By Shad Saleem Faruqi is Emeritus Prof essorof Law at UiTM.
ALONG with Mahatma Gandhi, Nelson Mandela was one of the greatest political leaders, human rights advocate and peace activist of the last century. On 5th December he left the surly bonds of the earth to touch the face of God. All humanity is diminished by his demise.
The light that shone in South Africa was, however, no ordinary light. Its radiance will last many generations and can illuminate other parts of the globe.
Wherever there is hatred, discord and division, his message of forgiveness, tolerance and reconciliation provides a beacon of hope. His conviction that no conflict is intractable and no hatred is too difficult to overcome is of relevance to all divided societies. His life and legacy and his footprints on the sands of time can provide direction to all people, far and near.
I am reminded of Shakespeare in Julius Caesar: “His life was gentle and the elements so mix’t in him that Nature might stand up and say to all the world: “This was a man”.
UDHR: On another note, 10th December was the 65th anniversary of the Universal Declaration of Human Rights (UDHR)1948. The Declaration’s first Article should strike a responsive chord in all of us. “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”.
Sixty-five years after the adoption of the Universal Declaration of Human Rights, one can say with satisfaction that it is no longer an issue whether human rights are worthy of support. It is now generally recognised that state sovereignty is a shield against external aggresssion. It cannot be used as a sword against one’s own nationals.
Human right issues transcend time and territory. Abuses anywhere deserve world-wide condemnation. “Injustice anywhere is a threat to justice everywhere”.
Almost all world Constitutions give due recognition to the need to limit state powers and to secure basic liberties of citizens. Besides the UDHR and its derivative Covenants, many regional declarations of human rights have appeared on the firmament.
Africa has the Banjul Charter. Europe has its European Convention on Human Rights and Fundamental Freedoms. Islamic countries have several formulations, among them the Universal Islamic Declaration 1980 (London); the Universal Islamic Declaration of Human Rights 1981 (Paris); and the Cairo Declaration on Human Rights in Islam 1990.
Islam & human rights: At a PROHAM Conference in KL on December 9, it was my privilege to address the isssue of human rights in Islam. At the very outset I stated that the belief that human beings are the subject and object of inherent rights, dignity and duties has an important place in Islamic theology, philosophy and politics.
The Holy Qur’an declares in surah 17:70: “Surely we have accorded dignity to the sons of Adam”. On justice and equality it states “And if you judge between mankind, judge justly” (4:58).
The Farewell Sermon of Prophet Muhammad at Arafat is one of the world’s greatest human rights documents. In it he proclaimed: “Your lives, your properties and your honour are as sacred as this day (of the Haj)”.
On class distinctions he said: “The aristocracy of yore is trampled under my feet.The Arab has no superiority over the non Arab and the non-Arab has no superiority over the Arab. All are children of Adam and Adam was made of earth. Nor is the fair skinned superior to the dark skinned nor the dark skinned superior to the fair skinned: superiority comes from piety and the noblest among you is the most pious”. This was pronounced 1435 years ago!
The denial of state sovereignty is a cardinal principle in Islam long before the writings of Locke and Rousseau. The government is a trustee of the people. Its duty is to rule by consultation. (Surah 3:159).
In the criminal process there is a presumption of innocence. Evidence of agents provocetueurs cannot be admitted.
Human rights encompass not only civil and political rights but also the “second generation”, socio-economic, positive rights.
Religious tolerance is required and cultural pluralism is permitted. “Unto you, your religion, unto me mine” (109:1-6)
Modern principles of administrative law like natural justice and proportionality have their counterpart in Islamic public law.
Cairo Declaration: This Declaration has 25 Articles. Its first Article is remarkably similar to its counterpart in the UDHR: “All human beings form one family whose members are united by their subordination to Allah and descent from Adam. All men are equal in terms of basic human dignity and basic obligations and responsibilities”.
The 25 Articles of the Cairo Declaration are broadly divisible into:
· political and civil rights
· political and civil duties,
· socio-economic rights
· socio-economic duties
· protection in times of war and conflict.
There are remarkable similarities between the Cairo Declaration and the UDHR. This confirms that as human beings we all share a common humanity and a common destiny.
Differences: However, the world view of the West and of Islam has some contrasts. In Islam, belief in God and piety are emphasised. The concepts of sin and sacrilage offer brakes to “human rights” demands. Atheism and apostasy are condemned though these are sins not crimes.
Individualism is subordinated to communitarianism. As in other religions, individual autonomy is restrained if that would lead to decline of morality. Muslims are generally troubled by the militancy of secular materialism, obssessive individualism, personal autonomy and licentious views of the West on a whole range of moral issues.
Whether Muslim societies must be condemned for such “backwardness” or praised for resisting the onslaught of a sex laced media culture is a matter of opinion.
The distance between Islam and the West on human rights is, however, not that great if theory is matched with theory and practice with practice. There are vast areas of shared commonalities. We need to discover, emphasise and enforce these commonalities and to concentrate on what unites us rather than harp on what divides us.