Middle-east Arab News Opinion | Asharq Al-awsat

The Saudi Constitution: Planting the Seeds of a New Paradigm | ASHARQ AL-AWSAT English Archive 2005 -2017
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King Abdullah Bin Abdulaziz’s royal decree to establish the Allegiance Institution Committee, with the special rules that govern it, to specifically control the process of selecting the king and the crown prince, ensures the unity of the royal family and safeguards the country. As such, Saudi Arabia has widened the circle of political trust and spread reassurance among its people, further stabilizing its constitution. This is the Saudi citizen’s first impression, or what an observer would record as the public reaction to the announcement.

Having said that, we may begin to address the clearly written constitutional ‘ceiling’ that controls the transition of power from one king to another. Although the ruling system under King Fahd in 1992 briefly addressed this subject, this new 25-article system takes into account more possibilities including ones of a rare occurrence such as the simultaneous incapacitation of king and crown prince, or simultaneous deaths. It has also introduced new terminology, enriching the Saudi political dictionary with terms such as ‘Transitory Ruling Council’.

Indeed, we may rest assured that even in the worst-case scenario wherein conflict and differences escalate around matters related to the rule that there exists a reference and a mechanism to set matters straight. There are clear and transparent legal articles that can resolve most anticipated cases without the customary discomfort; situations such as health disabilities or the incompetence of the nominated candidates for king and crown prince as stated in section ‘b’ of Article 7 of the decree, which states: “It is the king’s prerogative to ask the committee to nominate a crown prince at any time. In the case that the king does not approve of the committee’s nominations, in accordance with sections ‘a’ and ‘b’ of this article, the committee will vote between its nominated choice and another candidate nominated by the king. The crown prince will be selected on the basis of gaining the most votes. In the case of a draw, the king’s word overrules.”

Article 12 states: “If the Allegiance Institution Committee receives convincing evidence that the presiding king and crown prince can no longer resume their rule due to health reasons, the committee will consult with the medical board that is agreed upon within this system to prepare a medical report on their state of health.”

This creates transparent measures that posit legal solutions in the case of disagreements between the king and the committee over the nominated choices, or if the committee believes it poses any hindrances that can affect the efficacy of the king or the crown prince’s rule. Clarity and honesty, awkward though they may be, are what will be instrumental when dangerous or anticipated situations arise, ensuring that the country never falls into a quandary. Wisdom lies in anticipating the situation before it happens. It does not necessarily have to occur, but if it does, one is readily equipped to deal with it. This relates to the general level, however, there remain certain apprehensions concerning this system in terms of the legitimacy and the veracity of the methodology of jurisprudence. Add to all that the ‘clamor’ that has started to be heard in the marginal areas, which conceals behind it implicit questions surrounding the concept of ‘the responsible guardians’, and the ongoing problematic relationship between religious leaders and the prominent princes in our jurisprudential and historical traditions. Concerns that the Allegiance Institute Committee’s system will modify the religion and distance it from the righteous path have been voiced, whereas in reality, this new system has not ‘invented’ anything with regards to the fundamental understanding of Islamic jurisprudence as it has been perceived and passed down over the centuries, which has historically always been part of the practices in Saudi Arabia.

All that has occurred on the legislative front is a redraft and a modernization of what was already being practiced, moreover, it has also allowed for transparency and disclosure with regards to the consultations and conferences that take place in the royal Saudi house over matters related to the rule. Another element is documenting the constitution into a written form that clearly states that the rule is exclusive to certain descendents, which is something that has been in practice for over a century and a half. In his book, ‘Predecessors and Successors in the Inheritance of the Throne’, Kuwaiti researcher Ahmad Uddin refers to the official Ottoman law, drafted on 14 December 1876, which states in its third article that, “The Sunni Ottoman Sultanate, which is the largest Islamic caliphate, belongs to the oldest sons of the descendents of al Othman, in accordance with the old tradition.” He also refers to the oldest Arab constitutional document that deals with the issue of the inheritance of power in modern Arab history; Tunisia enacted the first constitution in the Arab world and drafted the state law on 26 April 1861 during the Husaynid family rule. It stated: “The oldest in the Husaynid house will be the one to rule in accordance with the accepted tradition. No younger member can assume that position unless the former is incapable of serving the kingdom”. The author also cites the ‘first’ Arab kingdom to mention the system of hereditary rule in its constitution was the Syrian Arab Republic during King Faisal Bin al Hussein al Hashemi’s rule, which stated that the rule shall be passed on to the eldest of King Faisal I’s sons and then the eldest after him and so on. Along the same lines was the constitution of the Arab Republic [the republic established by King Faisal in Iraq after the French colonized Syria in July 1920], which was enacted in 1925 and over which Faisal Bin al Hussein presided after he left Syria.

However, the modern redrafting of the system of pledging allegiance is part of a broader picture, which is the legal drafting of Islamic jurisprudence on a general level. We know that royal decrees are a branch of jurisprudence that require research due to their critical nature, accordingly part of the problem with the new system, or those who may have issues with it, will be on a jurisprudential level.

On the subjects of pledging allegiance and hereditary rule, one must refer to the extensive Islamic history to try and understand the legislative status. It is a known fact that the early scholars discussed the concept of hereditary rule when it became a reality that confronted them during the Umayyad dynasty, and thus became history. In his book ‘The Ordinances of Governance’, al Mawardi (died 450Hijri/1058 AD) defends the inheritance of power, as does Adnan Ismandar in his book ‘Prophecy, the Caliphate and the Imamate’. To support his point, al Mawardi uses the example of the Prophet’s (pbuh) temporary delegation of leaders from the army based on a system of succession when one of them died saying, “If the Prophet (pbuh) followed this system of succession in the army then we may apply it to the caliphate.” He continues by saying that this was enforced in two empires (referring to the Umayyad and the Abbasid) and that no scholars at the time protested or opposed that system. This also meant that the rule was delegated to more than one person (The Ordinances of Governance, page 40).

Therefore, the new Saudi system, although novel in its documentation and format is nonetheless supported by a multitude of historical precedents that takes us back to Saqifah Bani Saeda [where the meeting took place after the Prophet’s death to discuss the future of the Muslim community], which witnessed the first argumentative political debate about the Islamic state and the nature of rule directly after the Prophet’s death (pbuh). During the meeting, Abu Bakr announced to the Ansar [literally the supporters and they included the two tribes; al Aws and al Khazraj] that he objected to his own nomination, upholding that the Quraysh were more deserving of succession when he said, “The Arabs are indebted to Quraysh”. His objection here is realistic and practical and well-known to everyone. When referring to the Saudi situation, it is acknowledged, regardless of political and ideological observers that if we were to apply Abu Bakr’s statement to this context, it would then be appropriate to say that Saudis, from east to west and north to south; are indebted to al Saud”.

On the other side, there are those who believe that the modern understanding of pledging allegiance is not valid because it is governed by different understandings of political philosophy and utilizes modern criteria for judging, which are a product of a new political ideology. Complicated though that may be, it reminds me of a conversation I had with Dr. Radwan al Sayyid who specializes in Islamic political ideology and is the author of the most prominent publications on the subject. The dialogue was published in Asharq Al Awsat in August 2003, and my main question may be summarized as follows: Do you think that the notion of ‘allegiance’ is a valid foundation upon which to build a social and political contract between the ruling authority and the people, or are we in need of a new basis? He answered by saying that the system of pledging allegiance is not only relevant to Muslims, but is in fact the tradition that achieves legitimacy in monarchical systems worldwide. What is important, he continued, is the nature of the consultative decision that is determined by using a unanimous vote, or one that is based on the majority’s choice. If we never practiced voting by using ballot boxes before, the same is true for other countries, yet they do now and it does not contradict their religious beliefs. The prevalent belief among scholars is that the political dimension is not about worship but about political opportunism and the best way to manage things. Those who discuss allegiance and its legacy today do not do so because they have an appreciation of Islamic history, (they are the ones who believe that deviance started in the time of Muawiya*), but rather because they consider politics to be a part of religion. I cannot fathom how those who believe this would say that Shura [consultative practice] is compulsory and is authoritative whilst insisting on returning to the old system of pledging allegiance, which is unrelated to the concept of Shura in our history. It is indeed an intelligent and perplexing question. [This relates to recent Saudi history in which the king selected the crown prince without consulting anyone on the matter].

In any case, I have no doubt that the announcement regarding the system of pledging allegiance in Saudi is a big step in the country’s constitutional fate. I also believe it will give rise to a ‘positive curiosity’ and launch new political thought, both on a specialist and public level, about issues that revolve around politics and jurisprudence such as pledging allegiance, the nature of the decision-makers as well as modern concepts such as the ‘constitution’.

The Allegiance Institution Committee, although limited to the sons of the founder King Abdulaziz and their descendents to come, and limited to the specific function of selecting the king and crown prince, still forms the ‘complete parliament’ as it exercises true control by virtue of its voting voices. The Shura Council, as developed and progressive as it is, remains a body that depends on assigned positions, rather than ones that are the product of elections. Some may ask: Will the new mechanism that was set for the system of pledging allegiance also be applied to other councils or bodies in the country? I believe so but only gradually, and that would bring us closer to achieving a true democracy instead of an empty practice that may end up harming the system and ourselves. Whatever may be said here, it is still better than a parliament that has nothing better to do than ban Nancy Ajram concerts and concerns of a similar nature.

According to George Tarabishi’s compelling observations in his book ‘Unorthodoxy in Democracy”, it is true that, “Arab regimes cannot afford to have free elections, but Arab societies cannot afford to have freedom of speech”, also, “Democracy, on a basic level, is a social phenomenon, and society, first and foremost, is made up of woven mentalities”.

But who knows? Perhaps this system of pledging allegiance will become a point of reference on which other experiences can be modeled to make a stronger Saudi Arabia and it is always best to take the advice of others and not rush into things. As Tarabishi once said, “Democracy is a sprouting seed that grows, not a fruit to be reaped.”

* Muawiya Ibn Abi Sufyan. Muslims held conflicting views over his reign, some believed him to be a good ruler while others believed he usurped the caliphate, straying off the path that the Prophet (pbuh) and the Four Righteous Caliphs had set.