The 1979 Iranian constitution, with Ayatollah Khomeini as it's first supreme leader, reframed the concept of the Arab state. Photo: Georgis Kolidas, Shutterstock The 1979 Iranian constitution, with Ayatollah Khomeini as it's first supreme leader, reframed the concept of the Arab state. Photo: Georgis Kolidas, Shutterstock

Chapter 10 – Constitutional Islam

Genealogies, transmissions and meanings

The incorporation of references to Islam and Islamic law in modern constitutions is now a well-recognized phenomenon. More than twenty nations provide that Islam is the religion of the state (which I call the Islamic “establishment clause”), slightly fewer declare that the Islamic Sharia or its principles are a source or even the main source of legislation (which I call the “source of law clause”), even fewer declare that the nation is an “Islamic state” (which I call the “Islamic state clause”), and some make explicit the idea that laws that conflict with Sharia, however that may be interpreted, are invalid (which I call the “repugnancy clause”)1

This trend has grown in recent years, with the notable cases of Iraq and Afghanistan, and countries that are now or will soon be in the process of writing new constitutions, including Tunisia, Egypt and Libya, are nearly certain to retain existing language and possibly even add additional phrasing. Legal scholarship has studied the judicial interpretations of these clauses, most commonly in single-country studies, to some extent regionally, and, more recently, in a broader comparative sense. 2 This line of scholarship tends to offer snapshot pictures of the jurisprudence of the clause in each country. Works of this kind take the existence of the constitutional language as their starting point, or perhaps provide minimal historical context to the adoption of the constitution (or the amendment) that contains the relevant clause. When included, these brief historical descriptions typically speak in terms of the internal dynamics within the particular county, and frame the debates as between secular forces resisting the clauses and Islamist camps who want their inclusion.

However, these clauses were not scripted anew in each national context. The establishment clause appears in basically the same form, and while there is more variation in the source of law and repugnancy clauses, they are recognizable by the same basic phrasing in the constitutions in which they appear. These phrasings, or scripts, are a part of a global trend, and once they came into existence, they became readily available for use – or non-use or explicit rejection – by drafters in other nations.The choices made in one constitution, and the apparent reasons for those choices, influence the drafters and the public at large in the next context. With each new constitution or amendment, the state of constitutional Islam worldwide shifts and readjusts to take into account the new development.

For example, in the recent national debates in Tunisia about the new constitution, one relatively noncontroversial issue was the retention of the establishment clause, which was in the Tunisian Constitution since its independence in 1959. A more controversial possibility was the addition of a source of law clause stating that some form of the Islamic Sharia is “a” or “the” source of legislation. In explaining why Tunisia would not adopt a “source of law” clause, the founder of the Islamist party Ennahda, Rachid al-Ghannoushi, referred to Afghanistan as a negative model, saying that conservative forces in that country had tainted the formulation. Further, Ennahda hoped that by including only the establishment clause, it would make Tunisia a model for countries undergoing similar transitions, which seems to be a reference to Libya and possibly Egypt, although it is unlikely that the latter will remove its “source of law” clause.

By “model,” al-Ghannoushi surely hoped that more than merely the constitutional language would be emulated; for him, adopting the establishment clause and rejecting the “source of law” clause indicated some kind of mild Islamism, in contrast to a more extreme version in Afghanistan. What is significant about this example, and the many others of its kind, is not just what textual formulation Tunisia adopted, but rather why it did so, with what purposes and goals in mind, and the way in which the discourse about its adoption sought to situate Tunisia vis-à-vis other countries. Constitutional Islam, in the sense of the constitutional adoption of language referring to Islam and Islamic law (Sharia), is globally interconnected. And yet we have very little understanding of how each country making constitutional choices is influenced by existing dynamics worldwide or in specific countries that are particularly relevant due to factors such as similarities in legal systems and geographical proximity.

Attention to constitutional migration is growing, but consideration of constitutional Islam is notably lacking in the comparative constitutional and historical literature. This paper introduces a larger project that will work in this vast gap to provide a thorough and compelling account of the development of constitutional Islam across time and place. Rather than separate national accounts, this project offers a moving picture, spanning the Muslim world, bringing to life public conversations and private drafting sessions about controversial constitutional choices, and starring figures such as the rival Pakistani and Indian members of the Malayan constitutional drafting commission.

The historical arc of constitutional Islam begins with the Ottoman Empire and continues today with contemporary constitutional developments in Tunisia, Egypt, Libya and potentially Syria. At each point, key questions need to be asked, including: Which clauses did the country adopt or reject and why? What did it hope to achieve in matters ranging from substantive law to structures of power? Were particular institutions, such as courts, envisioned to interpret the language? What other countries served as a source of reference, positively and negatively, in the national process? Did such countries already have judicial interpretations of the clauses that influenced the drafters of the new constitution? Proceeding to a further level of detail, and recognizing that a focus on the national level can obscure more nuanced dynamics, these same questions will be asked about the different constitutional actors within the country, including individual drafters and the public generally, to examine subsets of motivations, intentions and influences.

The Constitution of the Ottoman Empire in 1876 is the first appearance of the Islamic establishment clause. Initial investigation suggests that the Ottoman drafters chose this language, which had not been part of Islamic legal discourse prior to that time, after reviewing constitutions from countries that enshrined Christianity as the religion of the state or made some form of it the official church of the state. Once it appeared in the Ottoman Constitution, the former Arab Ottoman provinces that emerged following the dissolution of the Empire, such as Egypt, included the clause in their own constitution. While the establishment clause from the Ottomans was readily adopted, the reasons for doing so were distinctly local and typically expressions of an anti-colonial sentiment, rather than any affinity for the dismembered Empire’s constitutional character. The script was retained but took on new meaning and significance in new contexts.

The Constitution of Pakistan in 1956 marks a crucial early example of a self-declared Islamic state, as well as the first appearance of the repugnancy clause. Pakistan’s constitutional choices had a ripple effect across the Muslim world in 1956 and beyond, just as Iran’s did in 1979. Pakistan’s engagement with constitutional Islam deepened in the 1962 and 1973 constitutions. Part of Pakistan’s story is the separation of Bangladesh in 1971 and its initial rejection of the establishment clause. The Constitution of the Federation of Malaya (later renamed the Federation of Malaysia), adopted at the time of its independence from Britain in 1957, marks the next key development of constitutional Islam. The Malayan Constitution was drafted by a British-led committee composed of two Britons, an Australian, an Indian and a Pakistani – there were no local official participants. The fact that the states that formed the Federation each had their own constitutions, with establishment clauses, was influential in the process. The Sultans of those states initially fought the establishment clause in the new federal constitution because they were concerned that control over matters relating to Islam would be taken away from them and assigned to new bureaucracies on the federal level.

During the drafting process in Malaya, the examples of India and Pakistan loomed large as models of a “secular” and an “Islamic state,” respectively, and these models were embodied by the Indian and Pakistani members of the drafting commission. In fact, it was the persistence of the Pakistani member, Justice Abdul Hamid, that resulted in the final-hour inclusion of the establishment clause. For Justice Hamid, the insistence on the clause seems to have been related at least in part to his own experiences with the Pakistani Constitution. For local Malays, however, it was more about ensuring their constitutional privileges than it was about religion in a narrow sense of the word. At that time, ethnic Malays were only about 50 percent of the population, and were deeply concerned about becoming minorities in their “own” country. Since Malays were defined in the constitution as Muslims, any privileging of Islam was seen to be tantamount to strengthening the position of Malays as well.

When Egyptian President Anwar Sadat turned to the task of drafting a new constitution not long after he assumed office following Gamal Nasser’s death, the retention of the establishment clause was hardly questioned. The real issue was whether some additional source of law clause would be included as part of Sadat’s efforts to show that he was more dedicated to the role of Islam in the state than Nasser had been, and to garner support among Islamists whom Nasser had persecuted.

The 1971 Egyptian Constitution thus marks the rising prominence of the source of law clause. At that time, other countries that had or were considering source of law clauses were relevant in the drafting process, as was language that was adopted for the constitution of the short-lived Federation of Arab Republics. “Town hall” meetings held throughout Egypt as part of the 1971 drafting process reveal a wide range of views about the desirability of a source of law clause, including remarkably frank comments from Christians asking what place they would have in a country enshrining Islamic law in its constitution. Many Muslims who offered their comments supported the addition of a source of law clause and often said that it was necessary because merely having the establishment clause in the Nasser-era constitutional documents was not enough to prevent his authoritarian excesses; in this sense, constitutional Islam was seen as connected to the rule of law.

The next significant stage was the 1979 Constitution of the Islamic Republic of Iran, a landmark document that dramatically reframed the concept of an Islamic state and its associated constitutional language in a way that affected the entire Muslim world. For example, when the Egyptian Muslim Brotherhood issued a “Draft Platform of the Political Party” in 2007, it included the proposal for a council of religious scholars whose approval would be required in certain cases before legislation could be adopted. The task of the scholars would be to ensure that the legislation was compliant with some notion of Islamic law. Criticism of this proposal was widespread in Egypt, and a frequent complaint was that it sought to install a system in Egypt similar to that of the Iranian Council of Guardians.3

The constitutions that followed the US invasions of Afghanistan (the 2004 constitution) and Iraq (the 2005 constitution) form the next crucial phase of constitutional Islam. The debates over the clauses of constitutional Islam in Afghanistan and Iraq were further charged by the American presence in those countries during the drafting processes, as well as by the intense international involvement that sought guarantees of human rights and equality among citizens and expressed concerns over the deeper presence of constitutional Islam. Finally, the historical arc ends, as of 2012, with constitutional Islam in the new constitutions of Tunisia, Libya,
Egypt and possibly Syria.

This comparative historical study of constitutional Islam makes several significant contributions. First, it provides an account of the movement of constitutional language and ideas, an area of particular interest and concern in the field of comparative constitutional law. In addition to observing that the clauses do move from one context to the next, this study pays careful attention to how and why the movement takes place. It considers whether the dynamics are different depending not only on time and place, but also on the type of clause. Does the adoption of the establishment clause in a new context, for example, represent the movement of an idea, or is it just pliable formulaic language that can take on any meaning that might be given to it? Does the adoption of the repugnancy clause represent the migration of a particular idea about the role of Islamic law vis-à-vis other laws in the legal system? How do countries make slight adjustments in the language adopted to signal a differentiation from other jurisdictions?

Second, this project questions the idea that constitutional Islam is only about narrowly defined religion or religious law. When clauses dealing with Islam are isolated and treated independently of other constitutional clauses, it suggests that the impetus for their inclusion is the desire to achieve some particular vision for Islam in the state (or even some kind of standard and divinely prescribed state structure) or a particular substantive doctrinal result, because no other constitutional variables are seen to be part of the equation.

This research will show that these clauses are part of larger debates and power struggles, and decisions about their inclusion are often intertwined with legal, political, economic, social and cultural issues such as federalism, the location of the power to decide religious questions, nationalism, notions of the rule of law, anti-colonial sentiment, monarchical privilege, national security, ethnic privileging and other context-specific concerns. The clauses of constitutional Islam function as available language that can be harnessed in favor of the particular needs and goals of drafters. They can stand in for, or reinforce, other language and ideas, including those that are too politically sensitive to be explicitly expressed. By invoking religion, proponents of the clauses are able to raise the rhetorical stakes and put an additional burden on their opponents.

Building on the first two, the third contribution this study makes is to show that a phenomenon that appears to be obvious and self-evident is not only far more complicated, but also that current assumptions create distortions that matter in significant ways. When presented in terms of textual language, constitutional Islam appears homogenous. To say that more than 20 nations have the establishment clause in their constitutions, and that as a result 602.5 million Muslims live in countries that have adopted some particular understanding about the relationship between religion and the state, suggests not only uniformity, but also that meaningful knowledge about a state’s relationship to Islam can be derived from observing the mere existence of the clause.

Under the heading of this contribution, the book will serve to supplement – or perhaps correct – assumptions made in the large-scale studies of constitutions that are now prevalent among political scientists in particular. The textual language is only the first step of analysis. For example, the lowest common Islamic legal denominator in terms of substantive law between two countries with the establishment clause, Tunisia and Morocco, might only be inheritance law, and Turkey’s control of the content of Islam through its Presidency of Religious Affairs, or Diyanet, makes it look as “Islamic” as some countries with the establishment clause.

The language of constitutional Islam does speak loudly about the state, and distinct global patterns do emerge, but only when the clauses are investigated beyond the textual level and studied in a historical and comparative context.

Notes

1 For a textual assessment as of 2005, see United States Commission on International Religious Freedom, The Religion-State Relationship and the Right to Freedom of Religion or Belief: A Comparative Textual Analysis of the Constitutions of Predominantly Muslim Countries.

2 See Nathan J. Brown, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (Albany: State University of New York Press, 2002); Ran Hirschl, Constitutional Theocracy (Cambridge: Harvard University Press, 2010). Brown addresses the emergence of constitutions in the Arab world in the twentieth century. While there is some attention to the religion clauses, Brown mainly seeks to explain, from a political science perspective, why rulers promulgated constitutions when they did not intend to be bound by them, and asks whether these documents might nonetheless serve to develop a sense of constitutionalism. Hirschl develops a definition of a “constitutional theocracy,” which is based in part on constitutional language, and then discusses in one lengthy chapter how constitutional courts have “contained” religion in several of these countries (which includes Israel, in addition to six Muslim-majority countries). The treatment of each Muslim-world country focuses on contemporary jurisprudence and judicial politics; a separate long chapter deals with courts in the “non-theocratic world.”

3 See Kristen Stilt, “‘Islam is the Solution’: Constitutional Visions of the Egyptian Muslim Brotherhood,” Texas International Law Journal 46.1 (Fall 2010), 103.