The Principles of STATE and GOVERNMENT in ISLAM
By Muhammad Asad
Chapters: The Issue before Us | Terminology and Historical Precedent | Government by Consent and Council | Relationship between Executive and Legislature | The Citizens and the Government | Conclusion |
Structure of Government
However, even if full executive powers are conceded to the amir, the question remains as to whether those powers—and the functions resulting from them—are to be vested in him alone (as is, for instance, the case with the president of the United States), or whether he should exercise them in partnership, as it were, with a cabinet of ministers representing the major parties in the majlis ash-shura and depending for their tenure of office on this body's vote of confidence. There exists no explicit shar'i enactment in either of these two directions. Nevertheless, from the wording of many authentic Traditions it appears that the Prophet envisaged the concentration of all executive responsibilities in the hands of one person (whom he described variously as amir or imam) as being the most suitable for the purposes of an Islamic polity. Here are some of these Traditions :
He who obeys me, obeys God; and he who disobeys me, disobeys God. And he who obeys the amir, obeys me; and he who disobeys the amir, disobeys me. Behold, the leader [al-imam] is but a shield from behind which the people fight and by which they protect themselves. (6)
Verily, each of you is a shepherd, and each of you is responsible for his flock. [Thus,] the leader [imam] who is placed over the people is a shepherd responsible for his flock...(7)
He who has pledged allegiance to an imam, giving him his hand and the fruit of his heart, shall obey him if he can [i.e., as long as he is not ordered to commit a sin]; and if another person tries to usurp the imam's rights, smite that other person's neck. (8)
These and similar sayings of the Prophet are entirely in keeping with his more general command that whenever a group of Muslims are engaged on any work of common importance, one man should be chosen from among them to lead the others. (9) Nevertheless, one might perhaps argue that even a government on the European parliamentary pattern—that is, a cabinet of ministers deriving their mandates from and directly responsible to the legislature—would not necessarily offend against the principle of one-man leadership inasmuch as in an Islamic state the cabinet would be headed by the amir who, as we know, combines in his person the twin functions of head of the state and of prime minister. Common sense, however, tells us that such an arrangement would render the position of the amir highly anomalous. On the one hand, he is supposed to be the executive dhu 'l-amr (holder of authority) in his own right, by virtue of a popular election, while, on the other hand, he would have to share his executive responsibilities with a group of ministers individually responsible to the legislature: thus, it would be the parties represented in the majlis, and not the amir, who would be the ultimate fount of all executive power in the state. Apart from the fact that such an arrangement would militate against the Islamic concept of leadership, it would result unavoidably in the government's policy being always dependent on a compromise—or, rather, on an unending series of compromises— between various, sometimes conflicting, party programs, and never being able to attain that single-mindedness and inner continuity so essential for an Islamic state.
(6) Al-Bukhari and Muslim, on the authority of Abu Hurayrah.
(7) Ibid., on the authority of 'Abd Allah ibn 'Umar.
(8) Muslim, on the authority of (Abd Allah ibn 'Amr.
(9) Most of the authentic Traditions to this effect have been quoted and analyzed by Muhammad ibn 'Ali ash-Shawkani (died 1255 A.H.) in his classical work Nayl al-Awtar (Cairo; 1344 A.H.), Vol. IX, pp. 157-158.
This principle of compromise between opposing party programs may be necessary—and sometimes even morally justifiable—in communities which are not animated by any definite ideology and are, therefore, bound to subordinate all political decisions to the people's changing views as to what may be the right course of action under given circumstances; but it is certainly out of place in an ideological Islamic state in which the concepts of "right" and "wrong" have a definite connotation and cannot possibly be made dependent on mere expediency. In such a state, not only legislation but also administrative policy must at all times be expressive of the ideology on which the community has agreed beforehand; and this can never come about if the government is obliged to subordinate its day-to-day activity to a consideration of fluctuating party politics. This, of course, does not preclude the existence of "parties" in an Islamic legislature. If freedom of opinion and of criticism is recognized as the citizen's inherent right (as it undoubtedly is in the political concept of Islam), the people must be accorded the freedom to group together, if they so desire, for the purpose of propagating certain sets of views as to what should be the policy of the state on this or that question; and provided those views do not run counter to the ideology on which the state is based — that is, the shari'ah — the parties thus constituted must have the right to argue them in and outside the majlis ash-shura. However, this freedom to form parties and to advocate their programs should not be allowed to influence the administrative practice of the government — as it necessarily would if the latter were composed of ministers who receive their mandate from, and remain responsible to, the party organizations represented in the majlis.
In view of all this, it would seem that a "presidential" system of government, somewhat akin to that practiced in the United States, would correspond more closely to the requirements of an Islamic polity than a "parliamentary" government in which the executive powers are shared by a cabinet jointly and severally responsible to the legislature. In other words, it is the amir alone to whom all administrative powers and functions should be entrusted, and it is he alone who should be responsible to the majlis — and through it, to the people — for the policies of the government. The ministers ought to be no more than his administrative assistants or "secretaries," appointed by him at his own discretion and responsible only to him. As a matter of fact, the very term wazir (popularly translated as "minister") which the Prophet used in connection with problems of government denotes a person who helps the head of the state to bear his burdens : in short, an administrative assistant. Thus, for example, the Prophet said :
If God means well with the amir, He provides for him a trustworthy assistant [wazir] to remind him whenever he forgets, and to help him whenever he remembers. And if [God] does not mean it well with him, He provides for him an evil assistant, who does not remind him whenever he forgets and does not help him whenever he remembers.(10)
If, therefore, the Muslims adopt for their state or states the one-man method of government—popularly known today as the "American system"—they will but realize a principle indirectly recommended by the Prophet thirteen centuries ago. This alone should weigh heavily with them when they make their final decision; there is, however, yet another argument in favor of the one-man system.
We know that the ulu 'l-amr (holders of authority) in an Islamic state must be Muslims. If the executive powers of government were to be vested in a cabinet of ministers chosen from the legislature on the basis of party representation—as is customary in the Western European parliamentary democracies—it is these ministers who, together with the amir, would constitute the executive ulu 'l-amr by virtue of the mandate they have received from the majlis: in which instance the holding of ministerial power by a non-Muslim would contravene the clear-cut shar'i stipulation which reserves the executive leadership of the state to Muslims. Hence, the community would be faced with the alternative of either statutorily debarring non-Muslim citizens from all ministerial posts (which might make it difficult for the non-Muslim minorities to cooperate loyally with the state), or of blandly disregarding a fundamental injunction of the shariah (which would strike at the root of the Islamic concept of the state).
However, if all executive powers and prerogatives are vested in the amir alone, he would obviously be the sole dhu 'l-amr responsible for the activities of his government, whereas the ministers would be no more than his secretaries or administrative assistants whom he would appoint at his will and to whom he would delegate certain tasks inherent in his office. Because they would not be responsible for policy-making, these secretaries could not be regarded as ulu 'l-amr in their own right— and so there could be no shar'i objection whatever to appointing a non-Muslim to a cabinet post. This would not only prevent an unfair discrimination against non-Muslim citizens, but, in addition, would make it possible for the government to utilize, on merit alone, all the best talent available in the country.
The mere fact that there are considerable non-Muslim minorities in most of the Muslim countries should, therefore, tip the balance in favor of the so-called presidential system of government.
(10) Abu Da'ud and An-Nasa'i, on the authority of 'A'ishah.
Integration of Legislature and Executive
With all this, we must never lose sight of the Quranic injunction, amruhum shura baynahum, which, as we have seen, makes the transaction of all major governmental business directly dependent on consultation. In theory, this requirement may be fully satisfied by the institution of a majlis ash-shura which would have to give its verdict on all important policy issues as well as evolve the temporal laws under which the country is to be governed. In practice, however, the matter is not as simple as that.
Every student of politics is aware of the fact that, strange as it may sound, it is not the legislative assembly but the executive branches of government that "make" most laws in a modern state. As a rule, any major item of legislation nowadays entails a great deal of expert preparation and research, a thorough knowledge of the social and economic issues involved, and, finally, considerable legal acumen in the formulation of the law or laws to be enacted. It is obvious that such an accumulation of expert knowledge and technical ability cannot be expected of an assembly of persons elected on the basis of a wide suffrage: for the electorate is, naturally, concerned only with the individual merits of the candidates —their social integrity and their reputation for intelligence—and is not in a position to assess each candidate's technical qualifications for law-making. Quite apart from this, the comparatively large number of people of whom a modern parliament is necessarily composed would, by itself, make it exceedingly difficult to study, prepare, and draft any elaborate legal enactment. Consequently, the relevant work of research, preparation, and drafting—and often also of initiating—new legislation becomes, in modern states, the responsibility of the executive. It is in the executive departments of government that most of the major legislative bills are expertly prepared by civil servants trained specially for this purpose, and are thereupon placed before the legislative assembly for discussion, possible amendment, and final decision.
Such a procedure might be entirely satisfactory from the Islamic point of view so far as popular consent is concerned—for, obviously, no legislative measure could become law unless and until it has been thoroughly discussed in the majlis ash-shura and finally approved by it with or without amendments. However, popular consent alone does not constitute the beginning and the end of all Islamic requirements with regard to legislation: the principle of amruhum shura baynahum categorically demands that all governmental activity (on the legislative as well as on the executive side) should be a direct outcome of consultation. How can this be achieved without hampering the executive branch of the government at every step and thus destroying its freedom of action? To my mind, there is but one solution to this problem.
We know that in all modern parliaments special committees are instituted to deal with particular problems of government: a foreign affairs committee, a national defense committee, a judiciary committee, and so forth. It is before these bodies, selected by the members of the assembly from among themselves, that the executive has from time to time to justify its policies; and it is from them that it has to obtain the initial approval for the manner in which administrative business is conducted: a procedure which naturally simplifies the subsequent debate in the plenary session of the parliament. However, the approval or disapproval of a parliamentary committee—and subsequently of the entire assembly—is usually only a post factum verdict on the executive policies of the government: that is to say, the assembly as such (or any of its parliamentary committees) is only in exceptional instances, and almost never from the outset, associated with the current activities of the executive in a way that would fully correspond to the injunction, amruhum shurd baynahum. In logical compliance with this injunction, the parliamentary committees in an Islamic assembly must be fully integrated with the executive and law-drafting activities of the government. This could be achieved by (a) restricting the membership of each committee to a very small number, and (b) according to each of the committees the function of an advisory council of the minister (or secretary of state) concerned. In this way, all administrative policies and legislative enactments could be elaborated in consultation with the chosen representatives of the people from beginning to end while, at the same time, the government's ability to act would remain unimpaired.
Arbitration between Legislature and Executive
There remains the important question of what to do when there is disagreement between the majlis ash-shura and the executive. It might sometimes happen that even in spite of an intimate association of its parliamentary committees with the work of the executive, the majlis deems it proper to object to a policy or an administrative measure sponsored by the government because, in the opinion of the majority of the assembly, that policy or administrative measure contravenes some of the existing laws, or otherwise infringes upon what the legislators regard as the best interests of the state; just as it is conceivable that on occasion the amir may, for similar reasons, feel conscience-bound to objecj to a decision reached by the majority in the majlis. The resulting conflict of opinions might lead to deadlocks which could not easily be resolved by the means usually employed in such contingencies by European parliamentary democracies: namely, the resignation of the government or dissolution of the parliament, followed by new elections.
On the one hand, the executive of an Islamic state—that is, the amir—has been elected by the entire community, which (by the very act of electing him) has pledged itself to "hear and obey" so long as the amir does not govern in deliberate contravention of the Law of Islam ; on the other hand, the amir is not entitled to override or simply to ignore the majority decisions of the majlis ash-shura. Nor can the latter body claim for itself, as may the "sovereign" assemblies of most Western democracies, the right of withdrawing its confidence from a government that cannot agree with the assembly's decision on a specific issue, but is nevertheless determined to uphold the ethical values and incontrovertible nass ordinances of Islam : for, individually, the members of the majlis are bound by the same pledge of allegiance to the amir by which the whole community is bound. Thus, the deadlock becomes seemingly insoluble. But only seemingly—for here, again, the Quran indicates a way out of a dilemma. In chapter iii we considered the Quranic injunction,
"Obey God and obey the Apostle and those in authority from among you." But this quotation gave us only the first part of the verse. Its second part runs thus: "Then, if you disagree hi anything, refer it to God and the Apostle." (11) Evidently, therefore, when there is a fundamental difference between the majlis ash-shura and "those in authority from among you" (i.e., the amir), the point in dispute should be referred by either of the two sides to the arbitration of Quran and Sunnah — or, to be more explicit, to a body of arbitrators who, after an impartial study of the problem, would decide which of the two conflicting views is closer to the spirit of Quran and Sunnah. Hence, the necessity of having an impartial machinery for arbitration — a kind of supreme tribunal concerned with constitutional issues— becomes obvious. This tribunal should have the right and the duty (a) to arbitrate in all instances of disagreement between the amir and the majlis ash-shura referred to the tribunal by either of the two sides, and (b) to veto, on its own accord, any legislative act passed by the majlis or any administrative act on the part of the amir which, in the tribunal's considered opinion, offends against a nas? ordinance of Quran or Sunnah. In effect, this tribunal should be the guardian of the constitution.
(11) Quran 4: 59.
Needless to say, such a tribunal must be composed of the best jurists that can be found in the community—men who have not only mastered the Quran and the science of hadith but who are also fully informed on the affairs of the world: for it is only such men that could decide, with as great a degree of certainty as is granted to the human intellect, whether or not a doubtful legislative act of the majlis or an administrative act of the amir is in accord with the spirit of Islam.
In order that the composition of this supreme tribunal should be the result of consultation in the shar'i sense, its members might be selected by the majlis from a panel of names submitted by the amir, or vice versa. The appointments, it seems to me, should be for lifetime: even if a member's active tenure of office is made subject to an age limit, he should retain his status and be entitled to full pay until the end of his life, and should not be prematurely removable from active service unless he is unable to discharge his duties on account of physical or mental debility, or has become guilty of misconduct (in which case, he would, of course, forfeit his status and emoluments). And, finally, I would suggest that a member, after having once been appointed to a seat on the tribunal, should be statutorily debarred from holding after retirement or resignation any other post in the state, whether elective or appointive, paid or honorary. In this way, the tribunal members would remain free from all further ambition as well as from all temptation to collaborate with any political party or group interest, and would thus be able to achieve the highest possible degree of impartiality in the performance of their duties.
There can, of course, be no assurance that all the members of the tribunal will always agree in their conclusions; and so, again, we are faced with the necessity of resorting to majority decisions whenever unanimity is not obtainable. But whether unanimous or not, a verdict of the tribunal must be regarded as final and binding on all agencies of the state and on the community as a whole, so long as it is not superseded by a later, similarly obtained verdict. This last reservation is important, for it is quite conceivable that another time and even another composition of the tribunal may give rise to a different decision on the same problem: which means no more and no less than that here, too, the doors of ijtihad may never be closed.