The current application of rule of law in accordance with Islamic principles needs further independent reasoning.
CONSTITUTIONALISM is now a well-known and effective system of administration. It includes a theory of the rule of law. Our country acknowledges the theory in our fourth Rukunegara, Kedaulatan Undang-Undang.
There are two important pillars underpinning the theory. The powers exercised by the government must have a legitimate foundation. Thus, it is a government of law, not a government of men. And law should comply with a certain minimum standard of justice in both substance and procedure.
A. V. Dicey, a British constitutional theorist, introduced rule of law with three basic elements: absence of arbitrary power, supremacy of law and no wide discretionary power.
Recently, courts, Parliament and other constitutional jurists have expounded the Modern Principles of Rule of Law. These state all laws are effective for future enforcement. There will be no backdated enforcement of the law.
Other principles include that the law must be relatively stable, there should be judicial independence, there should be judicial review, and there must be application of natural justice. In addition, the court must also be easily accessible, not costly, and open to public.
Rule of law is the principle that all people and institutions are subject to and accountable to law that is applied and enforced. It thus entails respect for the law, government accountability, equal access to justice, efficient judiciary and clear law, generally stable laws and protection of fundamental human rights.
The Islamic principle of administration is compatible with this rule of law theory. The government in Islamic administration is not only accountable to people, but also to God. Principles against arbitrariness have strong foundations in Islamic theory. Similarly, the concept of clear and stable law, judicial independence and judicial review have a firm position in Islamic administration.
What marks the difference is the source of the sanction. Of course the Islamic theory is divine, though in its actual application, not all principles are “ready-made from heaven”.
Islamic principles of administration do not deny the participation of men in making the rules. Islamic theory allows, and in fact, makes a requirement that there must be engagement or consultation, known as syura. Islamic theory allows ijtihad – or independent reasoning.
The current application of rule of law in accordance with Islamic principles needs furtherijtihad. And this is vital.
The experience of many Muslim countries has proven that Muslim jurists are practically unable to make the government accountable. This is not about the principles within the rule of law, but it is about the capability of the Muslims to materialise Islamic theory.
Given the basic theory of rule of law, how may Islamic administrations proceed to achieve or to realise a truly constitutional order or to materialise constitutionalism theory as inspired?
Believing in the notion that constitutionalism is from the West and secular in nature, some Muslim countries in the world have explicitly or implicitly taken the path by declaring in their constitution to be secular or by having no declaration regarding religion.
The secular path, which includes attempts to keep religion completely out of the public sphere, may be a means to adopt rule of law principles. However, this approach may not be right from the Islamic perspective. There must be a form of constitutional proclamation on the position of religion in order for the Islamic rule of law be materialised.
Thus, some other Muslim countries have incorporated Islam in the Constitution as the religion of the country, although this does not necessarily declare the country as an Islamic state. This approach would be workable for the Muslims to adopt Islamic rule of law.
Nonetheless, this is not an end by itself. In its actual application, there must be rules and other practical mechanisms to ensure that the Islamic notion of rule of law can be applied without prejudice to the current understanding on the theory of rule of law.
The very basic elements of the rule of law itself, even without the ‘Islamic’ label, must be incorporated into the constitutional provisions. Otherwise, the risk is that it will become the ideological basis for those who challenge its very legitimacy.
Following the constitutionally embedded provisions, it becomes the task for Muslim constitutionalists to find the resources within Islamic thought permitting the development and sustaining of constitutionalism and the rule of law.
One of the first tasks for Muslim constitutionalist in this process is to assert the possibility of the application of Islamic framework. This requires further ijtihad; the need to disseminate that human beings possess the rational faculty – as a God-given faculty.
Muslims must be able to form moral conclusions on how to live. Apart from reliance on the previously interpreted revelation, Muslims must be able to further elaborate new rules in providing solutions to new problems.
If previous Muslim jurists emphasised istislah (public welfare) and istihsan (equity or fairness), more recent Muslim jurists adopt maqasid Syar’iyyah (objectives of syariah) to make Islamic rules adaptable.
The concept of maqasid Syar’iyyah allows the separation between the unchangeable, Shariah, from fiqh (jurisprudence), the changeable human understanding of wyariah. Shariah in this conception can function similar to role of natural law in early Western constitutional thought and the role that constitutions play today in a constitutional order.
The similar attitude of Muslim jurists may be adopted in the application of the rule of law. In all aspects, the attitude of Muslim jurists must not be too conservative in interpretation and development of syariah.
But this does not mean Muslim jurists must be too liberal. They shall always remember the immutable concepts in Islamic theology.
Muslim jurists must be able to wisely balance between need and necessity. This must be done with wisdom.
Prof Madya Dr Shamrahayu A. Aziz is Principal Fellow at Ikim’s Centre for the Study of Syariah, Law and Politics. The STAR Home Opinion News IKIM Views 2 June 2015