by Avv. Abdiwahid Abdullahi Warsame
Sunday, August 16, 2015
Since the end of World War Two and the beginning of the Cold War, the West sought to advance democracy and political liberalization around the world. The danger of bipolar world politics led by NATO alliance and WARSAW camp in the east brought the inception of atomic fission and gave birth to the Atomic bomb. The two alliances were highly cognizant of the fact that neither would win any war, but would lead mankind to an unprecedented calamity, more disastrous then World War Two, by harnessing nuclear fission.
The unflinching mood of the Cold War from both camps exhausted the member states economically, politically and socially by the sheer military readiness coupled with spiral economic downturn. First, in 1990 the WARSAW camp cracked as the result of political and economic pressure. This led to complete collapse after perestroika failed to yield economic and political progress to what used to be called the U.S.S.R. The consumerism culture, democracy, and political openness in the West finally triumphed and a new dawn set where the Western hegemonies prevailed over the rest of the world.
Democracy does not exclude but values political inclusion. Large numbers of societies are willingly participating in political and economic growth. It has an appetite for any political recipe; it borrows alien ideas to strengthen and thrives, instead of waiting for internal decay to lead its demise. Social scientists around the world extol the virtue of democratic societies for their eagerness to adapt and incorporate the social changes. A constant discourse among civic societies in a democratic arena would allow and strengthen economic expansion and political tolerance. Tyranny and authoritarian regimes would not last and cannot endure social pressure, which is inevitable. Thus, Democracy marches forward to the endless periphery of the world, except to the Muslin nations where it has been unable to bear fruit.
Why are Muslin nations failing to adapt to social changes, or are their societies immune to change? This is a puzzling question and might first lead one to reflect on the current situation of Muslim Ummah. There has been growing insecurity and lack of stability in Muslim societies from Timbuktu to Kuala Lumpur. Societies in the Muslin nations suffer with poverty, and are deprived the right to live with dignity. They turned to religious fanaticism seeking comfort and peace in exchange. It has been well known through human history, religious teaching has significantly contributed to the well being of a society; this teaching has never been remote from human life. However, human affairs are broader and a particular precision to resolve its controversies has been farfetched.
As the Cold War era was ending, another war was unfolding in most of the Muslin nations suffocating the social resentment for a better future. The previous bad policies and the reluctance to open political participation bogged down the desire to change. The change was thought not to come through evolution, but rather a violent change that would hasten the process. Since the 1990s, Muslim nations have been experiencing wars within themselves, and have continued struggling to establish a working system of governance. Unfortunately or fortunately, most of the authoritarian regimes in these countries collapsed in a short period of time, and the vacuum created was left opened to forces eager to establish Islamic States emerged. These forces stole the spot light, instead of being replaced by democratically elected government. Ethnic and religious violence, coupled with sectarian division, eroded the center and political schism that engulfed the social fabric strangulated the revival of a great society.
The early Muslim Ummah accumulated and raised great wealth and brought together vibrant societies as they spread across vast landmasses and administered the teaching of the Prophet Muhammad with humility and tolerance. But gradual decline set in motion as early as the 13th century and the system of governance turned to autocracy and drifted away from tolerance and justice, and dynastic Islamic monarchies rivaled each other. Wars, civil strife, and political dissidences have plagued entire Islamic societies and they presently lag behind in technological advancements. And finally, the European military occupation of Istanbul ended the Caliphate rule under the Ottoman Empire in 1919, and the Muslim communities around the world had lost their sense of pride and innovation. Wars and instability has become a large part of Muslin national identity. On the other hand, the West arose as the Renaissance, Reformation and Scientific Inquiry swept across Europe, while the Muslim nations have descended, and democratic ideals emerged and proclaimed its destined path. The Westphalia agreement in 1618 ended the state sponsored thirty years of religious war among European monarchies and paved the birth of secular governance and freedom of choice
Muslim minorities are being persecuted in China and Myanmar (Burma). Thousands fled their home in Myanmar and ended up floating in the Indian Ocean searching for asylum in countries such as Australia. The Chinese government banned the practices of fasting during the month of Ramadan in Uighur communities. The Xinjiang Muslims have been persecuted, and have had their practices, language, and culture, suppressed by the Chinese government throughout the years. Although the Uighur people are a part of the Chinese society, their distinctive culture and way of life has not been accommodated by the main and dominant Han culture. In addition, the lack of political participation among the Uighur people fueled the tension between themselves and the government. Because the Uighur people are still attempting to discover their Islamic identity, they have been reluctant to engage in the political dynamics of the country. The identity crisis is one in which the entire Muslim society views as important. The rest of the world, however, uses economics, political participation, and rule of law for their identity.
As the Iron curtain in Europe waning and the new Millennium opening its chapter, a great number of Muslim regimes collapsed because they were dependent upon the Cold War’s politics. The political foundation of these countries was weak and susceptible to demise as the winds of change swept across their shores. Leadership was not accountable and not dependent to their people, but they harassed and persecuted their citizens just to stay in power, and strangely enough, to rival to each other, instead of cooperating and exchanging knowledge and research. These policies outlined systematic methods to suppress and cut all lines of hope to find a local solution for the betterment of social conditions. The internal policies of these countries brought devastating civil wars and created millions of internally displaced citizens in their own countries and refugees wandering around the shores of Europe, Australia and other parts of the world. In the last 20 years, the world witnessed the crises of these refugees, especially from Muslim countries, which have been unparalleled in human history.
Al-Shabaab in Somalia, Isis in the Middle East, Boko Haram in West African, Al-Qaida, and the Moros insurgency of the Philippines, and Taliban of Afghanistan and Waziristan are groups that came in to existence after a long period of turmoil in their Islamic Ummah. They radicalized their followers after all avenues for change were dashed out by the uncertainty of the future and cold air withered the hope for full political participation. These religious groups carried out unprecedented destruction and devastation throughout the Muslim world and the world at large. They control swaths of territory in the countries where they fight, and the ineffectiveness of the regimes legitimized the terror group’s appeal that the war is between the West and the Islamic Ummah. It is a great strategy to create an invisible fear and remote enemy to reason and justify the unfolding calamity in which wars will bring during military confrontation among the contending forces. It is a purported notion, but in reality the war is within the different factions of religious Islamic sects. The staggering cost of these wars dried up government revenues and resources that would ultimately choke off social services; thus follows political alienation and civic discourse would cease. This would inflame already fragile social grievances and perpetuate the cycle of wars, unless an exit strategy commenced.
The imperative effective of rule law and legitimate governing regimes, coupled with a sense of belongings to the destiny of their affairs would dissuade the Jihadist group to form an alliance with other peaceful challengers to participate in the democratic process for their own interest. But unfortunately, a raging debate has been unsettled among the Muslim intellectuals and Religious scholars (Ulema) limiting the pace of progress to find a lasting solution for the paradoxical Islamic policies. The argument is not centered on the infallibility of Quran and religious teaching, but the legitimacy of a ruling group raises questions and concerns, which nip the deep conscious of Islamic individuals. The procedural allocation usurp the mantra of a power to exercise the people’s affairs is a genuine concern. The substantive rules that are mentioned in the Quran and the teachings of Prophet has more prevalence than procedural matters that evolve along the socioeconomics of the societies.
Rule of law is a fundamental element of constitutional democracy, which is an improvement over an authoritarian regime. In the authoritarian style of governance, the whole system relies solely on the whim and desire of a single individual or a group. The powers of the governance is not shared by many, but tightly control by single entity and highly centralized by issuance of a decree. The bad experiences of authoritarian regimes that had been shaping the peoples affairs and human suffering throughout the history of mankind had brought in the selection of the best form of governance among different forms of governance. Careful crafting and research, coupled with a demand for the pursuit of happiness and prosperity created the momentum for the creation of the constitutional democracy.
Constituion and democracy are deeply intertwined and inseparable; constitution is a political and legal document that guides a country morally and legally, binding the state and its citizens together. In comparison, democracy determines the rules of an electoral procedure to legitimize a ruling regime. A constitutional setting coupled with a democratic process to select those in authority would result in a less autocratic system of governance. The entire Western world had enjoyed the gains brought by the application of constitutional democracy as they prosper and find lasting stability in their society. Except for a few countries in Western world, they are all republics, where the citizens are more or less equal to one another. There are no legal or artificial titles or tribal affiliation given by the government to gain position or create a privileged group but the talent and ability of the individual merit more than anything else. The system of democracy is not out of flaws, but it is more advanced and less conflicted than authoritarian style governance.
Those who contested and rejected the constitutional democracy, especially in Muslim countries, are becoming more and more left behind. Their system of governance is outdated and decrepit with no regard to science and social evolution. These countries fear Democracy would erode and corrupt the core value of their Islamic society, which is a plausible notion, but nonetheless, these countries disregard the scientific social dynamic of any given society. Societies rise and fall. Sometimes closed societies can self-destruct regardless of their religious affiliation.
The teaching of Prophet Mohamed and the practices of the righteous Caliphates after him superbly laid down a foundation in which all men are created equal. These teachings have now become rhetoric to mention during religious lectures, but never to be applied practically in the governmental arena. A privileged class holds the grip of power in most Muslin countries, which have nothing to do with religion, but instead to use it to rationalize the right to rule the citizens. The poor and the weak gawked at the pretentious ruling class’s splendor and fanfare, and their blatant disregarding of the teachings of Prophet Mohamed, and the humility of Islamic values. Neither democracy nor a constitutional framework has ever taken root in these Islamic countries, and their authoritarian system of governance does not support moral and physical advancement of their nations.
It is noteworthy to mention Iran’s path to democracy, which is completely in contrast with many Middle Eastern countries, where democracy has been despised and repelled. Iran is a Muslin country, which lies where most of the countries are not ruled through democratic processes, but somehow Iran’s government came in power through electoral process. The Islamic revolution in 1979 that overthrew the Shah monarchy brought in a hybrid government in which the people have the power to elect the governing body while religious clerics guide the populace will through Islamic beliefs and values.
The French and Belgian law heavily influenced The Islamic Republic of Iran’s constitution by separating the government powers with the context of Islamic ideals. Thus brought a unique and hybrid system that is democratic with republican credentials based on Islamic values. The religious clerics led by Spiritual leader Ayatollah Khomeini put a concerted effort to create a modern nation with an Islamic face. The spiritual Ayatollah Khomeini was exiled in France during his rebellious period against the Shah and his Monarchy. His exposure to French republic revolutionary writing and philosophy might have influenced his favorability of an Islamic Republicanism style of governance. The populace participation in the democratic process does not denigrate the rules and value of Islamic principles, but lessen the internal conflict among the Ummah by exercising their right to vote. The governing authority is subject to receive criticism and to be accountable to the public. The sovereignty belongs to Almighty God in Iran’s democracy because the Quran is the sources of the divine law, unalterable and final, while in the West, the sovereignty is bound to the people and subject to constant change in response to the evolving social values. Fairness and equity are valued more than debating the descriptive and prescriptive of the law and rights of its citizens. In Islamic theology, the rights of the individual are written in the Quran and there is no need to invent new ones, but only to implement them fairly and rightly among the people.
In the framework of democracy, the principal of democracy is applied by allowing the populace to participate in the election process by voting for their choice among the contending candidates. In this way, Iran is equal to the Western countries, but in contrast to the west, the Quran and the Islamic principles legitimatize their source of law. Based on this, it is fair to say that Iran is a democratic country. Some might argue that the application of democracy is flawed and limited to safeguard the rights of the majority, based on how they deal the minority segments of their society. The legislative body would only exercise the principals of Islamic framework in the descriptive work of the legislative. Here this system is more close to the German system where fairness and equity hold higher importance rather than focusing more on the description and prescription of the law. This is what it ought to be in any Islamic democratic country, rather than limiting the electoral process to Shura council, which is a group of knowledgeable people that appoint the leader. The entire Ummah should appoint the leaders by voting. The dissemination of information should flow freely in the society for better understanding of what is at stake. Iran represents what an Islamic nation ought to have it. In this setting Iran is not easy to be invaded by the West and opted to negotiate the impending impasse of nuclear issue. When there is populace participation in the political legitimacy of governing body is hard to criticize easily. In contrary, most of the Middle Eastern regimes do not enjoy the privilege of its citizen’s approval. But the citizens are only subject as the government upholds the Sharia law.
Countries like Somalia, that are emerging from a long and bitter civil war, might set a constitutional framework that displays the tenets of democratic society, but in practical, it is farfetched. His excellence President Hassan Sheikh Mohamoud might entertain that he is a democratically elected president. Of course, it is true that he was elected, but a limited number of parliamentarians voted for him. The parliamentarians, in their own right, raise questions concerning their validity as legitimately elected democratic officials. In the same manner, deceased Al-Shabaab leader Amir Ahmed Godane was equally brought by the selection of his Shura. The only difference is Al-Shabaab is a pariah institution eager to impose their political version, and the absence of Ambassador Mahiga from election site failed to internationally legitimize Mr. Godane leadership credentials, despite the process might being fair and free. Here, the two processes have the same procedural configuration but the disparate outcomes are where the rule of law contrasts. With Al-Shabaab, the society is homogeneous and unconcerned about diversity, as Tawhid is the underlying denominator. The procedural law in these religious orthodox groups is dogmatic and leaves no room for debate. However, in practical terms, a homogenous society has its own diversity among its members. A religious and homogenous society could become a democratic society by electing a religious leader whom that society considers to have a divine right to rule based on his religious credentials; thus a legal argument arise.
As stated earlier, constitutional law is a kind of law that establishes a fundament principal that guides the state and defines the rights of the citizens and separates the branches of the government. Not all nation states have a single written constitution. Some have other customary laws, and the abstract sense of rules that has been enshrined through the years set the defining culture of governance. UK, New Zealand and Israel are among the nations that do not have a single codified constitutional document, but that does not mean these countries have no body of law or guiding principles to define the state, and its relationship with the citizens. Where did the rule of law gain its legitimacy? There are two sources, Divine law, which emanates from religious or natural laws, and laws that the people enact to administer their relations, called positive law.
The majorities of Muslim societies, not the governments, around the world have not yet come up to secularize religious tenets but to strictly adhere to it. An intense debate has taken place in Islamic societies that the only legitimate rule of law is following the Qur’an and teaching of Prophet Mohamed, while the some argue the Quran and the Sunnah of the Prophet are the foundation of legal legitimacy but there can be room for improvement of the procedural matters without amending the core. This debate has led to an armed conflict amongst people within the same country. In contrast a democratic and secular government, the state would carry out the execution of the law only if it was publicly promulgated; the legislative and judicial branches of government are separate. The dissemination of the law to the people of the nation would enhance acceptance and allow the society to understand the sources of the fundamental principles of the rule of law.
The source of the law is a highly controversial matter, even in the secular system of governance. The various Western legal traditions evinced disparate sources that made the rule of law legitimate based on one’s philosophical inclination. Law is not only descriptive norms in which a group of people in power decree or create; but, it is a complex matter that addresses philosophy of core values that has been culturally enshrined, along the social evolution. The most notable differences emerge in relations with State and the law in the context of America law and Roman law. Although both sides share similarities such as the separation of governmental institutions, there is a great divergence of interpretation, and contrast exist in the sources of legal legitimacy. The American legal perspective legitimacy is based on protecting the existing rights and issuances of law should not infringe these rights and state cannot abrogate it in any condition or circumstances. The law is dependent and independent of the state. Conversely with Roman law, the legitimacy of a law emanates from the state. There are no inalienable rights; the State generates the rights of the people. There is no material limitation existing to enact law. However, a procedural structure and ability to carry out the law fairly and equitably among the citizens has been put in place to avoid the human shortfalls and prevent arbitral decision. Both legal camps have deeply understood that societies evolve, and timely procedural and substantive laws should accommodate to the ever-changing socioeconomics of the society.
The ever-changing nature of human socioeconomics has been the driving force that nudges a society to adjust and adapt to thrive and prosper; however, these changes also have a potential to destroy it. A collective understanding for a common good would safeguard the community from the calamities of wars and encourage civilities and discourse will prevail. A man is unscrupulous in nature as pursuing selfish and unchecked interest and would be more dangerous than ever if he holds and controls people’s power without incorporating other mechanism to regulate its usage. Power produces and brings energy that emulates the spirit of God gives a sense of immortality as the man starts to climb the ladder of power. Jefferson stated that only those few “whom nature has endowed
with genius and virtue” could “be rendered by liberal education worthy to receive,
and able to guard the sacred rights and liberties of their fellow citizens.” Political rigidity and disregarding the view of another, and believing your truth is the only truth would lead to confrontation and destruction. Democracy and rule of law has been cherished in the developed world and it destined to spread, mold, and reshape as it passes through different cultures and encounters unfamiliar religious beliefs. The day of reckoning has come to set an intellectual agenda to reverse the current trend into a path for prosperity and lasting peace within the Muslim Ummah and world at large. Islamic nations need more than ever for the application of constitutional democracy. Ultimately, the application of constitutional democracy will bring development and form cohesive societies that are peaceful and prosperous.
Avv. Abdiwahid Abdullahi Warsame, Master of Law
PhD. Candidate for Constitutional Democracy.