Government And Constitutionalism
Plato used to say that the duty of the State or the government is to produce the highest moral type of human being under the supremacy of law. The government is duty bound to respect the law. The Islamic government under the Prophet was entirely shaped upon the divine sources. The duty of the State is uphold syariah, and the divine revelation is the supreme law.
Under the current governmental setting, although there is serious and continuous debate on the modern governmental functions, there are basically six inherently functions; the foreign diplomacy, military defense, maintenance of domestic order, administration of justice, protection of liberties and promotion of economic growth and development. Islamic government shares similar duties despite the ultimate aim of the government is to materialize the divine order.
In the exercise of its functions, every government has basic guides. Constitutionalism, which is a complicated concept, developed through experience of countries, and associated with the American and French revolutions has accepted as the basic guide.
“Constitutionalism” can be broadly defined as a system of government according to the constitution containing the principles of the separation of powers between organs of government, the rule of law, judicial review and independent of judiciary.
In most circumstances Constitutionalism concept is entrenched in the Constitution although not all Constitutions has Constitutionalism spirit.
Thus, generally, the principles of the modern state administration are founded in a document called Constitution. All countries in the world, with the exception of the United Kingdom, New Zealand and Israel, have written Constitution making the concept tangible.
Constitutionalism is known worldwide as a Western idea that associated with secular thought.
Meanwhile, the Islamic system has divinely features and a complete system of life that includes within it some general principles of governmental system. This includes the concept of God’s sovereignty, justice, equality, mutual consultation (Shura) and responsible government.
In its application, some of these principles may, to some extent, be compatible to those of Constitutionalism although there may be some reservations on the root or their sources. Thus, philosophically speaking, Constitutionalism lacks of religious elements whereas Islamic principle of government places great emphasis on godly elements.
Some argue that Shariah has some immutable, unchangeable, absolute and final principles making it incompatible to the Constitution, which can be altered or amended. This is plainly true. Shariah does contain some unchangeable principles. However, these are mainly on matters concerning belief and faith. For instance, there are five unalterable basic pillars of Islam.
However, as far as principles of government are concerned, there are fewer unalterable concept. These include sovereignty of God, justice, equality, freedom, mutual consultation (Shura) and rule of law. These immutable principles within Islamic system are meant to guide human being to stay on the right path to reach to the ultimate aim that men were created.
The flexible nature of Islamic system of government appears on the most foundational issue that is the type of government. There is no specific type of government mentioned in the Islamic theory.
The absence opens rooms for Islamic government to take any form of government, be it monarchical or otherwise.
In a similar vein, the Islamic tradition established that there are various methods to appoint the Head of State. For instance, the appointment can be by appointment, election or consultation.
The absence of the specific name of the system and the specific method of appointment indicate “open-mindedness” of the system and illuminate the flexible character of Islamic governance, provided that the ultimate aim of the government remains upholding syariah.
Most principles under the syariah administration of State are flexible in nature and the presence of immutable principles in the Islamic system does not make syariah incompatible to the current application of the constitutionalism principles.
Shura is a basic pillar because it is made mandatory process in the conduct of Muslim affairs. Constitutionalism that promotes involvement or engagement of people in the administration has some compatible concept to this concept of shura.
Similar to Constitutionalism theory, Islam promotes justice, equality, liberty and freedom. However, the application of these concepts, at times, is incompatible to Islamic philosophy that gives emphasis on the objective of the creation of men that is to serve and to return to God which is not acknowledged in secularism theory.
There is also argument that Islamic principles are incompatible with constitutionalism, whereby, under the ticket of freedom and liberty, the States do not have the right to intervene nor to enforce syariah on the people. Although the government may assist the performance of the religious teachings and rituals, the government has no right to enforce them if the people refuse to comply.
This kind of argument is trying to depoliticizing Islam and at the same time place Islam solely for religious faith despite the fact that Islam is known for the temporal and eternal life, for this world and the hereafter, for domestic and international matters, for civil and criminal problems and for personal and community affairs.
There is also argument that syariah does not limit the power of government making the Islamic governmental system incompatible to the current constitutionalism theory.
This argument led to questioning the application of the rule of law principle in Islamic administration. The Rule of Law in Constitutionalism is an important concept that denies arbitrary power, respects human liberty and upholds the idea that nobody is above the law.
The argument is indeed a huge misunderstanding on the Islamic principles of government. It is to accentuate that Islamic principles share the same notion. Regarding the unlimited power of the Islamic authority, this is obviously unacceptable. Mutual consultation may control the abuse of powers beside stringent criteria of Muslim leader. And mutual consultation is compulsory. There will be little rooms for Islamic authority to act beyond the benchmarks ordained by Islamic teachings.
Similarly, the sovereignty of Allah is not tyrannical to the extent that men in authority and the general laymen are left without choice and wisdom. Although Allah is the Law Giver, rooms are open for Muslims to find solutions to their problems as not all Islamic laws are “ready-made from heaven”.