TO western public and legal scholarship, Islamic law is still much like a closed book. Islamic constitutional law is one of its most confusing and most misunderstood subject. One of the main reasons for this perception can be found in the practice of Islamic constitutional law itself there is a variety of contradictory approaches in different Muslim countries regarding nature of government, separation of powers, fundamental rights, rule of law, welfare state, and rights of non-Muslims.
Various Muslim regimes often enact laws and commit acts that are inconsistent not only with western notions of equity and justice, but, more importantly, also with provisions given in the basic Islamic texts. Similarly, certain Muslim scholars, having political ambitions and trying to gain quick support of ignorant Muslims, often make statements that are contrary to Islam. All these factors create a bad image of Islam as people generally judge an ideology by looking at the conduct of its leading practitioners.
Unfortunately, Muslims having access to western academic circles usually lack the knowledge to explain the correct Islamic view on these matters. Consequently, they either make no attempt at all or simply fail to explain the actual Islamic stance.
Regarding the status of non-Muslims in an Islamic state, the issue of political equality is one of the frequently discussed topics. Political equality refers to all citizens having an equal control over governmental decisions. In an Islamic state, except the right to political equality, non-Muslim have same rights as Muslims. This lack of political equality between Muslims and non-Muslims is viewed as a huge deficiency in Islamic constitutional law.
Though Islamic and western legal systems share a lot of values, there are certain major differences in their nature and scope. Whereas western legal systems are secular, Islamic law originates from Divine revelation, which is available in the form of the Quran and the Sunnah. As Islam governs all spheres of human activity, state affairs are also regulated by Islam. Thus, an Islamic state can be defined as a state that functions in accordance with the principles laid down in the Quran and the Sunnah.
Naturally, a state based on a particular ideology, like Islam, should be governed by people who strictly adhere to its principles. In other words, owing to its ideological nature, a non-Muslim cannot become the head of an Islamic state or its government. However, non-Muslims can become members of the legislature. In the legislature, their activities are restricted to the general affairs of the state and the affairs of their own communities.
Regarding administration of the state, principal positions that are related to the formulation and implementation of state policies cannot be given to non-Muslims as they do not believe in the state's ideology. However, they can be appointed to other positions and can be consulted on different matters. History shows that competent non-Muslims were often employed as ministers, envoys, secretaries, etc.
In fact, Muslims need not be apologetic about this lack of political equality. Like other systems, Islam has its own unique features, standards, and requirements. Political inequality, in one way or another, exists in some other countries as well. For instance, in the United Kingdom, the Act of Settlement ensures that the monarch has Protestant beliefs. Other pieces of legislation that ensure 'Protestant' succession include the Bill of Rights 1688, the Coronation Oaths Act 1688, the Crown in Parliament Act 1689, the Act of Union 1706, and the Royal Marriages Act 1772. Not only does the Act of Settlement put a ban on Roman Catholics ascending the throne, but the monarch is also prohibited from marrying a Roman Catholic.
Similarly, in the United States, the Constitution declares that only natural born citizens are eligible for the presidency. And if we go back a bit, in the former U.S.S.R., which was an explicitly ideological state, one had to be a communist in order to hold a principal office.
Simply speaking, religion and ideology are not that different from each other. Therefore, the requirement of allegiance to Islam is the same as the requirement that an American, in order to hold a public office, undertake an oath to a fundamentally bourgeois constitution. Just as the Shari'a signifies certain values, the constitution signifies certain values.
In the West, people are generally against the idea of an Islamic state. Interestingly, they have not come to this conclusion after studying the primary sources of Islamic law. It is their own experience with religion that has caused them to view all religion-based political structures with suspicion and to have a lower view of religion than ideology. It is important that westerners, when commenting on the status and rights of non-Muslims in Islam, must make sure that they do so being aware of the principles described in the Quran and the Sunnah. Also, they should avoid confusing the despicable conduct of misguided Muslims with real Islam. For example, if a Jew steals or kills, it would be outrageous to say that Judaism makes thieves and murderers. Similarly, it would be utterly incorrect to say that the Spanish Inquisition was conducted because it was so instructed by Jesus.
The writer is a graduate of Harvard Law School and a lawyer based in Lahore.