Shari’a in Libya? As Long As ‘Universal Human Rights’ Are Respected, State Dept. Says

Patrick Goodenough | October 25, 2011 | 4:41am EDT
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Delivering a “liberation” speech in Benghazi on Sunday, Libyan Transitional National Council chairman Mustafa Abdel-Jalil said Libya’s legal system would be based on shari’a. (AP Photo/Francois Mori)

(Update: State Department spokeswoman Victoria Nuland said Tuesday she did not accept the premise, put forward by a reporter during a daily briefing, that there is “a rise of fundamentalism in Tunisia, Libya, and Egypt.” Nuland said, “I think what we are seeing is we are seeing newly democratic, newly free people and populations feeling their way forward.”)

( – The State Department on Monday tiptoed around the issue of Islamic law (shari’a) forming the basis of countries’ legal systems, after comments by Libya’s interim leader raised new questions about just how progressive the so-called “Arab spring” will turn out to be.

Islamists are playing prominent roles in the transitions in Libya, Tunisia and Egypt, and are also believed to be a factor in the uprising against Syrian President Bashar Assad.

While few will lament the removal of Muammar Gadaffi – or of Assad, should he go – concerns are growing that Iran may not be altogether wrong when it characterizes the regional upheavals as an “Islamic awakening” rather than the ushering in of greater democracy.

Libya’s National Transitional Council (NTC) leader Mustafa Abdul-Jalil raised eyebrows Sunday when he told a rally in Benghazi that the country’s post-Gadaffi legal system will be based on shari’a.

His declaration that “any law that violates shari’a is null and void legally” implied that Islamic law would not merely be one of several sources of inspiration, but the ultimate one.

Abdul-Jalil’s comments appeared to preempt a process spelled out by interim Prime Minister Mahmoud Jibril a day earlier – an election within eight months, followed by the drafting of a new constitution, which will then be put to a national referendum.

On Monday, Abdul-Jalil told a press conference in Benghazi that he wanted to assure the international community that Libyans were “moderate Muslims.” He also said he had been referring in his earlier remarks to a temporary constitution.

A “draft constitutional charter for the transitional stage,” released by the NTC last August, declared that “Islam is the religion of the state and the principal source of legislation is Islamic jurisprudence (shari’a).”

Libyan Transitional National Council chairman Mustafa Abdel-Jalil poses with Libyan fighters after a press conference in Benghazi on Monday Oct. 24, 2011. (AP Photo /Francois Mori)

State Department spokeswoman Victoria Nuland said Monday the administration was encouraged by Abdul-Jalil’s “clarification.”

“We seek a democracy that meets international human rights standards, that provides a place for all Libyans, and that serves to unify the country,” she told a briefing.

Asked whether the U.S. government had any objection to shari’a forming the basis of countries’ legal systems, Nuland replied, “We’ve seen various Islamic-based democracies wrestle with the issue of establishing rule of law within an appropriate cultural context. But the number one thing is that universal human rights, rights for women, rights for minorities, right to due process, right to transparency be fully respected.”

Nuland added, “I would simply say that the term [shari’a] is – has a broad application and is understood differently in different places and by different commentators.”

Although shari’a covers a broad range of matters, it is most notoriously associated with “hudud” punishments, including the death penalty for apostasy, and stoning, flogging and amputations for other offenses. (“Hudud” – literally “limitations imposed by Allah” – are enforced in countries like Pakistan and Saudi Arabia and some Nigerian states.)

Women face severe discrimination under shari’a, according to rights advocacy groups. The legal testimony of a woman carries less weight than that of a man, and in some countries a rape victim must present four male Muslim witnesses to back her allegation – or risk being charged with adultery herself.

Even apparently mundane aspects of shari’a can be problematic, and may lead to the loss of inheritance, loss of access to children, and the annulment of marriage in family law cases. Businesses may face penalties if they contravene the prohibition on charging or paying interest.

Tunisia, Egypt, Syria

In Tunisia, where the “Arab spring” began late last year, elections held at the weekend will give rise to a national assembly tasked with drafting a new constitution. Provisional results show the vote was dominated by Ennahdha, an Islamist party that declares itself to be “moderate.”

The English translation of the Ennahdha party platform stated: “[t]he Movement considers that Islamic thought is in need of constant innovation so that it can keep up with progress and contribute to it, stemming from its belief that Islam accepts anything that is beneficial and encourages it such as the International conventions on human rights, and which are generally compatible with Islamic values and objectives.”

On the other hand, Ennahdha and most other Tunisian parties favor retaining in the new constitution an article declaring that Islam is the official religion.

“Whether this formulation of Islam as the state religion will only be perfunctory or whether it will have a significant impact on the legal framework is difficult to foretell, given the still-untested nature of the political landscape and the growing religious conservatism of parts of Tunisian society,” Amna Guellali, a Tunisia researcher for Human Rights Watch, wrote last week.

A Human Rights Watch briefing paper, based on Tunisian parties’ responses to a questionnaire, found that most parties want new constitution to protect rights such as freedom of expression, although some differed over issues such as reserving the presidency for Muslims and the right of non-Muslims to proselytize.

In post-Mubarak Egypt, Islamists are expected to do well in a drawn-out parliamentary election process, due to begin in a month’s time.

Islamists account for two of four major blocs in the contest – the Muslim Brotherhood-dominated “Democratic Alliance,” and the Salafist Nour party-led “Islamist Alliance.” (The other two are the liberal/center-left “Egyptian Bloc” and the left-leaning “Revolution Continues bloc,” according to Cairo’s Al Ahram daily.)

The Muslim Brotherhood is campaigning under its traditional “Islam is the solution” banner while the Salafists have pledged to push for the implementation of shari’a.

As in Tunisia, the elected government will draw up a new constitution. Coptic Christians were especially troubled last March when a provisional constitution was adopted that left intact an article upholding Islam as the state religion and the principles of shari’a as “the principal source of legislation.”

In Syria, the extent to which Islamists are driving the protests aimed at removing Assad remains unclear for now.

An opposition Syrian National Council formed in Istanbul has a 29-strong general secretariat representing opposition factions including the Muslim Brotherhood (banned in Syria since 1982), Kurds, liberals and independents.

Of the 29 secretariat members, 19 have been named publicly. According to Mideast expert and author Barry Rubin, 10 of the 19 are Islamists.

On October 19 Libya’s NTC said it was recognizing the Syrian National Council as that country’s “legitimate authority.”

Iraq, Afghanistan too

Years before the “Arab spring,” troubling aspects of shari’a survived the toppling of the Taliban in Afghanistan and the Baathist regime in Iraq.

In Afghanistan, President Hamid Karzai’s government signed a new constitution into law in January 2004 which both claims to uphold freedom of religion and enshrines the primacy of shari’a.

Article two states that Islam is the official religion, but “followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of law.”

Article three, however, states that “no law can be contrary to the beliefs and provisions of the sacred religion of Islam.”  Article 149 says adherence to the tenets of Islam “cannot be amended.”

Two years after the constitution was approved, Christian convert Abdul Rahman was sentenced to death for apostasy, and it was only after the U.S. and other coalition countries put pressure on Karzai that was allowed to seek asylum abroad.

Iraq’s 2005 constitution states that freedom of religion is upheld, but also says no law may be passed that “contradicts the undisputed laws of Islam.”

Iraqi Christian leaders made a last minute plea for the clause to be removed of amended, without success.

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