Hasnet Lais

The relationship between Islam and contemporary international law is highly contested. In an age where Muslims finds themselves the foremost target of anti-religious propaganda, Islamic legal traditions have come under the microscope. A consensus in western academic circles and the human rights community has emerged, suggesting that the historical formulations of Islamic Law, known collectively as Shariah, present a theoretical and practical obstacle to the realization of human rights. Much of the human rights critique against Shariah law focuses its attention on the judiciaries and state practices of Muslim nations, with a particular censure of the penal code.

The idea that Islam contains legal dispensations amounting to habeas corpus and constitutionalism-distinct from western constructs-has not however, received a similar scrutiny. This article hopes to impress upon the more cynical observers a largely overlooked area. Namely, how the articulation of legal rights in orthodox Islam is not only congruent with much of the internationally recognised norms, but also independent in so far as it relies primarily on the legal sources of Islam for its derivation and credibility. By illustrating how Islamic jurisprudence has elaborated its own rights-based scheme, parallels will be drawn between it and some guarantees under Article 14 of The International Covenant on Civil and Political Rights (ICCPR), which is the longest substantive provision of the treaty.

Article 14 of the ICCPR guarantees the right to fair hearing and due process of law as central to the administration of justice. It must be submitted that though this right may not be unambiguously contained in the Quran and Prophetic traditions, it is provided for under the methods of Islamic law known as fiqh. Unlike the substantive aspects of Islamic law which involve prescribing punishments and specifying crime, this right is assured under the procedural guarantees of Islamic law, formulated by classical Muslim jurists, which expound details on matters ranging from arrest, detention, investigation, prosecution and judicial review.[i]

While many western observers are adamant that Islam’s political and cultural traditions are conceptually deprived of a human rights tradition,[ii] Muslim scholars of human rights such as Mashood Baderin, argue against this discordant view[iii] by advancing a “harmonistic perspective”[iv] between Islamic legal dispensations and international human rights norms. Baderin explains:

“This perspective emphasises and explores the possibilities offered by alternative juristic views of Islamic law that are both moderate and legitimate on relevant questions of human rights in the Muslim world and thereby promotes a congruence theory in the Islam and human rights discourse”.[v]

It must be clarified from the outset that any ‘congruence theory’ postulating a likeness between the Islamic standard and international criterion on human rights, is intended to only highlight some common denominators which undergird ‘rights’ notions in both systems. It in no way implies an anachronistic reading of Islam’s legal traditions, where pragmatically, the historical annals of Islam have been identified as possessing a  great degree of correspondence with the current human rights debate. The argument here is that much of the rights-based schemes espoused in modern times were already enshrined in the Islamic legal corpus. Therefore, the linear form in which the human rights narrative is often presented, as having emerged in the aftermath of Nazism and the UN consensus and charter is rejected by the Islamic paradigm on human rights, according to which a system of rights and protection for accused parties was institutionalized in Islamic states, centuries before their standard setting in the contemporary period.

Article 14 (1): Equality of parties before the courts

Article 14 (1) of the ICCPR stipulates:

“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children”.[vi]

Moving beyond the Eurocentric view which sees the equality of persons in legal disputes as distinctly inhering in western legal thought, the public hearing before an impartial tribunal as well as the equality of parties before the court were both enshrined in the civil and criminal proceedings of Shariah law. Aside from the Qur’anic exhortations on fairness and justice, Islamic legal theory never purported the legal immunity of those assuming the highest edifices of power, be they from the clergy, aristocracy or any other social rank. An illustration of this can be found in the legal practice during the Caliphate of Umar, where Ubay ibn Ka’b was litigating against Umar in a case arbitrated by Zayd ibn Thabit. Given Umar’s status as Caliph, the judge Zayd stood from his seat as a gesture of respect upon Umar entering the courtroom and was berated by the Caliph for having unjustly treated the plaintiff. Despite not being able to substantiate evidence to incriminate Umar, Ubay felt it was only right that the Caliph take oath to sustain a denial of the allegation although the judge expressed that Umar need not observe such a formality. On this occasion, Umar rebuked Zayd for being favourably disposed to him, exclaiming, “You cannot be a just judge until a common man is equal to the Umar who stands before you”, thus establishing the principle that judges absolve themselves from the executive.[vii] Judging by the court practice of Umar, there emerged a consensus among Muslim jurists that under no circumstance is a judge permitted to waive immunity on the basis of an individual’s rank. A cursory glance at the state practice of some Muslim countries appears to violate this code. For example, in the Human Right Committee’s (HRC) consideration of the third periodic report submitted by Sudan, under its “Principal subjects of concern and recommendations”,[viii] point 9 raises concern “…at the immunity provided for in Sudanese law and untransparent procedure for waiving immunity in the event of criminal proceedings against state agents” and has recommended Sudan to “Undertake to abolish all immunity in the new legislation governing the police, armed forces and national security forces”. The Islamic legal guarantee on equality of parties would certainly function to prevent the subversion of a principle integral to the equitable dispensation of justice.

Furthermore, Islamic legal theory has articulated a strong case for open trials and for judgements to be made public. Public hearings were a salient characteristic of judicial course during the Golden Age of Islam, where mosques served as courtrooms and closed criminal trials unheard of. The HRC’s disquiet over whether trials under the Sudanese legal system are open and publicly attended[ix] should not be a cause for concern under the fair trial rules in Islamic law. It is unfortunate how Muslim states flout this tradition. The trial of forty members of the Muslim Brotherhood in Egypt in 2007 was marred in controversy when rights groups were forbidden from attending the trial, earning the vocal condemnation of Amnesty International’s then Secretary General, Irene Khan, who called upon Hosni Mubarak’s conscience to ensure the Islamists adequate constitutional safeguards.[x] We can be optimistic about the prospect of Shariah Law in the Muslim world, as it has provisions which will put an end to the practice of trying civilians in military tribunals and firmly establish the practice of granting those undergoing trial open proceedings.

Article 14 (3): Accused person’s minimum guarantees

Article 14 (3) states:

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him…(c) To be tried without undue delay.