Several new constitutions have been written in Muslim countries in the past decade; Afghanistan and Iraq wrote new constitutions after American-led invasions; Egypt wrote a new constitution after the ouster of Mubarak (and again after the military coup against Egypt’s first democratically elected president, Morsi) and Tunisia enacted a new constitution recently; several countries – such as Yemen and Libya have attempted to write permanent constitutions but ensuing chaos did not allow this to happen. Each of these constitution-making situations was very different and each country is a product of very different histories, cultures and socio-economic and societal foundations. Yet, one issue has been consistently highlighted: the status of Islam. To what degree will Islam be privileged in the constitution? Will new popularly elected governments be constrained by Islamic law? Will courts be able to set aside laws if incompatible with Sharia?
Many constitutions in the Muslim world contain clauses that recognize the Islamic character of the state. Yet, to date, there was little data on the landscape of Islam in constitutions. Separate research projects I collaborated on with Tom Ginsburg, Professor and Deputy Dean at the University of Chicago Law School and Moamen Gouda, Assistant Professor of Middle East Economics at Hankuk University of Foreign Studies sought to fill this gap. Our analysis showed that roughly half of all Muslim majority countries have some Islamic feature in their constitution. Saudi Arabia, Iran and Pakistan make the most references to Islam in their constitution while the Central Asian countries and some countries in Africa (e.g. Burkina Faso) declare themselves to be secular. Clauses that reference Islam could range from the preamble symbolically stating that God is sovereign to a clause stating that only Muslims can be citizens (Maldives); 23 countries declare Islam as state religion; 18 countries make Islam a source of law and 6 countries’ constitutions’ state that no law can be repugnant to Islam/Sharia/Islamic law.
We also found that while Muslim countries’ constitutions generally promise a number of important human rights and none explicitly incorporate corporal punishments, constitutions that privilege secularism tend to, on average, promise more rights than constitutions that do not. Indeed, of the top 10 countries in the Muslim world measured in terms of de jure constitutional promise of rights, all but one — Maldives, claim to be secular.
In terms of the democratic demand for incorporating Islam, it appeared that there seemed to be a high demand in many, but not all, Muslim majority countries to incorporate Islam within political life and that this impulse was driven very much by the same reasons as to why citizens want to incorporate human rights in the constitution; because large segments of society in some Muslim countries associate the incorporation of Islam with efficient and accountable government, reduced corruption, women’s rights, post-colonial assertion of identity/sovereignty and the prevalence of a particularly negative view of what “secular” government means. It is unsurprising then to observe then, as Professor Noah Feldman noted:
… where the country is majority Muslim, many citizens will often want Islam to have some official role in state governance, beyond mere symbolism” and that Islamic democrats believe that “a majority of Muslim citizens would choose government with an Islamic cast if they were free to do so.
And this can be observed in several instances of constitution-making; for example, Iraq’s most “Islamic” constitution was also the one written in the most democratic setting; after the U.S. invasion toppled the Saddam regime and political parties were relatively free to operate (2004/2006); when Iran wrote its first constitution in 1905/1906 (after a popular upheaval known as the “Constitutional Revolution” weakened the Qajar monarchy) the document contained many progressive features but also privileged the clerical establishment and Islam; under Mustafa Kemal Atatürk, Turkey underwent one of the most comprehensive programs of “secularization” ever seen in the Muslim world. Yet, its 1924 Constitution initially declared Islam as the state religion.
Of course, this does not mean that the political desire to incorporate Islam in constitutions will always go hand in hand with democratization or that modernization will always be reinforced through a call to “Islam”; indeed, dictatorial regimes have often exploited this populist desire to “Islamize” the system to brutally reinforce their own authority and shut out dissent – examples being General Zia-ul-Haq in Pakistan and Omar Bashir in Sudan. Aside from political abuse, questions of minority and women’s rights may also need to be resolved.
Nevertheless, it seems that, often, calls for the political incorporation of Islam in constitutions is as “modern” a demand in some cases as is the desire for more representative democracy and economic welfare. Not only does this mean that democratization and “Islamization” of constitutional life may go hand in hand but also that modernization in nations may indeed necessitate paying fidelity to Islamic rhetoric if it is to be considered legitimate and representative.
In conclusion, although preliminary, these findings could have considerable normative implications; not only does it show that democratization and political Islamization may reinforce rather than work in opposition (as is sometimes assumed by foreign commentators); it also implies that the Muslim world may in fact chart its own version of constitutional democracy that may not imitate Western, or specifically, European notion of “secular” democracy. Thus, going forward, much more thought needs to be focused on how to design such a model of constitutionalism.
Editorial Note: Please click on country links to be directed to the relevant text of their respective constitutions, for example, if you click “Afghanistan” you shall be directed to the constitution of that country on the comprehensive document on https://www.constituteproject.org/