The Concept of Free and Fair Elections from Islamic Perspective: The Conduct of Malaysian 13th General Elections as a Case Study

The Concept of Free and Fair Elections from Islamic Perspective: The

Conduct of Malaysian 13th General Elections as a Case Study

Muhammad Fathi Yusof Centre for Research on Fiqh Sciences and Technology (CFiRST) University of

Technology, Malaysia (UTM) Kuala Lumpur Campus, 54100 Jalan Semarak, Kuala Lumpur, Malaysia.

Tel: +6013-6669669 E-mail: [email protected]

Abdul Latiff Mohd Ibrahim

UTM PERDANA School of Science, Technology and Innovation Policy, University of

Technology, Malaysia (UTM) Kuala Lumpur Campus, 54100 Jalan Semarak, Kuala Lumpur,

Malaysia.

Wan Ali Wan Jusoh

UTM KL Islamic Centre, University of Technology, Malaysia (UTM) Kuala Lumpur

Campus, 54100 Jalan Semarak, Kuala Lumpur, Malaysia.

Abstract

The aim of this study is to examine the relationship between the existing universal standard of

election particularly the concept of free and fair election with is Islamic constitutional and

political principles of justice, equality, al-syura, al-khilafah etc. The study will also aimed at

analysing critically the available indices on freedom and democracy to provide some insight

on the current status of democratic exercises in Muslim countries particularly Malaysia. The

awareness on democratic rights is overwhelmingly improved. There are many official and

unofficial documents that offer views and ideas on the quality of election but the thorough

discussions on the concept of free and fair elections according to Islamic principles are very

limited. Islamic principle of free and fair elections can be a practical guideline for election

management body, political parties, election monitoring group, and the government particularly

in Muslim democratic countries. The discussion in the paper will covers concept of free and

fair elections, international standard of election, relationship between Islam and democratic

election, relevant Islamic constitutional principles, democratic elections in Muslim countries

and analysis the 13th General Elections. Keywords: Elections; Democracy; Free and Fair Elections; Islam and democracy; Islam and justice;

standard of elections.

Introduction

The term ‘free and fair’ becomes important catchphrase to explain the standards of democratic

election and to measure the success of an election. Normally this term include the requirement

that an election must be periodic, sustainable, transparent, and genuine. Besides the fact that

the terms like ‘free’ and ‘fair’ have no easily verifiable content and often being used

subjectively, they have been accepted as the simplest way to explain complicated and so much

debated standards of democratic elections.

The term not only widely used by popular mass media, but also widely referred to in

scholarly writings1 and some formal documents. Started with Gill’s works2 in 1994, the term

‘free and fair elections’ seems to be more precise and extensive terms for electoral benchmark

compared to the other terms such as ‘periodic and genuine election’3 and ‘free election’4..

According to David Beetham5 the principle that elections in a democracy should be ‘free and

fair’ is now established, as there are also the international standards governing what this means

in practise.

The term has been officially used in an international document in 1994, when the Inter-

Parliamentary Union (IPU)6 adopted the Declaration on Criteria for Free and Fair Elections.7

The declaration affirms that in any state, the authority of the government can only derive from

the will of the people as expressed in genuine, free and fair elections held at regular intervals

on the basis of universal, equal and secret suffrage.

Generally, “free and fair elections” refers to periodic, genuine, clean, transparent, free

and fair, competitive elections that in compliance with the principle of democracy, human rights

and natural justice. A free election implies that all citizen including electors, parties, candidates

and media enjoy all their fundamental rights. These rights including the freedom of expression,

association, movement and assembly; freedom from intimidation and violence; freedom of

access to and by electors to transmit and receive political and electoral information messages;

freedom of access to the poll.

Fair election ensure that all candidates and parties to compete on a basis of equal and

impartial treatment under the law and by the authorities. It also necessitates a level ‘playing

field’ in enforcement election-related law, access to state facilities and media. Under this

principle, there should be a clear separation between the state and political parties, and public

facilities and resources should not be used unfairly to the benefit of one party. Fair election also

protects all citizens’ rights to universal and equal suffrage; and rights to vote by secret ballot.

The election management body should be credible, independent, non-partisan and should be

able to conduct their affairs with impartiality and a maximum of transparency.

Islam and democracy

The Islamic political system and democracy comes from different origin and background.

1 The term have been used in various academic works such as Guy S. Goodwin-Gill, Free and fair elections, 1st

ed. (Geneva: Inter-Parliamentary Union, 1994), Robert A. Dahl, On democracy (Yale: Yale University, 2000), Yonhyok Choe, Staffan Darnolf, “Free and fair election: What do we mean and how can we measure them?” In

Election and democracy in Southern Africa, edited by H. Kotze, and B.E. Rash, (Oslo: Norwegian Institute of

Human Rights, 2000), 228-270, Revisiting free and fair elections, edited by Michael D. Boda (Geneva: Inter-

Parliamentary Union, 2005), and Mavis Puthucheary & Noraini Othman. Electoral system in Malaysia: a report

(Bangi: IKMAS UKM, 2003).

2 Guy S. Goodwin-Gill, Free and fair elections, 1st ed. (Geneva: Inter-Parliamentary Union, 1994)

3 The term ‘periodic and genuine election’ become important catchword in UN’s documents in 1990th. See for

example 'Enhancing the effectiveness of the principle of periodic and genuine elections - Report of the

Secretary-General' A/46/609/Corr.1 (22 November 1991) and A/48/590 (18 November 1993)

4 The term ‘free election’ was introduced by Mackenzie in 1958. See Mackenzie, W. J. M., Free elections an

elementary textbook (London: George Allen & Unwin Ltd, 1958)

5 David Beetham, Democracy: A beginner guide (Oxford: Oneworld Publications, 2005) at 169

6 The Inter-Parliamentary Union (IPU) is a Geneva-based international organization of sovereign states,

established in 1889 and currently consists of over a hundred-forty national parliaments as its members. See

What is IPU, The Inter-Parliamentary Union web-site, 31 December 2007

<http://www.ipu.org/english/whatipu.htm >

7 The Inter-Parliamentary Union, Inter-Parliamentary Council (154th session). Declaration on Criteria for Free

and Fair Elections (Paris, 26 March 1994)

Where the fundamental principle of Islamic political system is derived from revealed sources,

the democratic principle was gradually formulated since the seventeenth century by the

political philosophers in Europe as well as the founders of the American constitutions, who

called a state that apply it as ‘a republic’. The word ‘democracy’ in its current usage only

popular since the nineteenth century, even though the term ‘democracy’ already had been used

since 2,500 years ago in the city-state of ancient Greece. The word ‘democracy’ during that

period was used to describe mass rule which is totally different with the system of

representative government that we have today. Thus, despite its wide recognition in the modern

age, democracy seems to be comparatively a new political ideology compared to Islamic

political system that have been introduced since 1,400 years ago.

However the popularity of democracy necessitates Islamic scholars and Muslim

political scientists to make a connection between democracy and Shariah. In addition, the

Islamic political theories itself is general in nature as it only give some universal guidelines.

The main sources of Islamic law do not specifically spell out the procedural and structural

aspects of Islamic political system. Therefore the main issue in the discussion on the

relationship between Islam and democracy, is whether the democratic theory is contrary with

the general principle of Islamic political ideas. Besides that, it is also important to know

whether Islam is compatible with modern concept of human rights, natural justice and

democracy.

There are many scholarly works attempting to relate Islamic political system with

democracy. Some scholars8 argue that democracy is contrary with Islamic principles since it

put the rule of majority above the command of Allah. They relates the principle of people

sovereignty with monotheism (shirk) since it against the concept of tawheed (Oneness of God)

which is based on the sovereignty of Allah. In addition, according to Islamic teaching, the

highest source of law is Allah, and people have no right to make law contrary to the law of

Allah.

In contrast, most of Muslim scholars positively accepted democracy as a better political

arrangement in the modern day compared to dictatorship and monarchy. They also agreed that

democracy is a fair political doctrine and in general, compatible with Islam.9 Al Qaradhawi for

instance argues that Islamic state is very close to the democratic principles as it is a civil state

established on the basis of mutual agreement (shura), political contract (bay’ah), and the right

to choose leader through free and fair elections. Besides that, the people have rights to evaluate

leaders as well as the right to impeach them.10 However, while some liberal Muslim scholars11

categorically accepted democracy, Al-Qaradhawi and some other Muslim scholar limit the

implementation of democracy to the matters which are not violate Islamic principles. In this

8 Among them are Abu Ala Maududi, Sayyid Qutb and Sulaiman Muhammad Al-Tomawi. Refer Sayyid Qutb,

Ma'alim fi al-tariq (Beirut: Dar al-Shuruq, 1982) , Abu Ala Maududi, Islamic Law and constitution ed.

Khurshid Ahmad. (Lahore: Islamic Publication, 1967), Sulaiman Muhammad Al-Tomawi, Al-Nuzum al-

siyasah wa al-qanun al-dusruri (Dar Al-Fikr Al-Arabi, 1988), and Zeenath Kausar, Democratization and the

contemporary Islamic resurgence: democracy versus shuracracy (Selangor: Thinker’s Library Sdn Bhd, 2008)

9 Refer to Lukman Thaib. Discourse on Islamic political thought (Kuala Lumpur: University of Malaya Press,

2006) at 29

10 Yusuf Al-Qaradawi, Agama dan politik: Wawasan ideal dan menyanggah pemikiran Sekular-Liberal (Kuala

Lumpur: Alam Raya Enterprise, 2009) at 163

11 Refer to Abdelwahab El-Affandi, Who needs an Islamic state? (2nd edition) (United Kingdom: Malaysia

Think Tank London, 2008), Kabuli, Faizi Niaz. Democracy according to Islam (Pennsylvania: Dorrance

Publishing Co. Inc,1994), Reza Aslan “Islam is Compatible with Democracy” In Islamic Fundamentalism,

edited by David M. Haugen (Detroit: Greenhaven Press, 2008) 89-99.

regard, Hassan Al-Alkim12 analyses:

Islam and democracy, though different in some respects, share a set of governing values

in common. Islamic thinkers today look to democracy as a means or a mechanism

through which the Shariah can be applied. However they differ on two grounds:

sovereignty and secularism. On the issue of sovereignty, Islam does not envisage

sovereignty in the people or in the government. The Almighty God is the only sovereign

and the people are only His vicegerents. Islam also denies the idea of the separation of

state from religion. This is due to the fact that the state in Islam is not an end in itself,

but it is the stage preparatory to the hereafter, which is the final and lasting life.

Acceptence of democracy not only importance to encourage the Islamists’ participation

in political contest but also to advocate undemocratic Muslim countries to apply democratic

principle in their governance. The call for democratic rule is strongly supported by Al-Quran

and Sunnah and in equivalent with certain Islamic practises and principles such as the practise

of consultation (al-shura), caliphate (al-khilafah), oath of allegiance (al-bay’ah), al-ijma

(consensus).

Shura is an integral process in the function of the Islamic state since it is the only legal

collective way through which the people or its representatives could enact laws or decisions

related to the pursuance of its national interest. Shura also shows the significance of democratic

spirit of Islamic polity which runs through its government organs, political rights and social

arrangement. The spirit of shura is against government by force, or any government lack the

legitimacy by popular consent which expressed through ballot box or by the oath of allegiance.

The Quran does not specify the procedural and technical aspect of shura. Therefore its

general diction makes the application of shura very flexible and adaptable in different place,

time and culture. However the practice of the Prophet and the pious Caliphs can give some

insight into the practice of shura. In some of instances, the Prophet (pbuh) called a number of

close Companions like Abu Bakr and Umar to discuss certain issues. Sometime, he invited

other selected Companions to join the consultation. At the beginning of the Prophethood, the

general practice of shura by the Prophet (pbuh) was mainly with the leading Companions, a

selected number of tribal leaders and men of supreme talents in the society. Then, in Madinah,

the representatives from Aus and Khazraj tribes also invited as shura members. According to

Lukman Thaib,13 members of shura during the Prophet period are the representative of the

people through natural process of selection. They enjoy confidence of Muslim masses to such

degree that if elections of modern days would have been held, these people alone would have

been chosen. Sometimes the Prophet invited the general citizen of Madinah to give their

opinion on the crucial issues such as war. Before the battle of Uhud for instance, the Prophet

followed the opinion of the majority to fight to enemy outside the Madinah, even though he

personally inclined to defend the Madinah from inside the city. The appointment of Abu Bakr

also based on the popular consent showed by the companions who attended the discussion in

Bani Saadah Assembly Hall. However the way Abu Bakr appointed was different with Usman

Al Affan appointment, when the the latter is conducted through a decision made by a special

shura committee of six formed by Usman’s predecessor Umar Al-Khattab. Umar required the

committee to choose his successor by majority vote among the members of shura committee,

and if they were equally divided, Abdullah bin Umar would have casting vote. The organization

12 Hassan Al-Alkim, “Islam & democracy mutually reinforcing or incompatible” in Power-sharing Islam?,

edited by Azzam Tamimi (London: Liberty for Muslim World Publications, 1994, at 78

13 Lukman Thaib. Islamic political representation in Malaysia (Kuala Lumpur: University of Malaya Press,

2005) at 14

of special shura committee by Umar was later set as a foundation for the formulation of idea14

on a powerful shura institution called Ahli Hilli Wal Aqdi by Muslim scholars.

The above examples of the practise of shura during the period of the Prophet (pbuh)

and the pious Caliphs illustrate the dynamism and elasticity of shura. The organisation of shura

may be consists of a few selected experts, or representatives of people or the citizen as a whole.

The operation, size and structure of shura may depend on its jurisdiction, term of reference or

the urgency of particular. The educational and technological advances also may determine the

way shura should be conducted. Therefore, it is obvious that the spirit behind the practise of

shura is analogous with the modern democratic system. Moreover, the practise of popular

election is generally compatible with the concept of shura as mentioned in Al-Quran and

practised by the Prophet Muhammad (pbuh).

Concept of caliphate (Al-khalifah)

The caliphate represents the corner-stone of the Islamic state. The rule of a state in Islam is in

the hand of caliph. However, it is important to note that, based on the Quranic injunctions, 15

the caliph’s title is not conferred to the state leader alone but it belongs to all people. Therefore,

every member of the society, regardless of colour, race, or class is an equal participant in this

caliphate. Furthermore, the sovereignty is vested in the Almighty God whereas the authority to

run the affairs of the state is delegated to the people, rather than the state leader since all

members of the community are considered to be vicegerents.

Accordingly, it is obvious that the concept of caliphate is closely aligned with

democratic ideas. A state leader is not individually represents God’s sovereignty but he is

entrusted by vicegerents i.e. the whole people to administer the state. The term ‘caliph’ that

was used by the early Islamic state leaders after the demise of the Prophet (pbuh), is refer to

the role of them to substitute the political role of the Prophet to administer the Islamic empire,

not as the light of representing the God’s sovereignty over the state.

Islam and democratic principles

Islam and democracy, though dissimilar in some respect, share a set of governing values in

common. Most of contemporary Islamic scholars hold that democracy is compatible with

Islam.16 This view also shared by some non-Muslim political scientist such as John L. Esposito,

John Voll and Noah Feldman.17

Al-Qaradhawi18 for instance, argues that the democratic principles are in harmony with the

essence of Islam as both of them reject tyranny, oppression and absolutism. However he

disagrees with some scholar who went too far by declaring that democracy is the equivalent to

Islam itself. His disagreement is sensible as democracy is man-made ideology that lacking of

moral and spiritual aspect. The important matter in this issue is not equate Islam and

democracy, but to look some principle of democracy that corresponding with Shariah.

14 Abu al-Hassan Muhammad Al-Mawardi, Ahkam al-sultaniyah wa al-wilayah al-diniyah (Cairo: Matbaah

Mustafa Bab al-Halabi, 1975)

15 Al Quran Chapter 2 (Al Baqarah): 30

16 See for example Yusuf Al-Qaradawi, State in Islam (Cairo, Egypt: El-Falah, 1998), Lukman Thaib.

Discourse on Islamic political thought (Kuala Lumpur: University of Malaya Press, 2006), Abdul Bari Sarkar,

Concept of Islamic statecraft (Dhaka: Islamic Foundation of Bangladesh, 1987) and

17 See Esposito, John L. & Voll, John, Islam and democracy and Feldman, Noah in The Fall and rise of the

Islamic state.

18 Yusuf Al-Qaradawi, State in Islam (Cairo, Egypt: El-Falah, 1998) at 198

Firstly, Islamic law similar with democratic principle in maintaining that the

government’s power must be limited and it must always be accountable to the people. The

concept of al-nasihah (voluntary advise), al-amru bil ma’ruf wa nahyu an munkar (enjoin good

deeds and forbid evils) encourage public to voice out their disappointment towards political

leaders. The traditional institution of hisbah (Islamic ombudsman) requires leaders to be

transparent in their administrative decisions as these decisions will be answerable to the people.

In addition, the principle of bay’ah dan shura indirectly shows that Islam support popular

consent as a mechanism to maintain the legitimacy of the authority of state leaders.

Islam supports the idea of separation of power between various government body to

ensure check and balance in government actions. The Prophet (pbuh) for instance appointed

different companions to hold judicial and executive position when he sent officers to some

province.19 It is also important to note that the practise of ‘check and balance’ had firmly

established throughout the history of Islamic government. During the time of the Prophet and

Righteous Caliphs, the state leaders themselves had a very high moral and spiritual force to

encourage public criticism or assessment. Subsequently, during the next Muslim empires, the

power of the Caliphs was scrutinized by the informal institution of Muslims scholars. This

traditional religious institution, indirectly becomes an important element of ‘check and balance’

in ensuring the justice and freedom of the people. Noah Feldman rightly proposed that the

accountability as well as balance of power becomes the important factor in Islamic state

throughout the history.20

Secondly, Islam strongly supports individual freedom as the Allah Himself honour the

sons of Adam as He said in Al-Quran: “And indeed We have honoured the Children of Adam.”21

Islam also firmly opposes oppressive and tyrant rulers who mentally or physically torture

people. Tyrant and authoritarian personalities such as Pharaoh, Namroud, Hamman, Qaroun

are severely attack by Allah in Al-Quran. Traditional Muslim jurists had outlined five basic

‘essential requirement’ (dharuriyyat) which must be protected by those in authority. These

requirement include the protection of religion, life, intelligence, progeny, and property.22 The

government obliged to support and protect all these necessities of people, and at the same time,

people are bound to obey the government. Al-Qaradhawi writes that human rights in the Islamic

teaching includes the personal liberties on privacy, thought, politics, laws, social life and

economy.23 Most of these fundamental rights are not only considered as a ‘right’ under the

Shariah, but also as a ‘duty’. The Quran and the Sunnah give emphasis on the duty of a man

toward others to protect their rights. When he fulfils his fundamental duties, indirectly he

protects the rights of others.

Thirdly, Islamic political system placed important emphasis on fairness as not only as

a pillar of state but also as one of the most important aspect of personal faith, because of its

deep involvement with the moral values of ideological belief. In Islam the command for justice

come directly from God Himself in several verses of the Quran and supported by the Sunnah

of the Prophet (pbuh). Among the Quranic verses is:

Translation: Allah commands justice, the doing of good, and liberality to kith and kin,

19 for example the Prophet sent Abu Musa Al-Asya’ri as the Governor of Yamen and Muaz bin Jabal as the

Chief Justice.

20 Noah Feldman “Why Shariah?” In The New York Times March 16, 2008. http://www.nytimes.com/

2008/03/16/magazine/16Shariah-t.html?pagewanted=3&_r=1&ref=magazine

21 Al-Quran, Chapter 17 (Al-Isra’): 70

22 Refer Wahbah Al-Zuhaili, Usul al-fiqh al-Islami (2nd Volume) (Damascus: Dar Al-Fikr, 1986) at 1021.

23 Yusuf Al-Qaradawi, Agama dan politik: Wawasan ideal dan menyanggah pemikiran Sekular-Liberal (Kuala

Lumpur: Alam Raya Enterprise, 2009) at 187

and he forbids all shameful deeds and injustice and rebellion.24

Fourthly, the practice of representation is not an alien to Islamic political system. Lukman

Thaib point some Islamic authorities to support the practice of political representation in Islam.

Firstly, during the Bay’ah al-Aqabah, the Prophet (pbuh) asked the seventy-three of the

pilgrims of Madinah who joined the pledge to appoint twelve representatives to lead them.

Second, the Prophet (pbuh) had consulted the representative of his companions from Ansar and

Muhajirin before making important decisions. During the battle of Ahzab for instance, the

Prophet asked the view of Sa’id bin ‘Ubadah and Sa’id bin Mu’az, the representatives of Ansar,

on the offer given to Ghatfan tribe leader for the withdrawal from the their alliance with

Quraisy.

Apart from that, the decision made by or consensus agreement among the competent

jurists of the community (al-ijma’) is an important source of Islamic law. During the period of

Pious Caliphs, the nominations of new Caliph were carried out through ijma’ by a number of

scholars who represent the whole community. For example, the nomination of Usman Al-Affan

was carried out by a council consist of six prominent members. The council which was

appointed by Caliph Umar Al-Khattab after he was stabbed by an assassin, exercised it job on

behalf of other scholars and the community as a whole.

In Islamic teaching, some of the Muslim’s obligations can be delegated or exercised on

one’s behalf (fard kifayah). Lukman argues that, based on Islamic injunctions, political

participation becomes a religious obligation, the neglect of which is a deviation from God’s

commands. Since this obligations fall under fard kifayah, Islam allows the believers to delegate

his duty to their representative through a proper mechanism. This concept is analogous with

the system of representative system.

In addition, the establishment of representative system is regarded as a necessity under

the Islamic maxim “any measure of tool deemed necessary to the fulfilment of enjoined Islamic

obligations becomes itself a religious obligation”. The government by mutual consultation

among the Muslims is regarded as an obligation in Islam. However, it is impossible for the

entire population of an Islamic state to participate in the decision-making process of the daily

business of government in order to fulfil this obligation. Therefore it is necessary to have a

smaller number of decision makers that can represent the need and aspiration of public.

Accordingly, the Muslim community have to choose their representatives who practically

exercise political power and enforce the Shariah on their behalf.25

Islam and elections

Undoubtedly the sine qua non of democracy is collective self-government based on political

representation chosen through popular elections. Since Islamic political system compatible

with democratic values and support the practice of political representation, the electoral process

obviously fit to be part of Islamic political system. Indeed, the electoral process is currently the

best means to apply the Islamic principle of al-adalah (justice) al-shura (consultation), al-

bay’ah (oath of allegiance) and al-khalifah (vicegerency).

Al-Quran and Hadith do not explicitly mention about the elections. However, some

Quranic verses indirectly show the need to have an effective mechanism to have political

representatives. Muhammad Asad argues that the expression ‘from among you’ in Al-Quran

24 Al-Quran, Chapter 16 (Al-Nahl): 90

25 Lukman Thaib. Islamic political representation in Malaysia (Kuala Lumpur: University of Malaya Press,

2005) at 36

(4:59)26 shows that the Islamic government must be based on popular consent. He writes:

(The expression) refers to the Muslim community as a whole or, to be more precise, to

a particular body representing it. Thus it follows that, in order to satisfy the requirement

of Islamic law, the leadership of the state must be elective nature; consequently,

assumptions of governmental power through non-elective mean of any description

whatsoever becomes automatically as illegal as an imposition of power by conquest

from outside the Muslim community.”27

In some extent, the vote casting in electoral process is analogous to the testimony of

witnesses (al-shahadah) in the legal proceeding under Islamic law. When a voter gives his vote

to a candidate, he actually has given his legal testimony on the suitability of the candidate to

hold public office. And, when the majority of voters in his constituency give testimony in

favour of him, he will be chosen to represent them. Therefore, based on this viewpoint, Yusuf

Al-Qaradhawi suggests that according to Islamic law, electorates must fulfil basic requirements

to be a valid witness i.e, fair (al-‘adl). He proposes that since the voting is equivalent to a legal

testimony of a witness, the electorates is obliged to give testimony in support the trustworthy

and competent candidate against the corrupt and unqualified ones.28

From a slightly different perspective, Lukman Thaib argues that an election to choose

a representative is a type of aqd tawkil sarih (explicit contract of representation). Voting in

favour of a certain candidate is regarded as giving a contractual authorization to the candidate

to represent the voters in performing their responsibility in enforcing the Shariah and realizing

the interest of the people. The popular election is the most reliable method to secure the widest

participation possible in order to invest the representatives of the ummah.

He further argues that the participation of the non-elected body of ahl al-hal wa al-aqd

in the decision making process on behalf of the people, which is legitimized by implicit contract

of representation (aqd tawkil al-dimni), should no longer be valid for three reasons:

i. The advancement in the fields of communication and transportation make the

explicit authorization (sarih) can be executed without difficulty. Since the implicit

authorization (dimni) is only meant for exceptional conditions, it no longer

applicable in the modern situation.

ii. The implicit authorization demands piety and high ethical standards, which does

not seem to exist on a large scale in the modern day. The erosion of piety and the

decline of ethics, combined with the absence of organized effective popular control

over non-popularly selected representatives would tend to make the body of ahl al-

hal wa al-aqd a forum for selfish politicians.

iii. There is possibility that some head of state may exploit the disorganized system to

appoint individuals who not represent the true interest of the people or reflect the

genuine aspiration. The chief executive in this case may find it possible to infringe

upon the constitutional rights of the people aided by the power of a rubber-stamp

‘representative’ body.29

The above discussion shows the importance of election in Islamic political system.

26 Translation of the verse: “O you who believe! Obey Allah and obey the Messenger (Muhammad pbuh) and

those in authority from among you…”

27 Muhammad Asad, The principles of state and government in Islam (Kuala Lumpur: Islamic Book Trust,

1980) at 36

28 Yusuf Al-Qaradawi, State in Islam (Cairo, Egypt: El-Falah, 1998) at 209

29 Lukman Thaib. Discourse on Islamic political thought (Kuala Lumpur: University of Malaya Press, 2006)

Despite the fact that the modern electoral process designed and developed mostly in Western

civilisation, it is in essence in conformity with Islamic political doctrine. In fact, the

implementation of democratic election in Islamic state is indispensable as it is the most feasible

way to apply Islamic political doctrines such as the principle of al-shura and al-ijma’ in the

current situation. The insertion of Islamic spiritual and ethical values the modern democratic

electoral process, such as the concept of al-amanah (trustworthiness) and al-amr bil ma’ruf wa

nahyu an al-munkar (enjoining of right and forbidding of wrong) will make elections more

effective, free and fair.

Free and fair elections in Islam

Islamic political system gives a great emphasis on the ethical and moral aspect of political

process. Muslims’ involvement in the political affairs is not meant for fulfilling personal

interest or preference, but to get the pleasure of Allah. Thus, Muslim who involve in electoral

process are bound to follow the Islamic ethical and spiritual principle such as justice,

trustworthiness, perseverance, and respect each other as provided in Al-Quran and Sunnah.

They must uphold the universal principle of justice and freedom, not merely as an observance

to the state law, but as his spiritual responsibility to the All Mighty. Therefore, from Islamic

point of view, everyone who involves in elections including members of electoral management

body, candidates, political party leaders, and voters are personally accountable to exercise

justice and freedom in the electoral process.

Islam strongly opposes any discrimination based on race, colour, gender or social status.

Therefore the principle of equal and universal suffrage corresponds to the Islamic political

ideas. The Quranic expression “among themselves” (Chapter 42: 38) shows that the political

right belongs to the whole community. Therefore the representatives of people must be elected

by means of the widest possible suffrage. The Prophet (pbuh) indirectly indicated that women

must no be excluded from political rights as he had received the oath of commitment (bay’ah)

from them during Al-Bay’ah al-Aqabah. In addition, Muslim scholars hold that non-Muslim

citizens are eligible to vote based on the rule of necessity and the principle of political equality

in Islam.30 Besides that, the fact that the Prophet accorded non-Muslim citizens the right to

participate in the political process as provided in some clauses of the Treaty of Medina31 upon

which the Prophet established the first Islamic state, testifies their qualification to vote in

elections.

Apart from that, Islamic constitutional law also unequivocally protect the rights related

to free and fair elections such as the freedom of assembly, freedom of expression and freedom

of association. Involvement of citizens in political affairs is so significant therefore some of the

political rights are not only regarded as privileges, but become religious duties, in order to

apply al-amr bil ma’ruf wa nahyu an al-munkar (enjoining of right and forbidding of wrong).

Muslim scholars32 endorse democratic electoral system as the appropriate system to rule since

it guarantees the freedom to spread Islamic message to the public. Therefore, to have a

functional and successful electoral system, it is important that the political rights and freedoms

30 See Muhammad Asad, The principles of state and government in Islam (Kuala Lumpur: Islamic Book Trust,

1980) at 36, Lukman Thaib. Islamic political representation in Malaysia (Kuala Lumpur: University of Malaya

Press, 2005) at 36

31 For example the clause 26 of the Treaty states: “And the Jews of Banu ‘Awf (as well as Jews from other tribes) shall be considered a community (ummah)—themselves and their partisans along with the nation of the

believers. For the Jews their religion and for the believers their religion, with exception that anyone of the Jews

who commits a heinous crime or sin will be liquidating himself and his family.” Excerpt from Abdulrahman

Abdulkadir Kurdi, The Islamic state: a study based on the Islamic holy constitution, (London: Mansell

Publishing Limited, 1984), Appendix : Declaration of Medina (pages 131-137).

32 See for example Yusuf Al-Qaradawi, State in Islam (Cairo, Egypt: El-Falah, 1998) at 221

are safeguarded accordingly.

Furthermore, the principle of justice and equality in electoral process are also important

from Islamic point of view. Those in authority particularly the electoral management body and

the ruling party must do justice all candidates, political parties and voters. The Quran33

advocates people to be just, even for their enemy or political rival. Therefore the ruling party

cannot be favoured, through the availability or use of state resources, over the other parties or

candidates. Islamic principle of equality also covers the requirement that all parties and

candidates must be given equal access to the media, equal treatment from electoral

management body and equal opportunity to win election.

Case Study: Conduct of Democratic Elections in Malaysia

Measuring the level of effectiveness democratic process in is not a simple task. The problem

lies not only on selecting the most suitable methodology to undertake it,34 but more importantly

on the vagueness of the democratic principle itself. It word democracy has been interpreted in

various ways—though each one relate to another, the degree of strictness in obviously varied.

Then, measuring the applicability of the concept of free and fair elections based on Islamic

principles is equally difficult, if not more than that.

This study is aimed at analysing the general view on the practice of democratic process

in Malaysia based on Islamic principles as discussed earlier. To start with, we should examine

the foundation of the democratic process itself, namely the Federal Constitution. Indeed the

framers of the Federal Constitution were strongly support the idea of ‘free and fair elections’,

although that term had never been clearly stated in the commission’s report.35 The willingness

of the commission can be seen in the proposal on some constituent elements of elections such

as the establishment of credible election management body, guarantee of voting right, guideline

on delimitation process and protection of some basic political right.

The Reid Commission however, was so much relied on necessity to have a ‘completely

independent and impartial’ Election Commission in order to have genuine elections.36

Therefore, the changes in the constitutional provisions pertaining to the EC afterwards had

directly affected the freeness and fairness of the election generally. This was mainly because;

the EC had been given a rather wide authority, including the power to manage electors’

registration, to administer election and to delimit the constituency. The original scheme of the

establishment of the EC in the early draft provided a strong ground for independent and fair

electoral system. But the Working Committee – supported by the argument in dissenting

opinion of Mr Justice Abdul Hamid, a member of the Commission – had altered the original

draft to drop an important pre-condition that the member of the EC must “be able to enjoy the

confidence of all the democratic political parties and persons of all communities”.37 The

constitutional changes after the independent particularly amendments during the attempt to

remove Haji Mustapha Al-Bakri as the Chairman of the EC in 1960 and 1962, had further

loosened the requirement of the appointment and indirectly had reduced the security of tenure

33 Allah says (translation): “…and let not the hatred of others to you makes swerve to wrong and depart from

justice. Be just: that is next to Piety, and fear God.” Chapter 5 (Al-Ma’idah): 9 34 See for example: Boda, Michael D. (2005). Judging Elections by Public International Law : A Tentative

Framework. In Boda, Michael D. (ed.), Revisiting free and fair elections. Geneva: Inter-Parliamentary Union. 35 See Food and Agriculture Organisation of the United Nation (1957) Report of the Federation of Malaya Constitutional Commission (The Reid Commission Report) Kuala Lumpur: Government Printer. The proposal included the draft Constitution. For easy reference the proposed Federated of Malaya Constitution as drafted by the Reid Commission is referred as the Reid Constitution. 36 Para 71 of the Reid Commission Report 37 Para 13(v) of the “Note of Dissent by Mr Justice Abdul Hamid” in the Reid Commission Report, at. 103

of its members.38 Indeed these changes had influenced the quality of elections entirely.

The Commission as well as the Working Committee also seems to overlook other

constituent elements and failed to provide adequate protection on important aspects of free and

fair elections such as the political freedom, providing a level playing field among political

competitors, preventing misuse of government position of political interest and preserving

clean electoral rolls. The dropping of the word ‘reasonable’ in the provisions on restriction of

political freedom as appeared in original draft, for instance, had significantly reduce the power

of the judiciary to review the legislative and executive actions that jeopardize the political

rights. This condition in a way hinder the role of judiciary to exercise its function in al-amr bil

ma’ruf wa nahyu an al-munkar (enjoining of right and forbidding of wrong).

The inadequacy of the constitutional support to secure free and fair elections in fact was

contributed by the changes instigated by the same political group who had influence in the

Working Committee and later, had dominated the Parliament since the independent. The

original scheme as provided in the draft of the constitution prepared by the Reid Commission

actually offered a strong foundation for free and fair elections. But, the draft had been altered

by the Working Committee. And, subsequently with the wide power of the Parliament to amend

the constitution, the significant provisions on the political rights, constitution of the EC and the

principles of delimitation of the constituencies have been altered to fit with its political interest.

The changes had significantly boosted the influence of the ruling party through the legislative

and executive authority and consequently had reduced the integrity and credibility of the EC.

This scenario explains the importance of political will in securing free and fair elections.

Therefore it is necessary for the ruling party to observe Islamic moral values in order to improve

its accountability.

The Federal Constitution however remains as a vital instrument in sustaining the

electoral system in Malaysia and in providing a sound foundation for the conduct of free and

fair elections. Although it has been amended several times for political benefit of the

government, the constituent elements of elections upheld by the constitution remain intact. The

system of Parliamentary democracy government which had been established and developed for

centuries become an important base on which the electoral system works. The stability and

durability in the system of government undoubtedly become the first requirement for effective,

free and fair democratic process. The guarantee of the fundamental right, though subject to

controversial restrictions, is another important foundation provided by the constitutional

framework. The separation of power which is enshrined in the constitution also play important

role in maintaining democratic process particularly in ensuring the freedom, dynamism and

integrity of the judiciary. These significant foundation is clearly in conformity with Islamic

concept of free and fair election, though some improvement in indeed necessary in order to

improve the independence of the election management body.

The Federal Constitution also essentially support the basic elements of the elections

namely the independence of the EC, the free and fair delimitation process and the guarantee of

the voting rights. It is significant to reemphasise that the Federal Constitution established the

EC as a special institution with permanent status, independent from other branch of

government; and its members enjoys security of tenure. The constitution also has special

provisions on the process and formula for delimitation of constituencies. The right to vote

which is given to eligible citizens is also protected without any qualification unless under the

provision of the constitution itself. All these frameworks are crucial in sustaining democratic

practice in the country and they also become the basis in the improvement of the electoral

system.

38 For insights on “politicisation of delimitation exercise”, see for example Ong Kian Ming & Bridget Welsh

“Electoral delimitation: a case study of Kedah,” in Elections and democracy in Malaysia, edited by Mavis

Puthucheary & Noraini Othman (Bangi: Penerbit UKM, 2005), 316;

Generally the 13th Malaysian General Election was conducted successfully. It fulfilled

its function in providing an effective mechanism to allow citizens to exercise the bay’ah or

oath of commitment as provided under Islamic concept in appointment of state leader. There

were arguments on the legitimacy of the mandate on the ground of popular vote distribution.

Undoubtedly the ruling party won less popular vote compared to the opposition coalition. But,

the emphasis should be given to the rule of the electoral system which is based on the number

of the seat won, but by the number of popular vote. Though the issues of malapportionment in

election boundary exercise needs serious attention, the general outcome of the electoral result

should ultimately be respected. This concept is based on the priority in ensuring peace and

harmony in the country as well as to establish a cohesive and stable government—which is

undoubtedly strongly supported by Islamic political concept.

However, we should not close our eyes on weaknesses in the exercise of democratic

process in the 13th General Elections. Islam consistently uphold the concept of al-amr bil

ma’ruf wa nahyu an al-munkar (enjoining of right and forbidding of wrong). The facts that the

political freedoms of citizens are seriously curtailed by various legal restrictions, the use of

executive power to unfairly restrain political critics and the failure of the government to prove

the protection of the said freedom through ratification of international instruments are among

the basis of the finding that the election is partially free. It is argued that the outcome of the

elections does not indicate free choice of the people for several reasons including the rampant

use of bribery, intimidation and money politics to get votes, the weaknesses in the legal

framework and the enforcement against electoral offences, the problem of ‘phantom voters’,

the discrepancy of electoral rolls, and frauds in polling exercise including in postal voting

system. The above observations probably support the argument that the elections was ‘partially’

free according to the Islamic views.

Apart from that, the inference that the 13th general elections is not completely fair could

be based on the many indicators such as: the degree of neutrality and structural independence

of the current EC; the lack of caretaker government policy; mixing of party and government;

unfair media access and coverage; excessive political manipulation in the delimitation exercise;

and the executive influence in the judiciary.

Moreover, judicial review as well legal and regulatory reform pertaining to procedure

of election petition is necessary to develop free and fair election. This concept is based on

Islamic principle of al-adalah or justice. Therefore, the court should have a wider authority to

examine the validity of electoral rolls, to check on the exercise of discretion by election

officers, and to protect the political freedom and the voting right of the citizens. All interest

parties in the electoral process should have right to access to justice through impartial judiciary

and legal enforcement. The procedure of election petition however to some extent had

obstructed the freedom of citizen to enforce their democratic right. Restrictive provisions on

the grounds of petition and the requirement that the complained grounds must affect the result

of the election in question had partly caused about 90% of the petitions were rejected.

Conclusion

Islam provides general principles on the concept of free and fair elections. Although the

democracy originated from the western civilisation—since the ancient direct democracy era to

the modern representative democracy—the essence of democratic ideas undoubtedly was

already taught by the Prophet (pbuh) since more than 1400 years ago. The principle of justice,

freedom, equality and mutual agreement can be found in Islamic teaching. These basic

principle also supported by other political conception such as al-amr bil ma’ruf wa nahyu an

al-munkar (enjoining of right and forbidding of wrong) and the oath of commitment (bay’ah).

With that general standard, it is possible to researchers to examine the freeness and fairness of

elections according to Islamic principle. The study found that the 13th General Elections had

achieved its function in establishing a legitimate government according to Islamic political

concept. However the conduct or election needs improvement since it was not completely free

and fair as it anticipated under Islamic political theories.

Acknowledgements

This research is funded by the Research University grant of Universiti Teknologi Malaysia

(UTM) under the Vot no. Q.K130000.2740.00K56. The authors would like to thank the

Research Management Centre of UTM, Ministry of Education and the Malaysian government

for their support and cooperation including students and other individuals who are either

directly or indirectly involved in this project.

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