Thursday, 29 December 2011
IN THE NAME OF ALLAH – THE SOURCE OF MERCY – THE MOST MERCIFUL
APOSTASY AND RELIGIOUS FREEDOM
The issue of apostasy under Islamic Law (shari'ah), brought recently to public attention in the widely publicised case of the conversion of an Afghani citizen, raises troubling questions regarding freedom of religion and interfaith relations. The Afghan State's persecution of an Afghani man who converted to Christianity in 1990 while working for a Christian non-governmental raises in the mind of many the question of the compatibility of Islam with plural democracy and freedom of religion. Although the state court dropped the case under intense outside pressure, the compatibility issue has not been resolved as the judge invoked insanity as the basis for dismissing the case.
The case was presented as an example of conflict between Islam and democratic governance, but in many respects the case is rooted in, and influenced by, the forced secularisation of Muslim society, and the absence of free debate under authoritarian regimes that currently dominate much of the Muslim world.
The issue of apostasy, like many other issues stemming from the application of shari'ah in modern society, is rooted more in the sociopolitical conditions of contemporary Muslim societies than in Islamic values and principles. More particularly, it is rooted in the incomplete transition from traditional to modern sociopolitical organisation. It is rooted in the decision of many post-colonial Muslim countries to abandon traditional legal codes informed by Islamic law (shari'ah), in favour for European legal codes developed to suit modern European societies. The new laws where enforced by state elites without any public debate and with little attention for the need to root legal code in public morality.
Islam is the foundation of moral commitments for the overwhelming majority of Muslims and is increasingly becoming the source of legitimacy for state power and law. Yet the post-colonial state in Muslim societies has done little to encourage debate in the area of Islamic law. The increased interest in adopting legal codes based in Islamic values, leaves the majority of Muslim with outdated legal codes that were intended for societies with markedly different social and political organisations and cultures.
The apostasy controversy highlights the importance of allowing Islamic reformers more say in public debate about political and legal reforms and demonstrates the extent to which world powers undercut cultural and religious reforms by backing autocratic regimes the crack down on Muslim reformers in the name of combating political Islam. To legitimise their political rule and enlist the support of religious voices, autocratic rulers often align themselves with traditional religious scholars, who embrace a literalist understanding of shari'ah and perpetuate rigid and anti-reform agenda in Muslim societies.
Traditionalist scholars have long embraced classical positions on apostasy that consider the rejection of Islam as a capital crime, punished by death. This uncritical embrace is at the heart of the drama that was played in the case of the Afghani convert to Christianity and which will more likely be repeated until the debate about shari'ah reform and its relevance to state and civil law is examined and elaborated by authentic Muslim voices.
Tradition and Traditionalism
At the heart of the apparent conflict between Islamic and democratic traditions is a static and stagnant approach to understanding Islamic law. The conflict stems mainly from a literalist understanding of the revelatory sources, i.e. the Qur'an and Sunnah (the Prophet tradition), and the body of Islamic jurisprudence derived from them through the exercise of juristic reasoning. The latter includes customary traditions ('urf) incorporated by jurists into the body of Islamic Law, as well as the various inferential tools used to derive the rules of Islamic jurisprudence from their sources, such as analogy (qiyas), pubic interest (maslaha mursalah), and community consensus (ijma). With the marginalisation of Islamic juristic learning and the restriction of public debate on Islamic Law by the state and the traditionalist jurists allied with it, a literalist approach of Islamic law has become rampant in many Muslim societies.
Under such climate, the most rigid and literalist interpretations of Islamic sources prevail, while enlightened and reformist views are suppressed and marginalised. The voices of many enlightened contemporary scholars such as those of Rashid al-Ghanoushi, Hassan al-Turabi, Jawdat Said, and others, who reject the literalist interpretation of the Islamic sources are pushed to the side, as these individuals have been persecuted for taking critical positions against the authoritarian regimes that rule their societies.
The Qur'an is Clear on Religious Freedom
There is ample evidence in the Qur'an that individuals should be able to accept or reject a particular faith on the basis of personal conviction and that no amount of external pressure or compulsion should be permitted: "No compulsion in religion: truth stands out clear from error." (Quran 2:256) "If it had been the Lord's will, they would have believed. All who are on earth! Will you then compel mankind, against their will, to believe!" (Quran 10:99)
By emphasizing people's right to freely follow their conviction, the Qur'an reiterates a long standing position, which it traces back to one of the earliest known Prophets, Noah: "He [Noah] said: O my people! See if I have a clear sign from my Lord, and that he has sent mercy unto me, but that the mercy has been obscured from your sight? Shall we compel you to accept it when you are averse to it!" (Quran 11:28).
The message of freedom of belief and conviction and the call to religious tolerance is reiterated time and again through various Prophets, as it is quite apparent in the message of Prophet Shuaib to his people: "And if there is a party among you that believes in the message with which I have been sent, and a party which does not believe, hold yourselves in patience until Allah does decide between us: for He is the best to decide." When Shuaib's people threatened him with expulsion, he protested strongly citing his freedom to choose his faith: "The leaders, the arrogant party among his people, said: O Shuaib! We shall certainly drive you out of our city and those who believe with you, or else you shall have to return to our ways and religion. He said: "What! Even though we do not wish to do so." (Quran 7:86-7).
Not only does the Qur'an recognise the individual's right to freedom of conviction, but it also recognises his/her moral freedom to act on the basis of their conviction: "Say: O my people! Do whatever you may: I will do (my part). But soon will you know on whom an anguish of ignoring shall be visited and on whom descends an anguish that abide" (Quran 39: 39-40). "Say: Everyone acts according to his own disposition: But your Lord knows best who it is that is best guided on the way." (Quran 17:84).
The principle that the larger community has no right to interfere in one's choices of faith and conviction can be seen, further, in the fact that the Qur'an emphasises that the individual is accountable for the moral choices he or she makes in this life to their Creator alone: "O you who believe! Guard your own souls: If you follow (right) guidance, no hurt can come to you from those who stray. The goal of you all is God: It is He that will show you the truth of all that you do." (Quran 5:105). "So if they dispute with you, say: I have submitted my whole self to God and so have those who follow me. And say to the People of the Book and to those who are unlearned: Do you (also) submit yourselves? If they do, they are in right guidance. But if they turn back, your duty is to convey the message; and in God's sight are (all) His servants." (Quran 3:20)
Indeed, one cannot find in the Qur'an any support for the ridda penalty. The Qur'an makes two references to ridda: "Nor will they cease fighting you until they turn you back from your faith if they can. And if any of you turn back (commit ridda) from their faith and die in that state of unbelief, their works will bear no fruit in this life; and in the hereafter they will be companions of the fire and will abide therein." (Quran 2:217). "O you who believe! If any from among you turn back (commits ridda) from his/her faith, soon will God produce a people whom He will love as they will love Him humble with the believers mighty against the disbelievers, thriving in the way of God and never afraid of the reproaches of detractors. That is the grace of God, he bestows on whom He please; and God encompasses all and he knows all things." (Quran 5:54).
In both cases the Qur'an does not specify any physical punishment here and now, let alone a death penalty. The Qur'an rather warns those who renounce their faith of disgrace and ill-fate. To the contrary, the Qur'an provides direct evidence, albeit open to interpretation, that ridda is not punishable by death: "Those who believe then disbelieve, then believe again, then disbelieve and then increase in their disbelief. God will never forgive them nor guide them to the path." (Quran 4:137) Obviously, a death penalty would not permit repeated conversion from and to Islam.
Faulty Reasoning and Selective Reading
Yet despite of the Qur'anic emphasis on the freedom of conviction and moral autonomy, many classical jurists contend that a person who renounces Islam or converts to another religion commits a crime of ridda (apostasy) punishable by death. However, because the Qur'an is unequivocal in supporting religious freedom, classical jurists relied, in advocating death penalty for ridda (renouncing Islam), on two hadiths (Prophetic statement), and the precedent of the Muslims fighting against Arab apostates under the leadership of Abu Bakr, the first Caliph. Although the two hadiths are reported in Bukhari and are considered authentic, they are both shaky and do not stand to close scrutiny: "Kill whoever changes his religion", and "Three acts permit the taking of a person's life: a soul for a soul, the adultery of a married man and renouncing religion while severing ties with the community".
Now both hadith statements cannot stand as credible evidence because they contravene numerous Qur'anic evidence. According to most established juristic schools, a hadith can limit the application of a general Qur'anic statement, but can never negate it. In addition, the hadiths even contradict the practices of the Prophet who reportedly pardoned Muslims who committed ridda. One well-known example is that of Abdullah bin Sa'd who was pardoned after Osman bin Affan pleaded on his behalf. Ibn Hisham narrated in his Sirah that the Prophet pardoned the people of Quraysh after Muslims entered Makkah victorious in the eighth year of the Islamic calendar. The Prophet excluded few individuals from this general pardon, whom he ordered to be killed if captured, including Abdullah bin Sa'd.
Abdullah was one of the few persons appointed by the Prophet to write the revealed texts. After spending a while with the Muslims in Madina, he renounced Islam and returned to the religion of Quraysh. He was brought to the court of the Prophet by Osman, who appealed for his pardon. He was pardoned even though he was still, as the narration indicates, in a state of ridda and was yet to reembrace Islam. If ridda was indeed a hadd (plural hudud), neither Osman would be able to plea for him, nor the Prophet would pardon him in violation of the shari`a law. Therefore, I am inclined to the increasingly popular view among contemporary scholars, that ridda does not involve a moral act of conversion, but a military act of rebellion, whose calming justifies the use of force and the return of fire.
Theory of Rights
Islamic law (shari'ah) is essentially a moral code with few legal pronouncements and the question of which precepts are purely moral and which that have legal implications are determined through the theory of rights.
The widely accepted theory of right among jurists divides rights into three types:
(1) Rights of God (Huquq Allah) - These consist of all obligations that one has to discharge simply because they are divine commands, even when the human interests or utilities in undertaking them are not apparent, such as prayers, fasting, hajj, etc.;
(2) Rights shared by God an his servants (Huquq Allah wa al-'Ibad) - These include acts that are obligatory because they are demanded by God, but they are also intended to protect the public, such as hudud law, jihad, zakat, etc., and
(3) Rights of God's servants (Huquq al-'Ibad) - These are rights intended to protect individual interests, such as fulfilling promises, paying back debts, honoring contracts. Still people are accountable for their fulfillment to God.
As it can be seen, the theory of rights devised by late classical jurists around the eighth century of Islam emphasises that people are ultimately answerable to God in all their dealings. However, by using the term rights of God to underscore the moral duty of the individual, and his/her accountability before God, classical jurists obscured the fact that rights are invoked to support legal claims and to enforce the interests of the right-holder. Because the Qur'an makes it abundantly clear that obeying the divine revelation does not advance the interests of God, but only those of the human being, the phrase "rights of God" signifies only the moral obligations of the believers towards God and by no means should they be taken as a justification of legal claims.
It follows that the rights of God which are exclusively personal should be considered as moral obligations for which people are only answerable to God in the life to come. As such accepting or rejecting a specific interpretation or a particular religious doctrine and observing or neglecting fundamental religious practices, including prayer or hajj, should have no legal implications whatever. A legal theory in congruence with the Qur'anic framework should distinguish between moral and legal obligations and should confine the latter to public law that promote public interests (constitutional, criminal, etc.) and private law that advances private interests (trade, family, personal, etc.).
Unless the above legal reform is undertaken, there is no way to ensure that takfir (charging one with disbelief) and zandaqa (charging one with heresy) claims would not become a political weapon in the hands of political groups to be used as a means to eliminate rivals and opponents. Indeed there is ample evidence to show that zandaqa and takfir have been used by the political authorities during the Umayyad and Abbasid dynasties to persecute political dissidents.
Reciprocity and Social Peace.
The principle of reciprocity, central to all religious and secular ethics, lies at the core of the Islamic concept of justice. The Qur'an is pervaded with injunctions that encourage Muslims to reciprocate good for good and evil for evil. The principle is, similarly, epitomised in the Golden Rule of the Christian faith, and has been given a secular expression in Kant's categorical imperative: "Act only on that maxim through which you can at the same time will that it become a universal law."
In modern society where people of different faiths live side by side and cooperate under a system of law that recognise their equal dignity, a due attention must be given to the principle of reciprocity as the essence of justice in a multi-religious society. Any attempt by a religious community to place sanctions and apply coercion on its members who choose to convert to another religious group will place a moral obligation on the latter to defend the new comers who choose to join their faith. Muslim would feel morally obligated to defend the right of a Jew and Christian to freely embrace Islam and would not accept any coercive measure intended to restrict the right of Jews and Christian to convert to Islam. A Christian or a Jew who convert to Islam is no more a Christian or a Jew, but a Muslim and must be respected as such. By the same taken a Muslim who convert to Christianity is no more a Muslim, but a Christian and must be respected as such.
Indeed, there are already signs that the calls by radical voices within Muslim societies to revive apostasy laws have provoked calls by others to restrict conversion to Islam of members of their communities. In December 2004, members of the Coptic community in Egypt cried foul when Coptic women converted to Islam. Coptic leaders accused Muslims of forcing the women to accept Islam, and thousands Christian Copts demonstrated "in various parts of the nation against what they say is the government's failure to protect them against anti-Christian crimes."
Although medieval Christian Europe practiced coercion to force reverse conversions to Christianity, modern societies recognise the freedom of religion of all citizens. Muslim scholars have the obligation to reconsider modern reality and reject any attempt to revive historical claims rooted in classical jurisprudence that are clearly at odd with Qur'anic principles and Islamic spirit, and with modern society and international conventions and practices. It would be a tragedy, for both social peace in Muslim societies and world peace in an increasingly diverse global society, if religious communities embrace practices that limit freedom of religion and adopt measures that rely on coercion to maintain the integrity of religious communities.