DIVINELY GUIDED

EQUITY
ISLAMIC CONSTITUTIONAL LAW
Introduction
• Islam puts great emphasis on brotherhood. This could only be achieved on
condition that we practice equity, equality, freedom and justice in our
daily dealings.
• Authority: Surah Al-Hujurat 49:13: “O Mankind! We have created you from
a male and female, and made you into nations and tribes, that you may
know one another. Verily, the most honourable of you in the sight of Allah
is he who has most taqwa among of you. Verily, Allah is All-Knowing, All-
Aware.”
•It is clear that Islam declares equality among the people which is very
close to equity and justice as well. Islam respect a human for being a
human not for any other reason. Islam does not distinguish between two
races, or two groups of people, or between two colours.
•Authority – summon of the last pilgrimage of the Prophet: “O People!
Your God is one; your father is one; no preference of an Arab neither over
a non-Arab nor of a non-Arab over an Arab or red over black or black over
red except for the most righteous. Verily the most honoured of you is the
most righteous.”
Meaning of Divinely Guided Equity
• Equity means fairness and being impartial
• Divinely guided equity is based on the Qur’an and Sunnah. The
concept emphasises on making reference to the Divine Revelation
and the teachings of Prophet Muhammad when it comes to equity,
equality and justice.
• Hence, divinely guided equity would mean equality in law, or justice
for all, on the basis that human beings are equal and are entitled to
equal social status and equal rights, save in accordance to the limits
prescribed by the divine revelation
• Authorities:
i. Surah Al-Maidah 5:42: “If you judge, judge between them with
justly. God loves the just.”
ii. Surah An-Nisa 4:135: “O You who believe! Be upholders of
justice, bearing witness for God alone, even against yourselves or
your parents and relatives. Whether they are rich or poor, God is
well able to look after them. Do not follow your own desires and
deviate from the truth. If you twist or turn away, God is aware of
what you do.”
iii. Surah Al-’araf 7:181 : “Among those We have created there is a
community who guide by the Truth and act justly according to
it.”
Rationale of Divinely Guided Equity
• It is based on Allah’s Will that equity prevails in all walks of life. Hence, the
law of the land must or should be based on this important concept. Islam
declares equality among people, that is because Islam respects a human
for being a human not for any other reason.
•The rationale of divinely guided equity would imply that there is equality
among people in front of the law and regulations. For example, what is
allowed is for all people and what is forbidden as well upon all people. The
obligations are upon everyone, and whoever deserved punishment gets it.
•Authority: Incident of some of the companions telling Osama Bin Zaid, to
intervene for the sake of a well reputed woman who deserved
punishment for stealing, Osama talked to the Prophet, the Prophet got
angry and said: “Those before you were districted, that is because the
renowned is untouched when he steals, and the poor is punished, verily if
Fatima daughter of Prophet Muhammad stole, I would have cut her
hand.”
Characteristics of Divinely Guided Equity
1. Equality among people – Islam does not distinguish between two
races, or two groups of people, or between two colours.
• Surah Al-Hujurat 49:13: “O humankind! Surely We have created you from a single
(pair of) male and female, and made you into tribes and families so that you may
know one another (and so build mutuality and co-operative relationships, not so
that you may take pride in your differences of race or social rank, or breed
enmities). Surely the noblest, most honorable of you in God's sight is the one best
in piety, righteousness, and reverence for God”
2. Equality in law – There should be equality among people in front of the
law and regulations.
• Surah Al-Maidah 5:42: “If you do judge, judge between them justly. God loves the
just.”
• The story of Khalif Umar and his governor to Egypt Amer Bin Al Aus when the son of
the governor struck a Christian man and told him that he is a son of an honoured
family. The Christian man went from Egypt to Madinah complaining, then Khalif
Umar called the governor and his son and ordered the man to strike the son of the
governor the same way he was struck, and turned to Amer Bin Al Aus the governor
and said: “When did you enslave people and their mothers born them free.”
3. No conflict between self interest and justice – Islam commands its
followers to be just even in the face of strong conflicting emotions. In
dealing with other human beings, two major impediments to justice are
love and hatred.
• Surah An-Nisa 4:35: “O ye who believe! Stand out firm for justice, as
witnesses to Allah, even as against yourselves, or your parents, or your kin,
and whether it be (against) rich or poor: for Allah can best protect both.
Follow not the lusts (of your hearts), lest ye swerve, and if ye distort
(justice) or decline to do justice, verily Allah is well-acquainted with all that
ye do.”
• Surah Al-MAidah 5:8 : “O ye who believe! Stand out firmly for Allah, as
witnesses to fair dealing, and let not the hatred of others to you make you
swerve to wrong and depart from justice. Be just: that is next to Piety: and
fear Allah. For Allah is well acquainted with all that ye do.”
4. Retribution – Islam does call for, “an eye for an eye” but it does not
mean an innocent eye for an innocent eye; it means the eye of the
perpetrator for the eye of the victim. The command creates a society
where rich and poor, friend and enemy, Muslim and non-Muslim, the
ruler and the ruled, all are treated equally and all of them could count
on receiving justice as an example of a divinely guided equity.
5. Truth – If the law is not based on Truth, then any judgment according
to this law cannot be consolidated as meeting the requirements of
justice and thus not divinely guided equity.
• Surah Saad 38:26 : “Thus We told Daud (to carry on with the mission of reforming
the society without any fear and) that We have granted you the control over the
Kingdom, so that you can decide on people’s affair with complete justice and equity
in accordance with Divine Laws, and do not follow (or care for) anyone’s personal
desires. If you were to do that, these people will lead you astray from the right
path. Just remember that people go astray because they forget or ignore the Day
of Accountability”
6. Neutrality & impartiality – Apart from the law of the land ought
to be based on Truth (the Book of Allah), the court of law should
remain above its personal sentiments that is, it should remain
neutral. If this is to happen, it will lead to ‘a just decision’.
• Surah Al-Maidah 5:48: “We have sent this Book to you with the
truth. So judge between them as Allah Almighty has revealed and
follow not their vein desires.”
• Surah Al-Maidah 5:8: “Let the enmity of others make you sway
from justice; be just, that is only nearer to (Taqwa) piety.”
Relationship of Divinely Guided Equity with
Freedom
• Freedom has been granted by Allah (God), and no individual or
legislative assembly has the right to amend, change, or withdraw
these freedoms. Every Muslim or administrator who claims to be
Muslim must accept, recognise and enforce these freedoms.
• The concept of freedom has a distinct relationship with divinely
guided equity. For example, Islam grants certain basic freedoms to
all people, Muslims and non-Muslims, and regardless of their race,
nationality, ethnic origin or language.
• The first of these rights/freedoms is the right to live and respect
human life. Only a proper and competent court of law can decide
to take life in retaliation for murder or for punishment for
spreading corruption on the earth. No human being has the right
by himself to take a human life for retaliation or for causing
mischief on the earth
A) Freedom of Expression/Speech
• Freedom of expression/speech is considered as one of the fundamental
rights in Islam.
• Freedom to express an opinion is probably the most important aspect of
freedom of speech since the latter may comprise other distinguishable
varieties of expression such as a simple narration of facts, or comedy
and fiction.
• Specifically to express an opinion on a matter implies a level of
involvement, commitment and competence which may or may not be
the case in a factual narration of an event.
• It is important to note that the phrase “hurriyyat al-ra’y” which literally
means freedom of opinion is used to denote freedom of speech, in
preference to “hurriyyat al-qawl”.
• The fact that scholars and jurists have consistently used this phrase for
freedom of speech is perhaps indicative as being the most important
aspect of this freedom
• Freedom of expression/speech according to the Westerner can be
defined as the absence of restraints upon the ability of individuals or
groups to communicate their ideas to others, subject to the
understanding that they do not in turn coerce others into paying
attention or that they do not invade other rights essential to the dignity
of the individual.
• Freedom of expression/speech includes freedom of the press and the
liberty to communicate ideas in all forms including books, pictures, signs
and other means of communication. The purpose may be to inform, to
persuade, to convince others, to reveal the truth or to clarify and
eliminate doubt. (Western approach or source)
• It is important to note that the scope and character of freedom of
expression under the Shari‘ah differs widely from other laws in respect
of detail, especially with reference to the limits that are imposed by the
Shari‘ah and the values that are to be upheld.
• In Islam, freedom of expression/speech is maintained whereby different
views should be expressed and respected. The obligations are imposed
on the ruling authority and the people.
• Authorities:
i. Surah An-Nahl 16:125: “Call you (all humanity) unto your Lord’s path with
wisdom and goodly exhortation, and argue with them in the most kindly
(and convincing) manner”.
ii. Surah Al-Asr 103:3: “And enjoin upon one another the keeping to truth
and enjoin upon another patience (and firmness) in adversity”
iii. Surah At-Taubah 9:71: “And the believers, both men and women, are
responsible for (or the supporters of) one another; they all enjoin the
doing of what is right and forbid the doing of what is wrong”.
iv. Surah Al-Maidah 5:2: “But help one another in furthering virtue and God-
consciousness, and not in furthering evil and enmity”.
v. Hadith: “Tell the truth even if it be unpleasant”.
vi. Hadith: “The best form of holy struggle (jihad) is to tell a word of truth
to a tyrannical ruler”.
Limitation on the Freedom of Expression/Speech
i. Backbiting, defamation and derision
ii. Exposing the weaknesses of others
iii. Recommended silence
iv. Slanderous accusation (Qazaf)
1) Backbiting, defamation and derision
• These are some of the varieties of abusing speech which receive
much attention in the Qur’an and Sunnah.
• Although there are some exceptions to permit these acts in certain
circumstances:
i. The law requires that judicial decisions be based on reliable
evidence;
ii. Transmission of a Hadith;
iii. One who is actively engage in a crime and who openly declares
his sinful activities to others without any attempt at concealing
his wrongdoings;
iv. If it constitutes an integral part of sincere counsel;
v. If it is intended to deter its victims from crime and evil.
Authorities
• Surah Al-Hujurat 49:11: “O believers, let not people ridicule other
people, perchance the latter may be better than the former, nor let
women ridicule other women, perchance the latter may be better than
the former. Neither find fault with each other, nor insult one another
with derisive nicknames”
• Surah Al-Hujurat 49:12: “Spy not and defame not others behind their
backs. Would any of you like to eat the flesh of his dead brother?
[Surely] you would abhor it”.
• Hadith – The Prophet is reported to have asked: “Do you know what
ghibah (backbiting) is? They replied, “God and His Messenger know
best”. Then the Prophet said: “It is to mention your brother in a way
that he would dislike.” A Companion then asked: ‘What if that which I
say concerning my brother is true?’ The Prophet replied saying, ‘If what
you say is true then you have defamed him [by ghibah], if he is innocent
of what you say, then you have slandered him
2) Exposing the weaknesses of others
• Avoiding harm to others and concealing the weaknesses of one’s fellow
human beings is a prominent theme of the moral teachings of Islam in
the Qur’an and Sunnah.
• There are some exceptions:
i. Those who are generally known to engage in corrupt and harmful
activities.
ii. To report the wrongdoings of trustees of charities and orphans.
• Authorities:
a. Hadith: “If a person conceals the weaknesses of another in this world,
God will conceal their weakness in the Hereafter.”
b. Hadith: “Do not harm Muslims, and do not revile them, nor pursue their
imperfections. For verily, whosoever pursues the imperfections of his
brother shall have his own imperfections pursued by God”
c. Hadith: “The Muslim who helps another when the latter’s honour and
dignity are under attack, shall be helped by God at a time when he would
wish for God’s help”
3) Recommended silence
• Islam teaches that in certain situations, it is better for a Muslim to remain silent
unless there is a strong basis for him to express his opinion or response. It is only
allowed to speak when there is occasion for speech, or when one has purpose in
doing so.
• Authorities:
• Hadith: “Whosoever believes in God and the Last Day, let him utter what is good
or remain silent”
• Hadith: “Part of the beauty of a person’s Islam is that they remain silent about
that which does not concern them.”
4) Slanderous accusation (Qazaf)
• Qazaf literally means throwing words of abuse at others.
Technically, Qazaf is to accuse an innocent woman of fornication
without producing four witnesses.
• In the general sense, qazaf could comprise all forms of abusive
words including slander, libel, insult, cursing etc.
• Qazaf is prohibited in Islam and is regarded as one of the presrcibed
offences (hudud) which is punishable with 80 lashes upon
conviction.
• Authority: Surah An-Nur 24:4: “Those who accuse chaste, honorable
women (of illicit sexual relations) but do not produce four male
witnesses (who will witness that they personally saw the act being
committed): flog them with eighty stripes”
B) Freedom of Association
• The right to peaceful association naturally follows as an integral part of
the freedom of speech and expression. The Shari‘ah takes an affirmative
stand on rights and encourages association in pursuit of lawful
objectives. The Holy Qur’an enjoins mutual assistance and co-operation
for valid purposes, but forbids co-operation in transgression and sin.
• According to Al-Farabi and Muhammad Asad the basic recognition of
freedom of speech and opinion in the Shari‘ah requires that people
must also be accorded the freedom to group together, if they so wish, in
pursuit of their common objectives.
• Furthermore, it is right to state that Islam has given people the right to
freedom of association and formation of parties or organization.
• However, this right is subject to certain general rules. It should be
exercised for propagating virtue and righteousness and never for
spreading evil and mischief. Therefore, it can be said that freedom of
association is not an absolute right under the Shari‘ah because the right
can only be exercised in terms of pursuing lawful objectives.
Authorities
• Surah Ali-Imran 3:103: “And cling to the rope of God all together
and do not be divided”.
• Surah Al-An’am 6:159: “Those who divide their religion and break
up into sects-you are not of them concerning anything”.
• Surah Al-Anfal 8:46: “Obey God and His Messenger, and dispute
not among yourselves, lest you lose heart and your power
departs…”
• Hadith: “The hand of God is with the community”.
C) Freedom of Religion
• One of the manifestations of personal liberty is the freedom of the
individual to profess the religion of his or her choice without compulsion.
Everyone must also have the freedom to observe and to practise their
faith without fear of, or interference from, others.
• Freedom of religion in its Islamic context implies that non-Muslims are
not compelled to convert to Islam, nor are they hindered from practising
their own religious rites.
• Both Muslims and non-Muslims are entitled to propagate the religion of
their following, as well as to defend it against attack or seditious
provocation (fitnah), regardless as to whether such an action is launched
by their co-religionists or by others.
Authorities
• Surah Al-Baqarah 2:256 Allah says: “There is no compulsion in religion…”
• Surah Yunus 10:99: “Had thy Lord willed, everyone on earth would have
believed. Do you then force people to become believers”.
• An incident where an elderly Christian woman came as supplicant to
Caliph Umar, who met her request with favour. Afterwards, he invited
her to embrace Islam, but she refused. At this the Caliph became
anxious, fearing that his invitation might have amounted to compulsion,
and he expressed his remorse in these words: “O my Lord, I did not
mean to compel her, as I know that there must be no compulsion in
religion… righteousness has been explained and distinguished from
misguidance”
• Notwithstanding the relative clarity of the Qur’anic proclamations on
freedom of religion, the subject has become controversial due to:
1. Interpretation of some Qur’anic passages which validate holy war
(jihad) and fighting against disbelievers
2. Prescription of death penalty for apostasy
• However, according to , S. A. Rahman, in his writing “The Punishment of
Apostasy in Islam”, looking into the evidence in the Qur’an and the
Sunnah in detail,it might be arguable that apostasy should be punished
with death.
• He observed that the Qur’an is silent on the question of death as the
punishment for apostasy, despite this subject occurring no less than
twenty times in the Holy Book. He also traces the chain of transmission
of the Hadith which proclaims prescribed the punishment for apostasy
and founds some weakness in its transmission