1. In the Context of the Islamic Law

[Law is defined as] "the science of the rights and obligations of man" - a definition attributed to Abu Hanifah. Muhibbullah al-Bihary (1109 A.H.) defines 'law' as : "the science of ascertaining religious commands (which embrace practically all the affairs of human life, material as well as spiritual) by means of their detailed guides. (By 'guides' he means authority or source of information).

For a definition of Law, Right and Obligation, and other terminology under the British Common Law system, see III. The Concise Law Dictionary.

One of the important features of Islamic law seems to be the emphasis on the correlation between rights and obligation. Not only the mutual relations of men amongst themselves, but even those of men with their Creator, are based on this same principle. One also has obligations as a member of the larger family viz the society and the State in which one lives. To speak only of the "rights of man," without simultaneously realizing his duties, would be transforming him into a nefarious beast, wolf or devil. Out of sheer necessity in civilized societies, legitimate constraints must be imposed upon man's rights. The nature and extent of various constraints and the shapes and forms which these limits assume in any given socio-political cum religious context, must always be a function of the dialectic between the rights and duties of the participants in this context. Consequently, the rights of individuals with regards to freedom of speech or expression, has to be balanced against the rights of other individuals to be protected from defamation, insults, slander and libel, etc. The same holds true with respect to the rights of all members of society vis a vis States, Sovereign rulers and the Real Sovereign, God - they all have to be harmonized in their own context. Obviously, then, when dealing with Islam or Muslims, one has to take into consideration the sensibilities of the whole Muslim 'Community'/ 'nation'/ 'Ummat' and their need for protection against harm, say for instance, through their rules of Blasphemy , which are framed on the basis of their own philosophy of life depicted through their own perception and sensibilities with regard to sacrilege, desecration, defamation, slander, libel and so on. Therefore, in the case of Blasphemy, it goes without saying that the Islamic rules are obviously determined by Muslims on the basis of their own religious principles. As I have stated earlier, it is a universally accepted fact that although many different ethnic groups and races with a variety of colour, language and geographical origins are represented within Islam, as 'Muslims' (as those who follow the Islamic religious tradition) all these various ethnic groups and races are one people, one community, one nation, one Ummah vis a vis the rest of the world.⁽²⁶⁾ This principle is extended to all other religions and cultural groups.

According to Islam, as a consequence of this philosophy, despite the various ethnic racial and other differences, non-Muslims too are treated collectively as one people, one community, one nation, one Ummah vis a vis the Muslim community, technically known as Dar al-Harb.⁽²⁷⁾

The fairness of this equal treatment results in what is commonly referred to as tolerance - in the real sense. And at the heart of this tolerance lies the basic principle of Muslim International law that: "In the affairs of this world, Muslims and non-Muslims are equal and alike." This principle of equality serves the function of a pivot. It is this point which balances all the detailed rules regulating the protection of the spectrum of legitimate interests of non-Muslim minorities - the 'protected' communities. As a result, it is not surprising to see that one of the characteristic features of Islam is the award of judicial, social and cultural autonomy to these communities. Islam permits and even encourages every group (Jewish, Christian, Magian or other) to establish their own tribunals presided over by their own judges who apply their own laws - without any interference from Muslim authorities. Such judicial autonomy is intended to encompass not only individual private matters (involving personal status) but for all the affairs of life: civil, penal, religious, cultural, etc. As far as issues of social and cultural autonomy are concerned, the safeguards of the rights of non-Muslims in Islamic territories so far as giving them liberty to practise customs that are entirely opposed to those of Islam. For instance, manufacture, importation, sale and consumption of alcohol, games of chance, marriage with close relatives, contracts that entail interest etc., are all permitted. After all, to establish liberty of conscience in the world was one of the aims and objectives of the Prophet Muhammad. However, to be more realistic, it is always useful to remind ourselves to distinguish between the 'Muslim Law' and the 'laws of the Muslims.'⁽²⁸⁾

Closer to home, in Canada these are the principles of the Islamic Law which correspond to similar principles in the Canadian Charter of Rights and Freedoms which relate to: (1) The Supremacy of God and the Rule of Law (Preamble); (2) Guarantee of Rights and Freedoms (3) Fundamental Freedoms (4) Equality Rights; (5) Multicultural heritage.
 

2. In the Context of Canadian law: The Canadian Charter of Rights and Freedoms
 

(1) The preamble in the Canadian Charter of Rights and Freedoms clearly states that "Canada is founded upon principles that recognize the Supremacy of God and the Rule of Law.

(2) It "guarantees" the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

(3) Section 2 sets out the Fundamental Freedoms; "everyone has the following freedoms: a) freedom of conscience and religion b) freedom of thought, belief, opinions and expression, including freedom of the press and other media of communication; c) freedom of peaceful assembly; and d) freedom of association.

(4) Section 15(1) sets out Equality Rights: "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability."

(5) Section 27 on Multicultural heritage states: "this Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of CANADIANS"
 

(1) According to the Preamble of the Charter, "Canada is 'founded upon the principles that recognize the Supremacy of God and the Rule of Law." This "preamble" too must be interpreted in the light of Section 27 which makes it mandatory that "this Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians."

Islam is and has been (even going back to the time of Confederation) a part and parcel of multicultural heritage and Muslim adherents have had the privilege of enjoying the status of 'Canadians'.

Because of the recognition of "Supremacy of God," Islamic law, which originates from the Divine Source of the Supreme Legislator, God, deserves to be recognized as a legitimate code under the Rule of which Law Muslims are constitutionally entitled to live and be recognized under Section 2(a): as to freedom of conscience and religion -- in the same way as Islam recognizes the right of non-Muslims to live by their own laws when living as minorities in a Muslim State (as mentioned under "Islamic Law").

As to the recognition of the "Supremacy of God" under the Preamble of the Charter, when interpreted in the context of the "multicultural heritage" provision of Section 27, let us pause here for a moment and ponder on this point: are we in a position to go to the ridiculous extent and say that, yes, we do recognise the Supremacy of the Christian God, or the Jewish God, but not the Muslim God?! Then, what about the de facto context of Canadian secularism. By definition secularism is supposed to be neutral (neither in favour of nor against religion), where does the God of the Preamble fit into this scheme of things?
 

(2) The Canadian Charter of Rights (Section 1) also requires that any reasonable limits on the guarantees of the Charter have to be demonstrably justified. It is our position that in view of the above arguments that the limits prescribed by Islamic law, with regards to blasphemy/apostasy, do satisfy both the Charter requirements. Namely (i) the Islamic limits are reasonable limits, and are (ii) demonstrably justified within the meaning of Section 1 of the Charter on these grounds: a) The provision of the Preamble regarding the Supremacy of God, b) the constitutional obligation to interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians, c) that over one billion people (Muslims) worldwide consider those limits to the freedom of speech/expression to be reasonable, d)(i)what such a large segment of the Canadian minority believes as a precept of their faith/religion ought to be fully recognized if the Charter's provision respecting freedom of religion are to have any real meaning. (ii) Adherence to Islamic principles in this context, ought to be accepted as sufficient enough to satisfy the Charter Requirement of demonstrable justification. Recognition of Islamic standards of reasonable limits on the freedom of speech by the Canadian courts does not necessarily entail any obligation to enforce the Islamic punishment for blasphemy/apostasy within the Canadian jurisdiction. The Muslims themselves (with the exception of the small Shi'ite minority) do not generally believe or insist on any extraterritorial rights to enforce Islamic Hadd punishment in non-Islamic countries. (See footnote 1, under II, Abingdon Dictionary of Living Religions).

Therefore, it seems logical and reasonable that when dealing with situations which involve Islamic Blasphemy, the Canadian courts, in all fairness, must also determine the issue of the reasonableness of the limits on the freedom of speech and the issue of demonstrable justification in accordance with the sensibilities of the whole Muslim Community/Ummah. Muslims adhere to the Islamic religious principles underlying their laws, which according to them, are legislated under the very authority of the Real Sovereign, the 'God', Who is also recognized by the Charter Preamble.
 

(3) Failing to do so will be a flagrant breach of equality rights under Section 15(1) of the Charter. Because of this failure, Muslims will not be given the equal protection and equal benefit of the law and they will not be treated as equal before and under the law. Indeed, Muslims will thus be discriminated against on the basis of race, national or ethnic origin, colour and especially religion. All such diverse people as those who follow the Islamic religious tradition, despite their various race and ethnic origin are one people.
 

(4) Failing to interpret the guaranteed rights and freedoms of Muslims, in accordance with the true spirit of multiculturalism results in the effective denial of this fundamental philosophy of the Canadian constitution. This is a tragic departure from that cherished 'tolerance' (the real tolerance) which is the distinguishing quality of a cultured people. The more tolerant a nation, the more cultured its people will be. With this measure of cultural excellence, Canada does hold a place of honour in the nations of the world and indeed we proudly stand head and shoulders above so many other nations. What a sad thing it would be to not appreciate the necessity of inculcating this multicultural philosophy into our daily lives. How else can human beings become civilized enough to be able to claim that they do actually respect other cultures and wish to co-exist with them.

26. Muslims consider themselves as comprising the Dar al-Islam, 'literally, "The Household or the Land of Submission" (and the rest of the world is regarded as Dar al-Harb, literally "The Household of the Land of Warfare"). According to the Radd al-Mukhtar, Vol. III, "Land of Islam is a country in which the edicts of Islam are fully promulgated.

27. A country belonging to infidels in which, according to the Qamus, peace has not been proclaimed between Muslims and unbelievers.

28. This distinction is important in view of the fact that what the Islamic Law (Shariah) says, may or may not be, correctly incorporated into the local legislation of Muslim countries, mainly because of their own interpretations which is quite permissible under the Islamic System. The Muslim population living in such countries in effect have no choice but to follow the local, man-made laws. To be valid, these laws must be derived from and based upon the Shariah. They may be at variance in respect of the details of a secondary nature, (not in respect to the principles of law) with the pristine Islamic Law of the Shariah contained in the Qur'an and the Sunnah.