Transcript Sharia as _A_ or _The_ source of law

Comparative Legal
System: comparative
constitutional law
Sharia as a source of law (SSL) clauses
Dr Myra Williamson
Associate Professor of Law
Kuwait International Law School
Spring semester 2014
Overview
• This lecture is part of a broader area known as ‘comparative
constitutional law’
• We’ll focus on one particular area of constitutional law, namely, the
use of something called “Sharia as a source of law” clauses (or SSL
clauses) in Arab constitutions
• We will look at these clauses in the following way:
• History/background
• The First SSL Clause
• The Spread of SSL Clauses:
A.
B.
C.
D.
E.
F.
G.
H.
Kuwait
Sudan
Yemen
Egypt
UAE,
Qatar
Bahrain
Iraq
• SSL clauses today: what do they mean, do they matter?
Reading
• The main reading is the journal article in the course materials at page
242
• Lombardi, “Constitutional Provisions Making Sharia “A” or “The” Chief
Source of Legislation: Where did they come from? What do they mean?
Do they matter?” 28 American University International Law Review
(2013) 733
• The slides that follow are based on Lombardi’s article
• There are a number of articles mentioned in the Lombardi article
which are also excellent – you can find them yourselves on Hein
online. I would recommend you read some of them if you are
interested in this topic. I would especially recommend Mohammad
al-Moqatei’s article “Introducing Islamic Law in the Arab Gulf States:
A Case Study of Kuwait” 4 Arab Law Quarterly 138 (1989)
1. History/background
• Since 1950, many Arab states have enacted constitutions that
declare that Islamic norms/law is a source of legislation
• Some refer to ‘fiqh’
• Some refer to ‘Sharia’
• Some refer to ‘the principles of Sharia’
• One mentioned Islam itself
• Most describe Islamic norms as either “a chief source of
legislation” or “the chief source of legislation”
• What does it matter?
The debate over “a” and “the”
• According to Lombardi, scholars agree that if the constitution says
sharia is “a source” then it means that state legislation does not
have to be consistent with Islamic norms
• On the other hand, if “the source” is the phrase used then
legislation must be consistent with Islamic norms
• Lets call SSL clauses with ‘a’ - weak clauses
• Lets call SSL clauses with ‘the’ – strong clauses
Example: Iraq
• During the period when Iraq (post 2003 invasion) was creating
a new constitution, the US emphasized that it would not allow
a constitution that stated Islam was “the” source of law
• US stated openly that Iraq would have a constitution where
Islam was only “a” source of law
Sanhuri’s influence
• Sanhuri thought that the law of a modern Islamic state must be
consistent with those principles and with the public interest
• He also thought that most rules found in modern European codes
were consistent with such principles
• Lombardi explains that Sanhuri was influenced by European
nationalist theory – he thought that a handful of principles, if
followed consistently, could be common to all competing
interpretations of Islam
• Sanhuri was commissioned to draft the 1949 Egyptian civil code it attempted to harmonize European, colonial-era law with Islamic
law
• The Muslim Brotherhood in Egypt criticised it as being only –
pseudo-Islamic (see fn 21)
• Many other Islamic states, also emerging from colonial rule,
decided to adopt Sanhuri-inspired codes
2. The First SSL clause
• Syria gained independence in mid-1940s
• 1949 – the first post-independence constitution was drafted
• Islamists, including the Muslim Brotherhood, wanted Islam
declared the official religion of Syria
• The 1950 draft constitution did just that
• Minority groups were upset – so that was taken out
• But a new clause was inserted:
“Islamic fiqh shall be the chief source of legislation”
Or some translations say “Islamic law shall be the…”
So…
• The First SSL clause was in the Syrian Constitution of 1950
What happened to it?
• It didn’t last long
• Syria joined with Egypt in a political union under the military dictator
Gamal Abd al-Nasser
• The united body (the United Arab Republic) adopted in 1958 a new
constitution: it did not mentioned Islamic law as a source of law
• In 1973 – Syria enacted a new constitution when it ceded from the
union with Egypt
• The new 1973 constitution:
• Did not make Islam the religion of the state
• It demoted Islamic fiqh from ‘the chief source of legislation’ to ‘a
chief source of legislation’
Comment: it seems that for a state that did not intend its laws to
conform to Islamic laws, the preferred formula was to state that fiqh
was “a” source of law
3. The Spread of SSL clauses:
Kuwait
• Kuwait: in late 1950s, Kuwait asked Sanhuri to draft codes of
legislation
• 1961: Kuwait needed a new constitution so turned to Egyptian
advisors, incl Sanhuri
• 1962: final constitution was ratified and published
• Art 2: made Islam the official religion and declared that sharia
is ‘a’ source of legislation
Kuwait compared with Syria
• The Kuwaiti constitution was different from the Syrian one in 2
main ways:
• 1. The Kuwaiti constitution referred to ‘sharia’ instead of ‘fiqh’
• 2 The Kuwaiti constitution made sharia ‘a’ source instead of
‘the’ source of legislation
Kuwaiti legislation can be unIslamic?
• So, does Art 2 that mean that Kuwaiti legislation does not
have to be consistent with sharia?
• Yes – e.g. the court case in 1992 regarding interest. In 1992,
the Constitutional Court held that the government can make
law that is inconsistent with sharia because Art 2 says that
sharia is only ‘a’ source of law
• So…if Sharia is just ‘a’ source of law, it means that legislation
does not have to be consistent with sharia
• Another example: Nashi v Dashti case: again, Kuwaiti courts
refused to overturn laws widely considered to be un-Islamic
• Everyone happy? No – there was a call in 1984 to make sharia
‘the’ source of law…but so far, no change
Sudan
• Draft constitution in 1968 proposed that Islamic Sharia would
be the chief source of legislation…and every law that
contravenes the Qur’an and Sunnah will be void!
• This draft never made it!
• In 1973 a new constitution was enacted: it made Islamic sharia
and custom (both) the two sources of legislation – that didn’t
last long either
• 1980s – military coups
• 1998: declared Islamic law to be “one of the sources” of
legislation and that legislation should conform with sharia or
any of the other sources
• But…the courts were denied the power to enforce the
provision
Yemen
• After the overthrow of the monarchy in 1962, there were a
series of constitutions which proposed Islam as the only
source of law
• 1970: a new constitution made Islam “the source of all
legislation”
• This was against the wishes of younger, secular (i.e. nonreligious) politicians who wanted Islam to be only ‘a’ source of
legislation, meaning, that Yemen could pass laws that were
not drawn from fiqh
• 1991: a new constitution was adopted – same provision
applies in Art 3
Egypt
• 1923: Islam was the religion of the state but not a source of law
• 1952: military coup, Gamal Abd-alNasser took power, dissolved
the 1923 constitution and there was then 30 years of temporary
constitutions which had no SSL clause at all
• After Nasser died in 1971, Anwar Sadat was the new president –
he reached out to the Islamists, wrote a new constitution and
included an SSL clause (note: its interesting that Egypt came quite
late to the SSL clause, given that they helped other countries draft
their constitutions which included one)
• New SSL clause in 1971 Constitution: “the principles of Islamic
sharia are a chief source of legislation”
Egypt continued
• After the draft was made public, a debate ensued
• Someone wrote to the newspaper stating that Islam should be
‘the’ source of legislation, not just ‘a’ source
• A member of the drafting committee responded that if that were
done, it would limit the flexibility of the legislature – so it would
only be able to pass laws that were in accordance with the views of
classically trained ulama
• The public consensus seemed to be this: making Islam a source of
legislation, instead of the source, meant that the legislature could
pass legislation that did not conform with sharia whereas if Islam
were the source, there would be such a requirement to conform to
sharia
• In turn, “the” SSL clause would require courts to void any
legislation that was inconsistent with sharia
Egypt continued
• In 1980, the Egyptian government amended Article 2 of the
Constitution and made the principles of sharia ‘the chief source of
legislation’
• A new constitutional court was established – it held in a 1985 case
that law should conform to Islamic principles
• Subsequent jurisprudence from that court showed that the
legislature had to legislate in line with general principles of sharia,
but these were rather modernist and general, including the
requirement for the state to act in the ‘public interest’
• So, despite the new SSL clause, the state was left was quite a lot of
discretion to ‘act in the public interest’ and Islam only constrained
the legislature to a limited degree, and in a way consistent with
liberal values (this left some political Islamists unsatisfied)
UAE
• In 1971 it adopted a constitution with an SSL clause
• Drafting was influenced by Dr Sanhuri and also the Kuwaiti Dr Wahid
al-Ra’fat
• There was debate in the UAE at the time: some wanted a clause like
Art 2 of the Kuwaiti constitution, others wanted a stronger clause,
i.e., for sharia to be ‘the’ source of legislation
• In the end, the UAE copied Kuwait and made ‘sharia a source of
legislation’
• Despite that, the government enacted legislation in 1978 instructing
the Supreme Court to declare as void any legislation that did not
conform with Islamic sharia
Qatar
• In 1972, Qatar drafted a constitution – Article 7 contained the SSL
clause
• Art 7: “…Islamic sharia is the chief source of legislation”
• However, no power was given to the courts to strike down
legislation that contradicted sharia (unlike in the UAE and Egypt)
• In 2004, a change was made: sharia was demoted from ‘the’ to
only ‘a’ source
• Why? Because by then the public debate elsewhere had led to the
belief that a ‘the’ clause would require all legislation to be
consistent with sharia
• Obviously, the Qatari government didn’t want its legislative
actions to be constrained by sharia- - hence the watering down of
its SSL provision
Bahrain
• Like Qatar, Bahrain had considered joining the UAE, but
ultimately decided to go it alone
• Art 2 of the 1973 Constitution states: “Islamic sharia is a chief
source of legislation”
• Article 2 of the 2002 Constitution repeats the same language
Iraq
• After the invasion of Iraq in 2003, and the fall of Saddam
Hussein, a series of attempts were made at drafting a new
constitution
• The first attempt in 2004, the Transitional Administrative Law,
had a unique SSL clause: it stated that Islam was a source of
legislation and that “it shall not be permitted to enact a law
conflicting with the tenets of Islam that have been agreed
through consensus”
• This was considered highly unusual, and rather unclear
Iraq continued
• Then a constituent assembly was established
• It had the job of writing a constitution that was acceptable to the
Iraqi people and to the occupying powers (i.e. to the US)
• There were various views
• Shiite Islamic parties wanted sharia to be the source of legislation
• Secular parties wanted it to be only a source
• Why? By that time, it was agreed by those involved that a the
clause would limit the legislature – it would create a justiciable
requirement that law respect sharia
• The secular parties + the US argued (successfully) that Islam would
only be recognised as “a basic source of legislation”
• But then Art 2 stated that enacting a law that conflicted with the
settled rulings of Islam was not permitted
• So…
Iraq continued
• The constitution states that courts can carry out an Islamic
review of legislation
• This seems not to have happened in practice though
• The Supreme Court of Iraq has taken the view that whether a
law conflicts with the ‘settled rulings of Islam’ or ‘thawabit
ahkam al-Islam’ is a political question that can only be
determined by the legislature
• So, it won’t strike down law that violates Art 2
• This is strange – its in conflict with the view taken by courts in
Egypt, the UAE and Yemen
Conclusion: SSL clauses today
• Although there are some differences between constitutions
the consensus amongst academics and the public is this:
• SSL clauses that make sharia the chief source of legislation are
best interpreted as prohibiting un-Islamic legislation
• That means, the state should always respect Islamic norms
Conclusion continued
• So, if that is correct, why do states continued to have weak SSL
clauses – what does it mean when a state only wished sharia
to be a source, and not the source of legislation
• Perhaps it means that the state does not wish to be
constrained by sharia
• Does it matter whether a strong or weak SSL clause is
enacted? Maybe not because experience shows that courts
are unable or unwilling to strike down legislation which is
against sharia
Final thoughts
• It seems that there is not much agreement in the Muslim world on
the role of sharia in constitutions
• Muslims seem to disagree widely on issues such as:
• Who can interpret sharia (e.g. in Iraq, the courts have the power
but refuse to use it – referring it to the legislature)
• What methods interpreters should use
• What laws an Islamic state is permitted or required to impose on its
citizens
• Even if sharia is supposed to be respected by the legislature, people
disagree on who should do the policing: the courts or the
legislature
• It seems that context is very important – even more important than
the SSL clause itself
• It also seems that Islamic states do not wish their legislatures to be
unduly constrained by sharia: they want to retain the ability to pass
laws that are inconsistent with sharia