The fact that religion can claim pride of place within a constitutionalist enterprise does not mean that all constitutions with a reference to religion fall within the emerging traditions of theocratic constitutionalism. Just as one can have constitutions without constitutionalism, one ought to be able to distinguish between constitutions with theocratic elements and constitutions that are legitimately theocratic constitutionalism. Those elements include an embrace of the fundamental ideal that government ought to have limited power. Those limitations are structural and political. Political limitations include popular sovereignty, political participation by citizens and accountability by agents of the state for their conduct. Structural limitations are also grounded in rule of law assumptions. These include process limitations to guard against arbitrary or other conduct that is not grounded in law, and process for the legitimate exercise of state power. It also includes substantive rules for the exercise of state power. These include respect for the rights of individuals and the institution of a moral or ethical basis for state behavior grounded in what is right and just. The source of both process and substantive limits are not found in local practice but in a set of universal values to which the state and its organs are bound—the universal values and legal rules of religion.
This essay presents a preliminary excursion into the constitution of theocratic constitutionalism. It looks to two models at either end of the constitutionalist spectrum. The first of these, that of Iran, presents a model of constitution making that is legitimate within the context of theocratic constitutionalism. Along with Iran, this part examines some issues in constitutional projects that fall imperfectly within the model—for this purpose it looks to Afghanistan’s post-conflict constitution. The second, the constitution of Saudi Arabia, evidences a theocratic constitution without constitutionalism. So understood, that document does not present a legitimate foundation of government under principles of universalist theocratic constitutionalism. It then considers representatives of what might be classed as a group of states torn between models. The object is to consider whether religiously based constitutions can fall into a constitutionalist limbo—neither secular nor theocratic constitutionalists. For that purpose it looks to the constitutional projects of Pakistan and Egypt.
The focus of the analysis is on formal constitutions. I concede the importance of constitutional application. Constitutionalism, at least in its aspect as taxonomy, is concerned with the possibility of sham constitutions and the articulation of constitutionalist values there is no intention to apply. (Backer June 27, 2008) That was the thrust of a recent well publicized report of Human Rights Watch, an elite NGO. (Human Rights Watch January 31, 2008). These issues enrich but are not necessary for the object of this essay as it seeks to sketch out a working understanding of a legitimate formal constitutionalism grounded in values other than those developed through secular pluralist international political activity, even one skewed to the interests of the most powerful American and European states.
A. Theocratic Constitutionalism—The Case of Iran, and Afghanistan.
Iran. Iran presents an example of a well-developed system of theocratic constitutionalism. It is a valuable example that deserves substantial study, if for no other reason than that this system presents the greatest challenge to the values on which its competitor—secular transnational constitutionalism—is based, by adapting its form but not its values. Iran’s theocratic government is not merely the imposition of a religious state without limits, but instead suggests a principled basis of state organization through law the object of which is to secure the benefits of a specific (though perhaps odious to non-believers) set of legitimate (to believers) normative values.
That political agenda can be simply stated: Islam provides a comprehensive sociopolitical system valid for all time and place. Thus, God is the sole legislator. Government is mandated in order to implement God's plan in this world. Individual believers are not permitted simply to suffer unjust rule in silence. They must actively work to realize God's plan in this world. The only acceptable form of this Islamic government is that directed by the most religiously learned. This is the guardianship of the faqih (velayat-e faqih). (Brown 2000, 172).The work also has an excellent discussion of the development of what would become Khomeini’s politico-religious philosophy, including its xenophobia and anti-Jewish paranoia. (See id., at 161-174). This is meant to be a rule of law ordering. “‘Since Islamic government,’ Khomeini asserted, ‘is a government of law, those acquainted with the law, or more precisely, with religion—i.e., the fuqaha—must supervise its functioning. It is they who supervise all executive and administrative affairs of the country, together with all planning.’” (Id., at 172). This ordering is well represented in the Constitution of the Islamic Republic.
The government constituted pursuant to the Iranian Constitution is in some great sense democratic. This is set out in Articles 6-8 of the Iranian Constitution of 1979, though subject to the limitations of Article 5. (Iranian Constitution 1979). There is a significant element of separation of powers in the construction of the state apparatus. (See id., at arts. 56-63, though, again, in accordance with the limitations of Islam generally as exercised through the religious leader pursuant to Art. 5 and Arts., 90-99). Second, the substantive elements of modern constitutionalism are also observed. (See arts., 19-55). Human rights are enshrined in the constitution and protected. (see arts., 19-42). The power to petition the government is preserved. (See arts. 26-27 (though they are ambiguous in the extent of the protections offered)). The Iranian Constitution creates a system of government grounded in rules and separation of powers. The legislative power is vested in representatives of the people. (see id., art. 57 (powers of government are vested in the legislature, judiciary and executive) and art. 58 (legislative functions to be exercised through the Islamic Consultative Assembly). The actions of this body are constrained within a system of institutionalized and nominally democratically based legislation adopted in accordance with constitutional requirements. The legislative power is then elaborated. (Id., arts. 62-99). Like modern constitutions it also imposes limits on power that can be exercised by the state. The substantive limitations on state power are elaborated at Chapter III of the Constitution, arts. 19-31. These mimic the standard description of basic rights in Post-War constitutions. But, rather than grounded in transnational constitutionalist principles, these rights are grounded “in conformity with Islamic criteria.” (Id., at art. 20 (equal protection of the laws); 21 (rights of women); 24 (press freedom except when “detrimental to the fundamental principles of Islam”); 27 (public gatherings, same as art. 24); 28 (right to choose occupation, “if not contrary to Islam and the public interest”)).
But constitutionally granted authority may only be exercised within the limits of the legal framework of Islam. Islam is constituted not only normatively foundational but also as a foundational system of legal organization. Thus, Article 12 provides that “The official religion of Iran is Islam and the Twelver Ja'fari school [in usual al-Din and fiqh], and this principle will remain eternally immutable.”). The legalist nature of Islam within Iranian constitutionalism is further refined in Art. 12: “Other Islamic schools, including the Hanafi, Shafi'i, Maliki, Hanbali, and Zaydi, are to be accorded full respect, and their followers are free to act in accordance with their own jurisprudence in performing their religious rites.” (Id.). The authority of these legal schools are legitimized through the constitution as well. “These schools enjoy official status in matters pertaining to religious education, affairs of personal status (marriage, divorce, inheritance, and wills) and related litigation in courts of law. In regions of the country where Muslims following any one of these schools of fiqh constitute the majority, local regulations, within the bounds of the jurisdiction of local councils, are to be in accordance with the respective school of fiqh, without infringing upon the rights of the followers of other schools.” (See also arts. 1 (sovereignty of Qur’onic justice); 2 (belief in “Divine revelation and its fundamental role in setting forth the law”); and 4 (need to base all laws and regulations on Islam)). The critical provision is art. 5 that vests ultimate authority on a religious leader.
This is not a supplement, but a substitute for the constitutionalist values represented by the international system and the values generated by the community of states. Thus, for example, “[d]uring a meeting of the United Nations Human Rights Committee in 1982 investigating reports of state-sponsored murder and torture, the leader of the Iranian delegation was questioned about Iran's view on the United Nations Universal Declaration of Human Rights. Sayed Hadi Khosrow- Shahi, the leader of the delegation, replied that Iran believed in the "supremacy of Islamic laws, which are universal" and when a law, such as the Universal Declaration of Human Rights, comes in conflict with Islamic laws, Iran would "choose the divine laws."” (Reimer 2006, 360).
This constitution is not imposed from above but represents an act of will of the people—a recognition, freely embraced—of the appropriate form of political organization. Thus, the Iranian Constitution, art. 1, provides that the “form of government of Iran is that of an Islamic Republic, endorsed by the people of Iran on the basis of their longstanding belief in the sovereignty of truth and Koranic justice, in the referendum of 29 and 30 March 1979, through the affirmative vote of a majority of 98.2% of eligible voters, held after the victorious Islamic Revolution led by Imam Khumayni.” The privileging of Islam in the political context is absolute. “This principle applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations, and the fuqaha’ of the Guardian Council are judges in this matter.” (Iranian Constitution 1979, art. 4). For that purpose, the constitutional systems creates an institutional framework for religious oversight of political activity (Saffari 1993), at the apex of which stands the Guardian Council (Iranian Constitution 1979, art. 91), “with a view to safeguard the Islamic ordinances and the Constitution, [and] in order to examine the compatibility of the legislation passed by the Islamic Consultative Assembly with Islam.” (Id., art. 91). Indeed, the representative legislature “does not hold any legal status if there is no Guardian Council in existence.” (Id., art. 93).
There is no popular right to interrogate and alter the formulation of the basic substantive norms on which political governance is founded—unless one is part of the instructional structure of the religion. Shi’a Islam, it seems, has its own magisterium—but one that serves both a political and religious function. For all others there is obedience. Republican principles are still consonant with this system—it is just that the interrogation of basic norms sourced in Islam are now outside the bounds of political discourse, and with respect to those, the citizen must yield to the authoritative spokesperson for the superior religious system. “[T]he Islamic government is based on an ideology different from that of a democratic republic. What . . . is indeed appropriate for a democratic republic . . . fails to meet the requirements of Islam.” (Saffari 1993, 73; see generally Backer 1998). Thus for example, in the section of the Constitution elaborating the rights of national sovereignty, the Constitution starts with the declaration that “absolute sovereignty over the world and man belongs to God. . . . . The people are to exercise this divine right in the manner specified in the following articles.” (Iranian Constitution 1979, art. 56). But of course, the people, at least within Islam, do have a significant and complex role in the elaboration and application of that system both as applied to the constitution of the state and in its role as legal code governing every aspect of life. The concept and operation of the ‘ummah is well known within Islam. While its actual invocation and effect are highly contested, and fluid, it does provide at least in theory a vehicle through which the people can, as a whole, directly intervene in the elaboration and application of the unalterable divine command. In reality, of course, the ‘ummah system is tempered by an ancient and complex system of elaboration by scholars and others, the size and power of whose following, may also be invested with a certain legitimacy and authority. (Stewart 2007, 279-308).
The Iranian theocratic Constitution resembles modern constitutions, and adheres to the current pattern of modern constitutionalism in its form and objectives—to formulate a system of governance based on legitimating principles and authoritative values. It adheres to thick “rule of law” constitutionalism. The power of the state and its governance organs are strictly limited. In this sense the Iranian constitution follows emerging models of transnational constitutionalism. The difference—and a critical one to be sure—is the source of the norms constituting those boundaries of governance and the mechanisms for engaging with those norms. (see generally Backer 2008a).
Afghanistan. The Afghani Constitution also provides an example of a constitutional settlement that looks to principles of theocratic constitutionalism for its legitimacy. (Afghanistan Constitution 2004, Preamble). Its preamble suggests a certain internationalism in the values underlying the constitutional project. (Id.). The Preamble appears to place Afghanistan strongly within the transnational constitutionalist camp. It speaks to a grounding in global values constitutionalism, for example:
“Observing the United Nations Charter and respecting the Universal Declaration of Human Rights, For consolidating national unity, safeguarding independence, national sovereignty, and territorial integrity of the country, For establishing a government based on people's will and democracy, For creation of a civil society free of oppression, atrocity, discrimination, and violence and based on the rule of law, social justice, protection of human rights, and dignity, and ensuring the fundamental rights and freedoms of the people, For strengthening of political, social, economic, and defensive institutions of the country, For ensuring a prosperous life, and sound environment for all those residing in this land.”
(Id.). Yet, the lens through which such substantive protections are seen are not those of global constitutionalism but the eternal universalism of a religious foundation. The constitution is instituted “In the name of God, the Merciful, the Compassionate.” (Afghanistan Constitution 2004, Preamble). The sources of substabtive grounding of constitutional principles could not be clearer: “We the people of Afghanistan: With firm faith in God Almighty and relying on His lawful mercy, and Believing in the Sacred religion of Islam.” (Id.).
Thus, “The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of Islam.” (Afghani Const. Chp 1 Art. 2). The Afghani Constitution builds strong protections against derogation from its core substantive provisions, but these focus on “The provisions of adherence to the fundamentals of the sacred religion of Islam and the regime of the Islamic Republic cannot be amended.” (Afghani Const. Chp 10 Art. 1). Islam does not so much reject a fundamental rights value system as incorporate it within the normative framework of Islam. “In Afghanistan no law can be contrary to the beliefs and provisions of the sacred religion of Islam.” (Afghani Const. Chp. 1, Art. 3). Despite suggestions to the contrary , there is an intention to invert the hierarchy of values of transnational constitutionalism (Backer 2009)—religion is not interpreted as an object of fundamental rights instead fundamental rights are interpreted as an object of Islam. It is not clear that the references are begign, a position held by some academics and commentators who suggest that while “references to Islam are customary and appropriate, attention should be devoted to clauses that give some specificity to Islam's official status. Islam must be enshrined in a way that it is expressed through normal democratic mechanisms, rather than supplanting them.” (Abou 2003, 2).
For those from different religious traditions there is conformity to an Islamic world view within which a certain measure of toleration is possible. This, of course, parallels the limits to toleration within conventional transnational constitutional systems of beliefs and practices which might be deemed threatening to the politico-legal order. In the American context, the toleration of obscenity and indecent speech a useful analogy. (Miller v. California 1973; Ashcroft v. ACLU 2002). “Followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of law.” (Afghani Const., Chp. 1, Art. 3). But threats to the religious basis of the legal order—including efforts to pry Muslims from their faith, are less tolerated. (Backer March 28, 2006). Indeed, The constitution imposes on the state a positive obligation to further the inculcation of Islam, Islamic religion and values, on the population through education. Thus, the constitution provides that “The state shall devise and implement a unified educational curriculum based on the provisions of the sacred religion of Islam, national culture, and in accordance with academic principles, and develops the curriculum of religious subjects on the basis of the Islamic sects existing in Afghanistan.” (Afghani Const., Chp. 2 art. 23). Islamic values also shape the state’s responsibility to the family under the Afghani Constitution. (Afghani Constitution chp. 2 art 32 (“The state adopts necessary measures to ensure . . . upbringing of children and the elimination of traditions contrary to the principles of sacred religion of Islam.”)).
The symbolic aspects of Afghani constitutionalism reinforces its theocratic and constitutionalist focus—the lawful institution of religion as the basic framework for political organization. All symbols of legitimacy are grounded not in popular sovereignty but in the suzerainty of Islam. This includes a number of secular objects reifying the state as an entity apart from its people. One is the flag. (Chapter 1, Art. 19 of the Afghani Constitution provides that “The national insignia of the state of Afghanistan is composed of Mehrab and pulpit in white color.” In addition, “In the upper-middle part of the insignia the sacred phrase of “There is no God but Allah and Mohammad is his prophet, and Allah is Great” is placed, along with a rising sun.” (Id.)). Another is the national anthem. The Afghani Constitution provides that the “National Anthem of Afghanistan shall be in Pashtu and mention “Allahu Akbar” and the names of the ethnic groups of Afghanistan.” (Afghani Const., Chapter 1, art. 20). And yet another is the presidential oath of office. (Afghani Constitution, Chpt. 3 art 4). The oath declares: “In the name Allah, the Merciful, the Compassionate In the name God Almighty, in the presence of you representatives of the nation of Afghanistan, I swear to obey and safeguard the provisions of the sacred religion of Islam. . . . ” (Id.). Scholars have noted the way that theocratic constitutionalism privileges members of a plural polity through the imposition of religious tests of a variety of sorts—including the use of oaths. The “constitutions of a number of predominantly Muslim countries may restrict to Muslim citizens the right to serve in government positions, particularly to hold executive power. This is achieved by requiring a specific Islamic oath or by stipulating that only Muslims can hold a given position.” (Stahnke & Blitt 2005, 974). The constitutional traditions of several Western states continue a similar practice—especially in Latin America. (See, e.g., Argentine Constitution Part I,. Ch. 1, Sec. 2 (The Federal Government supports the Roman Catholic Apostolic religion)).
But legitimacy through Islam also shapes the extent to which internal political action is treated as legitimate. Thus, for example, the right to form political parties is guaranteed (Afghani Constitution, Chp. 2, art 14), as long as the “program and charter of the party are not contrary to the principles of sacred religion of Islam.” (Id.). The preservation and legitimating function of these regulations of political life become clearer when these provisions are considered against the prohibition of factionalism within Islam in the form of political parties. Thus, while a religious political party might be formed, as long as it is Islamic, no such party can be formed under the Afghani Constitution if it is based on an “Islamic School of thought.” (Id.). The Constitution further declares: “Formation and functioning of a party based on ethnicity, language, Islamic school of thought (mazhab-i fiqhi) and region is not permissible” Id.).
The Afghani constitution also incorporates theocratic elements within its constitutionalist structure of the judiciary. The criteria for the selection of judges is meant to emphasize the Islamic character of the legal basis of the state. See Afghani Constitution Chp. 7 art. 3 specifies the qualifications of Afghani Supreme Court justices as requiring “a higher education in law or in Islamic jurisprudence” (Id.). Such judges “swear in the name of God Almighty to support justice and righteousness in accord with the provisions of the sacred religion of Islam and the provisions of this Constitution and other laws of Afghanistan.” (Id., at Chp. 7 art 4). The Constitution enforces a rule of law regime on the judiciary, requiring judicial review to be in “compliance with the Constitution of laws, legislative decrees, international treaties, and international conventions, and interpret them, in accordance with the law” (Afghani Constitution chp. 7 art. 6), but in critical respects that review function is grounded in principles of Islamic law, which must be applied directly under certain circumstances even the context of constitutional review. “When there is no provision in the Constitution or other laws regarding ruling on an issue, the courts’ decisions shall be within the limits of this Constitution in accord with the Hanafi jurisprudence.” Afghani Constitution Chp. 7 art. 15. Special provision is made for the application of Shi’a law under certain circumstances. (Id., at Chpt. 7, art. 16).
Islam thus serves as the meta-constitutional principles through which the constitution is interpreted and applied. But this Islamification is also highly contextualized within the history and culture of the peoples of Afghanistan. (Jones-Pauly & Nojumi 2004; Ahmed 2007). Ahmed suggests the difficulty of elaborating at the sub-constitutional level the human rights protections described in the Afghani Constitution in light of the opposition of traditionalist Islamic law grounded elites. (Ahmed 2007, 299 ).
In Afghanistan, then, there is the possibility of building an Islamic state that is also legitimately constitutionalist. That building serves both to expose the despotically (and illegitimately) theocratic dispositions of the Taliban but also suggests some of the winners and losers within this constitutionalist matrix. Clearly, a system that is grounded in one religion will tend to treat others as both potential rivals and competitors. Though it may tolerate them, it will not treat them as equal members of the polity. All value systems are subordinated to the meta-norm, including those of religion, which must be assimilated in order to survive. As Justice Scalia noted in relation to the subordination inherent in nationalist constitutionalist systems, like that of the United States:
“Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. . . . It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in . . . .”(Employment Division v. Smith 1990, 890). But the result is neither theocracy nor despotism, but a constitutionalist project with its own internal logic, true to itself and grounded in theories of right and justice permitting accountability and limiting discretion.
B. Theocratic Constitution without Theocratic Constitutionalism—the Case of Saudi Arabia.
Saudi Arabia presents an example of a theocracy without theocratic constitutionalism. One starts with a statement of self conception in which these fundamental positions are drawn:
“The reform mission, upon which the saudi state was founded, represents the main core of the government. This mission is based on the realization of islamic rules, implementation of islamic law (shari'a), and enjoining good and forbidding evil, as well as to reform the islamic creed and purify it from heterodoxies. Therefore, it adopts its doctrine from the true islamic principles that were prevailing at the very beginning of islam.” (Kingdom of Saudi Arabia).The Constitution of Saudi Arabia is the Qur’an. That basic cornerstone of state constitution is set out in a subordinate document—the Saudi Basic System of Governance (the “Basic Law”). In the anguage usewd on the Basic Law, the Saudi “constitution is the holy qur'an and the prophet's (peace be upon him) sunnah (traditions).” (Saudi Arabia Basic System of Governance (1992), Art. 1). The Basic Law explicitly represents a subordinate articulation of the practices of government and its relation to both individuals and institutions. It is promulgated in the style of the old imperial constitutions of the German Reich (Constitution of the German Empire 1871) and Japan (Japanese Imperial Constitution 1893), by right of the monarch on behalf of his people in the service of the greater system with respect to which he has been vested with governance power. Thus, the preamble of the Saudi Basic Law provides:
By the help of allah We, fahd bin abdul aziz, the king of the kingdom of saudi arabia, consistent with the public interest, and in view with the development of the state in different fields, in addition to our enthusiasm to achieve our prospected objectives, we ordered the following: First: issue the basic system of governance according to the context herein below. (Saudi Basic Law, Preamble).The Saudi state is constituted as “sovereign arab islamic state” (Saudi Basic Law, supra, Art. 1) for the preservation of which its citizens are required to conform their behavior or be punished. Saudi Basic Law, supra, art. 12 (“Fostering national unity is a must, and the state shall forbid all that may lead to disunity, sedition and division.”). Its symbols of state and its holidays are institutionalizations or expressions of the supremacy of its faith community. Thus, for example, the national holidays are essentially religious holidays, Saudi Basic Law, supra, art. 2 (“eid al-fitr (a religious feast celebrated on the 1st of shawal, the 10th month of the islamic calendar), and eid al-ad-ha (a religious feast celebrated on the 10th of dhul-hijjah, the 12th month of the islamic calendar), and its calendar is the hijra (lunar)” (Id.). Its flag is a proclamation of faith. (Saudi Basic Law, supra, art. 3). That section declares: “An article written in the middle of the flag translated as "there is no god but allah, muhammad is allah's messenger" with a drawn sword underneath.” (Id.). They also express its national character as sovereign and Arab. (Saudi Basic Law, supra, art. 4). In the language of the Basic Law: “The state's emblem consists of two intersecting swords with a date palm in the upper space between them. Both the national anthem and the badges of honor shall be determined by the law.” (Id.).
The government is constituted as a monarchy for which the male children of the founder are eligible for kingship. (Saudi Basic Law, supra, art. 5). The elaboration of the state apparatus is elaborated in a number of provisions. (Saudi Basic Law, supra, arts. 44-71). The King is assisted by the Majlis Al-Shoura consultative assembly) (Saudi Basic Law, supra, art. 68), though its powers are limited and its existence subject to the royal will. (Id.). Thus, the “King shall have the right to dissolve the Majlis Al-Shoura and re-form it.” (Id.). In addition, the King is free to constitute such other persons and bodies as he like. (Saudi basic Law, supra, art. 69). That section states: “The King may call the Council of Ministers and Majlis Al-Shoura to hold a joint meeting to which he may invite whomsoever he wishes for a discussion of whatsoever issues he may like to raise.” (Id.). The object is conformity to the consultative (Shoura) system which was said to exist before the formation of the Kingdom. (Kingdom of Saudi Arabia, Ministry of Foreign Affairs, Saudi Government, The Basic System of Governance). In that context, the Basic Law requires that the “"Majlis" of the King and the "Majlis" of the Crown Prince shall be open to all citizens and to anyone who may have a complaint or a grievance.” (Saudi Basic Law, supra, art. 43).
However, there is a separation between government and power, with the implication that the king must serve under law—that is the rules of the Qur’anic constitution. (Saudi Basic Law, supra, art. 5(b) (“The most eligible among them shall be recognized as king, to rule in accordance with the holy qur'an and the prophet's sunnah.”). The obligation extend to the state apparatus and the citizenry. (Saudi Basic Law, supra. Art. 33 (“The State shall build and equip the armed forces to defend the Islamic faith, the Two Holy Mosques, the society and the homeland.”) and art. 34 (“Defending the Islamic faith, the society and the homeland shall be the duty of each and every citizen. Rules of military service shall be spelled out by the law.”). Indeed, the Basic Law explicitly states that “[t]he authority of the regime is derived from the holy Qur’an and the prophet's sunnah which rule over this and all other state laws” (Saudi Basic Law, supra, art. 7) and that “Citizens shall pledge allegiance to the king on the basis of the holy qur'an and the prophet's sunnah.” (Saudi Basic Law, supra, art. 6).
While the monarch may legislate in accordance with the system implemented through the Basic Law, Qu’ran and Shari’a occupy a superior place within the hierarchy of law (Saudi Basic Law, supra, arts. 7 and 8). Thus, the Basic Law recognizes the power of the monarchical apparatus to issue law. (Saudi Basic Law, supra, art. 3 (national holidays), 4 (the national flag), art. 15 (exploitation of natural resources), art. 20 (taxation), art. 35 (Saudi nationality), art. 38 (criminal law), art. 52 (appointment of judges), art 59 (regulation of civil service), art. 74 (sale of state property)). However, such law making remains subordinate to both Qu’ran and Shari’ah. (Saudi Basic Law, supra, art. 8). Article 8 states: “The system of governance in the kingdom of saudi arabia is based on justice, consultation "shoura" and equality according to the islamic shari'ah (the law of islam).” (Id.). Moreover, Shari’a is directly applicable both to the constitution of government and to the obligation of individuals. “The saudi society shall cling to the god's shari'ah.” (Saudi Basic Law, supra, art. 11).
All relationships between the state and individuals are subordinated to the substantive and formal rules of religion. “The state shall protect human rights in accordance with islamic shari'ah.” (Saudi Basic Law, supra, art. 26). It is in that context that the foundational human rights protections offered through the Basic Law can be understood. (Saudi Basic Law, supra, art. 36). These include: “No individual shall be detained, imprisoned or have his actions restricted except under the provisions of the law.” (Id.); art. 37 (“Houses are inviolable. They shall not be entered without the permission of their owners, nor shall they be searched except in cases specified by the law.” (Id.); art. 38 (“No crime shall be established as such and no punishment shall be imposed except under a judicial or law provision”); and art 40 (“All forms of correspondence, whether conveyed by telegraph, post or any other means of communication shall be considered sacrosanct. They may not be confiscated, delayed or read, and telephones may not be tapped except as laid down in the law.”).
Indeed, the Basic Law confirms the role of Saudi society as grounded in the obligation to live according to and to propagate Islam. Thus the Basic Law imposes on the Saudi family the obligation to conform to Islam, cultivate nationalist feeling, and to obey state authorities. (Saudi Basic Law, Supra, art. 9). The obligation is explicit: “members shall be raised and adhere to the islamic creed which calls for obedience to god, his messenger and those of the nation who are charged with authority; for the respect and enforcement of law and order; and for love of the motherland and taking pride in its glorious history” (Id.). The state is charged with ensuring that Saudi families develop their ties to Islam and Arab ethnic identity. (Saudi Basic Law, supra, art. 10 (“The state shall put great attention to strengthen the bonds which hold the family together and to preserve its arab and islamic values” (Id.). All social tools are employed to this end, not the least of which is education: “The goal of education is to instill the islamic creed.” Saudi Basic Law, supra, art. 13. In addition, such educated citizens have an obligation of utility “to impart them with knowledge and skills so that they become useful members in building their society, who love their homeland and be proud of its history.” (Id.). That educational goal is shared by the Saudi media. (Saudi Basic Law, Supra, art. 39 (“They shall play their part in educating the masses and boosting national unity.”)).
The foundational roles of Islam, ethnicity and state are emphasized in the short section describing the rights and duties of the state. (Saudi Basic Law, supra, arts. 23-43). The state has an overriding obligation for the care and maintenance of the foundational religion on which its authority is based. (Saudi Basic Law, supra, art. 23 (“shall protect the islamic creed and shall apply islamic shari'ah. The state shall enjoin good and forbid evil, and shall undertake the duties of the call to islam.” (Id.); and art 24 (protection and maintenance of holy sites and shrines). The obligation extends beyond its borders—suggesting the inferior position of state to ethnos and religious community. (Saudi Basic Law, supra, art. 25 (“The state shall be keen to realize the aspirations of the arab and muslim nations with regard to solidarity and unity while enhancing its relations with friendly states.” (Id.). It extends to science and culture—bent to the religious will. (Saudi Basic Law, supra, art. 29 (“It shall encourage scientific research, shall preserve Arab and Islamic heritage and shall contribute to Arab, Islamic and human civilization.”)). There is a curious resonance here with developments in Catholic thinking about faith and reason. (John Paul II, 1998). It also suggests a resonance with recent efforts to clarify the relationship between education and Catholic beliefs within religious institutions of higher education.
“Since the objective of a Catholic University is to assure in an institutional manner a Christian presence in the university world confronting the great problems of society and culture(16), every Catholic University, as Catholic, must have the following essential characteristics: 1. a Christian inspiration not only of individuals but of the university community as such; 2. a continuing reflection in the light of the Catholic faith upon the growing treasury of human knowledge, to which it seeks to contribute by its own research; 3. fidelity to the Christian message as it comes to us through the Church; 4. an institutional commitment to the service of the people of God and of the human family in their pilgrimage to the transcendent goal which gives meaning to life"(17)”). (John Paul II 1990, at ¶13; Backer July 30, 2007).There is thus religion aplenty in the constitution of the Saudi Arabian state, but very little by way of constitutionalism. It is clear that the organization of the Saudi state and its religious foundation is inconsistent, in significant respect, from consensus notions of nationalist or transnational constitutionalism. This has been the recent position of the American government certainly. (U.S. Department of State, Bureau of Democracy, Human Rights, and Labor 2004). But it is also clear that the Saudi organizational form does not conform to incipient notions of theocratic constitutionalism.
C. Neither Here Nor There—Pakistan and Egypt.
Is it possible to have it both ways—to develop principles of theocratic constitutionalism while retaining an adherence to the normative structure of transnational constitutionalism, and especially those parts of transnational constitutionalism focused on human rights developed through and under the authority of non-religious bodies? We have seen how Afghanistan does not present a true picture of a form of constitutionalism straddling the religious and the secular for the basis of its legal and interpretive authority. Is it possible top blend a foundational basis for constitutional substance within the structures of a religion and still preserve the privilege of the normative values of the community of nations understood as constitutionalism; might Iraq, Pakistan, Egypt or Nigeria provide a better model? I think the answer is no, such a constitutional stance, like that of the ante-bellum United States presents a state in a dynamic stage of its development. In the United States a choice was made and equilibrium was reached through war. It is not clear how the dynamic state of constitutionalism—poised between the transnational and the theocratic—will resolve itself in these states.
Pakistan. Pakistan is a state that has yet to find itself—at least form a constitutionalist perspective. As recent scholarship has suggested, reflected a common understanding, Pakistan stands between constitutionalist rule structures each of which has been naturalized within powerful national elites, which use and discard them to suit their objects of political supremacy. By the 1980s it had become clear that “in the judiciary system, three traditions compete: the British legal tradition, the autocratic military tradition, and the Islamic legal tradition. And the government, as in Bangladesh, betrays its concern over legitimacy by promising constitutionalism and the restoration of some form of parliamentarism.” (Scalapino 1986, 15). He notes that “In recent times, the Pakistan military led by Zia ul-Haq have sought legitimacy through a measure of Islamization, but this goal too is challenged, principally by the Westernized middle class.” (Id.).
Pakistan’s constitution has increasingly moved from a secularist internationalist orientation to one grounded in religion, a move that has pitted the executive against the judiciary. These understanding was well put recently:
What used to be the preamble to previous constitutions is now an operative part of the current Constitution as Article 2-A, and very much defines its ethos as a non-secular one. Yet, recent Pakistani judgments have put a halt to the discussion regarding whether Article 2-A can trump other constitutional provisions--thus acting as a sort of grundnorm--and have declared instead that it stands on an equal footing with other provisions of the Constitution, no more and no less. Indeed, these judgments have firmly precluded and strongly warned against an interpretation of Article 2-A which would raise it to the point of being a litmus test for gauging, evaluating, and potentially justifying the judiciary to strike down any other constitutional provisions.(Siddique & Hayat 2008, 368). They noted that “[w]hile acknowledging that various such provisions may be inconsistent with Article 2-A, the courts clearly warned that such an interpretive approach would undermine the entire Constitution.” (Id.). This reflects a general trend withn the movement toward Islamification in the region. (Azfar 199178-79).
Others see the move toward institutionalized Islam as a means of staving off something worse. “By imposing Islamic laws from above, Zia may have saved Pakistan from a fundamentalist revolution from below like the one that took place early in his tenure in neighboring Iran.” (Azfar 1991, 78). The internal orientation of the effort, and its misunderstanding abroad was made clear. “Internally Zia's most lasting contribution could be resolving the issue of the role of Islam in the state. Nonetheless, the question is not dead; several of the parties supporting Prime Minister Nawaz Sharif wish to enact legislation incorporating the key elements of Zia's Shariat Ordinance.” (Id.).
But is it a theocratic constitutionalist project? This question requires a look at the document itself. Pakistan is currently constituted as an Islamic Republic, in which Islam is the state religion. (Constitution of Pakistan of 1973 as amended, Part I. art. 2, (hereafter Pakistan Constitution). The term, “Muslim” is also defined for purposes of the constitution. See Pakistan Constitution, supra, art. 260(3) (“(a) "Muslim" means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him), the last of the prophets, and does not believe in, or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad (peace be upon him)”). Ironically, the definition of non-Muslim is notable for its selective omission of Jews. See id., at art. 260(3)(b).Lastly, though there is no explicit prohibition of non-Muslims attaining high office, the Constitutionally prescribed oaths of office do not contemplate non-Muslim office holders. (Third Schedule, Oaths of Office).
Within that context, the former Preamble to the Constitution, modified in one critical respect, and inserted in an appendix, is made a part of the Constitution. (Pakistan Constitution, supra, art. 2A & Appendix). That modification to the provision that imposed an obligation to make “adequate provision shall be made for the minorities to profess and practice their religions and develop their cultures,” (Pakistan Constitution art. 2A & Appendix) eliminated the word “freely” from before the word “profess” so that the obligation is no longer to make provision to ensure that minorities could freely profess, that obligation is now reduced to mere profession.
Among the provisions of this former preamble are a number that touch on the religious constitution of the state, as well as its adherence to fundamental rights obligations not necessarily tied to religion. These include the following: the full observation of “he principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam;” the obligation to enable Muslims “to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah;” the protection of “fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;” safeguarding the “legitimate interests of minorities and backward and depressed classes;” and securing the independence of the judiciary. (Id.). The Constitution also lists a number of principles of policy made applicable to all state organs. (Pakistan Constitution, supra, Chp. 2, arts. 29-40).
While most guarantee fundamental process ands substance rights, they do so without reference to religion. (See, e.g. Pakistan Constitution, supra, art. 33 (elimination of prejudice); art. 34 (empowerment of women); 35 (protection of family); 36 (protection of “legitimate rights” of minorities); 37 (promotion of social justice); 38 (promotion of social and economic well being)). Islam, to the extent it is incorporated, is limited in its application to Muslims. Pakistan Constitution (supra, art. 31), which provides “1) Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah. (2) The state shall endeavor, as respects the Muslims of Pakistan: (a) to make the teaching of the Holy Quran and Islamiat compulsory, to encourage and facilitate the learning of arabic language and to secure correct and exact printing and publishing of the Holy Quran; (b) to promote unity and the observance of the Islamic moral standards; and (c) to secure the proper organisation of zakat, [ushr,] auqaf and mosques.”
The state, thus, appears empowered to legislate specifically for Muslins, but in a way that cannot infringe on the rights of minorities. This is made clear within the blackletter of the Constitution itself through, for example, the creation of a Federal Sharia Court, whose membership is limited to Muslims. See Pakistan Constitution, supra, art. 203C(2). It appears susceptible to other constraints as well, for example both those of Art. 2A and of the Principles themselves. In addition the solidarity clause supports both secular and political aims. Pakistan Constitution (supra, art. 40), which provides: “The State shall endeavour to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity, support the common interests of the peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means.”
But this balance appears to be upset by the Islamicizing provisions of Part IX, the Islamic Provisions. (Pakistan Constitution, supra, arts. 227-231). The basic provision is set fort at art. 227(1): “All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.” An Islamic Council is established to implement this provisions of art. 227 as well as to advise Parliament with respect to Islamization. See arts. 228-230 in accordance with rules to be established by the Council and approved by the President. Art. 231. A carve out is provided for non-Muslims citizens. (Art. 227(3)). The relationship of minority faith communities to Islam is thus based on a toleration of practice within an overall pattern of subordination and conformity to the religio-political normative system of Islam—an assimilation of other faiths into the weltanschauung of Islam and their reconstruction of “soft Christianity” etc. Compare to the treatment of minority faiths in Iran, Afghanistan and Iraq, supra, notes, -- and contrast to the treatment of the same in Saudi theocracy, supra notes --. In a sense, these systems formalize the project of cooptation of a threatening system being attempted in an informal way by conventional constitutionalism. (Backer July 16, 2007).
In other respects, though, the government, as constituted, presents the usual picture of conventional separation of powers, with a president (Pakistan Constitution, supra, arts. 41-49), a legislature (Pakistan Constitution, supra, arts. 50-89. Membership in Parliament is limited to Muslims in good standing (art. 62 (d) & (e), though this provision is suspended for non-Muslims, who need only demonstrate a “good moral reputation.”), and a judiciary (Pakistan Constitution, supra, Part VII, Chps. 1-4). The superior courts have jurisdiction to hear claims of violations of the rights of individuals. (Pakistan Constitution, supra, arts. 184(3) (“the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article”), and 199(c) (“Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged.”)).
But, again, the vectors of constitutionalism turn in on themselves. In addition to the secular courts, the Constitution directs the creation of a Federal Shariat Court. (Pakistan Constitution, supra, Part VII, Chp. 3A). The jurisdiction of the Federal Shariat Court appears to upend the secular focus of the judicial structure of the state. The Constitution vests the Shariat Court with a broad jurisdiction. “The Court may, [either of its own motion or] on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam.” (Id., at art. 203D(1)). Where the Shariat Court determines that a law or provision is repugnant to Islam, “such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.” (Pakistan Constitution, supra, art. 203D(3)(b)). In addition, “(a) the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam.” (Id., at art. 203D(3)(a)). Decisions of the Federal Shariat Court are binding on all courts save the Federal Supreme Court. (Pakistan Constitution, supra, art. 203GG). With respect to such cases, the appellate jurisdiction of the Supreme Court is limited, and its constitution is reordered—stripping all non-Muslims from any participation rights in those decisions. (Pakistan Constitution, supra, art. 203F). Literally construed, these provisions could effectively strip the Federal Supreme Court of its jurisdiction and create a hierarchy of constitutional values in which Islam trumps all, in a way preserved by a guardianship of Muslim members of the polity. But there is sufficient ambiguity to make this issue subject to interpretation. Recall that Arts. 184(3) and 199(c) confer broad jurisdiction on the secular courts to hear complaints of violation of fundamental rights. How one reads the hierarchy of rights (Part I versus Part IX) and hierarchy of jurisdiction (Shariat system versus secular system) is not clear.
Taken together, the provisions of the Pakistan Constitution suggest an integrated legitimate theocratic constitutionalist system. The constitution limits the power of the state. Arbitrary actions by individuals holding state power governmental are avoided. Rule of law provisions apply both to the protection of the rights of individuals and the exercise of power by the state. There is a scrupulous attention to separation of powers and the suggestion of popular participation (though the deficiencies of Pakistani democracy are well known). But the protection of substantive rights—the normative limits on constitutional power appear founded on Islam. Both the courts and the legislature are made subject to the structures of Islam and the institution of the state are bent to the institution of an Islamist state. Of course, the consequences, in terms of human rights and the rights of non-Muslim citizens of Pakistan will be different under this regime than under one grounded in the conventional normative structure of secular transnational constitutionalism. But for all that, for the full members of the polity (Pakistani Muslims), a deep rule of law regime has been established.
But in the case of Pakistan, one may well have a case of sham or partial theocratic constitutionalism. Fully evolved on paper, its reality is clouded by the great struggles among those who have not acceded to the power or principle of the constriction of the state on these theocratic grounds. As applied, Pakistan suggests a polity at war with itself over the meaning and application of its Constitutional settlement. Much like the foundation of the federal republic became a critical source of contention among the elites of the anti-bellum United States, Pakistani elites are currently struggling for control of the character of Pakistani constitutionalism as grounded in secular or religious principles. The institutional center of that struggle are the courts. (Redding 2004, 764-65; Karkera 2006). In a notorious case involving the rape of a woman, “Fearing a continued struggle between the competing jurisdictions of the High Court and the Shariat Court, the Supreme Court of Pakistan took over the case, ordering all files in the case to be sent to the Supreme Court” (Kerkara 2006, 169). For the moment, the Pakistani secular courts have been able to narrowly interpret the jurisdiction of the Shariat courts, asserted their power as final arbiter of constitutional interpretation, and narrowed the meaning of un-Islamic. (Redding 2004, 773-804). Thus, for example, the Pakistani Supreme Court remanded a decision of the Shariat Court outlawing interest (riba) in all forms on the grounds that “in order for the Federal Shariat Court to conduct ‘thorough and elaborate research . . . of financial systems . . . prevalent in the contemporary Muslim countries.’” (Ibrahim 2008, 695; citing and quoting in part United Bank Ltd. V. M/S Farooq Bros. 2002)).
Egypt. Egypt presents a variation on the Pakistani situation. As contemporary Western scholars have noted the difficulties of Egyptian governance:
The Egyptian experience has witnessed radical, violent revolutionary Islamic activism and the institutionalization of Islam socially and politically; diverse state policies toward Islam in the struggle of government and ruling elites to maintain their legitimacy and their world, with its lifestyle, power, and privileges; the growing polarization (as in many Muslim societies) between Islamists and secularists and government officials; advocacy of, and then reneging on, the government's official commitment to democratization, justified by the charge that "fundamentalists" are out to "hijack" democracy; and, finally, the widening of a confrontation between state security forces and Muslim extremists to include moderate as well as violent revolutionaries. (Esposito & Voll 1996, 173).
Egypt represents that peculiar case of the state that may not decide between the secular and the religious forms of transnational constitutionalism. It is a compromise state, a state that seeks a reconciliation of the irreconcilable. That makes for a certain volatility. It is a state at war with itself, as far as its understanding of its fundamental character. Some see as the ability of one segment of the state apparatus (the courts) to brake the move toward a particular view of the black letter of its constitution. This, for example Ran Horschl looks at the efforts of the Egyptian Supreme Court to recast Egyptian constitutionalism through the construction of a constitutionalist jurisprudence. (Hirschl 2004, 1822). Others might see this inter-institutional fighting as evidence of future civil strife—much like that which boiled over in the United States in 1861. One can argue that, like the Egyptian Supreme Court today, the American Supreme Court in the early Republic also took a principled interpretive stance, but one that was hardly reflective of a political consensus on the nature of the federation and the power of the general government of the union. It took a civil war and substantial constitutional revision for such a position to ultimately be vindicated. (Backer 2001, esp. Part II).
The Egyptian Supreme Court’s assertion of authority to declare the meaning of Shari’a, and its willingness to mold that interpretive authority flexibly appears to permit a blending of secularist and religious universalism by providing a point from which convergence of substantive results is possible, even if the process to get to this result is different. Thus, for example, Ran Hirschl noted that in its role as arbitrar of Shari’a compliance, the Egyptian Supreme Constitutional Court, like its Pakistani counterpart, “has departed from the ancient traditions of the fiqh (Islamic jurisprudence or the cumulative knowledge and science of studying the Shari'a) schools and has developed a new framework for interpreting the Shari'a. Specifically, the Court has developed a flexible, modernist approach to interpreting the Shari'a that distinguishes between ‘unalterable and universally binding principles, and malleable application of those principles.’” (Hirschl 2004, 1826). However, Hirschl notes, “the Court established its own interpretation of ijtihad irrespective of the contradictory opinions in Islamic jurisprudence, the fiqh, and its traditional methods. The SCC thereby positioned itself as a de facto interpreter of religious norms.” Id., 1827). But it may not make for a model of either theocratic constitutionalism or its secular nationalist or transnationalist counterparts. This is a state that fails in both respects.
D. Constitutions With Theocratic Elements—Constitutionalism or Illegitimate Privileging.
Is it possible to enshrine religion within a constitutional framework and not further theocratic constitutionalist aims? The project of categorizing constitutions is harder than it might appear at first blush. This project poses difficult questions of interpretation, especially with respect to constitutions that seem poised between the two systems. For purposes of this paper I look to the example of Malaysia.
Malaysia provides an example of a conflation of religion and ethnicity similar to that of Saudi Arabia, but implemented within a vastly different context for a different purpose. Where the Saudi’s meant to constitutionalize the Muslim and Arab character of the state, the Malays sought to construct that singular character in a context in which native Malays feared being reduced to minority status in the lands that would become Malaysia. The state of constitutionalism in Malaysia is influenced by a number of factors. The rejection by the largest racial group, the Malays, of the Malayan Union was the result of a feeling of insecurity arising from the proposed creation of a common citizenship. . . . The fear was that Malay power would be diluted by a swelling in the number of citizens of other races, particularly the Chinese and Indians.” (Lee 2004, 233).
The ascendancy of the Malays was expressed in the c construction of the state: “Malay replaced English as the language of administration and education (except at the primary level where Chinese and Tamil continued to be used). Malay culture was given increased prominence in official ceremonies and television programs, and Islam became more fully identified with the state.” (Crouch 1996, 239). Malaysia represents a community that has conflated religion with ethnicity in the construction of what its proponents suggest is a legitimate basis of ethno-religious chauvinism. AT least one commentator has suggested “a difference between constitutional and unconstitutional forms of ethno-racial essentialism.” (Lim 2004, 117). He suggests that “It is not difficult to understand, after all, where the Framers of the Malaysian Constitution were coming from. There is an abundance of empirical and historical evidence of the importance of just such group-membership criteria, or "gateway principles" in respect of membership of the Malay race.” (Id., at 123).
In an interesting twist, at least one of its defenders suggests that ethno religious chauvinism can be supported as a principled rejection of conventional constitutionalist notions of equal treatment because, in plural societies, even conventional constitutionalists differ on the effectiveness of a color blind” approach to constitutionalism. (Id., at 126-133). The effect is that recognized difference can be legitimately hard wired and ethno religious federation serve as a legitimate basis for a constitutionalist settlement. The Malaysian Constitution of 1957 provides that “Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent or place of birth in any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.” (Id., art. 8). Commentators have noted that “Today, the suggestion that the Constitution should be colour-blind would also (unfortunately) amount to sedition under Malaysian law insofar as that should question the Malay language provision in Article 152 (below), or the special position of the Malays under Article 153, or the position of the Rulers under Article 181.” (Lim 2004, 128). But others see things differently. (“Thus the most important function of constitutional law, apart from the function of making general provision for governance, is to ensure that the potentially fragile social fabric is kept intact. There is therefore already a tension between the principle of constitutionalism as such and a perceived need to maintain a religiously tolerant but politically authoritarian executive and a strong state.” (Harding 2002, at 164).
As constituted, Malaysia incorporates Islamic elements within a structure that is also constitutionalist, in the sense of limiting and organizing power along principled grounds and subject to an ideology that protects against arbitrary or despotic assertions of power. The federation is organized along parliamentary democratic lines, with separation of powers, strict procedures for lawful enactment of legislation, separation of powers, and the social rights principles of conventional constitutionalism. Also in line with conventional constitutionalist principles, the constitution serves as the supreme law of the land. See Malaysian Constitution, supra, art. 4. (Kamali 2000, chapter 3).
But does it constitute theocratic constitutionalism in practice? Article 3 of the Malaysian Constitution declares Islam the official religion of the Federation. (Malaysian Constitution, supra, art. 3(1) (“Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.”)). Islam has a privileged position within the polity. (Ibrahim 1978). The state is required under Article 11(4) to protect Islam from competition from other faiths. (Malaysian Constitution, supra, art. 11(4) (“State law and in respect of the Federal Territories of Kuala Lumpur and Labuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.”)). That positive obligation is not solely based on the protection of religion per se, but in the case of Malaysia serves to protect what is viewed as an essential characteristic of Malay ethnicity—its religion. (Malaysian Constitution Article 160(2) creates a legal definition of Malay ethnicity as grounded in language, religion, culture and place of birth. See Malaysian Constitution, art. 160(2) (a Malay is “a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom.”)).
Still, the religious practices of other faith communities are protected, at least to the extent that are practiced in peace and harmony. (Malaysian Constitution, supra, art. 3 (“but other religions may be practised in peace and harmony in any part of the Federation”); art. 11 (“Every person has the right to profess and practise his religion”); and art. 153(1) (obligation to preserve “the legitimate interests of other communities in accordance with the provisions of this Article.”)). In addition, Article 12 prohibits discrimination on religious grounds in the administration of public education and scholarships (Malaysian Constitution, supra, art. 12(1); permits religious instruction and the maintenance of an autonomous institutional life in any protected faith (id., at art. 12(2)). Thus an element of toleration within a system of privilege (of Islam) and subordination (of all others) made necessary by the construction of state organization on the basis of a dominant race religious construct—the Malay.
Interestingly, at least one commentator has noted that even this expression of toleration might be un-Islamic. He notes that a “leading Muslim lawyer told the author that the word 'but' in Art 3 is insulting to Islam and should read 'and therefore'.” (Harding 2002, 158 & n. 9). Yet, Islam’s privilege is constrained by the constitution itself. (Malaysian Constitution, supra, art. 3(4) (“Nothing in this Article derogates from any other provision of this Constitution.”). And a system of conventionally described fundamental rights is specified. (Malaysian Constitution, supra, Part II, arts. 5-13 (Fundamental Rights)). Moreover, the courts have resisted a constitutional interpretation that would use Art 3 as the engine through which Islamist constitutionalism could be imported. Harding related that “There is also no provision for the syariah to be a source, or the basic source, of legislation. The matter was in fact tested in the 1988 case of Che Omar v Public Prosecutor, in which it was argued that the enactment of a mandatory death penalty was contrary to Islam and therefore unconstitutional. The Supreme Court (now Federal Court) rejected this argument, holding that Article 3 was not a clog or fetter on the legislative power.” (Harding 2002, 166-167; citing Omar v. Pub. Pros. 1988). “Thus primacy is given by the Constitution to religious rights even where the security of the state itself is at risk.” (Harding 2002, 168). Citing to Minister for Home Affairs v. Jamaluddin bin Othman (1989) Harding also noted that “This primacy has in effect been endorsed by the Supreme Court in Jamaluddin Othman, a habeas corpus case in which freedom of religion under Article 11 was held to override even the power of preventive detention under the Internal Security Act. The detainee, a Malay/Muslim who had converted to Christianity, was granted habeas corpus to secure his release from detention, which had been effected on the grounds that his alleged attempts to convert Muslims was a threat to national security.” (Id., at 168-169). Moreover, critical actors within Malay political culture have stressed the ambiguities of the Malay religious constitutional settlement. (Ibrahim 1996; but contrast Mutalib 1993).
That ambiguity is emphasized by the nature of federalist devolution within Malaysia. (Harding 1996). The judicial power reflects this bifurcation. A federal court system is created (Malaysian Constitution, supra, arts. 121-131a), consisting of a set of High Courts (id., art. 121(1)), and a Supreme Court at its head (id., 122), along with syariah (shari’a) courts, which are creatures of state law. (Id., at 122(1A) and Sch. 9, List II; Syraiah). The jurisdiction of the federal courts is limited, and “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.” (Maylay Constitution, supra, art. 121(1)(B)).
But the Supreme Court’s jurisdiction is broadly stated. The Supreme Court’s jurisdiction extends to “ (a) any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter with respect to a matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws; and (b) disputes on any other question between States or between the Federation and any State.” (Id., art. 128(1)). The federal judicial establishment, thus sits atop a governance system in which states have some authority to implement religious governmental systems and religious courts can serve to amplify this project. “The Federal Constitution of Malaysia is the supreme law of the nation that distributes the power of governance in accordance with the practice of Parliamentary Democracy. The Constitution may be amended by a two-third majority in Parliament.” (Malaysian Government Portal, Government).
Article 74 of the Constitution divides power between the federal and states levels. The enumeration is contained in a Federal and a State List. Such a division of authority is subject to conditions and restrictions otherwise set forth in the federal constitution itself (Id., art. 74(3)) and to a general rule of interpretation. (id., art. 74(4) (“Where general as well as specific expressions are used in describing any of the matters enumerated in the Lists set out in the Ninth Schedule the generality of the former shall not be taken to be limited by the latter.2)). The Federal list exempts federal legislation of “Islamic personal law relating to
marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession, testate and intestate;” (Id., Sch. 9, List I, (4(e)) and registration of adoptions under Islamic law or Malay custom. (Id. 12(a). But it includes power to legislate over the machinery of government (subject to exempted powers devolved to the states) including the “Ascertainment of Islamic law and other personal laws for purposes of federal law” (Id., at 4(k)), and “Government and administration of the Federal Territories of Kuala Lumpur and Labuan including Islamic law therein to the same extent as provided in item 1 in the State List.” (Id., at 6(e)). State legislative power includes a limited authority to impose Islamic law and legal structure (Malaysian Constitution, supra, Sch 9, list II, item 1). That provision permits state adoption of “Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy guardianship, gifts, partitions and non-charitable trusts.” (Id.). It also permits such regulation with respect to “Wakafs and the definition and regulation of charitable and religious endowments, institutions, trusts, charities and charitable institutions operating wholly within the State.” Id. Most interesting, it permits state Islamism with respect to the “creation and punishment of offences.” But this power is limited to “persons professing the religion of Islam against precepts of that religion,” (Id.), and is further narrowed to cover only those offenses “in regard to matters included in the Federal List.” (Id.).
Malaysia thus offers a hybrid system, or perhaps better put, a system in which two forms of constitutionalism is meant to co-exist. Co-existence, however does not suggest convergence so much as compromise and separation within a system in which one of the two forms of approaches to constitutionalism—the conventional transnational variety—is privileged within the political system, but not entirely. Thus, one commentator described Islamization in terns of domesticating and harnassing Islam for purely state power purposes during the Mahatir period. “The attempt to gain control of the flow of Islam in politics first led to an intricate policy of managing Islamist groups, and then to the Islamization initiative. The government devised a multipronged approach to containing and managing Islamism and curbing its extremism. It sought to co-opt moderate Islamist forces, marginalize and silence the extremists, and generally regulate all Islamic activity” (Nasr 2001, 113).
The tensions that result seem to parallel the ethno religious tensions of the multi cultural, multi ethnic and multi religious divisions within the state. (Backer March 2008). The consequence will likely be continued dynamism as all groups compete for greater dominance and the evolution of the constitutional order to more firmly place one or another constitutionalist system becomes clearly dominant or the nation fractures. (Jomo & Cheek 1988; Mutalib 1993).
Constitutionalism remains a messy business. In a sense, we live in a time of constitutionalist anarchy. This anarchy might well mirror the anarchy in international relations as any number of states—and the values they represent—vie for authority and a place within the hierarchy of nations. The object of this article has been to suggest that the project of building constitutionalism—a particular world view and ideology for distinguishing between legitimate and illegitimate expressions of popular will in the form of domestic constitutions—has given rise to transnational as well as nationalist versions of this project. Both seek to legitimate by positing “good” constitutional arrangements as those that prohibit arbitrary expressions of power and which limit that power in accordance with a system of norms that reflect the “good” or right and justice. (Backer 2009a).
The “good” or right and justice, can itself, if left solely to the will of majorities, produce tyranny. Thus, a great object of constitutionalism has been the embrace of normative systems against which the actions of a sovereign will can be measured, and limited. Transnational constitutionalism suggests that the articulation of those substantive limits on expressions of domestic power and governance are best when they are removed from the discretion of any single polity and situated within the community of nations—no one state can control it, but all states can contribute to its expression, and every state can incorporate its directives in a context specific way. In its nationalist version substantive norms can be found within articulated communal values or universal principles of right ad justice found within natural law or in notions of civilized behavior or by reference to universal non political principles—for example economic determinism of the failed Marxist universalist project.
It has also suggested that, there is no consensus on any set of global basis for determining a norm structure limiting domestic constitution making and binding all states. However incompatible it might seem to dominant values in other parts of the world and among other significant segments of the global community, there has arisen a new expression of principled constitutionalism—constructed on the foundation of institutionalized religion. This principled constitutionalism inverts the conventional form of constitutionalist organization, which privileges the values and norms of the community of nations (contextualized within a polity), by privileging the universal and eternal values derived from religion as a basis for interpreting and elaborating systems of governance and law. Yet, at the same time, it provides a basis for constructing states that avoid both arbitrary expressions of power and the use of power unlawfully, constraining its deployment and expression by means of principles and institutional frameworks beyond the power of individuals to subvert. What makes these systems so threatening to those constructing secular transnational or nationalist constitutionalism s both its similarities to the forms of legitimating constitutionalism (and thus its potential authenticity) but also its potential for reaching conclusions about the nature of the good and the right and just incompatibly different from that nurtured under other systems. Theocratic constitutionalism includes and excludes, privileges and subordinates individuals in ways that can be very different from the ordering of power hierarchies in the West. It rests on and inclusiveness and a notion of difference significantly different from that developed among the community of nations after 1945 and expressed in a variety of international law instruments. It would undo or redo the emerging system of supra national human rights institutions in its own image. But within its own contextual universe, it can provide as sound a basis for ordered and rule of law government as that offered by transnational constitutionalism.
There is now a market for constitutionalism. Each of these constitutionalism’s are authentic and serve to legitimate the organization of states within frameworks that promote rule of law and the institutionalization of process and values. Each posits a distinction between a principled and an unprincipled organization of government, its operation, functioning, organization, objectives, limits, and relationship with critical stakeholders. The legitimation aspect provides a powerful impetus to adherence to the form of constitutionalism and gives rise to the need to police against imposters—either as sham democracies under secular constitutionalism or as constitutional theocracy under theocratic constitutionalism. (Siddique & Hayat 2008, 316-322).
Within that market at least three major products are offered, each with a large number of variations. These three—nationalist constitutionalism, transnational constitutionalism and theocratic constitutionalism—have produced a rich literature. Each claims to be the only legitimate basis for conceptualizing the legitimate constitution of states. All impose a hierarchy of values in which the universal provides a framework within which some variation is possible, but only to the extent that it is compatible with a consensus reading of the framework norms. Each reflects a series of values and assumptions that make accommodation with other worldviews difficult, at a fundamental level.
This is the way Eric Heinze, for example largely understood the reaction of the Chairman of the Nigerian Islamic Human Rights Council to the Nigerian fornication case. (Heinze 2008). Reacting to the view that “Shadjareh claimed that "Hudood punishments under the banner of shariah in a secular state are unacceptable and cannot be the starting point for the implementation of shariah." He narrowed that view, however, in stating, "A woman who is not married at the time of accusation of fornication does not deserve capital punishment." The IHRC further states the view of the "majority" of schools of thought, according to which the appropriate punishment would have been "a certain number of lashings."” (Id., at 23). Heinze stated: “That view, which the IHRC at no point challenges, cannot be called a compromise position or a reconciliation of Islam with international human rights law. It is a categorical rejection of core human rights: namely, against cruel, inhuman, or degrading treatment (if not torture), as well as, arguably, privacy or freedom of conscience or religion.” (Id., at 23).
For all that, compatibility, as applied, might be possible. (Fadel 2008). That compatibility might well be necessary in a world in which the sources of constitutionalist legitimacy will remain highly contested. But it also suggests that in the absence of equilibrium through the singular domination of a particular constitutionalist world view, legitimating constitutionalism—as doctrine and political project—will remain in a highly dynamic state. For those championing on or another version, and seeking to convince the polities of particular states to join one or another camp, it behooves the players to better understand competing systems to meet them on their own terms, and to better structure arguments suggesting principled reasons for abandoning one in favor of another. Alternatively, as is increasingly evident today, each group will seek, by appearing to seek convergence, to move the other system closer to its own. That was the gist of what turned out to be fairly controversial statements in 2008 by the Archbishop of Canterbury. (Backer February 4, 2008). In any case, religion will be in the thick of it, from all sides of engagement.
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