Thoughts on Egypt III: Democracy and Human Rights

Al-Siyāsa al-Shar‘iyya

Since every Muslim body politic had to grapple with the rule of law and establishing their own legitimacy, the subject of al-siyāsa al-shar‘iyya evolved over time to emerge as the body of writing and theory that governed the crossroads of politics and Islamic law. As Frank Vogel says, siyāsa can be thought of as legal conceptions and institutions viewed from the perspective of the ruler.1Frank E.Vogel,Islamic Law and Legal System(Brill: Leiden, 2000), 171. It generally included rules governing the discretionary right of the ruler to enact laws when there was no clear text in the primary sources and no precedent in Islamic law. In exchange for this type of power, the ‘ulamā’ were the providers of legitimacy to rulers, ensuring that they were essential and thus allowing them to be the sole “protectors of the Islamic constitution.”2Ibid., 195. This “circle of justice” as Wael Hallaq calls it, is its own topic with its own vast literature and genealogy.3“The Circle of Justice”, as translated by Wael Hallaq, refers to the religious sanctioning of a ruler over his subjects. As Hallaq himself notes, “The sovereign himself was expected to observe not only his own code but, more importantly, the law of the Sharī‘a….siyāsa, therefore, was in no way the unfettered power of political governance but in a fundamental way the exercise of wisdom, forbearance and prudence by a prince in rulings his subjects”. See: Hallaq,Sharī‘a, 208-216. What are the conditions for a legitimate ruler, who is allowed to pick the ruler (i.e. theahlal-ḥall wa’l ‘aqd), what are the boundaries of what he can or can not do, how can one remove a ruler if needed, etc., all are questions that form the backbone of this genre of writing.

            The role that the ‘ulamā’ played in keeping the political and social structure of Muslim societies led to a consolidation of the political structure and a strong integration of siyāsa by time of the Ottomans.4Ibid., 205.The Ottomans provided a vast government bureaucracy where the ‘ulamā’ played a vital role allowing siyāsa to take on a more formal role in Muslim politics. There were official state ‘ulamā’ (muftis, qāḍīs, and the position of Shaykh al-Islām) which provided a more structured role for the ‘ulamā’ in matters of state. Over time, the imperial laws and decrees that were issued were, in a sense, written and codified. They became known asqānūns and provided a vast new body of legal literature that would impact the desire to codify Islamic law in the 19thcentury.

Removal of Morsi

Unlike modern democracies where people elect officials to represent them, either directly or through proxies such as electoral colleges, the head of an Islamic State5By Islamic State I mean a legally constituted state according to international laws and compatible with siyāsa literature. I mean in no way whatsoever the heresy known as ISIS, etc. (siyāsa works call this position imām or khalīfa) is selected by a group of people known as ahl al-ḥall wa’l ‘aqd, literally the people who loosen and bind. While Islamic jurists and political theorists have discussed the important role that this group plays in statecraft, there has never been a consensus on exactly who is a member.6Muhammad Qasim Zaman has an excellent treatment of this debate outlining the three possible interpretations of this group. See: Muhammad Qasim Zaman,Modern Islamic Thought in a Radical Age(Cambridge: Cambridge University Press, 2012), 47-55. What is clear in discussions of this group, however, is that themujtahidsamongst the ‘ulamā’ were a part of it: either entirely or partially.
            In June of 2012, by a narrow margin of 800,000 votes, the Egyptian people elected Mohamed Morsi.[7]  While there is no direct language regarding voting and elections in siyāsa writing, there is discussion of the nature of the relationship between the ruler and the ruled. The relationship is seen as a trust (amāna), which can be likened to a social contract of sorts between the ruler and the ruled. Al-Māwardī (d. 450/1058) writes about this saying “the contract of the imāma does not involve forcefulness or coercion.”7Imām al-Māwardī,al-Aḥkaam al-Ṣulṭāniyya(Caorp: Maṭba‘a al-Ḥalabī, 1973), 7. In fact, as some of the salaf argued, the entire axis of siyāsa writing is based on the verse in 4:58 in which God states, “Lo! God commands you to restore deposits to their owners, and, if you judge between mankind, that you judge justly. Lo! comely is this which God admonishes you. Lo! God is ever Hearer, Seer.” To assume the position of the chief executive of a nation and commander of the armed forces, the modern position that fulfills the Sharī‘a concept of the imām, is to take on the ultimate social trust. If this trust is violated, then the imām has opened the possibility of their removal/deposition. The election of Morsi, even if narrow, was an acknowledgement of the willingness of the people (the direct electors in this case) as well as the approval of those who loosen and bind (the leaders of Egypt’s religious and military institutions) of his presidency.
            Unlike the democratic electoral process, the masses do not have the right to depose a ruler and this right falls with those who loosen and bind precisely because the people who loosen and bind have the physical strength (Ar. shawka) to depose the ruler if the contract between the ruler and the ruled is breached in a way that can not be repaired. Al-Taftazānī (d.792/1390) says, quoting Imām al-Juwaynī (d. 478/1085), that this removal can even be by force if needs be for the betterment of the nation.8S‘ad al-Dīn al-Taftazānī,Sharḥ al-Maqāṣid, 5 vols., (Cairo: al-Maktaba al-Azhariyya lil Turāth, 2013), 5:233-234.
           In the case of Morsi and Egypt, the readings of the events prior to arrest of Morsi are as follows: there was a series of power grabs by Morsi and constitutional decrees giving the office of the presidency unparalleled power and obfuscating the barriers between the legislative and executive branches of government, there was a complete breakdown of Egyptian civil society, historic mass protests-to the point were the entire country was at a standstill, and a unanimous agreement amongst Egypt’s major institutions: Muslim, Christian, military, police, and the Republican Guard that the president had to step down and new elections had to be called. Some argue that since Morsi was democratically elected this is somehow superior to any other consideration that would lead him to be removed. In fact Morsi and the Muslim Brotherhood in Egypt still refer to Morsi as the legitimate president of Egypt. The fact of the matter is that, according to siyāsa literature briefly discussed above and the Sharī‘a at large, the position of imām is predicated on the trust between them and the people they rule/govern. If this is violated, it is then up to those who loosen and bind to decide next steps, including, if needed, forced removal from power. Their rule, then, is not absolute.
            In the case of Morsi and Egypt, therefore, the understanding of the likes of Ali Gomaa, the Grand Mufti Shawqī ‘Allām, Shaykh al-Azhar Aḥmad al-Ṭayyib, and even Pope Tawadros II etc., is that Morsi was legitimately removed from office: both for reneging on his duties as sovereign which lead to a national quagmire and because those who have the authority (i.e. the physical ability) to make such a decision unanimously acted accordingly.[10]
           One can certainly disagree with this, which I assume many will, but the siyāsa literature is quite clear on this topic as well as precedent of this being acted out throughout Islamic history. The ‘ulamā’ who supported Morsi’s removal have been extremely honest and transparent in their adherence of the Sharī‘a in this regard. Often times, and especially in the case of Ramadan al-Buti, they have taken these positions at great personal risk and sacrifice. The notion that these ‘ulamā’ are “sell-outs”, “puppets”, “crazy”, because of their positions is a fundamental gross-misunderstanding of the perspective of the Sharī‘a towards statecraft and the role of the ‘ulamā’ towards the people and the government

           There is one final point on this topic I would like to add. Somehave commented that there is a contradiction specifically with Ali Gomaa’s position towards the original January 2011 uprising and that of June 30ththat removed Morsi from power. Some argue that in 2011 he took a stance against the uprising and then was in support of June 30th. The common thread between these two positions is the concept of where sharī‘a legitimacy lies, or what is termedshar‘iyya. The government of Hosni Mubarak had shar‘iyya that was not breached, even if people took the streets. He may have been a bad person, a bad Muslim (God knows best), but his duties as a sovereign at the highest levels were carried out and intact, and, until the moment of his resignation, those with the ability to depose him chose not to remove him. After he stepped down and after the new elections, all members of the people who loosen and bind accepted Morsi as Egypt’s new president. However, and as mentioned above, Morsi failed in his responsibilities to the point that those who had the ability to remove him did. Again, I am sure many will find disagreement with this, however from the perspective outlined here, there is no contradiction.

Rab‘a

Nothing in the writings of siyāsa, or writings of enjoining right and forbidding evil, speak against standing up to State injustice. This is a supported right, and has its own conditions.9For example see: Ibn Naḥass,Tanbih al-Ghāfilīn ‘an A‘amāl al-Jāhilīn(Beirut: Dār al-Kutub al’Ilmiyya, 2001), 59-77.  Dr. Gomaa argued, as quoted in the first post on the timeline, that protests are legitimate up to the point that they do not cause disturbance, destruction, and harm. Disagreeing with the government, in itself, is not a sin. In fact, one can argue, it could be considered a great moral act.10The Prophet (God bless him and give him peace) said, “the best form of jihhād is a truthful statement in front of a corrupt ruler.” Musnad Aḥmad hadith 19130. Dār al-Minhāj publication. The issue with the Rab‘a protests is that they lasted a long time (two months) and caused much disruption, and therefore the Sharī‘a perspective of them changed with these changing conditions. Even the non-protesting residents of Rab‘a petitioned the courts to breakup the protest.[13] 11All According to Plan: The Rab’a Massacre and Mass Killings of Protesters in Egypt (United States of America: Human Rights Watch, 2014), 99-102 These court injunctions meant that the protest moved from the legal to the illegal, i.e. they lost their shar‘iyya. This means, from a siysāsa perspective, the Rab‘a sit-in became an illegal gathering that caused destruction of property (this has been documented and I witnessed this myself as I live in Nasr City and was there at the time) and public disturbance and therefore had to be dispersed. “Going against the ruler” (­al-khurūj ‘an al-ḥākim) in a way that causes harm to others (whether in their person or their property or their security) is considered a major sin and a violation of the trust that is owed from the governed to the one governing. This is why, for example, Ibn Nḥhās (d. 814/1411) argues that if “harm” is found against society and especially the ruler, this can be removed by force.12Ibn Naḥhās,Tanbīh al-Ghāfilīn, 59-60.
            When security forces came to disperse the protests, the critical part of the narrative is who fired first. The Human Rights Watch report itself, a document quoted by many on this topic and used as evidence against State violence, was not able to determine what happened first. Yet, this remains one of the most important aspects of the entire Rab‘a narrative and upon which is based much of the legal thinking of what transpired subsequently!13All According to Plan, 77. The narrative that people like Gomaa hold to and defend is that the police came with the intention of dispersing the protests without the use of legal force, and the protestors were given forewarning of their eminent dispersal, particularly because several court injunctions for the breakup of the protests were issued in the weeks prior to the actual dispersal. When the police came to actually begin the process, they warned over loudspeakers the dispersal, but instead of compliance, they were fired upon first and there was instant loss of life from the police. It was at this time that lethal force was used against the protestors. There is no debate as to the presence of weapons amongst the protestors, illegal seizure by the protestors, and even torture of innocents by some of the protestors.14bid., 95. The Muslim Brotherhood even clothed young children in shrouds written upon them “for sacrifice.” The debate is whether these facts and numbers justify the use of force or not. The HRW report argues that it does not, but without even acknowledging the aforementioned or providing a narrative of who fired first.15For example see: Ibid., 97, 104. Gomaa and others argue that it does, again a consistency with siyāsa literature.
            The problem with this position for most people is that many, many innocent people lost their lives in Rab‘a. There is no denying this. The sad fact, however, is that these innocent people, whether knowingly or unknowingly, joined the ranks of a highly problematic, illegal, and dangerous gathering. This type of situation is addressed in the intellectual history of Muslims and particularly in siyāsa writings as “those who swell the ranks of others” (takthīr al-sawād). In regards to verse 4:97, for example, the Prophet (God bless him and give him peace) said that the reason it was revealed is that some of the Muslims swelled the ranks of the disbelievers against the Muslims and in the ensuing armed conflict they were killed. To this event Ibn ‘Abbās (Allah be pleased with him) said, “people from the community (i.e. Muslims) were with the disbelievers and swelled their ranks (emphasis mine) against the Prophet (Allah bless him and give him peace). An arrow was fired and perhaps hit one of them (i.e. by mistake) and they perished. It was to this that God revealed 4:97.”16Ṣaḥīḥ Bukhārī, Kitāb al-Fitan, ḥadīth 7174, Thesaurus Islamicus Foundation. On this same topic, al-Nawwawī (d.676/1277) comments by saying, “whoever swells the rank of a people take the ruling of that people in the dispensation of worldly punishments towards them.”17Sharf al-Dīn al-Nawwawī,al-Minhāj Sharḥ Ṣaḥīḥ Muslim Ibn al-Ḥajjāj, 18 vols., (Beirut: Dār al-M‘arifa, 2006), 18:216. In this case, unfortunately, these protestors, even if innocent, could place themselves in mortal danger. As difficult as this position is to accept, particularly by those with a western-liberal sensibility, siyāsa writings and the overall Sunni political framework is highly sensitive to going against the State in a violent fashion.
     Another important point is the use of excessive lethal force against unarmed protestors. While this is a separate issue from the legitimacy/illegitimacy of breaking up the protest, it nonetheless is very important. Just because the state had a right to disperse, and subsequently had a right to use forceequal to the force against them, there is no doubt that there was an excessive use of force, much of which has been documented in reports and video clips. In this case, it is incumbent upon the state to prosecute those individuals who are proven to have used such force against unarmed civilians. The state, I believe, has a fundamental responsibility not to use force against its own citizens when it can be avoided.
           In the end, there is no doubt that the break up of Rab‘a was a catastrophic event and that hundreds of innocent people lost their lives. Even the ‘ulamā’ who uphold its legitimacy agree to this notion. The use of force was excessive and sloppy, and the State could have done a lot better. In fact one could argue that the State had a fundamental role to avoid a violent outcome in the first place. However, as tragic it was, the real issue at hand is whether or not there was arightof the State, based on the facts admitted, to use lethal force. While people like Gomaa have been consistent in their own arguments, and consistent in their adhering to the body of literature they hold as authoritative, the argument that the Raba‘a breakup was bad and sad are simply not cogent and have no relevance to the legal discussion of Sharī‘a permissibility or not.

 

References   [ + ]

1. Frank E.Vogel,Islamic Law and Legal System(Brill: Leiden, 2000), 171.
2. Ibid., 195.
3. “The Circle of Justice”, as translated by Wael Hallaq, refers to the religious sanctioning of a ruler over his subjects. As Hallaq himself notes, “The sovereign himself was expected to observe not only his own code but, more importantly, the law of the Sharī‘a….siyāsa, therefore, was in no way the unfettered power of political governance but in a fundamental way the exercise of wisdom, forbearance and prudence by a prince in rulings his subjects”. See: Hallaq,Sharī‘a, 208-216.
4. Ibid., 205.
5. By Islamic State I mean a legally constituted state according to international laws and compatible with siyāsa literature. I mean in no way whatsoever the heresy known as ISIS, etc.
6. Muhammad Qasim Zaman has an excellent treatment of this debate outlining the three possible interpretations of this group. See: Muhammad Qasim Zaman,Modern Islamic Thought in a Radical Age(Cambridge: Cambridge University Press, 2012), 47-55.
7. Imām al-Māwardī,al-Aḥkaam al-Ṣulṭāniyya(Caorp: Maṭba‘a al-Ḥalabī, 1973), 7.
8. S‘ad al-Dīn al-Taftazānī,Sharḥ al-Maqāṣid, 5 vols., (Cairo: al-Maktaba al-Azhariyya lil Turāth, 2013), 5:233-234.
9. For example see: Ibn Naḥass,Tanbih al-Ghāfilīn ‘an A‘amāl al-Jāhilīn(Beirut: Dār al-Kutub al’Ilmiyya, 2001), 59-77.
10. The Prophet (God bless him and give him peace) said, “the best form of jihhād is a truthful statement in front of a corrupt ruler.” Musnad Aḥmad hadith 19130. Dār al-Minhāj publication.
11. All According to Plan: The Rab’a Massacre and Mass Killings of Protesters in Egypt (United States of America: Human Rights Watch, 2014), 99-102
12. Ibn Naḥhās,Tanbīh al-Ghāfilīn, 59-60.
13. All According to Plan, 77.
14. bid., 95.
15. For example see: Ibid., 97, 104.
16. Ṣaḥīḥ Bukhārī, Kitāb al-Fitan, ḥadīth 7174, Thesaurus Islamicus Foundation.
17. Sharf al-Dīn al-Nawwawī,al-Minhāj Sharḥ Ṣaḥīḥ Muslim Ibn al-Ḥajjāj, 18 vols., (Beirut: Dār al-M‘arifa, 2006), 18:216.

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