A COMPARATIVE ANALYSIS ON THE CONCEPT OF FREEDOM OF RELIGION UNDER THE SHARI‘AH AND INTERNATIONAL LAW

A COMPARATIVE ANALYSIS ON THE CONCEPT OF FREEDOM OF RELIGION UNDER THE SHARI‘AH AND INTERNATIONAL LAW

ABSTRACT
This study analyzes the compatibility of Shariah with International Law on freedom of religion. As a subject of colossal complexity and variation, detailed examination is restricted to the highly contentious issues of the right to change religion (otherwise termed apostasy in Islamic law), the religious rights of non-Muslims (Dhimma) in an Islamic State, relations of law and religion (state religion), blasphemy/defamation of religion, and the application of the doctrine of jihad in defence of the Islamic faith, etc. Today, the serious disregard and infringement of freedom of religion by both State and non-State actors has kindled hatred and caused violence among people, as evidenced by severe and systematic persecution, domination and suppression by one religion or sect over the other using the instrumentality of State power in many countries across the globe. Many instances abound on the oppressive treatment and discrimination of members of minority religion or faith within a nation; arbitrary killing and violence to the life and properties of the holders of certain beliefs or sects; willful destruction of or damage to places of worship and other sacred sites of cultural and religious memory and learning in many parts of the world. In view of this, the main objective of this work therefore, is to examine what comparable or divergent visions and precepts underlie Shari‟ah law and international law in providing for freedom of religion given the fact that as to Shariah, preserving the Islamic faith is among its fundamental principles and as to international law, promotion of tolerance and friendly relations forms its very basis. To achieve this, doctrinal method of legal research was adopted, and reliance was placed on sources of information such as the primary and secondary sources of Islamic law as well as the sources of international law on the subject. It is argued that while international law contemplate protection of freedom of religion only of recent, the Shariah as a system of law and religion was the first to recognize religious toleration right from the 7th Century A.D. and in view of this, it was observed that religious accommodation in Islamic tradition is only tenable under Islamic Rule than in democracy, socialism or communism, therefore a return to Islamic Khilafah system was advocated. It was further submitted that freedom of religion in its international law conception is far from being universal and remain the most contested freedom in view of its failure to recognize other legal and cultural traditions, the Shariah in particular. The findings reveal that rules of international law related to freedom of religion are to a large extent, contradictory to those found under the Shari‟ah, it being the formulations of international standards remain largely reminiscent of Western as well as Judeo-Christian traditions to the exclusion of Islamic particularities. Consequently, much of the current legal problems associated with violations of freedom of religion in Western countries as well as by Muslim majority countries are argued as being partly due to the existent doctrinal incongruence between the two systems of laws. The study concludes with the view that attainment of “universal” standards on protection of freedom of religion is possible, only if the international community appraises itself of the relevance of Shariah within international human rights discourse as an alternative legal tradition.

TABLE OF CONTENTS
Title Page – – – – – – – – –
Declaration – – – – – – – –
Certification – – – – – – – – –
Dedication – – – – – – – – – –
Acknowledgment – – – – – – – –
Abstract – – – – – – – – – –
List of Abbreviations – – – – – – –
List of Statutes – – – – – – – – –
List of Cases – – – – – – – – – –
Table of Contents – – – – – – – –
CHAPTER ONE: General Introduction
1.1 Introduction – – – – – – – –
1.2 Statement of the Research Problem – – – – –
1.3 Aims and Objectives of the Research – – – – –
1.4 Research Methodology – – – – – –
1.5 Scope of the Research – – – – – – –
1.6 Literature Review – – – – – – –
1.7 Justification/Significance of the Research – – – –
1.8 Organizational Layout – – – – – – –
CHAPTER TWO: A Comparative Overview on the Compatibility of
Sharia and International [Human Rights] Law
2.1 Introduction – – – – – – – –
2.2 Arguments of Proponents of Compatibility – – – –
2.3 Argument of Opponents of Compatibility – – – –
2.4 Conclusion – – – – – – –
CHAPTER THREE: Freedom of Religion in Islamic Law
3.1 Introduction – – – – – – – –
3.2 Islamic Concept of Freedom of Religion – – – –
3.3 Legal Framework under Islamic Law – – – – –
3.4 Nature and Scope of Freedom of Religion in Islamic Law – –
3.5 Attributes of Freedom of Religion in Islamic Law – – –
3.5.1 Right to Change Religion – – – – –
3.5.2 State Religion in Islamic Law – – – –
3.6 Religious Rights of Dhimmi (non-Muslims) – – – –
3.7 Jihad to Defend the Islamic Religion – – – – –
3.8 Defamation of Religion – – – – – – –
3.9 Conclusion – – – – – – – –
CHAPTER FOUR: Freedom of Religion in International Law
4.1 Introduction – – – – – – – –
4.2 International Recognition of the Concept of Freedom of Religion –
4.3 Meaning of the Term ―Religion‖ in International Law – –
4.4 Legal Framework on Freedom of Religion in International Law –
4.5 Meaning, Nature and Scope of Freedom of Religion in International Law – – – – – – –
4.6 Elements of the Right to Freedom of Religion in International Law –
4.6.1 Right to Have, Adopt or Change One‘s Religion – –
4.6.2 The Right to Manifest One‘s Religion or Belief – –
4.6.3 State Religion – – – – – –
4.7 Is Freedom of Religion in International Law Permissible of
Any Limitation and/or Derogation? – – – – –

CHAPTER FIVE: Comparative Analysis on the Right to Freedom of Religion under the Sharia and International Law
5.1 Introduction – – – – – – – –
5.2 On Definition of the Term ‗Religion‘ – – – – –
5.3 On Legal Framework – – – – – – –
5.4 On Meaning, Nature and Scope – – – – – –
5.5 On Right to Change One‘s Religion – – – – –
5.6 On Right to Manifest One‘s Religion – – – – –
5.7 On State Religion (Law and Religion) – – – – –
5.8 On Defamation of Religion – – – – –
CHAPTER SIX: Conclusion
6.1 Summary – – – – – – – – –
6.2 Observations – – – – – – – –
6.3 Recommendations – – – – – – –
6.4 Conclusion – – – – – – – –
Bibliography – – – – – – – – – –
CHAPTER ONE
GENERAL INTRODUCTION
1.1 INTRODUCTION
The right to freedom of thought, conscience and religion is probably the most precious of all human rights, and the imperative need today is to make it a reality for every single individual regardless of the religion or belief that he professes, regardless of his status, and regardless of his condition in life.2 The desire to enjoy this right has already proved itself to be one of the most potent and contagious political forces the world has ever known. But its full realization can come about only when the oppressive action by which it has been restricted in many parts of the world is brought to light, studied, understood and curtailed through cooperative policies; and when methods and means appropriate for the enlargement of this vital freedom are put into effect on the international as well as on the national level.3
Islamic law is, among all other legal systems, the first religious and legal order to embrace the idea of religious tolerance and peaceful co-existence between different faiths within the jurisdiction of an Islamic State. As early as 7th Century AD when Prophet Muhammad (saw) reached Medina following his forceful emigration from Mecca due to severe, persistent and systematic forms of persecution directed against the earlier Muslims, the Islamic State at Medina has by law, recognized the religious co-existence of Muslims with the then Jewish and Christian communities alongside Islam.4 An established legal framework in the form of a
2 Wallace, E. G. Justifying Religious Freedom: The Western Tradition, Pennsylvania State Law Review (2009) Vol. 114, No. 2, p. 486
3Krishnaswami, A. Study on Discrimination in the Matter of Religious Rights and Practices, U.N. Doc. E/CN.4/Sub.2/200/Rev.1 (1960) New York, p. vii-viii available online at http://iiss.berkeley.edu/files/2011/06/Krishnaswami_19601.pdf (last visited on the 6/03/2013)
4 Adnan ibn Muhammad ibn Abd al-Azeez al-Wazzan, Muasu‟atu Huquq al-Insan fi al-Islam wa Simatiha fi al-Mamlakat al-Arabiyyah al-Sa‟udiyyah, Al-Resalah Publishing House, Beirut, Lebanon (2005, 1st ed.) Vol. 4, p. 40; Rehman, J. Accommodating Religious Identities in an Islamic State: International Law, Freedom of Religion and the Rights of Religious Minorities, International Journal on Minority and Group Rights (2000) Vol. 7, pp. 139 – 65 at 51; Jonathon, W. M. The Umma of Democracy, Security Dialogue, (2006) Vol. 37, No. 4, pp. 493-494; Imad-ad-Dean Ahmad, American
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Charter (Dustur al-Medina) provides for special alliance between Muslims and non-Muslims spelling out specifically the rights and obligations of all the parties thereto.5 During this period, non-Muslims, especially the people of the book (ahl al-Kitab) acquired a certain degree of tolerance to practice their religion. Even where there is a declaration of war by or against the Muslims, either for the defensive or offensive motives, the protection of places of worship as well as respect for the religious convictions and practices of non-Muslim enemies are legal norms protected under Islamic law.6
Principally, the provisions of Qur‘an 2:256 which provides to the effect that no compulsion in religion is generally taken to be the definitive ruling under Islamic law on freedom of religion. However, the tune of divergent juristic interpretations that this verse of the Holy Qur‘an has attracted from the earlier classical Muslim jurists to modern generations, especially the view that it has been abrogated by the verses of the sword has left discussion on freedom of religion under Islamic law to be a rather topical issue. This gave room for a careful consideration of this area of Islamic law, more so in the presence of Western conception of human rights that seeks to protect freedom of religion as a fundamental freedom of the individual against State coercion in matters of belief. In particular, the pressing aspiration of the Western Judeo-Christian tradition of today is a move towards the protection of the individual‘s right to change his/her religion or belief independent of any State coercion as is today enunciated in the so-called principles of international law.
Islam sanctions the co-existence of other forms of beliefs alongside Islamic monotheism but emphatically asserts the Islamic monotheism as the only true and approved form of worship.
and Muslim Perspectives on Freedom of Religion, University of Pennsylvania Journal of Constitutional Law (2006) Vol. 8, No. 3, p. 355; Bambale, Y. Y. Crimes and Punishments under Islamic Law, Malthouse Press Ltd., Lagos (2003) p. 77
5 al-Mubarakpuri, S. Ar-Raheeq Al-Makhtum [The Sealed Nectar] Dar Ibn Khaldun (n.d.) pp. 145-146 (137); al-Tha‘alaby, A. Al-Risalah al-Muhammadiyyah, Dar Ibn Kathir, Beirut, (n.d.) p. 134
6 Adnan ibn Muhammad, op cit., Vol. 4, p. 40-85
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Islamic law has shown more tolerance to other forms of beliefs and had further bestowed on people the freedom of choice necessary for the rational and philosophical understanding and acceptance of the Islamic belief than an outright coercion and compulsion.
The Prophet Mohammed (saw) issued a code of conduct to his followers in Najran in which he said:
To the Christians of Najran and its neighbouring territories, the security of God and the pledge of Mohammed the Prophet, the Messenger of God, are extended for their lives, their religion, their land, their property — to those thereof who are absent as well as to those who are present — to their caravans, their messengers and their images. The status quo shall be maintained; none of their rites [religious observances] and images shall be changed. No bishop shall be removed from his bishopric, nor a monk from his monastery, nor a sexton from his church … For what in this instrument is contained they have the security of God, and the pledge of Mohammed, the Prophet forever, until doomsday, so long as they give right counsel [to Moslems] and duly perform their obligations, provided they are not unjustly charged therewith.7
Thus, on a historical note, Muslim rulers have generally exercised tolerance in the treatment of non-Muslim subjects, particularly in the matter of religious beliefs.8 Any oppression that might have soiled the otherwise tolerant record of Muslim rulers was mainly attributable to political factors which find little support in the principles of Islamic law.9 The practice of early Islamic leaders, particularly the Rightly-Guided Caliphs, was consistently determined by the Qur’anic norms which seek to protect the integrity of the individual conscience.
History has it that movements towards greater measure of freedom and tolerance through the ages have been advanced in favour of religious freedom. Twenty-three centuries ago, King Asoka, the patron of Buddhism, recommended to his subjects that they should act in
7 Quoted in Khairullah, Ibrahim A., The Law of Inheritance in the Republics of Syria and Lebanon, American Press, Beirut, 1941, p. 316
8 Kamali, M. H. loc. cit., p. 91; Rehman, J. Accommodating Religious Identities in an Islamic State: International Law, Freedom of Religion and the Rights of Religious Minorities, op cit., pp. 139–65 at 51
9 Mutawalli, loc. cit., at p. 287
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accordance with a principle of toleration which sounds as alive today as when it was propounded:
… Acting thus, we contribute to the progress of our creed by serving others. Acting otherwise, we harm our own faith, bringing discredit upon the others. He who exalts his own belief, discrediting all others, does so surely to obey his religion with the intention of making a display of it. But behaving thus, he gives it the hardest blows. And for this reason concord is good only in so far as all listen to each other’s creeds and love to listen to them. It is the desire of the king, dear to the gods, that all creeds be illumined and they profess pure doctrines…10
St. Thomas Aquinas, a leading exponent of Catholicism, taught as early as the thirteenth century, that it was a duty of Governments to uphold freedom of dissident religions before the law and to avoid the scandals and dissensions which suppression of these liberties and guarantees would entail.11 The sixteenth-century Catholic authority, Suârez, was no less emphatic when he wrote: “The temporal power of the Prince does not extend to the prohibition of the religious rites [of dissidents]; no reason for such prohibition can be advanced, save their contrariety to the true Faith, and this reason is not sufficient with respect to those who are not subject to the spiritual power of the Church.”12
The doctrine of tolerance was enunciated with particular clarity by John Locke, in his first Letter concerning Toleration. In this letter, published in 1689, the year after the English revolution, he wrote:
Thus if solemn assemblies, observations of festivals, public worship be permitted to any one sort of professors, all these things ought to be permitted to the Presbyterians, Independents, Anabaptists, Armenians, Quakers, and others, with the same liberty. Nay, if we may openly speak the truth, and as becomes one man to another, neither pagan nor Mahometan nor Jew ought to be excluded from the civil rights of the commonwealth because of his religion … And the commonwealth which embraces indifferently all men that are honest, peaceable, and industrious, requires it not. Shall we suffer a pagan to deal with trade with
10 Ibid, p. viii
11 Ibid
12 Krishnaswami, A. op cit, p. 2
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us, and shall we not suffer him to pray unto and worship God? If we allow the Jews to have private houses and dwellings amongst us, why should we not allow them to have synagogues? Is their doctrine more false, their worship more abominable, or is the civil peace more endangered by their meeting in public than in their private houses? But if these things may be granted to Jews and pagans, surely the condition of any Christians ought not to be worse than theirs in a Christian commonwealth.
… If anything passes in a religious meeting seditiously and contrary to the public peace, it is to be punished in the same manner, and no otherwise than as if it had happened in a fair or market. These meetings ought not to be sanctuaries for factious and flagitious fellows. Nor ought it to be less lawful for man to meet in churches than in halls; nor are one part of the subjects to be esteemed more blameable for their meeting together than others.13
In another passage of the same letter, Locke enunciated another idea which has a modern ring about it:
No man by nature is bound unto any particular church or sect, but everyone joins himself voluntarily to that society in which he believe she has found that profession and worship which is truly acceptable to God. The hope of salvation, as it was the only cause of his entrance into that communion, so it can be the only reason of his stay there …A church, then, is a society of members voluntarily united to that end.14
It would appear that Locke’s theory of toleration was meant to be universal in its applicability. However, it should be borne in mind that in another passage of the same letter, he specifically excludes Roman Catholics while arguing that the State should offer equal protection to members of the Established Church, to Protestant dissenters, and even to Jews, Muslims and pagans. Furthermore, he was definitely of the view that free-thinkers should be proscribed and not allowed to enjoy any rights or privileges. But whatever their limitations, Locke’s writings have a considerable interest: they represent the first attempt to present a theory under which individuals and groups of individuals are entitled to claim freedom of thought, conscience and religion as a legal right. Furthermore, Locke made the distinction between freedom to maintain or to change religion or belief on the one hand and freedom to manifest religion or
13 Quoted in Krishnaswami, A. Op. Cit., p. 3
14 Ibid
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belief on the other, and expressed the view that whereas freedom to maintain one’s religion or belief cannot be restrained, freedom to manifest religion or belief is subject to limitation by the State in the same manner, and no otherwise, as freedom to exercise any other civil right.15
The modern conception of Hunan Rights [HR] under the platform of which “freedom of thought, conscience and religion” obtains seeks to secure, guarantee and protect for all people their religious freedom under both international and domestic law.16 The protection of religious minorities, for example, was a feature of numerous European Peace Treaties from Westphalia in 1648 to Versailles in 1919. The United Nations (UN) as an intergovernmental organization has the international mandate to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, gender, language, or religion.17 As such, there are numerous HR instruments of international character under the UN system as well as at regional and national levels which have provisions relating to religious freedom.
1.2 STATEMENT OF THE RESEARCH PROBLEM
In certain periods of history, organized religions have displayed extreme intolerance, restricted or even denied human liberties and curtailed freedom of thought. In other periods, proponents of certain philosophical teachings have displayed similar intolerance towards all theistic religions or beliefs. However, such manifestations of intolerance by organized religions or beliefs were usually the result of traditions, practices and interpretations built up
15 Ibid
16See Article 18, Universal Declaration of Human Rights (UDHR) of 1948; Article 18, 4(2) of the International Covenant on Civil and Political Rights (ICCPR) of 1966; Article 13 (3) & (4) International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966; 1981 UN Declaration on the Elimination of All Forms of Religious Intolerance and Discrimination; Article 8, African Charter on Human and Peoples‘ Rights.
17 Article 1-3 of the United Nations Charter, 1945
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around them; often the followers of a religion or belief considered it to be the sole repository of truth and felt therefore that their duty was to combat other religions or beliefs.18
While it has been a well-established principle of international human rights law as codified in the Universal Declaration of Human Rights [UDHR] and International Covenant on Civil and Political Rights [ICCPR] that every person has the right to freedom of thought, conscience and religion, and freedom, either alone or in community with others, and in public or private, to manifest his/her religion or belief in teaching, practice, worship and observance. But today, the serious disregard and infringement of freedom of thought, conscience and religion by both State and non-State actors has kindled hatred and caused violence among people and nations, as evidenced by domination, suppression and persecution by one religion or sect over the other using the instrumentality of State power. This is much more common where there is a declaration of State religion. Many instances abound on the oppressive treatment of members of minority religion or faith within a nation; arbitrary killing and violence to the life and properties of the holders of certain beliefs or sects; willful destruction of or damage to places of worship and other sacred sites of cultural and religious memory and learning in many parts of the world; etc.
The international community witnesses manifestations of religious intolerance and the existence of severe forms of discrimination in many parts of the world labeled against individuals and groups on the bases of their faith especially in the grant of permission to establish, maintain, and fully use institutions for religious purposes; denial of access to places of worship in situations of emergency; a ban by some States on the wearing in public of some form of distinctive religious symbols, clothing and appearance. Persecuted groups, to name just a few, included Baha‟is and Sufis in Iran; Christians in Egypt; Ahmadis in Indonesia and
18Krishnaswami, A. Op. Cit., p. 1
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Pakistan; Muslims in a range of countries, including in Europe; Tibetan Buddhists, Christians, and Uighur Muslims in China; and Jews in many parts of the world.19
The international community today witnesses also instances of severe religious persecution especially the curtailment by some States of the freedom of practicing other religions within their jurisdiction. There exists oppressive treatment of other sects that are considered unacceptable. For example, in many asylum cases, fear of persecution of the Shiite, Baha‟i, Ahmadiyyah Muslims was asserted.20 The growing number of violations of the fundamental right to freedom of religion that are occurring in numerous countries around the world, specifically the right to choose one‘s religion and change one‘s religious affiliation. Forced religious conversions and punishment for voluntary conversions are commonplace in many countries. Laws against apostasy, blasphemy, or proselytizing are used in conjunction with anti-conversion laws to create an atmosphere hostile to members of the majority faith who voluntarily convert to another religion.21
Often times, states had over excessively sought to enforce the provisions of a particular law thereby occasioning harm and violence on adherents of other minority religions.22 At times, deliberate and systematic policies are developed with intent to oppress and persecute members of minority religions. Switzerland in the year 2009 sought to introduce a policy to ban minarets in its country;23 France and Turkey had already initiated a ban on wearing religious
19 International

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