Sharia and the Constitution

CASABLANCA, MOROCCO -- The weather is wonderful here -- cool and refreshing. Walking around the old "medina," the traditional part of the city, awash with the golden sunlight of a Casablanca day, I can imagine Ingrid Bergman and Humphrey Bogart sitting in an outdoor coffee shop along the "corniche" or boulevard running along the coast, sipping espresso while looking outward to sea. Casablanca is an interesting mix of modernity and traditions -- young Moroccan women walking around in their skinny jeans while old women, veiled and in traditional attires, are negotiating with shopkeepers. And everyone around me is speaking in French and Arabic. So different from the heat of Qatar 10 days ago, where I attended the 10th US-Islamic World Forum organized by Brookings Institution. A sandstorm kept us inside the Ritz-Carlton Hotel in Doha, happy to deliberate on political developments in Syria, Egypt, and Libya.

I am here in Casablanca to present a paper on what we, at the Philippine Center for Islam and Democracy, are doing to contribute to political change. Konrad Adenauer Foundation (KAF) has invited its partners to participate in a roundtable workshop on "Social Commitment and Political Participation in Muslim Communities." Leaders from Asia, the Middle East and North Africa (MENA) are here to share experiences. I am looking forward to learn, first hand, how our MENA colleagues are dealing with the rapid changes reshaping the political structures in their region after the Arab Spring. Particularly the constitutional amendment that Tunisia, Egypt, Libya and Morocco have undergone, which have brought in Sharia or Islamic law into the constitution.

At the US-Islamic World Forum in Doha,I was invited to take part in a technical working group (TWG) that discussed the complications arising from the Islamic constitutionalism, in the newly democratizing Muslim majority states. Post-Arab Spring, as Islamist parties gained power in the elections, there has been a powerful drive to establish a role for Islam and Islamic law within the state. The failures of the secular governments -- under the hands of strongmen -- to provide for its people have shifted the support of the citizens to Islamist parties.

To distinguish the new governments from deposed regimes, to reflect the Islamic identity of the majority population, as well as to establish credibility, Islamist political leaders have sought to integrate Sharia or Islamic law within the constitution. Thus the term Islamic constitutionalism.

The TWG in Doha was primarily convened to look into the protection of women’s rights within the constitutions that have embraced Sharia. As discussed in our group, "Perhaps no group of citizens is affected more directly by the scope and meaning of the terms ‘Islam’ and ‘Islamic law’ than Muslim women, who could see their rights either advanced or rescinded as a result of these post-conflict processes."

How then to ensure the protection of women’s rights, and the rights of others such as religious minorities, as Sharia is enshrined in the constitution? What synergies are possible when Islamic law is incorporated into a state’s constitution? What conflicts and how can these conflicts be resolved? Our TWG recommended that our next step should be to bring together legal luminaries, political leaders, women leaders of civil society and religious leaders -- particularly the Sharia experts -- to explore ways.

The complications of Islamic constitutionalism go beyond the effect on women’s rights. I am hoping that our meeting in Casablanca will tackle this issue as well.

The Philippines, as well, should pay particular attention to the issues arising from Islamic constitutionalism as the Transition Commission prepares to draft the Basic Law for the Bangsamoro region, which will replace the Autonomous Region of Muslim Mindanao. The Moro Islamic Liberation Front demands a greater role for Sharia within Muslim Mindanao. How will this work under the Philippine Constitution, which enshrines civil liberties?

Meanwhile, the peace process between the government and the MILF has been stalled. It has been eight months since the signing of the Framework Agreement for the Bangsamoro (FAB). The Transition Commission members were appointed some five months ago. What have they been doing -- apart from organizing themselves and training abroad -- while waiting for the annexes to be signed, on power sharing and wealth sharing?

News reports have headlined the frustration building in the MILF communities as well as the civil society and peace networks of Mindanao. Is it true that the Palace is actually thinking of undoing some of the provisions that the GPH and MILF panels have already initialled?

This is troubling indeed. While President Benigno Simeon Aquino III remains popular and influential, his political influence over Congress will start to wane two years before the next elections. Senators and congressmen will be shifting alliances, joining forces with presidentiables. The preoccupation of political leaders will be on winning the 2016 presidential elections and may not find it politic to support a law that will provide more powers to Muslim Mindanao, after the debacle of the 2008 Memorandum Agreement on Ancestral Domain (MOAAD). If you recall, leaders of Christian provinces contested the constitutionality of the MOAAD before the Supreme Court. The decision of the SC to put a temporary restraining order (TRO) on the signing of the MOAAD triggered fighting in Central Mindanao, which left thousands dead and wounded while over 700,000 became refugees.

Thus, the annexes need to be approved soon. It is not as if the discussions only started this year. The discussions on power and wealth sharing have been on-going from the time of the negotiations with the Moro National Liberation Front. There is a baseline, so to speak, on which to build a new agreement.

Add to that the complications arising from the increased influence of Islamic constitutionalism.

Part 2 (June 27 2013)

WHILE in Casablanca, I immersed myself in news about constitutional amendments in Muslim states, following the Arab Spring. What I read disturbed my equanimity. Reformists and advocates of human rights, particularly the rights of women and minorities, have been rallying their forces to protect the freedom they had fought for, as they deposed authoritarian regimes. How can that be, I wondered, when Tunisia, Egypt, Libya and other states have been busy with democratic elections and drafting or amending their constitutions?

During the 10th US-Islamic World Forum in Doha, our technical working group discussed the effects of the introduction of Shari’a into the constitutions of Tunisia and Egypt as well as Afghanistan and Iraq, after the smoke had cleared and the freedom fighters had settled to the long drawn out fight in the democratic arena. In our group paper, we highlighted the renewed emphasis of these states on cementing a role for Islam and Islamic law within the state. The Islamic political groups, better organized than the more secular human rights groups, have gained power in the aftermath of conflict. They have succeeded in introducing Shari’a into the constitution, to reflect the majority Muslim population’s Islamic identity. Further, they have successfully argued that "the universality and centrality of religion as a factor in the lives of the Muslim peoples." Thus, Islamic constitutionalism has succeeded in these states.

I came across an article, "Islamic Perspectives on Constitutionalism," by Raja Bahlul, a professor of philosophy in Palestine and the United Arab Emirates University, who has written several books on the political role of Islam in the Middle East. In providing the justification for Shari’a’s position within the constitution, he wrote that Shari’a does offer "a rich and varied field in which human rights can be grounded" and cites social, economic and political rights. He admits there may be limitations and serious omissions, when Islamic jurists interpret Shari’a, but we should not judge Shari’a harshly. "After all, we could not have been able to entertain the vision of one humanity, whose members are equal in worth and dignity, endowed with inalienable human rights, regardless of gender, race, or social position, had we not ‘stood on the shoulders’ of prophets, who were the first to announce the equality of all humans in the sight of God, their Creator."

Where is the cause for concern? One serious ground is mentioned in Bahlul’s article: the interpretations of Shari’a by Islamic jurists. Thus, we have a wide range of interpretations of the same law across the Muslim world. When humans interpret divine law, there can be no one interpretation. Particularly when the interpreters have different backgrounds and are the product of different cultures. This is when problems arise and abuses begin.

In Tunisia, human rights groups and Amnesty International (AI)officials have criticized the draft of Tunisia’s new constitution, released on June 1. They said the draft constitution restricts several basic human rights, including "the rights to freedom of expression, peaceful assembly and association, and to freedom of movement." Further, there are no adequate guarantees "for the independence of the judiciary and to protect against torture and other forms of ill-treatment."

Said Benarbia, International Court of Justice (ICJ) senior legal adviser of the Middle East and North Africa Programme, has stated that "while the draft constitution broadens the separation of powers and human rights provisions of the 1959 Constitution, it should be comprehensively amended to reflect international law and standards and to meet the democratic aspirations of the Tunisian people expressed during the uprising."

The ICJ calls for the constitution to be amended to: "fully guarantee the separation of powers; ensure the accountability of the security services and armed forces and their subordination to a civilian authority; bring the judicial system in line with international standards of independence, impartiality and accountability; end the use of military courts to try civilians and cases involving human rights violations; incorporate a comprehensive Bill of Rights; recognize the right to life as an absolute right, and abolish the death penalty; and provide effective mechanisms for the protection of human rights and ensuring the right to a remedy."

Lotfi Azzouz, executive director of AI’s Tunisia office, stressed the draft constitution "does not meet the expectations of Tunisia after the revolution."

In Egypt, violent demonstrations erupted in Tahrir Square last December, where several were killed, as political activists protested the drafting of the Egyptian constitution. They believed the charter would be used by President Morsi to consolidate power for the ruling Muslim Brotherhood party as well as limit freedom of expression and human rights, the very freedoms they had fought for during the Arab Spring.

According to news from Cairo, activists with the Tamarod -- or Rebel -- campaign have been collecting signatures to demand early elections due to loss of confidence in President Morsi. Morsi assumed extraordinary powers for several weeks late last year. He retracted parts of his contested Nov. 22 decree giving himself extra powers and shielding his decisions from judicial review only after the violent demonstrations in Tahrir Square.

The constitution was approved with 63.8% majority during the December referendum. However, the turnout was low (32.9%) even though the Muslim Brotherhood came out in full force to vote. Thus, the constitution was passed with the vote of less than 30% of Egyptians.

Part I of the constitution establishes Islam as the official religion and the principles of Shari’a as the main source of legislation. Constitutional experts believe the constitution contains vague language, which could restrict internationally guaranteed freedoms. For instance, Article 10: "The family is the basis of society and is founded on religion, morality, and patriotism. The State is keen to preserve the genuine character of the Egyptian family, its cohesion and stability, and to protect its moral values, all as regulated by law." The "genuine character" of a family is not defined, thus it could allow discrimination against women based on religious interpretations or perceived cultural norms.

In Morocco, King Mohammad VI reacted to the Arab Spring by introducing reforms, thus preventing the violence from spreading to his country. On July 1, 2011, a new constitution was passed. Although Moroccan political activists are dissatisfied with the constitution, still there is progress. The new charter describes Morocco as a "constitutional, democratic, parliamentary and social monarchy" and addresses the demands for decentralization in the areas dominated by minority groups such as the Berbers. There are new articles in the constitution that propose state efforts to foster local citizenship and human development across the regions and a limited degree of local financial autonomy, assuring an "equitable allocation of resources, in order to reduce disparities between regions."

In October 2012, King Mohammed VI spoke before the parliament urging it to pass implementing legislation to bring the new national charter into full force, while paying attention to the provisions on decentralization to the regions, ensuring the independence of the judiciary, among others.

Political activists have stated they will have a "quiet revolution" to ensure civil liberties and freedom.

At the end of the day, if the majority of the people have freely spoken and have decided to be governed under one particular system -- whether influenced by Shari’a or not, then it must be so. That is what democracy is all about. However, the key is in their free choice and the decision of the true majority. If these two principles are absent, then let us not kid ourselves: there is no freedom and there is no democracy.

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Meanwhile, back home in Sulu, two sisters have been abducted, supposedly by a criminal group known as "Lucky 9," composed of "Abu Sayyaf orphans and drug addicts" according to Octavio Dinampo, a professor at the Mindanao State University in Sulu and himself a former ASG kidnap victim.

Nadjoua and Linda Abdel Bansil are the daughters of a known ulama, the late Abdulbasit Bansil. Filmmakers, the two women allegedly went to Patikul, Sulu to do a documentary on coffee growers and were accompanied by a group known as the Sulu Sultanate Darul Islam (SSDI). The spokesperson of Sultan Jamalul Kiram III said he was not sure the SSDI exists, creating more suspicions as to why the two sisters were in Patikul.

In an interview on ANC, Sulu Governor Abdusakur Tan "slammed the group of the missing Bansil sisters for going to an area known to be a bailiwick of terrorist group Abu Sayyaf without notifying authorities." Tan, suspecting the sisters were actually in Patikul to interview the ASG, has been blamed for the Bansil sisters being kidnapped.

While I can understand the position of Governor Tan, perhaps now is not the time to blame the victims. The family of the Nadjoua and Linda are heartbroken over their fate. An uncle of theirs texted me about their fears. Perhaps now is the time for Governor Tan to use all his powers and influence to secure their release.

We, in the Philippine Center for Islam and Democracy, appeal to Governor Tan, congressmen Loong and Arbison, and the military to rescue Nadjoua and Linda. Let us blame them after.

source:  Businessworld Column of Amina Rasul