The Taliban’s shooting of a young activist in the name of sharia law confirmed many people’s worst fears about the attitude of Islamists towards human rights and the rule of law. As Islamic parties come to dominate the fledgling Arab Spring democracies, IBA Global Insight examines whether such concerns are justified.
Fifteen-year-old Malala Yousafzai was leaving school in Pakistan’s Swat Valley on 9 October 2012 when a man stepped onto the bus, pulled out a gun and shot her in the head. The assailant was from the Taliban, the fundamentalist Islamist force in the region, and Yousafzai had been targeted for criticising their rule and campaigning for women’s rights. For the Taliban, such behaviour is contrary to sharia law – the religious law of Islam – and is punishable by death.
The story, broadcast across the world, rightly caused a global outcry. It is a powerful tale of gross injustice and oppression. Yet for a secular audience, already ignorant about the workings of sharia law, it proffers a deeply skewed perspective. The Taliban may be acknowledged as ‘extremists’, wildly out of kilter with the vast majority of ordinary Muslims, but a haunting image of the potential brutality of political Islam remains.
The problem with the concept of ‘extremism’ is that it suggests the Taliban is at the limit of an Islamic spectrum: at one end, tolerant moderates who promote justice, equality and peace; at the other, violent megalomaniacs who brandish guns like judge’s gavels. This is not the case. It sits off the scale, in the scrublands of indecency and criminality. Its rule is not about Islamism, but despotism; not about religion, but power.
‘There is a very thin sliver of Islamists who are going to deadly means, so we should be very careful in defining who they are. It’s not wise to muddle things up when talking about serious threats’
Managing Partner, Ali & Partners
When it comes to the new tide of reform surging across the Arab world, such distinctions become important. Much has been written about the ‘wave of extremism’ hitting the region as new Islamic political parties take control, but language here is muddy. Social conservatism is conflated with terrorism, moderates with fundamentalists. Despite what some media may suggest, even the most orthodox political factions are not advocating jihad.
‘When you are dealing with national security and the future of the Middle East then labels must be used accurately,’ says Reema Ali, Managing Partner of Ali & Partners, which specialises in commercial law in the Middle East. ‘There is a very thin sliver of Islamists who are going to deadly means, so we should be very careful in defining who they are. It’s not wise to muddle things up when talking about serious threats.’
For some, the term ‘sharia’ is enough to evoke reactionary shudders and images of stoning and amputation. Yet few Muslims would recognise such a depiction. Physical punishments are hardly ever carried out, and stoning is extraordinarily rare. In most countries, sharia courts sit alongside civil courts and primarily rule on family matters [see box].
Sunni and Shia in the Arab world
The Islamic world predominantly comprises Sunni Muslims, with Shia only accounting for around 10–15 per cent of the global Muslim population. However, Shia Muslims dominate the population of Iran, compose a majority in Iraq, and form significant minorities in Saudi Arabia, Lebanon, Pakistan and Syria. Very few Shia live in countries outside the Middle East, with only tiny minorities found in countries across North Africa.
As the nascent Arab Spring democracies – Egypt, Tunisia, Libya and Yemen – fashion new constitutions to outline their identity and ideals, debates on sharia have proved fierce. Should the rulings or simply the principles of sharia form the main basis for legislation? Should sharia be the main basis or the sole basis? What is not questioned, however, is that religion will inevitably play a significant role in both law and politics.
‘The struggle isn’t between people who say that they believe in the sharia and people who don’t, because any Muslim worth their salt or who wants to be elected is not going to reject the sharia,’ says human rights barrister Sadakat Kadri, author of Heaven on Earth: A Journey Through Sharia Law. ‘If they went to the UK, they wouldn’t understand how it works. They would say, where is your moral compass?’
In many ways, discussions about sharia law are not so dissimilar from those about cultural identity elsewhere. Christian values often play a role, whether in terms of family law or attitudes to punishment. ‘Britain is a country with Christian roots and traditionally legislation reflected that,’ says Norton Rose Islamic Finance partner Farmida Bi. ‘The word “sharia” has become a reason to instantly panic in the West, but it doesn’t have to be like that. It reflects a failure to engage with the issue.’
For Egyptian UN war crimes expert Cherif Mahmoud Bassiouni, the goals of the Muslim Brotherhood are comparable to those of socially conservative political parties in the US. ‘The Republicans in the US have the same goal as the Muslim Brotherhood,’ he says. ‘They want to take over America as much as the Brotherhood wants to take over Egypt. They have their ideology, which is the Protestant Christian right. They will use their power to advance their goals and try to transform society.’
The key constitutional concern for liberals like Bassiouni and Bi is that drafters avoid hard-wiring clauses on personal issues such as dress codes and alcohol, whilst insisting on specific provisions protecting minority rights and freedoms. In contrast, for conservatives, it is about controlling social freedoms whilst upholding socio-economic justice.
In Tunisia, the ruling moderate Islamic Ennahda party has already announced it will not call for sharia to be the main source of legislation, but arguments over protections for ‘sacred values’ and the phrasing of clauses on gender equality are yet to be resolved. In Libya, it has been agreed that sharia will constitute at least one source of law, but the extent to which Islamic principles will colour other features, such as the judiciary and human rights, remains controversial.
In Egypt, the ruling moderate Freedom and Justice Party of the Muslim Brotherhood and the ultra-conservative Al-Nour Party dominate the 100-person assembly tasked with writing the new Constitution. In the draft version released in October, the sharia provision remained unchanged from the 1971 Constitution, which stated that only the ‘principles’ of sharia would form the main basis for legislation. However, other clauses have proved less acceptable to liberal factions, including one that balances the right to protest with considerations of ‘national sovereignty’ and another that permits women equal rights with men as far as ‘this does not conflict with the rulings of sharia’. In a literal interpretation of the Qur’an, women have fewer rights than men when it comes to inheritance and marriage, prompting fears this will open the door to discriminatory laws.
Negad El Borai, one of Egypt’s best known human rights lawyers, believes the Constitution is flawed and should be delayed until the country has more experience of democracy. ‘I am afraid about freedom of belief, freedom of speech, and for equality between men and women,’ he says. ‘It is not a Constitution for the next century, it is a Constitution from the past.’
Egyptian President Mohamed Morsi did little to allay those fears by passing a decree in November 2012 shielding his decisions from judicial review until a new constitution is approved, a move critics fear will usher in a new autocracy. Morsi fired the country’s Mubarak-era Prosecutor General, Abdel Meguid Mahmoud, and ordered the retrial of Mubarak and his officials, who were accused of causing protester deaths last year during the uprising which led to the fall of his regime.
For Habib Al Mulla, founder of the eponymous UAE law firm, the danger of having religious parties in charge of writing the Constitution is clear. ‘My concern is that these religious parties leave no room for other views,’ he says. ‘The state, which is normally an arbiter between different parties and views, is becoming a party in the debate itself.’
For some, the debate is being couched in the wrong terms. The Arabic word for ‘secular’ suggests irreligious or sinful, they point out, and many people are scared by it. Rather than pitting religion against amorality, the debate should be framed as dogma versus adaptability. ‘The problem is that Islam is used as a sort of anaesthesia for the people,’ says Amin Madani, senior partner of Elkarib and Medani law firm, based in Sudan, and former representative of the Arab regional office of the UN High Commission for Human Rights. ‘The people are generally very simple and religious. They would be intimidated by saying they don’t want these Constitutions.’
Sabah al-Mukhtar, president of the Arab Lawyers Association, stresses that the religious argument is a little more than a chimera. Essentially the whole debate is a political game. ‘What I found in Egypt is that all these heated discussions are really based on semantics,’ he says. ‘It is mostly politics. If you are in a different camp politically, you find any means to differentiate yourself from the other side.’
A sharia ‘ruling’ may be deemed more rigid than a ‘principle’, after all, but everything ultimately hinges on interpretation. Put a moderate government in charge, and ‘rulings’ may mean equal rights for minorities. Put a fundamentalist group in charge, and ‘principles’ may mean shooting a schoolgirl in the head.
‘What I found in Egypt is that all these heated discussions are really based on semantics. It is mostly politics. If you are in a different camp politically, you find any means to differentiate yourself from the other side’
President, Arab Lawyers Association
For many, the structure of democratic institutions and the rule of law are therefore more significant than the wording of constitutional clauses. ‘The substance is not the most important issue,’ says Salam Kawakibi, acting director of the Arab Reform Initiative. ‘The process is more important, because it helps us know how to manage the future, with the public consultations, the debates, the transparency. We know that before the revolutions, the Constitutions were ok. They were just not respected by the governments.’
Sharia Law Explained
Literally translated as the ‘path towards a watering hole’, sharia law effectively means justice. It is understood to be the means by which God guides his people to happiness and salvation.
The law is derived from a combination of sources, including the Qur’an (the Holy Book), the Hadith (the sayings and conduct of the prophet Muhammad) and the rulings of Islamic scholars. There are different interpretations depending on five main schools of thought: four Sunni and one Shia. Within Shia there are also a variety of sects.
Sharia law sets out rules of conduct for men and women and covers all aspects of human life. Classical sharia manuals are often divided into four parts: laws relating to personal acts of worship, laws relating to commercial dealings, laws relating to marriage and divorce, and penal laws. The most detailed teachings in the Qur’an involve family matters, with specific instructions on marriage, divorce and inheritance. However, there are no teachings that require women to wear a burqa; the rule of dress for women is modesty.
Criminal law is the most controversial aspect of sharia. There are a specific set of offences known as the ‘hadd’ offences, which receive specific penalties, such as stoning, lashing or amputation. The five hadd crimes are: sex outside marriage and adultery; false accusation of unlawful sexual intercourse; drinking alcohol; theft; and highway robbery. Punishments for hadd offences get a significant amount of media attention when they occur, but these sentences are extremely rare, and occur primarily in Saudi Arabia and Iran. Stonings are exceptionally uncommon. The majority of Middle Eastern countries have not adopted hadd offences as part of their state laws.
However, despite official reluctance to use hadd punishments, vigilante justice such as honour killings remains a problem. There is significant debate over what the Qur’an sanctions, though it is generally agreed that such acts are not condoned by Islam.
Countries differ widely on how sharia is interpreted and applied, from those where it only applies to Muslims and is limited in scope, such as Malaysia, to those where it applies universally according to a rigid set of codes, such as Saudi Arabia. Many countries – such as Pakistan, Indonesia, Afghanistan, Egypt, Sudan, and Morocco – employ a dual system, whereby sharia courts sit alongside civil courts.
Islamic finance is a global industry that modifies modern business practices to conform to the rules of sharia. A 2008 report by the General Council for Islamic Banks and Financial Institutions estimates the Islamic banking industry is worth $442bn. Banks such as Citigroup, HSBC, and Deutsche Bank are developing Islamic finance sectors to cater to the demand.
Where democracy and Islam are concerned, the spectres of Iran and Saudi Arabia hang heavy. Yet they no longer need be the yardsticks of what is achievable. In a debate before the Tunisian elections this year, Ennahda leader Rachid Ghannouchi asked: ‘Why are we put in the same place as a model that is far from our thought, like the Taliban or Saudi model, when there are other successful models that are closer to us, like the Turkish, the Malaysian and the Indonesian models; models that combine Islam and modernity?’ Indeed, with moderate Islamic parties participating in parliamentary elections in Morocco, Jordan and Kuwait, the once heralded paradox of Islamic democracy is already looking outdated.
Former secretary-general of the Arab League Amr Moussa, who sits on the assembly drafting the Egyptian Constitution, admits that in Egypt the transition to democracy has been far from smooth. Yet he stresses that the most significant point is that the Constitution will ultimately go to a public vote. ‘More than two-thirds of the assembly may be Islamist, but it will be hard for them to impose their beliefs,’ he says. ‘They are accountable to the public now, and the public needs to accept it.’
But in a strongly religious culture, where many people are poor and uneducated, is democracy as dangerous as autocracy? Will people be overly influenced by cultural beliefs or prejudice? Will they elect a hardline party to power, which could undermine future freedoms, as with Hamas in the Palestinian elections in 2006? Will the police, among the poorest paid and least educated professions in the region, play by the rules?
Where women’s rights are concerned, many scholars point out that repressive practices such as honour killing and genital mutilation have no basis in the Qur’an and are instead the product of centuries of patriarchy. This is why Maha Azzam, associate fellow of the Middle East and North Africa Programme at Chatham House in the UK, says she felt more unsettled by the ‘cultural’ references in the draft Egyptian Constitution than the religious parts. ‘I thought the reference to the upholding of “Egyptian values” was more disturbing,’ she says. ‘Islamically, there is nothing that mentions genital mutilation, which exists very much in the countryside. There is a great deal to do with sexuality and so on that society is uncomfortable with, which Islam if anything may be slightly more liberal about.’
For Azzam, the answer lies in education. ‘When it comes to all the baggage of culture that diminishes certain rights for women, it is a battle that needs to be fought not just on the level of law, but on an educational level – in schools, by religious scholars, in the media.’
Lack of education notwithstanding, it is apparent is that most people in the Arab world do not want a repressive, system of governance. In Tunisia, Salafis – Sunni Muslims known for strict approaches to Islam – are banned from running for office and in Egypt they are already losing support. Many put their success in the last election down to little more than a backlash against the previous regime, pointing out that they will now be judged on what they can deliver – and what people want, first and foremost, is a decent wage. ‘The Salafis will never ever get into power,’ Al-Mukhtar says. ‘Not because the West doesn’t want them; because the Egyptians don’t want them. They are a minority. They are like the National Front.’
As far as the Muslim Brotherhood is concerned, the jury is still out. Some view them warily, recalling their beginnings as a breeding ground of militant Islam. Salafi jihadism – a minority of the Salafi sect – originated in the Brotherhood, and radicals Sayyid Qutb and Ayman al-Zawahiri both came from the organisation. Yet others stress this is a highly distorted picture, pointing out that Al-Qaeda was created in part as a corrective to the perceived moderation of the Brotherhood, which espoused social programmes over violence.
In light of President Morsi’s recent decree, concerns as to the Brotherhood’s commitment to democracy could yet prove to be well-founded.~
After years of being drowned out by jihadis on one side and autocrats on the other, the voice of moderate Islam is finally being heard. Fundamentalist rhetoric may be spreading across Mali, Yemen, Libya, Somalia, Syria and Lebanon, but it is yet to find a foothold of political legitimacy. Indeed, the Arab Spring is believed to have severely undermined the credibility of Al-Qaeda’s message by showing that Western crony governments can be overturned in the name of democracy rather than jihad. ‘The fundamentalists don’t have solid ground to gain more support among the population,’ says Wassim Harb, founder of the Arab Center for the Development of the Rule of Law and Integrity. ‘In our view, the violence we have seen is a reaction. It is a symptom of a certain illness in society.’
Nowhere is such illness more apparent than in Syria, where anger has exploded into civil war. Here, calls for democratic rights have been answered by artillery fire, providing a breeding ground for radicals. While the majority of rebels have voiced no interest in a militant Islamist agenda, around one in ten fighters is now believed to be a jihadi.
The Syrian struggle is increasingly being played out in sectarian terms. Unlike other Arab revolts, where Sunni rebels clashed with Sunni governments, here battle lines have been drawn between the Sunni majority and the minority Shia Alawite regime. Such sectarianism makes the country a magnet for regional powers. In fear of losing its main Shia ally, Iran is bolstering the regime, while Saudi Arabia has thrown its lot in with the rebels. If, or when, the Assad regime falls, Iran will have only Iraq – led by a Shia government – to help fend off its neighbours.
Such sectarian tensions run through the heart of the Gulf states. Religious groupings provide excuses for geopolitical power games, coagulating into Sunni, Shia and Jew. Sandwiched between the opposing powers of Iran and Saudi Arabia, the tiny island of Bahrain risks becoming the Berlin of the region, as the Shia majority continues to protest against the minority Sunni regime, which has failed to bring in key reforms. Here, as in Syria, calls for democratic freedoms are swamped by power battles in the name of religion, with Iran and Saudi Arabia acting as puppet masters and power brokers on either side of the divide.
Neither Iran nor Saudi Arabia is enjoying the shifting of tectonic plates in the region. Though Iran at first championed the rebellions, claiming such defiance owed its origins to their 1979 revolution, their cries swiftly became strangled gasps when the protests shifted to Syria. For Saudi Arabia, a country dependent on stability and conformism, the unpredictable spread of democracy has proven an unwelcome shock. Scared and unsettled, the two regional titans have moved swiftly to befriend Egypt’s Muslim Brotherhood – both, to a degree, through clenched teeth. Iran will have to overcome its pariah status in the region, as well as its Shia credentials, while the Saudis will have to brush years of theological conflict under the carpet with a sect it views as abhorrently moderate, and a potential threat to its own regional dominance. To whom the Brotherhood will turn is yet to be seen – but, where billions of dollars of aid and investment may be up for grabs, its decision seems unlikely to hinge on ideological fervour.
The Saudis have long been unaccountable both domestically and on the international stage, as firm allies of the West. A fervent funder of Salafi sects across the world, the Saudi royal family is also believed by many to condone a certain amount of jihadi funding by members of the establishment. ‘We should look into who is pushing these types of groups,’ says SOAS Professor Salwa Ismail, who specialises in Islam and politics. ‘When you look at the jihadis being trained in Afghanistan and Pakistan, now making their way to Syria, there is very strong Saudi backing. That is where the problem is.’
With Saudi Arabia’s grip on the region looking increasingly desperate, others will be quick to step into its shoes. One contender for the Arabic crown is Qatar, a prosperous nation that funds both Egypt’s Muslim Brotherhood and Tunisia’s Ennahda Party. Having led Arab League efforts against Gaddafi and Assad, and with ‘free speech’ credibility derived from its ownership of Al Jazeera, the country seems well-equipped to embrace a modern Islamic world. By contrast, Al-Ghannouchi is banned from Saudi Arabia, where deposed Tunisian dictator Zein al-Abidine Ben Ali received political asylum after his fall from power.
‘My concern is that these religious parties leave no room for other views. The state, which is normally an arbiter between different parties and views, is becoming a party in the debate itself’
Habib Al Mulla
Founding Partner, Habib Al Mulla & Company
Another player keeping a watchful eye is Turkey, the literal and figurative bridge between Europe and Asia. Having kept the majority of its neighbours onside – including Iran, until Syria exploded – and with a democratic system acting as a blueprint of politico-religious harmony for the region, the country’s power seems only likely to grow.
The future for Israel, on the other hand, is less clear. The recent eruption of violence in Gaza was only brought to a standstill by a fragile ceasefire, brokered by Egypt’s President Morsi, after the loss of scores of lives. A stark symbol of western hegemony, the Israel/Palestine issue has the potential to unite all Muslims in mutual condemnation – and as such, must be a priority of any foreign government seeking to build bridges in the region. The extent to which the new Arab democracies will respect the Camp David accords remains to be seen.
Indeed, international powers are far from innocent bystanders in Middle Eastern geopolitics. While Russia and China stymie UN action on Syria, the West says nothing about gross human rights abuses in Saudi Arabia, Yemen and Bahrain. Opportunism and politics may be inseparable bedfellows, but it is exactly this kind of hypocrisy that has earned the US the role of number one villain in the region, for some. Caught out over their support of autocratic regimes across the region, now perhaps is the time for a new foreign policy based on long-term principle over short-term gain.
What the Arab Spring has shown is that, unlike many of the autocracies propped up by the West, Islamic movements are not inevitably opposed to the rights and will of the people. Beyond religion, beyond sectarianism, beyond Shia and Sunni and East and West, a clarion call for democracy has been raised across the Middle East and beyond. And it will echo until it is heeded.
‘After the revolution in Egypt was the first time in my life that I have ever seen an army afraid of the people,’ says Al-Mukhtar. ‘In Tunis, in Morocco, in Algeria, in Cairo, in Jordan, in Syria, in Yemen, in all these places, people have broken the wall of fear. And once you have let the genie out of the bottle, you cannot put it back.’
Rebecca Lowe is Senior Reporter at the IBA and can be contacted at email@example.com