Brainstorming Session on Religion and Human Rights in the Draft Palestinian Constitution
On Tuesday, 18 September 2012, the Institute of Law (IoL) at Birzeit University organised a brainstorming session on Religion and Human Rights in the Draft Palestinian Constitution. In addition to a number of IoL legal researchers, the session brought together Dr. Ali Khashan, Dr. William Nassar and several scholars from Birzeit university.
In his opening remarks, Mr. Jamil Salem, IoL Director, welcomed the audience and highlighted significance of the topic in light of revolutions and political and constitutional transformations across the Arab region. With a view to come up with a reconciliation formula, the new situation in the Arab World necessitates a thorough deliberation of the relationship between the Islamic Law and human rights. Mr. Salem addressed the relationship between human rights, religion and Shari'a, which have drawn attention of many legal scholars. The debate over this issue has given rise to theoretical and practical issues that still need to be fathomed and understood. Whereas the post-modern world is adopting a variety of opinions and perspectives on human rights and Islam, the IoL will seek to identify various dimensions and viewpoints on this issue as well as search for a ‘common background in the midst of such diversity and plurality’. At the same time, the research project will avoid the clash between predominant schools of thought in this area.
Dr. Mustafa Mar’i, Manager of the IoL-based Religion and Human Rights in the Draft Palestinian Constitution Project, explained that the brainstorming session “is designed to identify major themes of thorny issues in the relationship between religion and state.” With a particular focus on human rights, relevant conclusions and studies will be produced. With the potential of regulating the linkage between the Islamic Law and human rights, the research project will explore how the Constitution addresses this relationship.
Advocate Narmin Siyam, legal researcher at the IoL, presented a preliminary study on the historical development of the relationship between religion and the state, including an overview of the historical context of the evolution of secularism and impact of Arab revolutions and political transformations on human rights. In her study, Advocate Siyam emphasised that the conflict between religion and the state has still been a topic of discussion since the 17th and 18th centuries. In this context, while several scholars advocated a full dominance of religion over the state, others embraced an entire separation between religion and the state.
Advocate Siyam further highlighted that the relationship between religion and the state is marred with several controversial issues. These include constitutional provisions, which prescribe that Islam is the official religion of the state, Shari'a is the sole source of legislation, and engagement of religious parties in the political process. According to Advocate Siyam, these issues need to be deliberated and examined in depth particularly in light of constitutional transformations seen in Arab countries, including Egypt and Tunisia. With the rise of Muslim Brotherhood to power, relevant reflections on constitutional provisions relating to religion, Islamic Law and public rights and freedoms should be scrutinised. In this vein, Advocate Siyam explored how the Palestinian Basic Law and Draft Constitution address the relationship between Shari'a and human rights.
In the ensuing discussion, Dr. Ali Khashan highlighted that the relationship between religion and the state is critical, controversial and requires an in-depth examination. To this avail, Dr. Khashan raised a couple of questions: Does a constitutional provision on religion mean that the state is religious? If not, does an absent provision on religion indicate that the state is democratic? Dr. Khashan confirmed that the principle of citizenship should be taken into account in the context of discussing the relationship between the state and religion. Accordingly, each citizen can hold public positions without discrimination on grounds of religion or political affiliation.
In terms of evolution, Dr. William Nassar explained that the concept of the state is secular. Not a historical or religious text addresses concept of the state. The state per se cannot have a religion; it is the people and political system that have one.
In regards to public rights and freedoms, Dr. Nassar emphasised that Arab states have reservations about provisions of the Universal Declaration of Human Rights, which violate the Islamic Law. Referring to a major problem of Arab constitutions, Dr. Nassar stated that the Arab legislator associates rights with obligations, thereby infringing on human rights. Rather, rights and obligations should be addressed under separate titles with a view to protect human rights and dignity.
Finally, Dr. Salem and Dr. Mar’i concluded that this brainstorming session will serve as the background, on the basis of which IoL legal researchers will identify and explore major themes in the relationship between religion and the state. Relevant conclusions and recommendations will be presented in a conference that the Institute of Law will hold during the first week of December 2012.
