembert in the cause of enlightening the masses against established religion.
Its most profound exponent was J-J Rousseau who was also unlike his
contemporaries a conservative albeit a deist. He stated in the Social Contract,
1762 (1)
47
as follows:
Man is born free and is everywhere in chains. One thinks of himself the
master of others , and still remains a greater slave than they. How did this
think I can answer.
48
He then goes on to assert the premise of his enquiry:
I mean to inquire if, in the civil order, there can be any sure and legitimate
rule of administration, men being taken as they are and laws as they might
be. In this inquiry I shall endeavour always to unite what right sanctions
with what is prescribed by interest, in order that justice and utility may in
no case be divided.
49
Rousseau establishes a test to address the nepotistic rule that leads to
the unravelling of the feudal modes of government that encapsulates the legal,
social economic and political systems. It enables freedom of thought, including
religious expression that is contingent on promoting public morality. This
formulation lays the basis of its enquiry that every government must have a
mandate to govern and it means that there is a constituency upon which it pivots
in drawing legitimacy. The ideal that he expresses is that of a social compact.
46
Ibid
47
Dent Publishing Company, 1923 (original publication date 1862)
48
Ibid Chapter 1
49
Ibid Chapter 1
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However, the origins of this doctrine can be traced by reference to the
Islamic faith in its classic formulation to the Compact of Medina, which is
spiritual powers of the ruler. It came about when the Prophet Mohammad
Islamic state. This led to the ten years span when the Prophet became the leader
of the emerging Muslim polity in this city.
50
He began exercising jurisdiction over Muslims as well as non-Muslims
within the city. The legitimacy of his rule over Medina was based on the compact
of Medina, which was a trust vested in him by the divine decree of being God’s
messenger. His rule over the non-Muslims of Medina was validated by virtue of
the tri-partite agreement that was signed by the Muhajirun (Muslim immigrants
from Mecca), the Ansar (indigenous Muslims of Medina and the Yahudi (Jews)
state.
51
The compact of Medina provides an historical example of a theoretical
construct that has shaped legal theory. This entered the thesis of Rousseau
who issued an abstract concept of an agreement between people in the state
of a nature that leads to the establishment of a modern state. In the state of
nature people are free and are not obliged to follow any rules or laws. They are
essentially sovereign individuals, but through the social contract they surrender
their individual sovereignty to the collective and create the community. This
organisation then acts as an agent of the sovereign people, exercising the
sovereignty that has been delegated to it by the people through the social contract
in order to realize the aspiration of the people enshrined in the objectives of the
social contract.
52
However, the social compact as an ideal has very few instances in western
statecraft. This appears to be a document based on the origins of a state whose
legacy has survived in the Islamic jurisprudence and can provide the grounding
of a legal framework. The question then can be asked if that can be transferred
and if the requirements of a civil society can meet with the universal set of
human rights values.
It has been argued by Muslim theorists that the constitution of Medina
is deemed to have established a pluralistic state, a community of several
communities. It promised equal security to all and all were equal in the eyes
of the law. In The Compact of Medina: A Constitutional Theory of the Islamic
State MA Muqtedar states:
53
”The principles of equality, consensual governance
and pluralism are enmeshed in the compact of Medina states. The compact of
Medina serves the dual function of a social contract and a constitution. Clearly
the compact of Medina by itself cannot serve as a modern constitution. It would
50
This is known as the Charter of Fundamental Rights because in it were expressed the rights of
the minorities which included the Jews and Christians.
51
The journey that the Prophet undertook from Mecca to Medina as it became known was the
culmination of the Hijrat ie Migration and it is at this point that the Islamic calendar begins
52
shall be referred to Allah and Muhammad (may Allah bless him and grant him peace). The reference to the
covenant infers from Ibn Ishaq that the state of nature was now past.
53
The Compact of Medina , MA Muqtedar Khan, Published by the Mirror Iinternational on May
30th, 2001
No. 1 - Volume 2, May - August 2011 INDONESIA Law Review
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its scope. However it can serve as a guiding principle to be emulated rather than
a manual to be duplicated. The compact of Medina also illustrates what should be
the relationship between the revelation and a constitution. Muhammad (PBUH)
if he so wished could have merely indicated the truth revealed by Allah (PBUH)
shall serve as the constitution of Medina or the basis for the new community and
force this revelation upon non-Muslims. But if he did that then he would have ruled
Medina with the authority of Allah behind him but without the complete consent
of those under his rule. Muhammad (PBUH) in his great wisdom demonstrated a
democratic spirit quite unlike the authoritarian tendencies of many of those who
based on the eternal and transcendent principles revealed to him and sought
the consent of all who would be affected by its implementation. In simple terms,
constitutional in character and the ruler ruled with the explicit written consent
of all the citizens of the state. Today we need to emulate Muhammad (PBUH)
conditions and based on the eternal and transcendent principles revealed by Allah
(SWT).”
Charter of Fundamental Rights
This leads directly to the question whether Islamic jurisprudence can
satisfy the test of human rights as enshrined in the UN Declaration of Human
Rights 1948. The issue of which rights are legally enforceable is an important
one and the proponent of this argue on the basis of a ‘social contract’ that all
human rights have legal rights. It is a concept that has been examined in an
Islamic forum which dealt with the dimension of human rights in the context
of the enshrined sacred text of the Quran. These were encapsulated in an
Islamic Human Rights Declaration of Cairo in 1990.
54
This led to the framing of
an idealistic document that states in its preamble the contribution of Islam to
”.
Article 10 of the Declaration states: “Islam is the religion of unspoiled
nature. It is prohibited to exercise any form of compulsion on man or to exploit his
poverty or ignorance in order to convert him to another religion or to atheism.”
Thus there is a clear demonstration to bring into line with natural law reasoning
and allow a person to develop their own rational faculties and understanding of
religion and civic sense. It is also an expression of toleration and benevolence as
an article of faith rather than a property of any particular religion.
Article 23 states that (a) Authority is a trust; and abuse or malicious
exploitation thereof is absolutely prohibited, so that fundamental human rights
may be guaranteed. (b) Everyone shall have the right to participate, directly or
indirectly in the administration of his country’s public affairs. He shall also have
This
seems a clear denunciation of arbitrary government and is a proclamation of a
democratic ideal. It calls for participation and subjects the ruler to the wishes
of the people.
54
Adopted and Issued at the Nineteenth Islamic Conference, of Foreign Ministers in Cairo on 5
August 1990.
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rights and freedoms stipulated in this
Declaration are subject to the Islamic Shari’ah”. The onus is on the constitution of
the state to set out these provisions guarantee the basic rights. It is fundamental
law of practice as well as custom and whose source is the religious doctrine of a
divinely inspired law. This is a proclamation of natural rights under the notion of
a religious inspiration that derives its source from the Sharia principles.
In essence the Declaration reverts to the Compact at Medina that has been
cited as an authentic version of an Islamic state. The Cairo Declaration mentions
the “an alliance or a federation between the various peoples of the book”
55
They
are described as equal citizens with Muslims who are deemed to pay a special
tax to the state, but are excused from participating in its wars. It was a key tenet
in the Covenant that the Prophet (Phuh) had installed at Medina. The charter
of rights sets out a preamble for a rights doctrine as part of a legal and binding
agreement based on Islamic structures. Its sets conditions on the legitimacy
of power by validating a temporal power if it is succeeds in the strongest
transforming his strength into a right, and obedience into a duty.
There seems on the surface that Islam is deemed as incompatible with
the human rights principles by its liberal critics. There is no doubt that Islam as
the Levant. This is despite the fact that it has been the main interlocutor of the
doctrines of Greek and Roman jurists. The three main schools of jurisprudence
in the Roman world were in Constantinople, Damascus and Tripoli. They had an
its empire over the entire Middle East and Turkey.
56
However, the Islamic scripts have not been understood and its
epistemological premise has become marred by colonial expansion and
distortion. In Pakistan this has been felt by those who view the Hudood ordinances
as derogation from a commitment to universal human rights principles. From
encroachment of the state as the danger to their ancient customs. This requires
a further evaluation to determine if it is possible to place some substance to the
Islamic concepts if they can be substantive changes that can alter the economic
conditions of a society where the inhabitants live in dire poverty.
The writings of the jurist Michel Foucault reveal that he was admirer of a
strand of Islam: “
no one can be deprived of the fruits of his labour; what must belong to all (water,
the subsoil) shall not be appropriated by anyone. With respect to liberties, they will
be respected to the extent that their exercise will not harm others; minorities will
be protected and free to live as they please on the condition that they do not injure
the majority; between men and women there will not be inequality with respect to
rights, but difference, since there is a natural difference. With respect to politics,
decisions should be made by the majority, the leaders should be responsible to the
people, and each person, as it is laid out in the Quran, should be able to stand up
55
between the muhajirun ( refugees )and the ansar ( domiciled) with which he concluded a covenant and a
and guaranteed them certain rights
56
This was the period of Justinian’s empire when in the 5
th
century with the Byzantine empire
based at Constantinople the corpus juris of Roman laws was formulated
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and hold accountable he who governs.
57
Foucault goes on to assert about the movement that he viewed unfolding
from which he infers that he does “not feel comfortable speaking of Islamic
government as an idea or even as an ideal. Rather, it impressed me as a form
of political will. It impressed me in its effort to politicize structures that are
inseparably social and religious in response to current problems. It also impressed
me in its attempt to open a spiritual dimension in politics”.
58
In taking this logic further the application of Foucault’s deduction from
59
is instructive. It implies that the legal system sets up “a social
power structure where an objective adjudicator decides the outcomes” and that
manifests in the judicial system. He argues that justice “is a bourgeois conception
is the developed court system”.
In his projection of a more acceptable justice he argues that there must be
no institutionalizing of an unjust bourgeois concept of justice, which embodies
the bigoted and corrupt laws that serve the rich and discriminate against the
interests of the poor. This is the basis for the unpopularity of the Hudood
ordinances in Pakistan. By taking this it needs a more popular expression of the
enforcement of Sharia if it is to succeed in its application to the state. It cannot
be done by simply co opting it as has been done in Pakistan to a hybrid legal
system which has only served to cause friction in the framework and impeded
the development of a coherent legal system.
Conclusion
In a comprehensive code such as Islam the temporal and spiritual power
is fused unlike in Christianity and this makes it imperative that it must satisfy
the requirement of fundamental rights. The Islamic countries that are presently
facing public agitation have, so far, failed to implement a constitutional
government. The Middle East has more than its share of dictators and still
applies the outdated concept of divine authority in government where the Kings,
Sheikhs and Emirs have near absolute power. These countries have no electoral
mechanism nor have they implemented democratic or popular councils or
tribunals to try the accused or elect their magistrates.
The example of Pakistan which, is a Middle Asian country that straddles
both the Arab and the Asian countries, presents an instance of when the
constitutional government that exists can be forged to portrayed to have achieved
a secular identity and yet implements Sharia law. That it has so manifestly failed
in drawing up a value system based on Islam is because it has not remained true
to the Islamic ideals. It has not been able to fuse the principles of the religion
and, at the same time, ensure a popular consensus in order to provide a judicial
system where the jurisprudence is not despotic but uniform and merciful.
of martial law with a government imposing emergency rules through legal
framework orders which suspends the constitution or its abrogation. The
57
First published in Le Nouvel Observateur, October 16-22, 1978.Excerpt from pages 203-9 of
Foucault and the Iranian Revolution: Gender and the Seductions of Islamism by Janet Afary and Kevin B.
Anderson, published by the University of Chicago Press. ©2005 by the University of Chicago
58
Ibid.
59
Semiotext(e), 1997
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political leaders lack real authority as there is no social compact based on a
social contract. Further the absence of a social contract makes it impossible to
secure a link to the preamble to the constitution thus it lacks legitimacy.
The Indonesian state which mirrors Pakistan in that it is a multi ethnic
state with a largely Muslim population is pluralistic and has been dubbed as
substantive in its application of Shariah. This is due to the inheritance of the
principles which provide the certainty are embedded in its constitution of the
Indonesian people’s identity in Article 29 which does not state Sharia as the
the religious codes, in the province of Aceh, where a form of implementation
has been attempted it has been subject to critical scrutiny by the international
human rights organizations.
There is a critical theory that has emerged which takes account of the
fundamental tenets of Islam. This leads to the application of both the letter
and the spirit of the Sharia laws. The exercise of political power is based on
the interpretation of Quranic injunctions that are sacrosanct and this principle
extends to the Hudood laws which form the criminal penalties in Islam. In
dealing with the complex problem of legitimacy the logic of its application
needs espousal because in the wrong hands they become the instruments of
consensus and are in accordance with a legal constitution that is the source of
authority.
For there to be any future governance through the Islamic codes, such as
that which enforces the corporal punishments set out in Hudood ordinances
there has to be a general willingness that it should be observed. This is an
important principle of the social contract derived from the abstraction which
forms the basis for enacting laws. This basis is, according to Rousseau, an
infallible agreement of the “Sovereign ruler” to protect and preserve the rule of
It will achieve a doctrine which separates the power of the executive,
legislature and the judiciary which will lead to a transparent and accountable
government. This will be a template that conforms with the religious rules that
obey only ‘legitimate powers’ and not those imposed by the preponderance
of a superior power which is not rights based . The people must be franchised
through elections and due process must be mandatory.
The critical theory of secularism and Sharia is relevant as it challenges
absolutism and allows for sovereign power through popular vote, which has to
be integrated into a whole juridical –political system to derive legitimacy. This
concept is inherent in Islam as there is no notion of a priesthood that acts as an
interlocutor between the divine authority and the people. This new framework
where the laws are synthesized in order to produce a constitutional doctrine
Muslim Constitution, where the rights of all sections of the community were
upheld.
No. 1 - Volume 2, May - August 2011 INDONESIA Law Review
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