Comment: HRCM and Islamic Sharia

On October 26, 2010, I came across one of those unforgettable headlines in a local news source, that has left me thinking about it ever since.

The headline on Miadhu read: “Human rights protection can be successfully achieved adhering to the principles of Islam – HRCM President.”

I read it over and over again before I came across a quote under the headline. It was from Mariyam Azra Ahmed – the President of the Human Rights Commission of the Maldives. She said: “Human rights or its key principles could be incorporated into all our works and our day to day activities; if we don’t go against the tenets of Islam in doing so”.

For a moment, I could not understand what she was trying to say. Her words suggested that HRCM – the highest authority to safeguard human rights in the country has joined the religious narrative that poses a clear threat to human rights, social justice and economic sustainability of the country.

I am aware of the first objective of HRCM as outlined in the Human Rights Commission Act 6/2006. It says: “to protect, promote and sustain human rights in the Maldives in accordance with Islamic Shari’ah and the Constitution of the Maldives”. But I am quite assured that if HRCM engages within the confines of Islamic Sharia, as it is understood now, we could be a long way from protecting and sustaining human rights in the Maldives.

I take the words of HRCM President very seriously for three specific reasons.

Firstly, in Maldives, what is “Islamic” and what is “not Islamic” is widely dictated by the likes of the Adhalaath Party, a few religious NGOs, and certain Parliamentarians who use religion for public appeal.

Secondly, if the Ministry of Islamic Affairs – dominated by the Adhalaath party – defines Islam, by default they are also determining human rights for HRCM, thereby creating a conflict of interest.

Thirdly, despite the first objective of HRCM, it has not taken any steps to examine Islamic Sharia or create alternative religious interpretations that differ from the existing religious narrative in human rights related issues.

On October 10 I was slightly alarmed when I heard the State Minister of Islamic Affairs Sheikh Mohamed Shaheem Ali Saeed speaking on a local TV channel, saying that Islamic Sharia is a “divine revelation” from Allah. More mainstream Islamic scholars clearly take a different thread of interpretation.

For example, Abdullahi Ahmed An-Na’im – an internationally recognised leading expert on religion and law and a human rights activist – does not seem to believe Islamic Sharia is divine. An-Nai’m is a prominent authority on Islamic law and theology and on diverse Islamic societies in Africa and Asia.

“Sharia developed through the consensus of believers over many centuries and not by the spontaneous decree of a ruler or will of a single group of scholars,” An Nai’m said in his paper: Secularism from an Islamic Perspective: Theoretical reflections on the realities of Islamic societies in the 21st century.

He said, “The first several generations of Muslims did not know and apply Sharia in the sense this term came to be accepted by the majority of Muslims”.

An-Nai’m said the primary sources of Islamic Sharia are the Quran and Sunnah as well as the general traditions of the first Muslim community of Medina (622 CE). Islamic Sharia, he said, also includes consensus (ijma), reasoning by analogy (qiyas) and juridical reasoning if there is no applicable text of Quran or Sunnah (ijthihad).

“But these were matters of juridical methodology for developing principles of Sharia rather than substantive sources as such,” An-Nai’m continues saying, “That process was entirely based on the understanding of individual scholars of these sources, and the willingness of specific communities to seek and follow the advice of those scholars.”

An-Naim further said that the more systematic development of Sharia began with the early Abbasy era (after 750 CE) and came with three major developments – the emergence of the major school of thought (madhhab), the systematic collection of Sunnah as the second and more detailed source of Sharia, and the development of Juridical Methodology (Usul al-fiqh). These developments, he said, took place 150 to 250 years after the Prophet’s death.

He also said “while the Quran and Sunnah are the divine sources of Islam according to Muslim belief, the meaning and implementation of these sources for everyday life is always the product of human interpretation and action in specific historical context.” He said it is impossible to know and apply Sharia in this life except through the “agency of human beings”.

According to An-Nai’m there has not been any change in the basic structure and methodology of Sharia since the tenth century. But in the Maldives, in this 21st century, the Adalaath Party and the religious NGOs are actively engaged in a “bottom up” approach to create a culture to enforce Islamic Sharia and convert the Maldives into an Islamic Caliphate.

An-Naim suggests that an Islamic State that imposes Sharia is not conducive to protect human rights as it contains the features of a dictatorship.

“Political activists who call for the establishment of an Islamic state to enforce Sharia through legislation and official policies are in fact calling for a European Marxist view of the state,” he said, “that is, they seek to enforce Sharia principles through the coercive power of the state, not the moral authority of the religious doctrine, and to control the state in order to transform society on their own terms, instead of accepting the free choices of persons and communities.”

While the state is a political institution that cannot have a religious faith, whatever is enforced as Islamic policy and law will necessarily reflect the views and interests of the ruling elite according to An Nai’m. “It will force the people to live by the ideological vision or narrow self-interest of the ruling elite”.

Furthermore, if traditional interpretations of Sharia are maintained, it is impossible for Islamic societies to invest in the rule of law and protection of human rights in their domestic policies and international relations, he said.

As we can see, there is a lot more we can learn about Islamic Sharia and the related wider debate, by examining studies such as that of An Nai’m.

Meanwhile, if the HRCM feels their sole duty is to guarantee the 53 fundamental rights and freedoms enshrined in Chapter 2 of the Constitution they are far from fulfilling their national obligations. If HRCM is serious about protecting human rights, it is time for them to face the fundamental questions of interpretation and debate, as it is what has led to the emergence of Islamic Sharia in the first place.

“Freedom of dissent and debate were always essential for the development of Sharia itself because it enabled consensus to emerge and evolve around certain views that matured into established principles through acceptance and practice by generations of Muslim in a wide variety of settings,” An-Nai’m said.

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