RIGHTS OF MINORITIES IN ISLAM
Muhammad Khalid Masud
Muslims take pride, and rightly so, in their treatment of non-Muslims in their societies better than their contemporaries in the past. In Europe the status of religious minorities came to be recognized in sixteenth centuries and rights were constitutionally guarantied only in nineteenth century. Most modern scholars like Thomas Arnold, Adam Metz, E.A. Mayer and E.I.J. Rosenthal, while critical of present state of affairs, acknowledge the fact that ?that Islam has treated Jews and Christians very well indeed?. In fact Muslims took the rights of their non-Muslim subjects quite seriously when the idea of this right was not conceivable.
The present status of the rights of minorities in the world, Muslim or ethnic has raised some serious questions. Their status, especially from the perspective of Human Rights, is indeed a complex problem. It requires serious appraisal, not only as a problem of difference between theory and practice on which most critics focus, but also from the perspective of jurisprudence that defines it. This new perspective is often misunderstood and sometimes exploited by some countries to their advantage.
I shall try to explain the changing juristic perspectives about the right of minorities to argue that a new interpretation of Islamic jurisprudence is not only required but also possible in the modern context.
Before going any further, let me explain that the term minority is not acceptable to Islamic jurisprudence because the Muslim jurists never used this term or the concept. The term came into use with the advent of nationalism and nation-states, in which the people were classified on the basis of ethnicity, namely language, race and culture, and the smaller groups were given the status of minority. Even religion was included in this classification. Islamic jurisprudence had a different criterion about which we shall speak shortly.
Essentially, "minority" is a relative term, linguistically denoting smaller number or an opposite of "majority". This mentioned semantic vagueness pervades the legal usage in international law, using the term in almost the meaning of ?nation?.
In UN documents the emphasis on 'nation' was replaced by focus on 'human rights'. A sub-commission on Prevention of Discrimination and Protection of Minorities was founded, yet the Commission has not clearly defined the term 'minority'. In the various UN documents and instruments the term implies the following elements: a distinct group on the basis of religion/ language/race (all three or one or more), smaller size, national status, and the will of the group to perpetuate that identity. The concept of minority in the conceptual framework of 'nation' has serious political implications for the concept of a nation-state as such a concept of 'minority', by implication, defines it as a 'sub-nation' of the majority nation that forms the state. This concept of minority has given rise to most of the present misconceptions.
In Islamic history and jurisprudence the term Dhimmah has been used instead. Let us briefly look at three documents of the early Islamic period from this perspective.
The Medina Pact , signed by the Prophet Muhammad with the various tribes in and outside Medina , consists of 47 articles. The first 23 articles deal with the rights and duties of the Muslims in Medina , while the remaining 24 articles deal with those of the Jews.
The article 16 obliged to help and support the Jews who joined them. Article 24 obliges Jews to share the war expenditure with Muslims as long as the war continues. The articles 25 to 31 define the position of all the Jewish tribe as constituting one Ummah together with Muslims. Both were free to practice their religion, having equal rights regarding their persons and their clients. The article 37 states that the Jews are responsible for their own expenses and the Muslims for their own.
The article further obliges the signatories to support each other against those external attack. The article 42 stipulates that in case of dispute between the parties they must refer it to Allah and His Prophet Muhammad. The remaining four articles state that the parties will not ally with the Quraysh, or with their supporters. In case of attack on Medina they will support each other. Both will stand by the pact, without altering its terms, or violating them. Allah is ally ( jar ) of those who abide by the pact.
The Pact of Najran , signed by Prophet Muhammad with the Christian community of Najran in 631, consists of four paragraphs. The first paragraph spells the terms of financial obligation for the Christians of Najran, the second defines their religious and social rights, and the third explains the economic matters and the fourth states the abiding clause of the pact.
The first paragraph states that the people of Najran were sovereign in their produce and property. It lays down further details about the taxes ( kharaj ) in terms of cloth, silver, hospitality of the messengers, and loan of arms and horses in case of war.
The second paragraph states that the people of Najran and adjacent areas are allies of Allah ( fi jawar Allah) and the Prophet Muhammad with reference to their property, person, community, present or absent, families, places of worship and every thing they own howsoever small or big.
Regarding the economic rights, the pact lays down that no tithe would be levied on their produce, nor Muslim armies tread their lands. Probably referring to share cropping the pact stipulates the rate of one half as a right of the parties. It also mentions the prohibition of usury transactions.
The Pact of Jerusalem , signed by Caliph Umar I with the people of Jerusalem after the conquest of the city in 638, consists of only three small paragraphs. The first paragraph defines the religious rights and the second states their social and economic obligations to the Muslim State , the third paragraph mentions the abiding clause of the pact.
The first paragraph grants security of life and property to the people of Jerusalem , in addition to the protection of their churches and crosses. No Muslim would take residence in their churches, nor would they be demolished. They would not be forced to change their religion nor would they be harmed in any way.
The second paragraph states that like the people of Madina they were obliged to pay Jizyah if they decided to stay in Jerusalem . If they wanted to migrate to Rome or other places they will be allowed to do so with complete security of their person and property until they reach their place of refuge. If they wanted to come back, they would not be charged any taxes except the taxes on their produce when the crops are reaped.
We may observe that there is no concept of minority or sub-nation in these pacts. The Jews are defined in the Medina pact as a part of Ummah, federating community.
It is important to note that the term Dhimmah is not used in a negative sense in these pacts, as it came to be understood later. The word is used as a synonym of J awar (neighbour). Jawar refers to the pre-Islamic Arab institution of tribal alliance in war and peace. The Prophet transformed this pre-Islamic tribal institution into a religious obligation by calling it dhimmat Allah, God's pledge. According to Article 15 (Pact of Medina) the dhimmat Allah is one for all and all the Muslims are each other's allies ( mawali ) excluding the others.
In this Najran pact again, the terms dhimmah and jawar acquire the meaning of protection, associated with contractual freedom. The Najran pact assures that there would be no interference in their religious authorities.
The pact of Najran uses the term fi jawar Allah to indicate a pledge of security with reference to their property, person, and community, present or absent, families, places of worship and every thing they own howsoever small or big. The pact extends the responsibility of pledge to the Prophet, the caliphs and Muslims in general.
The pact of Jerusalem 's use of the term Ahd with reference to Allah in place of jawar and dhimmah also shows that they are synonyms. The word dhimmah is used with reference to not only the Prophet, but also with the Caliph and the Mu'mins. It means that the pact not only lays down these terms as religious but also as political and social obligations.
The Islamic Jurisprudence
Classification of non-Muslims
The classical Muslim jurists divide non-Muslims into ahl al-Kitab (Jews and Christians ) and mushriks (pagan, idol worshippers). Non-Muslims living in Muslim territories were divided into dhimmi, mu`ahid and musta ' min. Musta ' min were non-muslim visitors with temporary permission to stay . The mu`ahid were the who joined the Muslims under some pact voluntarily. The dhimmis were those whose territory was conquered in a war. They were to pay jizya to enjoy the status of a dhimmi. The Muslim jurists differed about who among the non-Muslims was entitled to enjoy this status .
The Shafi ' is and ibn Hazm allowed this status only to ahl al-Kitab and magus , not to the non – Arab mushriks. They must accept Islam to stay in Muslim territory. The Hanafi, Maliki and Zaydi jurists allowed the status of dhimmis to mushriks as well. Jizyah was not however to be paid by Arab non-mushriks. All non-Arab non-Muslims, ahl al-Kitab or not, must pay Jizyah to stay in a Muslim land .
Muslim jurists allow almost all the basic rights of life, property, honour etc. to their non-Muslim citizens. A list of these rights is given in the Appendix. There are, however, certain rights that are restricted by certain conditions. It is not for us to discuss them in detail. We shall only analyse the difference of opinion among the jurists to highlight their changing perspectives.
Freedom of Religion
Umar: ?the moment you accept Jizyah from them, you forego the right to take liberties with them or with their properties? letter to Abu Ubaydah (Mawdudi 1960, 3 02).
Umar b. Abdul Aziz: how is it that the dhimmis are free in matters of marriage regardless of consanguinity, wine and swine?
Hasan Basri: the dhimmis paid jizya to be able to live freely in accordance with their own personal laws (Mawdudi 1960, 3 07).
Dhimmis have no freedom of religion: Hanafis, Sarakhsi (Shishani 505), Qadikhan dhimmi and musta'min have freedom of religion (ibid). General agreement of all other schools on this position.
Harabi has no freedom, general agreed view (shishani, ibid 50 6)
Modern Islamic Jurisprudence
Classification of non-Muslims
Mawdudi classifies non-Muslims into three categories:
• Subjects of an Islamic state under treaty or agreement
• Subjects after defeat in a war
• Those who are in the Islamic state in any other way
Contractees : rights in accordance with the terms of the treaty.
Shishani: non-Muslims in dar al-Islam two types: ahl al-Dhimma, al-musta'min.
Ahl al-Dhimma mu`ahadun ( Rosenthal, p. 107: minority+ several different minorities, non Muslims, atheists, secularists, Muslim minorities
Classical Islam: ahl al-Kitab, mushrik, other religions
JURISPRUDENCE OF RIGHTS
Zuhayli, pp. 716 The principles of Islamic governance: (1)Shura, wa shawirhum fi'l amr, a amruhum shura baynahum,
(2)Adl P 717. wa idha hakamtum bayn al-nasi an tahkumu bil adl, wa la yajrimannakum shana'anu qawmin ala alla ta'dilu..
(6) Answerable to people (p. 723).
The fiqh books do not deal with constitutional matters. They do not discuss political or religious rights. They do not speak of minorities. They do not speak about non-Muslims in a separate chapter. The discussion about non-Muslims is usually in chapters on Marriage, Jizya. Jizya relates to Dhimmis only.
Al-Mawardi (d. 450/) Al-Ahkam al-Sultaniyyah (Cairo: Mustafa al-Babi, 1973)
I slamic state an ideological state, radically different from nation state. 5 points of difference: (1)classification into Muslims and non-Muslims/majority and minority, (2) responsibility to run the state of Muslims/majority community, (3)state defines the rights of non-Muslims/hypocritical policy of equality of rights, but actually not given to minorities, (4)state guarantees the stated rights beyond which they are not permitted to interfere in the state affairs/minority problem solved: destroy separate entity, genocide, untouchable , (5)guarantee of Shari`a for non-muslim rights, no deviation/will of the majority often deprive minorities (295- 298).
The specific nature of this religious state [acc to Mawdudi] necessitates distinction between two kinds of citizens; believers and dhimmis the latter are adequately protected in life, property and freedom of religion. Exclude from the supreme direction of affairs of state and policy making (150)
The fundamental principle: the relations between them and the Islamic state shall be based on terms of the agreement. As such no specific laws have been formulated by the Muslim jurists in regard to the treatment to be meted out to them (Mawdudi 19 60, 301).
Abu Yusuf: ?we shall take from them only what was mutually fixed at the time of peace making. All terms of the treaty shall be strictly adhered to and no additions would be permitted? (Kitab al kharaj, p.35)
Types of rights
General Rights: Fundamental Human rights: equality with Muslims
PROBLEM OF HUMAN RIGHTS
In order to understand the complexity of the problem, we must study the various historical contexts in which the idea grew. It is also necessary to make us aware of the need to distinguish between different historical contexts so as not to use one context as a criterion to judge another. Plainly speaking, we should not judge the past by present standards, nor should we expect the past measures to work effectively in the present context.
?. All their rights are safeguarded, inequality concerns their duties (107) Jizyah, military service,
Classical Islam: jihad a duty of the state to propagate Islam. In modern world it is a problem modern Muslims regard jihad only defensive (108) conversion by force is today ruled out.
?The dhimmis are a minority, no doubt, but not a racial or national minority (150).? In the case of Pakistan , the situations more complicated by the fact that Hindus are not strictly speaking dhimmis … (205)
These problems are perhaps created by the fact that the concepts of 'nation' and 'nation-state' have not properly defined the role and status of non-majority groups. The problem of religious minority is more complex, due to its probable origins in the medieval political thought in which the legitimacy of the political power was derived from religion. The political order in this period was not necessarily based on the principle of the majority rule. The medieval kings often treated even the majority religious groups of their subjects as minorities if they differed with them in religion or in religious denomination within one religion. They did not enjoy the same status as that of the ruling class. People of different religious persuasion were entitled to "protection" within the confines of a religious community, represented by institutionalized religious leadership. This legal framework is hard to operate in a modern state, particularly in a democratic setting.
The Islamic legal definition of the rights of non-Muslims was formulated in the period of conquests, most probably in line with the laws of nations in those periods. A comparative study of Islamic laws on the subject with the laws of other nations is required to understand these developments. The terms of Dhimmah, Dar al-Harb, Dar al-Islam belong to a particular historical context. It is difficult to define rights of minorities in this framework for the modern polity.
Asad: since jihad is permissible only in defence the non Muslim citizens of a Muslim state share the duty to defend the country. They are entitled to exemption from military duty on grounds of conscience; in that case they pay Jizyah (133)
Mayer the problem: Muslim suspect human right criticism: imperialist campaign to undermine sovereignty of Muslim countries in the past
European commercial connection with Ottomans. Europeans claimed that Shari`a treatment of non-Muslims unacceptable, concessions, capitulations agreements to exempt European citizens from the jurisdiction of ottoman courts (143) this exemption later came to be associated by Muslims with European imperialism (144)
19 th century European powers sought to protect Christian minorities1839 and 1856 formal edicts formally granting equality to non-muslim ottoman citizens (14 4).
The question of Jewish homeland disregarding rights of local Muslims and Palestinians, Muslims saw in it a Christian plot against Muslims
After independence the non-muslim population emigrated [giving the impression that this was not their country] old non-muslim populations remained behind (144)
The problem of human rights thus has a particular political background; Muslims find it self-righteous and hypocritical. ?The west's record of exploiting this issue to obtain political advantage at the expense of local sovereignty is cited, and resentment over the double standards that the west has continued to employis stirred up ?( 145)
An examination of the present context of the issue of the status of non-Muslims shows the implications of criticizing the rights accorded non Muslims in Islamic human rights are different from the implications of criticisms of the treatment of non Muslims in the colonial era. Muslim countries have adopted modern concept of citizenship in a nation state. The Islamists are challenging this position of Muslim governments. Even the question of who is Muslim undermining those minorities who call themselves Muslims. Muslim minorities. Dissident groups. The question of the right of non-Muslims has a new context the non Muslims other than traditional non-Muslims, Christian and Jews has emerged
The question of the incompatibility of Shari `a rules with standards of international human rights. Division of ahl al Kitab and mushrik, the division of dar al-Islam and dar al-harb, the doctrine of jihad, early muslim community weak threat from the enemy, conquest or war period.
Theory, non-Muslims other than ahl al kitab when conquered must accept Islam or die. The theory and doctrine had to be readjusted (148)
Today the influence of secularism has waned and the influence of Islam as a political ideology is mounting (149) Islamists, secularists (Islamization discriminatory against non-Muslims), modernists (Islamic law properly understood does not allow discrimination) Subhi Mahmassani: there can be no discrimination on the basis of religion, original sources, early Islamic history. Compatibility of Islamic law and human rights: Mahmassani, Tariq Bishri, Abdullahi al-Na'im (150).
The idea of religious minority faces difficulties operating in the framework of a nation and nation-state. The religious minority groups do not necessarily share a compact territorial space, same language or ethnicity. Consequently it is hard for them to function as even a 'sub-nation'.
RIGHTS OF NON-MUSLIMS
• They would not openly advertise their faith.
• They will not ride horses or ponies, only donkeys.
• They will walk on the sides of the road.
• They will wear some identity like Zunnar.
• They will not spy on Muslims.
• They will not hire a Muslim as servant.
NOTES AND REFERENCES
In Switzerland , in 1529 the Peace of Kappel recognized the right of the state to decide for the entire territory to which faith its citizens belonged. Until 1712 religious minorities, which meant Christian sects, were ignored. In 1798 freedom of worship was granted to other sects. In 1874 constitutional guarantees were provided in this point.
In England , toleration Act 1698 exempted Protestants dissenting from the Church of England from penalties. In 1829 and 1932 Catholic Emancipation Acts provided toleration of Catholics in England . In 1846 the provisions of toleration Acts exempted the Jews.
On the International level, treaties were made to protect the religious minorities in the form of capitulation. In 1536 between France and Ottomans, 1846 Catholics and Protestants, 1878 Ottoman Empire was divided into states on the pretext of these treaties.
Erwin i. J. Rosenthal, Islam in the modern national state ( Cambridge , 1965), p. 107. Abd al-Wahhab abd al-Aziz al-Shishani [ huquq al - insan wa hurriyatihu al - asasiyya fi al - nizam al - Islami wa ' l nuzum al - mu'asara ( np: al-jam`iyya al-Ilmiyya al-malikiyya, 1980), p.673] cites Metz saying that?it is astonishing to see a large number of non Muslims holding posts in Islamic states?. Ann Elizabeth Mayer [ Islam and human rights . Tradition and politics (London: west view press,1991), p.148] remarks that ?despite incidents of discrimination and mistreatment of non-Muslims, it is fair to say that the muslim world, when judged by the standards of the day, generally showed far greater tolerance and humanity in its treatment of religious minorities than did the Christian west?.
The Oxford Compact English Dictionary (Oxford University Press, 1971), Vol. 1, p. 1805, notes its usage in four meanings: (1) The condition or fact of being smaller, inferior, or subordinate, (2) the state of being minor or under age, (3) the smaller number or part of something, opposed to "majority", and (4) the number of votes cast for by the party, opposed to the majority.
In a League of Nations document, the term 'minority' has been used in the meaning of 'community' within the frame work of the concept of 'nation', namely stressing on its following components: territory, identity (based on religion, race, language and tradition, all of them in one community, or communities identified on one of these basis), and a sense of solidarity. See ?Advisory Opinion of the Permanent Court of Justice?, 31 July 1930 , PCIJ, Series B, No. 17, pp. 19-22, vide Satish Chandra, Minorities in National and International Laws (New Delhi: Deep and Deep, 1985), p. 12 f.
Shishani, op.cit. p.505,n.1.
Ibn Qayyim, Ahkam ahl al-Dhimmah , Ed Subhi al-Salih, Damascus University, 1380H, vol.1, pp3-111.
Qur'an, 5:32, 6:151, Wahba al-Zuhayli , Al-Fiqh al-Islami wa Adillatuhu , vol.6, 450, Shishani,663)
Qur'an, 33:60-61, 9:11 , Zuhayli, op.cit. Shishani,663
Qur'an, 62:10, 7:31 , 22:41,104:2-5, Shishani, 663 According to Zuhayli, OP.CIT. their churches and property including wine and swine are also protected. They have full right of ownership and inheritance in their properties, powers of transfer, sale , grant etc. State cannot dispossess them. Mawdudi, however, notes that Muslims have right to confiscate the place of worship in a conquered town (Mawdudi, op.cit.)
Qur'an, 24:27-28, 49:21, 33:53.
Zuhayli and Shishani (op.cit.) note the difference of opinion among the Muslim jurists as follows. Abu Hanifah allows them entrance even to Haram in Mecca , but he does not allow their settlement therein. The Malikis don't allow their settlement in Jazirat al-Arab, i.e. Hijaz and Yemen . But they can enter Haram in Mecca . The Hanbalis allow non-Muslims entrance to Hijaz for trade but they do not allow stay in it beyond three days. Shafi'is do not allow entrance to Mecca or settlement in Mecca in any case.
. Qur'an, 49:13,:
Qur'an, 2:256, 88:2 1, 22, 50:45, 10:108.
: Qur'an, 5:2.
Qur'an, 2:256, 10:9 9, 18:29, 60:8, 102: 5. Zuhayli explains that no non-muslim can be forced to accept Islam (Zuhayli, op.cit., 717)
Shishani, op. Cit., pp.308-309)
Qur'an, 6:108, 5:48 .
Shishani, op.cit. p.669. General view is that the dhimmis have no right in zakat. Malikis and Zaydis, however, allow them to receive from zakat fund( ibid., p.670)
General view of the Muslim jurists is that the posts related with faith (aqidah) are not to be given to the dhimmis. They also mention the exception of key posts, like head of state and military head (Shishani, op.cit, 319). Similarly the jurists do not allow a dhimmi to be qadi for Muslims. Abu Hanifah was in favour of a dhimmi qadi for the dhimmis (shishani, 666). On the question of key posts, Shishani explains that other posts, e.g. Accountant general, engineer, post, ministries with the exception of those dealing with justice and armies, even at the highest level may be given to them (671). Mawardi elaborates the principle in the following manner. Wizarat al-tafwid cannot be allowed to a dhimmi, Wizarat al-tanfidh may be given, because in that the scope of authority is defined by the imam and his policies (vide ibid. p .673).
Abd al-Hamid al-muta'alliq [ mabadi nizam al - hukm fi ' l Islam , Cairo dar al-ma`arif, p. 736] justifies this obvious lack of complete equality between Muslims and the dhimmis as ?natural' in an Islamic state. (vide ibid., p. 673)
? beware, whoever zalama (injustice ) to a mu`ahid or reduced his right or obliged him to do more than he was capable or took away anything from him without his will i will dispute with him on the day of judgment?. (Abu Daud, and Bayhaqi vide Zuhayli, op.cit, p. 720).
Zuhayli speaks about justice among minorities, political and religious.? They have equal rights with Muslims. .no violation is allowed against their person, property, temples and honour (Zuhayli, p. 719).
According to Muslim jurists the non-Muslims have a right to have their own courts. In case of dispute between dhimmis, Maliki and Imamiyya schools allow a Muslim qadi to hear the case only if both parties agree. Abu Hanifah insisted that a Muslim judge cannot hear the case without the agreement of parties. Abu Yusuf and Muhammad allowed it if only one of the parties chose to go to a Muslim qadi. Shafi'is and ibn Hazm differed with these jurists and ruled that there should be only Muslim qadis. Shishani prefers the view that non-Muslims must have freedom in their personal affairs and these disputes must be settled by their own qadis (op. Cit., p.667).
The Qur'an stresses on human dignity (17:70). Bukhari and Muslim both report the prophet saying, ?Your blood, property and honor are inviolable? (vide Zuhayli. 720). Zuhayli observes that if a Muslim kills a dhimmi, even if unintentionally, he must pay the similar diyat as payable for a Muslim.
Mawdudi notes that Islamic criminal laws apply to Muslims and non-muslim alike. According to Malikis non-Muslims exempted in case such as drinking and adultery on the basis of religious freedom (Mawdudi 1960, 3 05).
Shishani, op.cit. 665.
Mawdudi, p. 676.
Mawdudi, p. 317. According to Shishani, the general view is that shura limited to Muslims (shishani, 675) non Muslims may be hired as consultants in technical, industrial, and agricultural. They cannot be members of ahl al-hall wa'l aqd. Some modern scholars like Mawdudi allow them membership in certain assemblies of secondary importance in municipal and local bodies. Mawdudi further suggests a possible separate representative assembly of the non-Muslims (Shishani, op.cit. 667).
according to hadith, ?if you fight against a people and overpower them and they agree to pay a fixed indemnity or annual revenue (kharaj) to you in order to save their lives and those of their progenies, then do not take more than the fixed amount, because that will not be valid? (Abu Daud, Sunan , book of jihad, vide Mawdudi 1960, 300). Jizyah is fixed according to the financial position of a non-muslim. No fixed amount has been prescribed in Islam. It should not involve undue hardship.
It was levied only on those who have actually fought against Muslims, or could participate in a war, non combatants were not subject to Jizyah (women, children, slaves, physically disabled, clergy) (Mawdudi, op.cit.)
According to Shishani, jizya was levied on the combatant ahl al-Kitab and mushrikin, with the exception of Arab mushrikin (p.677). It was not in lieu of saving their live or for not accepting Islam, it was a token of their obedience and the pledge not to fight against Muslims ( shishani,678)
Mawdudi explains that annual levy cannot be changed; lands and properties cannot be confiscated.
These laws are mentioned in Zuhayli, op.cit. P. 717.