HUMAN RIGHTS IN ISLAM

I was surfing the internet these past couple of days and noticed that there are many articles that condemn the human rights practiced by Muslims – the height of the issue came from the punishment imposed by the Sudanese government on the lady who wears pants in public.

There were a lot of commentaries made in blogs etc and I have also given my personal views on the matter – some of the comments seemed to be so far-fetched and one sided that as a Muslim, I believe that I have the right to correct the misconceptions. And to further satisfy my curiosity on the matter, I have decided to do my own investigation on the human rights issue……

The western approach of human rights

It is very loudly and vociferously claimed that the world got the concept of basic human rights from the Magna Carta of Britain; though the Magna Carta itself came into existence six hundred years after the advent of Islam. But the truth of the matter is that until the seventeenth century no one even knew that the Magna Carta contained the principles of Trial by Jury; Habeas Corpus, and the Control of Parliament on the Right of Taxation.

The Islamic approach of human rights

In Islam, human rights have been conferred by Allah swt, therefore, no one has the right to abrogate them or withdraw them. They are a part and parcel of the Islamic Faith. Every Muslim or administrators who claim themselves to be Muslims will have to accept, recognize and enforce them. If they fail to enforce them, and start denying the rights that have been guaranteed by Allah swt or make amendments and changes in them, or practically violate them while paying lip-service to them, the verdict of the Holy Quran for such governments is clear and unequivocal:

Those who do not judge by what God has sent down are the disbelievers (kafirun). 5:44

The following verse also proclaims: "They are the wrong-doers (zalimun)" (5:45),

while a third verse in the same chapter says: "They are the evil-livers (fasiqun)" (5:47).

Basic human rights

1. The Right to Life

The first and the foremost basic right is the right to live and respect human life. The Holy Quran lays down:

Whosoever kills a human being without (any reason like) man slaughter, or corruption on earth, it is as though he had killed all mankind ... (5:32)

As far as the question of taking life in retaliation for murder or the question of punishment for spreading corruption on this earth is concerned, it can be decided only by a proper and competent court of law. If there is any war with any nation or country, it can be decided only by a properly established government. In any case, no human being has any right by himself to take human life in retaliation or for causing mischief on this earth. Therefore it is incumbent on every human being that under no circumstances should he be guilty of taking a human life. If anyone has murdered a human being, it is as if he has slain the entire human race. These instructions have been repeated in the Holy Quran in another place saying:

Do not kill a soul which Allah has made sacred except through the due process of law ... (6:151)

Here also homicide has been distinguished from destruction of life carried out in pursuit of justice. Only a proper and competent court will be able to decide whether or not an individual has forfeited his right to life by disregarding the right to life and peace of other human beings.

The Prophet saw, has declared homicide as the greatest sin only next to polytheism.

2. The Right to the Safety of Life

Immediately after the verse of the Holy Quran which has been mentioned in connection with the right to life, God has said: "And whoever saves a life it is as though he had saved the lives of all mankind" (5:32).

3. Respect for the Chastity of Women

The third important thing that we find in the Charter of Human Rights granted by Islam is that a woman's chastity has to be respected and protected under all circumstances, whether she belongs to our own nation or to the nation of an enemy, whether we find her in the wild forest or in a conquered city; whether she is our co-religionist or belongs to some other religion or has no religion at all. A Muslim cannot outrage her under any circumstances. All promiscuous relationship has been forbidden to him, irrespective of the status or position of the woman, whether the woman is a willing or an unwilling partner to the act. The words of the Holy Quran in this respect are: "Do not approach (the bounds of) adultery" (17:32).

Heavy punishment has been prescribed for this crime, and the order has not been qualified by any conditions. Since the violation of chastity of a woman is forbidden in Islam, a Muslim who perpetrates this crime cannot escape punishment whether he receives it in this world or in the Hereafter.

4. The Right to a Basic Standard of Life

Speaking about the economic rights the Holy Quran enjoins upon its followers:

And in their wealth there is acknowledged right for the needy and destitute. (51:19)

The words of this injunction show that it is a categorical and unqualified order. Furthermore this injunction was given in Makkah where there was no Muslim society in existence and where generally the Muslims had to come in contact with the population of the disbelievers. Therefore the clear meaning of this verse is that anyone who asks for help and anyone who is suffering from deprivation has a right in the property and wealth of the Muslims; irrespective of the fact whether he belongs to this nation or to that nation, to this country or to that country, to this race or to that race. If you are in a position to help and a needy person asks you for help or if you come to know that he is in need, then it is your duty to help him. Allah swt has established his right over you, which you have to honour as a Muslim.

5. Individual's Right to Freedom

Islam has clearly and categorically forbidden the primitive practice of capturing a free man, to make him a slave or to sell him into slavery. On this point the clear and unequivocal words of the Prophet saw are as follows: "There are three categories of people against whom I shall myself be a plaintiff on the Day of Judgement. Of these three, one is he who enslaves a free man, then sells him and eats this money" (al-Bukhari and Ibn Majjah).

6. The Right to Justice

This is a very important and valuable right which Islam has given to man as a human being. The Holy Quran has laid down: "Do not let your hatred of a people incite you to aggression" (5:2). "And do not let ill-will towards any folk incite you so that you swerve from dealing justly. Be just; that is nearest to heedfulness" (5:8). Stressing this point the Quran again says: "You who believe stand steadfast before God as witness for (truth and) fairplay" (4:135).

his makes the point clear that Muslims have to be just not only with ordinary human beings but even with their enemies. In other words, the justice to which Islam invites her followers is not limited only to the citizens of their own country, or the people of their own tribe, nation or race, or the Muslim community as a whole, but it is meant for all the human beings of the world. Muslims therefore, cannot be unjust to anyone. Their permanent habit and character should be such that no man should ever fear injustice at their hands, and they should treat every human being everywhere with justice and fairness.

7. Equality of Human Beings

Islam not only recognizes absolute equality between men irrespective of any distinction of colour, race or nationality, but makes it an important and significant principle, a reality.

Allah swt has laid down in the Holy Quran: "O mankind, we have created you from a male and female." In other words all human beings are brothers to one another. They all are the descendants from one father and one mother. "And we set you up as nations and tribes so that you may be able to recognize each other" (49:13). This means that the division of human beings into nations, races, groups and tribes is for the sake of distinction, so that people of one race or tribe may meet and be acquainted with the people belonging to another race or tribe and cooperate with one another. This division of the human race is neither meant for one nation to take pride in its superiority over others nor is it meant for one nation to treat another with contempt or disgrace, or regard them as a mean and degraded race and usurp their rights.

"Indeed, the noblest among you before Allah are the most heedful of you" (49:13). In other words the superiority of one man over another is only on the basis of God-consciousness, purity of character and high morals, and not on the basis of colour, race, language or nationality, and even this superiority based on piety and pure conduct does not justify that such people should play lord or assume airs of superiority over other human beings. Assuming airs of superiority is in itself a reprehensible vice which no God-fearing and pious man can ever dream of perpetrating. Nor does the righteous have more privileged rights over others, because this runs counter to human equality, which has been laid down in the beginning of this verse as a general principle. From the moral point of view, goodness and virtue is in all cases better than vice and evil.

This has been exemplified by the Prophet saw in one of his sayings thus: "No Arab has any superiority over a non-Arab, nor does a non-Arab have any superiority over an Arab. Nor does a white man have any superiority over a black man, or the black man any superiority over the white man. You are all the children of Adam, and Adam was created from clay" (al-Bayhaqi and al-Bazzaz). In this manner Islam established equality for the entire human race and struck at the very root of all distinctions based on colour, race, language or nationality.

According to Islam, Allah swt has given man this right of equality as a birthright. Therefore no man should be discriminated against on the ground of the colour of his skin, his place of birth, the race or the nation in which he was born.

8. The Right to Co-operate and Not to Co-operate

Islam has prescribed a general principle of paramount importance and universal application saying: "Co-operate with one another for virtue and heedfulness and do not co-operate with one another for the purpose of vice and aggression" (5:2). This means that the man who undertakes a noble and righteous work, irrespective of the fact whether he is living at the North Pole or the South Pole, has the right to expect support and active co-operation from the Muslims. On the contrary he who perpetrates deeds of vice and aggression, even if he is our closest relation or neighbour, does not have the right to win our support and help in the name of race, country, language or nationality, nor should he have the expectation that Muslims will co-operate with him or support him. Nor is it permissible for Muslims to co-operate with him. The wicked and vicious person may be our own brother, but he is not of us, and he can have no help or support from us as long as he does not repent and reform his ways. On the other hand the man who is doing deeds of virtue and righteousness may have no kinship with Muslims, but Muslims will be his companions and supporters or at least his well- wishers.

CONTRACT IN ISLAM

Islamic law would primarily sanction a contract if it does not violate any of the rules of the Quran and the Sunnah. However, since the jurists have extrapolated upon these primary sources of law, the secondary sources would have an influencing authority in regard to the interpretation of the primary sources and any inferences thereon.

In Islamic Law, an offer is referred to as the Ijāb, while the acceptance of an offer or an agreement is termed as Qabūl. The reciprocal nature of many contracts would in some sense also imply that each person is making an offer of a specific consideration, and simultaneously accepting the reciprocal offer. An agreement is termed as Ittifāq.

An agreement on any specific issue may not necessarily involve a contract between persons. Also, contract to execute a specific performance may not necessarily involve a demand for a specific consideration e.g. a builder accepts to construct a specific building at not financial cost to the juristic or private person. However, this may be subject to specific performances of that person.

Without mutual fulfillment of rights & obligations, society would be at chaos, and injustices would destroy the fabric of peaceful human co-existence.

It is thus that Allah swt says:

1. O you who believe! Fully discharge (the obligations arising through) contracts (Surah Mā’idah 5:1).

2. …and those who truly care for their trusts (left by others in their care) and their covenants. (Surah Mu’minun 23:8).

More specifically, in terms of commercial contracts, Allah swt says

1. Fully discharge the volume (to be provided to the client) when you measure in volume, and weigh (the commodities sold by weight) by an accurate scale. That is goodness and better (as a material and practical) interpretation (of the contract of sale you have concluded). (Surah Isra 17:34)

WA'AD VERSUS MUWA'ADAH

Promises are special in our society because there is a societal or moral convention that allows a promisor to be treated as bound to his promise (promises here including behaviour making others believe that one has promised, as well as the more obvious overt statements such as ‘I promise …’).

The fuqaha (Muslim jurists) have different views on the subject of “promise” and their views are summarized as follows :

1. Many of the scholars believe that “fulfilling a promise” is a noble quality and its violation is reproachable, but is neither mandatory (wajib) nor enforceable through courts of law.

2. A number of fuqaha opined thatfulfilling a promise is mandatory (wajib) and a promisor is under moral and legal obligation to fulfil his promise, which means that a promise can be enforced through courts of law.

3. Some Maliki jurists are of the view that in normal conditions, a promise is not binding, but if the promisor has caused the promise to incur some expenses or undertake some labour or liability on the basis of promise, it is mandatory on him to fulfil his promise for which he may be compelled by the courts.

One can equate the Maliki’s view of promise to the civil law principle of “promissory estoppel”, where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it. It is not necessary, in order to attract the applicability of the doctrine of promissory estoppel that the promisee acting in reliance of the promise, should suffer any detriment. The only thing necessary is that the promisee should have altered his position in reliance of the promise.

Wa’ad (unilateral promise) versus Muwa’adah (mutual promise)

In Islamic law, wa’ad (unilateral promise) means promise which connotes an expression of willingness of a person or a group of persons on a particular subject matter. In a commercial transaction, a promise carries dual connotation; an offer from the offeror is known as promise, and acceptance from the offeree is also recognized as promise. Wa’ad in the practical sense can be explained as a commitment made by one person to another to undertake a certain action beneficial to the other party.

On the other hand, muwa`adah is defined as a mutual promise between two parties with the intention to conclude a contract in the future.

Enforceablity of wa’ad and muwa’adah

Keeping in view the requirements of modern businesses, majority of contemporary Shariah scholars has unanimously decided that wa’ad is enforceable by law until and unless the promisor is in a genuine problem. However, in such case, he will have to compensate the promisee for his actual loss (excluding opportunity costs) suffered due to his default.

So far as muwa'adah is concerned according to majority of the Shariah scholars, muwa’adah is not allowed in situations where aqd is not allowed (e.g. forward contracts), and thus is not enforceable by law. However, keeping in view the requirements of modern businesses, some scholars allow muwa’adah and are of the view that it is enforceable by law. They argue that sometimes muwa’adah is genuinely required, for instance, importer/exporter need to hedge foreign exchange in a volatile exchange rate scenario.