Tuesday, March 16, 2010

Shariah on the Freedom of Religion

Dr. Hashim Kamali

One of the manifestations of personal liberty is the freedom of the individual to profess the religion of his or her choice without compulsion. Everyone must also have the freedom to observe and to practice their faith without fear of, or interference from, others. 

Freedom of religion in its Islamic context implies that non-Muslims are not compelled to convert to Islam, nor are they hindered from practicing their own religious rites. Both Muslims and non-Muslims are entitled to propagate the religion of their following, as well as to defend it against attack or seditious provocation (fitnah), regardless as to whether such an action is launched by their co-religionists or by others.

      Freedom of religion acquires special significance in the Shari ah, a system of law which recognizes no clear division between legal and religious norms. Since the creed of Islam lies at the root of many a doctrine and institution of the Shariah, the freedom of whether or not to embrace and practice Islam is the most sensitive and controversial area of all individual liberties.

... the basic idea of freedom defies impositions of any kind on an individual's personal choice. Freedom of belief, like all other freedoms, operates as a safeguard against the possible menace of oppression from superior sources of power. This is also essentially true of the Islamic concept of this freedom: as Fathi 'Uthman observes, 'No power of any kind in the Islamic state may be employed to compel people to embrace Islam. The basic function of the Islamic state, in this regard, is to monitor and prevent the forces which might seek to deny the people their freedom of belief.'

      From a historical perspective it is interesting to note that when the Prophet of Islam began his mission among the pagans of Mecca, he invited them into the new faith despite their hostile attitude and response. This situation lends support to the conclusion, as al-'lli points out, that Islam subscribes to freedom of belief, since Islam itself began by inviting and persuading people to embrace it on the merit of its rationality and truth. In other words, if Islam is to remain true to its own beginnings it can be expected to validate the freedom of belief. This is precisely the stance that the ulama' have adopted and upheld: 'The doctors of theology and monotheism (tawhid) are in agreement that confession to the faith (iman) is not valid if it is not voluntary. In the event, therefore, wherever confession to the faith is obtained through compulsion, it is null and void.'

On a similar theme, Ibn Qudamah, the renowned Hanbali jurist/theologian has written: 
It is not permissible to compel a disbeliever into professing Islam. If, for example, a non-Muslim citizen (dhimmi) or a person of protected status (musta'man) is forced to accept Islam, he is not considered a Muslim unless it is established that his confession is a result of his own choosing. If the person concerned dies before his consent is known, he will be considered a disbeliever…The reason for the prohibition of duress here are the words of God Most High that there shall be 'no compulsion in religion.’ 

      The 1973 Constitution of the Islamic Republic of Pakistan, which is currently in force, proclaims in its section on Fundamental Rights and Liberties that: 
Subject to law, public order and morality: a. every citizen shall have the right to profess, practice and propagate his religion; and b. every religious denomination and every section thereof have the right to establish, maintain and manage its religious institutions. (Art.20) 
      The constitution of Pakistan also forbids discrimination against religious communities as regards taxation, educational policies, and the allocation of funds and concessions that the state may make to religious communities or institutions. (Arts. 21, 22, 38.) 

      To sum up, the Qur'an has explicitly declared freedom of religion a norm and principle of Islam. This declaration, found in Surat al-Baqarah, (II:256) is consistently endorsed in numerous other verses of the Holy Book. Unfortunately, there are those who have promoted a misleading and politically motivated discourse which declares that Islam denies freedom of religion, and that the Qur'anic passages which advocate this freedom were subsequently abrogated and overruled by its other provisions on the subject of jihad. The proponents of this view have used abrogation, itself a highly controversial issue, as their primary tool in an attempt to whittle away one of the cardinal principles of the Qur'an.

Throughout history, the militant outlook espoused by this group may have had its sympathizers among expansionists and military strategists, but the view has never commanded general acceptance or support.

Furthermore, this school of thought lacks sound reasoning and has been less than convincing in its attempts to overshadow the essence of the Qur'anic message on the freedom of conscience. The unequivocal recognition of this freedom in the constitutions of present-day Muslim nations bears testimony to a decisive movement in favour of the basic rights of the individual, including the freedom to follow the religion of his or her choice. As a result, there appears to be a consensus of opinion emerging among the Muslims of the twentieth century in support of the universal validity of the freedom of religion in the Shari ah and contemporary constitutional law. 

The evidence that I have looked at in the various areas of the Qur'an and Sunnah is clearly affirmative of the fundamental right to freedom of speech. Nevertheless, only the Qur'anic principle of hisbah is broad enough in scope to include freedom of speech and expression in most of its material manifestations. There are, as previously noted, numerous passages on hisbah in the Qur'an, and although the Qur'anic directives on hisbah are mainly addressed to the believers, this does not preclude their application to non-Muslims.

For the latter enjoy the same rights in respect of speech and constructive criticism as do their fellow Muslim citizens .Hisbah, in the specific sense of duty, does not exclude the non-Muslim either, although there may be instances where necessary exceptions have to be made. For example, to attempt to save the life of a drowning person - whether a Muslim or non-Muslim - is an obligation of everyone who witnesses the incident, regardless of their faith. But, preventing another person from drinking wine is not expected from an individual in whose religion the consumption of alcoholic beverages is not forbidden. 

      On a similar note, the Qur'anic principle of consultation, although primarily addressed to the Muslims, does not exclude the non-Muslim citizen from the scope of its application, nor indeed from the ranks of the consultative assembly (majlis al-shura). Thus, the non-Muslim may be elected to the consultative assembly, and may represent his or her own community. The following Qur'anic text authorizes non-Muslim participation in consultation pertaining to community affairs outside the scope of religion. 

‘And ask the people of renown if you yourselves do not know’. (XVI:43)

      The right to criticize government leaders and express an opinion, critical or otherwise, in public affairs, or indeed to formulate a response to a statement or opinion expressed by another individual is, once again, the right of every citizen, Muslim and non-Muslim alike. There is nothing in the Shari ah which reserves the haqq al-mu'aradah for Muslims alone. However, a general observation which should be made here is that in matters which pertain to the dogma of Islam, or those which are regulated by the direct authority of the Qur'an or Sunnah, criticism, either from Muslims or non-Muslims, will not be entertained, as personal or public opinion does not command authority in such matters. Islam is basically a religion of authority, and the values of good and evil, or rights and duties are not determined by reference to public opinion, or popular vote, although these too have a certain role to play in the determination of the ahkam (such as in ijma' and maslabah). But, this need not diminish in any material sense the substance of the freedom of expression that the individual must enjoy under the Shari ah

      The history of legal development in almost all the major systems of law reflects the realities and experiences of the world's different nations and societies, and Islamic law is no exception to this. There may be instances, however, in some of the detailed formulations of the established schools of law, which may not serve the ideals of harmony and cohesion in the pluralistic and multi-religious societies of our own time. In such instances, recourse to the broad principles of justice in the Qur'an and the Sunnah, and a fresh look at the principal objectives of the Shari ah (maqasid al-Shari ah), could be recommended. This may be done in accordance with the true spirit of unfettered ijtihad in order to effect changes that reflect a more considered approach to the Qur'anic standards of equality and justice.

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Dr Mohammad Hashim Kamali is Professor of Law at the International Islamic University Malaysia where he has been teaching Islamic law and jurisprudence since 1985. Among his other works published by the Islamic Texts Society is Principles of Islamic Jurisprudence .

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