on the Rule of Law

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Constitutionalism And Role Of Muslim Jurists

Ditulis oleh Prof. Madya Dr. Shamrahayu Ab Aziz. Posted in The Star

Constitutionalism is a well-known and effective system of administration. Most countries of the world adopted written constitution in the effort to adopt constitutionalism theory although not all written constitutions practices constitutionalism.

Within Constitutionalism theory there is Rule of Law principle or Kedaulatan Undang-Undang. Rule of law doctrine introduces the "power" and the "'authority" of the law, instead of men. It stands on two underpinning conceptual pillars. First, the powers exercised by the government must have legitimate foundation. In order to function, the government must have sanctions given by law. Thus it creates a government of law, not a government of men. Second, law should comply with certain standard of justice in both, substantive and procedural.

A.V Dicey, a British constitutionalist, introduced three basic elements of Rule of Law, that are the absence of arbitrary power, the supremacy of law and no wide discretionary power. In more recent development, courts, parliament and other constitutional jurists have expounded the concept and meaning of rule of law. The new principle includes, all laws should be prospective, (not retrospective) and effective for future enforcement; the law must be relatively stable; there must be judicial independent; the court is endowed with the judicial review power; application of rules of natural justice; and the court must be easily accessible, it is not costly and open to public.

Islamic principle of administration is compatible to this rule of law theory whereby the government is not only accountable to people, but also to God. Principles against arbitrariness have strong foundations in Islamic theory. Similarly, the concept of clear and stable law, judicial independence and judicial review have had firmed position in Islamic administration.

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What marks the difference between Islamic and constitutionalism theories is the source of the sanction. The Islamic administrative theory is divine, but constitutionalism is said as man-made. Be that as it may, in its actual application, not all Islamic rules are "ready-made from heaven". Islamic principles of administration do not deny human participation in making the rules within the Quranic parameter.
In the actual application of the divine source of law, men have some role to play. The Islamic administrative theory makes a requirement that there must be engagement or consultation (shura) with legal scholars (ahl al-hal wa al-'Aqd) in making rules and policies. In the same vein, Islamic theory allows Ijtihad - or independent reasoning by those who satisfies some stringent criteria.

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The values and norms within the principle of Rule of law has some legitimate position within the Islamic administrative system. In its actual application, there must be rules and other practical mechanisms to ensure that the Islamic notion of rule of law can be applied without prejudice to the current understanding on the rule of law theory. Believing in the notion that constitutionalism and rule of law originate from the west and secular in nature, does not help its application.

The very basic elements of the rule of law must be incorporated into the constitutional provisions or adopted within the legislation. Following the embedded provisions, it becomes the task for Muslim constitutionalists to find the resources within Islamic thought permitting the development and sustaining of constitutionalism and the rule of law.
One of the first tasks for Muslim constitutionalist or the law makers in this process is to assert the possibility of the application of Islamic principle. This requires further ijtihad; the need to disseminate that human beings possess the rational faculty—as a God-given faculty. In this situation, Muslims must be able to form moral conclusions on how to order their communal lives. Apart from reliance on the previously interpreted revelation, Muslims must be able to further elaborate new rules in providing solutions to new problems.

If previous Muslim jurists gives emphasis on istislah (public welfare) and istihsan (equity or fairness), more recent Muslim jurists adopt maqasid Syar'iyyah(objectives of Shariah) to make Islamic rules adaptable. The concept of maqasid Syar'iyyah allows the separation between the unchangeable, Shariah, from fiqh (jurisprudence), the changeable human understanding of Shariah. Shariah in this conception can function similar to role of natural law in early Western constitutional thought and the role that constitutions play today in a constitutional order.



Similar attitude of Muslim jurists may be adopted in the application on the rule of law. In all aspects the attitude of Muslim jurists must not be too conservative in interpretation and development of Shariah. But this does not mean Muslim jurists must be too liberal, because they shall always bear in mind the immutable concepts in Islamic theology. Muslim jurists must be able to wisely balance between the need and the necessity. This must be done with wisdom.

Indeed, wisdom is the key factor for Muslim jurists' success in meeting the plausible practicable solutions in modern world and contemporary problems such as the application of rule of law in particular or constitutionalism in general.





source: http://www.ikim.gov.my/index.php ... e-of-muslim-jurists

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