The rise of Islamists has brought new emphasis to a pragmatic
aspect of Sharia law, one which puts a premium on the public interest.
By Hassan Hassan
The
results are final: Islamists have secured 75 per cent of the seats in Egypt's
parliament. They will shape politics for at least five years to come, a
chilling thought for many. But the reverse might also be true, not only in
Egypt but in every country where Islamists are winning at the ballot box:
politics will shape Islamism.
The
rise of Islamists in the region has revived a pragmatic form of Islamic
jurisprudence that has been neglected for centuries: "siyasa
shariyyah", or Sharia-compliant realist governance, deals with politics,
economics and law based on an overarching principle known as
"maslaha", or public interest. In practice, siyasa shariyyah is often
seen as in opposition to traditional jurisprudence.
But
it is a school of thought that is gaining ground in different quarters.
"Politics is mainly about maslaha," says Dr Salman Al Odah, one of
Saudi Arabia's more prominent clerics. Dr Al Odah is in the process of
preparing a study on the subject that deals with Sharia in the context of the
Arab Spring.
Sheikh
Mohammed Hassan, one of Egypt's top Salafi clerics, has used the principle of
maslaha to justify the need to comply with the peace treaty with Israel. He
maintains that it is not in Egypt's best interests to break the accords, citing
the example of a 10-year truce Prophet Mohammed signed with Quraishi leaders
when Muslims were weak. Although it was a deeply "unfair and
humiliating" agreement, Sheikh Mohammed says, the Prophet adhered to the
truce until it was eventually broken by the Meccans. Egypt's Salafi Al Nour
party has recently held training courses for its members on siyasa shariyyah.
Ibrahim
bin Omar Al Sakran, a Saudi intellectual, has been attacked by extremist
Salafis after writing a treatise on siyasa shariyyah in which he argued that
the Islamic political concept of "shura", or consultation, meant that
all Muslims must be consulted - rather than a select group - bringing the idea
of shura closer to a democratic system. He also argues that governments have
contracts with the people that can be revoked just like any other contract if
the terms are breached. Political engagement of the entire community, he says,
falls within the national maslaha.
The
significance is that these opinions come from moderate figures within the
Salafi movement, who base their arguments on Sharia texts (the Quran and the
Hadiths) and the views of Islam's early generations, making the ideas more
credible in the eyes of other religious scholars.
Here
in the UAE, the judiciary offers concrete examples of how the principle of
siyasa shariyyah is applied. In 2010, Abu Dhabi's Court of Cassation set a
legal precedent by ruling that a Muslim can be executed for the murder of a
non-Muslim although the UAE hears cases under the Maliki school of
jurisprudence - which stipulates the contrary. The lower courts found a
Sudanese man guilty of stabbing to death a Christian woman from Ethiopia, and
sentenced him to 15 years in prison.
The
Public Prosecution appealed against the verdicts and demanded the case be tried
under Hanafi teachings, the only Sunni school that calls for the death penalty
if a Muslim kills a non-Muslim. Prosecutors said it was in the interest of the
country to ensure equality for residents. The victim was a legitimate resident
and therefore entitled to protection, security and sanctity for her
"blood, honour and money", according to the prosecutor.
The
case was then retried under the Hanafi school and the man was sentenced to
death. As the cassation court's rulings are binding on local courts, all Abu
Dhabi courts now have to treat Muslims and non-Muslims equally in criminal
matters. Magistrates at the time cited the pragmatic principle of siyasa
shariyyah.
"In
Islamic jurisprudence, judges can announce that a person is sentenced to death
in accordance with Sharia but should not be executed in consideration of
politics," says Dr Ahmed Al Kubaisi, the head of Sharia studies at UAE
University. "The interests of the nation precede the interests of the
individual. Justice that safeguards the interests of the whole nation is
preferable to that which safeguards the interests of the individual."
In
another case, the federal Supreme Court ruled against a borrower who refused to
pay interest that he owed on delayed loan repayments. The man claimed that
interest was forbidden by Sharia and therefore he was not obliged to pay. Lower
courts accepted his argument but the Supreme Court ruled the bank's right to
charge interest was in line with both UAE secular laws and Sharia.
"As
a general rule, interest, whether simple or compound, is prohibited by
Sharia," the Supreme Court ruled. "But it has been made necessary for
banks to accept simple interest. As long as the necessity persists, and until
an economic alternative is established to replace the current banking system,
interest is lawful."
The
judges based their ruling on the Hadith: "A rich man's delay in payment is
an injustice.
"In
line with the Hadith, ordering the borrower to pay interest for late payments
can be considered a sort of damages, which is compliant with both the UAE law
and Sharia," the justices ruled.
Over
the last century, Islamic scholastic tradition has been largely shaped by
faqihs, or Sharia scholars, whose fatwas have been based purely on religious texts,
even if the issues involve scientific fact or public interest. Siyasa
shariyyah, on the other hand, requires judgements in light of the specific
context and the general maslaha.
Across
the region, the principle has gained momentum since Islamists rose in the
political arena after the Arab Spring. It is not enough for a scholar to issue
a maslaha-based opinion; the reasoning still must be based on a religious text.
That is why siyasa shariyyah has such an imposing authority within Islamist
thought. And it is why it may fundamentally reshape Islamic jurisprudence in
public affairs.
This commentary was published in The National on 23/01/2012
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