Telah saya ambil esei ini dari laman web saya yang lama yang tidak saya pakai lagi. Tarikh esei tidak dicatat, tetapi kira-kira antara 15-20 tahun dulu./ I have taken this essay from my old web site which I no longer use. The date of the essay was not written, but it was between 15-20 years ago. -- K.A.
A SHORT NOTE ON THE MEDINA CHARTER
A SHORT NOTE ON THE MEDINA CHARTER
By:
Kassim Ahmad
(Undated)
(Undated)
The
Medina Charter, written and promulgated by Prophet Muhammad for the
multi-religious ten thousand-strong citizens of the city-state of Medina
in 622 A.D is truly a remarkable political-constitutional
document. The claim made by Professor M. Hamidullah that it was the first
written constitution[1]
in the world is not without basis. Aristotle's Constitution of Athens [2],
written on papyrus, discovered by an American missionary in Egypt in 1890
and published in 1891, was not a constitution. It was an account of the
constitution of the city-state of Athens. Other legal writings on the
conduct of ancient societies have been found, but none can be described as
a constitution. The Medina Charter is the first, and in this it preceded
the American Constitution of 1787, considered by Western authorities as
"a landmark document of the Western world … the oldest written
national constitution in operation"[3]
by more than a thousand years! It also preceded the English feudal bill of
rights, the Magna Carter of 1215, by
almost six centuries!
Not only is the Madina Charter important in the sense
that it is the first written constitution; it is also modern in the sense
that it was promulgated for a plural society, giving equal rights to every
citizen as well as giving them a say in governmental matters, as we shall
see.
Considerating
all these, it is amazing that those Muslim leaders and writers who talk
and write about the Islamic state seldom refer to this important seminal
political document of Islam.
It
is to be remembered that Muhammad had become a prophet, reciting God's
revelations to his fellow-Meccans, for
twelve years before he and his followers migrated to Yathrib, two hundred
and ten miles to the north of Mecca. There was going to be another ten
years to his mission before he completed the delivery of the Divine
message to the Arabs and to mankind in God's final scripture, the Quran.
So this Medina Charter was provisional in the sense that it could not
contain all the provisions of statecraft contained in the Quran. Yathrib
was later to known as "The City of the Prophet " or simply
Medina. The reason for the migration was the growing opposition of the
Quraisy aristocracy to his teachings and the receptive attitude shown by some Yathrib pilgrims to Mecca at this time.
The
whole text of the Charter has been reproduced, word for word, by
Ibn Ishaq and Abu Ubaid in their respective books from the original
preserved by Ibn Abi Khithamah.[4]
The Charter consists of 47 clauses, but due to
different numbering, Prof. Hamidullah counts it to be 52.[5]
Clauses 1, 2 and 39 state the formation of a sovereign nation-state with a
common citizenship, consisting of various communities, principally Muslim
Arabs from Mecca (the Muhajirin
or Immigrants), Muslim Arabs
from Yathrib (the Ansar or
Helpers), other monotheists form Yathrib (i.e. the Jews)
and others who must be at that time still pagans. These constitute
a unified citizenry (Arabic term, ummah),
having equal rights and responsibilities, as distinct from other peoples.
It
should not escape anyone's notice that these two clauses established the
first modern nation-state in the world. Although Medina was just a city,
its Charter was to last until the beginning of the Umayyad Dynasty in
1661. Western historians cite the Treaties of Westphalia in 1648 as the
beginning of the modern nation-state era.[6]
The
Charter provided a federal structure with a centralized authority, with
the various tribes in various districts constituting a unit and enjoying
autonomy in certain matters of a social, cultural and religious character.
Provision for this district autonomy is repeated for each district.
(Clauses 3 through to 11 and 26 through to 35)
In fact, many matters were left in the hands of the autonomous
units, except state security and national defence. (Clauses 17, 36 (a) and
47) Provisions for these
centralized subjects are made in Clauses 13, 15, 17 and 44. Only in cases
of disputes the units could not resolve, recourse for their decisions had
to be made to the Prophet, whose decision was final. (Clauses 23 and 41)
As
Prof. Hamidullah rightly stated, " … this new constitution …
brought with it very important, and -- to Arabia at least -- very
revolutionary change and improvement, by providing the people with a
central public institution for seeking justice, in place of everyone
seeking it with the power of his own hand or, at best, that of his family.
This epoch-making innovation … brought an end for all times to the chaos
of tribalism and which laid the basis for a wider institution, viz a
State." [7]
It
should be noted that this loyalty to the State by its plural citizenry
constituted a nationalism, or more exactly a patriotism, that is approved
by Islam, contrary to what some modern Muslim ideologues assert. It is in
line with the teaching in the Quranic verse, "O people, We created
you from the same male and female and rendered you into distinct peoples
and tribes that you may recognize one another. The best of you in the
sight of God is the most righteous."[8]
There were twenty districts each with a chief (naqib)
and deputy chiefs (`arif) and
its meeting place (saqifah). The
city at this time had a population of about ten thousand. Of these, the
Muslims made up only a few hundred; half of it were monotheist Jews, the
rest being polytheists.[9]
It is noteworthy that the Charter ordained equality
to its members and protected them against oppression. (Clause 16). The
State proclaimed the brotherhood of believers and gave each one a right
and support to give protection to any individual, excepting an enemy.
(Clause 15). It also extended help to its members in debt or in financial
difficulties in regard to payment of ransom or blood-money. (Clause 12).
It prohibited help or refuge to be given to a murderer. (Clause 22).
A very important human right is given in Clause 25
where freedom was guaranteed for each community to practice its own
religion. The implication of this clause is that each individual was also
free to choose his or her religion, in line with the clear teachings of
the Quran.[10]
Another important principle of statecraft is
consultation with the people in all matters. This is stated in Clause
37(a). Unlike in modern democratic polity, the voice of the people, vox
populi, regardless of whether that voice represents right and truth or
not, is given the highest value. This is a basic flaw in Western
democracy. Another important principle of just governance is that no
quarter is given to an injustice or wrong-doing. In the Charter, this is
stated in Clause 47.
As I stated above, this constitution is Muhammad's ijtihad
at formulating a constitution when he was confronted with the task of
administrating the city-state of Medina. At this time, he had not yet
received the full Quran. He had therefore to fall back on customs and
precedents, and he did. In any case, all constitutions are provisional in
the sense that it must be adapted to changing times.
A trace of Arab tribalism can be detected in two
clauses where a member together with his family were to be punished
because of a crime he committed. (Clauses 25 and 36(b))
This clearly contradicts another clause which states that no
evil-doer is punished except for the crime he commits. (Clause 46)
Perhaps, in the light of present Muslim interest in
an "Islamic state", we should point out that this important
constitutional document of Islam does not anywhere use the term
"Islamic state" of "Islamic society". The major
principles governing an Islamic society are, of course, present --
principles like justice, brotherhood and unity of believers, unity and
cooperation among zitizens of the state, freedom of religion, strict
adherence to pacts entered into between parties, cooperation to do good
and to prevent evil, encouragement for high moral conduct, consultation as
a method of government. It is also interesting to note that what has been
called "Hudud laws", being part of Islamic Law, is also nowhere
mentioned in the document.
It should be noted that the Charter, this first
Islamic political-constitutional document, was given to the people of
Medina in the name of Muhammad the Prophet (Clause 1) and also in the name
of God as well as Prophet Muhammad. (Clause 47) Why
two different ways of phrasing the ultimate source of power? It is
to be remembered that during the Western Middle Ages, the Church ruled
supreme in the name of God, and God's name was, of course, much misused by
hypocrites and opportunists. The modern Western practice of replacing God
with the people has, of course, not helped matters very much. In the name
of the people, oppression, wars, colonialism and aggressions have been
launched.
Thus, even in this modern age of science and
technology, mankind cannot ignore a power that is greater than itself.
Mankind has an autonomous right to live, and to live happily, but he must
do that in a lawfully created Universe.
It is in this sense that the Charter was given in the name of Muhammad the
Prophet, who represented the principle of the good and of right reason,
which is higher than the individual man. Likewise, in Clause 47 God's name
was put first, as God represents the highest Good and the highest
principle of right reason. This is necessary to conduct Man to higher and
ever higher achievements.
APPENDIX
THE
MEDINA CHARTER [11]
In
the name of God the Compassionate, the Merciful.
(1)
This is a document from Muhammad the prophet (governing the
relations) between the believers and Muslims of Quraysh and Yathrib, and
those who followed them and joined them and laboured with them.
(2)
They are one community (umma) to the exclusion of all men.
(3)
The Quraysh emigrants according to their present custom shall pay
the bloodwit within their number and shall redeem their prisoners with the
kindness and justice common among believers.
(4-8) The B. ‘Auf according to their present custom
shall pay the bloodwit they paid in heatheism; every section shall redeem
its prisoners with the kindness and justice common among believers. The B.
Sa ida, the B. ‘l-Harith, and the B. Jusham, and the B. al-Najjar
likewise.
(9-11) The B. ‘Amr b. ‘Auf, the B. al-Nabit and
the B. al-‘Aus likewise.
(12)(a) Believers shall not leave anyone destitute
among them by not paying his redemption money or bloodwit in kindness.
(12)(b) A believer shall not take as an ally the
freedman of another Muslim against him.
(13) The God-fearing believers shall be against the
rebellious or him who seeks to spread injustice, or sin or anmity, or
corruption between believers; the hand of every man shall be against him
even if he be a son of one of them.
(14) A believer shall not slay a believer for the
sake of an unbeliever, nor shall he aid an unbeliever against a believer.
(15) God’s protection is one, the least of them may
give protection to a stranger on their behalf. Believers are friends one
to the other to the exclusion of outsiders.
(16) To the Jew who follows us belong help and
equality. He shall not be wronged nor shall his enemies be aided.
(17) The peace of the believers is indivisible. No
separate peace shall be made when believers are fighting in the way of
God. Conditions must be fair and equitable to all.
(18) In every foray a rider must take another behind
him.
(19) The believers must avenge the blood of one
another shed in the way of God.
(20)(a) The God-fearing believers enjoy the best and
most upright guidance.
(20)(b) No polytheist shall take the property of
person of Quraysh under his protection nor shall he intervene against a
believer.
(21) Whoever is convicted of killing a believer
without good reason shall be subject to retaliation unless the next of kin
is satisfied (with blood-money), and the believers shall be against him as
one man, and they are bound to take action against him.
(22) It shall not be lawful to a believer who holds
by what is in this document and believes in God and the last day to help
an evil-doer or to shelter him. The curse of God and His anger on the day
of resurrection will be upon him if he does, and neither repentence nor
ransom will be received from him.
(23) Whenever you differ about a matter it must be
referred to God and to Muhammad.
(24) The Jews shall contribute to the cost of war so
long as they are fighting alongside the believers.
(25) The Jews of the B. ‘Auf are one community with
the believers (the Jews have their religion and the Muslims have theirs),
their freedmen and their persons except those who behave unjustly and
sinfully, for they hurt but themselves and their families.
(26-35) The same applies to the Jews of the B.
al-Najjar, B. al-Harith, B. Sai ida, B. Jusham, B. al-Aus, B. Tha'laba,
and the Jafna, a clan of the Tha‘laba and the B. al-Shutayba. Loyalty is
a protection against treachery. The freedmen of Tha ‘laba are as
themselves. The close friends of the Jews are as themselves.
(36) None of them shall go out to war save the
permission of Muhammad, but he shall not be prevented from taking revenge
for a wound. He who slays a man without warning slays himself and his
household, unless it be one who has wronged him, for God will accept that.
(37) The Jews must bear their expenses and the
Muslims their expenses. Each must help the other against anyone who
attacks the people of this document. They must seek mutual advice and
consultation, and loyalty is a protection against treachery. A man is not
liable for his ally’s misdeeds. The wronged must be helped.
(38) The Jews must pay with the believers so long as
war lasts.
(39) Yathrib shall be a sanctuary for the people of
this document.
(40) A stranger under protection shall be as his host
doing no harm and committing no crime.
(41) A woman shall only be given protection with the
consent of her family.
(42) If any dispute or controversy likely to cause
trouble should arise it must be referred to God and to Muhammad the
apostle of God. God accepts what is nearest to piety and goodness in this
document.
(43) Quraysh and their helpers shall not be given
protection.
(44) The contracting parties are bound to help one
another against any attack on Yathrib.
(45)(a) If they are called to make peace and maintain
it they must do so; and if they make a similar demand on the Muslims it
must be carried out except in the case of a holy war.
(45)(b) Every one shall have his portion from the
side to which he belongs.
(46) The Jews of al-Aus, their freedmen and
themselves have the same standing with the people of this document in
purely loyalty from the people of this document.Loyalty is a protection
against treachery. He who acquires aught acquires it for himself. God
approves of this document.
(47) This deed will not protect the unjust and the
sinner. The man who goes forth to fight and the man who stays at home in
the city is safe unless he has been unjust and sinned. God is the
protector of the good and God-fearing man and Muhammad is the apostle of
God.
*****
Foot
Note
[1] The
First Written Constitution in the World, Sh. Muhammad Ashraf,
Lahore, 1968. First published in England, 1941.
[2] Translated by Frederic G.
Kenyon, Internet. !996 The Avalon Project.
[3] The
New Encyclopaedia Britannica, 15th Edition, 1991.
[4] The
First Written Constitution in the World, p. 9. The translation of
the whole text for A. Guillaume's Life of Muhammad is appended at the end.
[5] Ibid.,
pp. 19-20.
[6] The
New Encyclopaedia Britannica, 15th Edition, 1991.
[7] The First Written
Constitution, p. 18.
[8] Quran, 49:13.
[9] Ibid.,
pp. 12-13.
[10] "There shall be no
compulsion in religion: the right way is now distinguished from the
wrong way." (2:256) Note that this statement of complete
religious freedom comes immediately after the grandest statement of
God's power to be found in any scripture. It is indeed significant!
[11] This text is taken from
A. Guillaume, The Life of
Muhammad -- A Translation of Ishaq's Sirat Rasul Allah, Oxford
University Press, Karachi, 1955; pp. 231-233. Numbering added.
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