InsightSeptember October 2007

Islam and Islamic Law under World Constitutions

Tahir Mahmood

I. Demography

By a cautious estimate the religion of Islam has as many as 1.5 billon followers in the present-day human world. In terms of the number of adherents it is the largest religion in the continents of Africa and Asia and has a large following also in Australia, Europe and North America.

Islam today constitutes the predominant religion in as many as 61 states listed below – the Muslim population there ranging from 51 to100 %. In as many as 50 of these states (indicated by an asterisk) the Muslim presence is overwhelming (above 60%).

1. Afghanistan*
2. Albania*
3. Algeria*
4. Azerbaijan*
5. Bahrain*
6. Bangladesh*
7. Bosnia-Herzegovina
8. Brunei*
9. Burkina Faso
10. Cameroon
11. Central African Republic
12. Chad
13. Chechnya*
14. Cocos (Keeling)
15. Code d’-voire*
16. Comoros*
17. Djibouti*
18. Egypt*
19. Eritrea*
20. Ethiopia*
21. Gambia*
22. Guinea*
23. Guinea Bissau*
24. Indonesia*
25. Iran*
26. Iraq*
27. Jordan*
28. Kazakhstan
29. Kosovo*
30. Kuwait*
31. Kyrgyzstan*
32. Lebanon*
33. Libya*
34. Malaysia
35. Maldives*
36. Mali*
37. Mauritania*
38. Mayotte*
39. Morocco*
40. Niger*
41. Nigeria*
42. Oman*
43. Pakistan*
44. Palestine*
45. Qatar*
46. Sahara*
47. Saudi Arabia*
48. Senegal*
49. Sierra Leone
50. Somalia*
51. Sudan*
52. Syria*
53. Tajikistan*
54. Tanzania
55. Togo
56. Tunisia*
57. Turkey*
58. Turkmenistan*
59. UAE*
60. Uzbekistan*
61. Yemen*

This, however, does not complete the picture. Many of the Muslim-dominated states listed above are tiny in size and have a small population. There are, on the other hand, several large countries where the Muslims may be numerically a minority (below 50%) in relation to the locally dominant religion but have otherwise huge populations. India with its 150 million Muslims tops the list of such countries.

Other Muslim-minority countries having large Muslim populations are China, Congo, France, Ghana, Kenya, Mozambique, Philippines, Russia, Uganda and USA.

The aggregate of Muslim populations in such Muslim-minority countries perhaps exceeds the total head-count of the Muslim-majority nations.

Islam is, thus, one of the two overwhelming faith traditions in the world of our times – the other such faith being Christianity. Followers of these two faiths together constitute the majority of human population on the globe.

The object of this paper is to briefly examine the present status of Islam and of its legal system (Shari’ah) in the following two categories of countries :

(a) countries where Islam is the dominant religion and the Muslims constitute the majority of the population; and

(b) countries where the Muslims constitute a sizable minority and have a large population.

The sources of the information being furnished here for both kinds of countries are their respective constitutions and statutory laws. The survey is selective and illustrative, not detailed and exhaustive. Full citations of the constitutional and legal provisions referred to and their texts in English translation may be provided later.

II. Islam & its Law in Muslim-Dominated States

In various Muslim-dominated countries we find three different models of religion-state relations determining the legal status of Islam and its law. These models are : —

(a) First Model : — in which Islam is legally recognized as the State religion and the Shari’ah is generally given a special place for the purpose of social engineering, legislation and administration of justice.

(b) Second Model : — in which Islam is not formally recognized as the official religion but yet the State supervises religious affairs of the Muslims and the private law applicable to Muslims is generally drawn from the Shari’ah.

(c) Third Model : — in which there is no legally recognized religion and the State cannot, or does not, have a role in the affairs of religion of any community including the Muslims; nor does it apply to any community a religion-based law including the Shari’ah.

These different models are discernible from the constitutions and the statutes of public and private laws in force in various Muslim-dominated countries of the contemporary world.

We will briefly examine here the relevant provisions of the constitutional law and the public and private laws in the leading Muslim-dominated countries of the contemporary world to determine the legal status of Islam and the Shari’ah in those countries.

A. First Model

1. Constitutional Law
Constitutional documents in as many as 24 countries scattered from North and West Africa to South and South-East Asia declare Islam to be their State religion. These countries are as follows :

(a) Arab countries : Algeria, Bahrain, Egypt, Iraq, Jordan, Kuwait, Libya, Mauritania, Morocco, Oman, Palestine, Qatar, Saudi Arabia, Tunisia, UAE, Yemen

(b) non-Arab countries : Bangladesh, Brunei, Comoros, Iran, Malaysia, Maldives, Pakistan, Somalia

Among these countries Afghanistan, Comoros, Iran, Mauritania and Pakistan have the word “Islamic” in their official names.

In the official names of Bahrain, Oman, Qatar and Saudi Arabia the word “Islamic” does not appear, but the opening provisions of their Constitutions describe them as “Islamic States.”

The Constitution of Syria does not proclaim Islam to be the State religion but says that the “religion of the President of the Republic must be Islam.”

In Afghanistan, Algeria, Jordan, Maldives, Morocco, Pakistan and Syria also, by the dictates of their Constitutions the Head of the State has to be necessarily a Muslim.

The Constitutions of almost all the Arab countries referred to above generally declare, in their opening articles that (i) they are part of the great Arab nation, (ii) Islam is their State religion, and (iii) Arabic is their official language.

A unique Arab is Lebanon where constitutional documents have established a bi-confessional governmental system providing for a sharing of executive and legislative positions in the government between the two major communities of the country – the Muslims and the Christians. This arrangement envisaging for a Christian President and a Muslim Prime Minister and apportioning seats in Parliament to various sects of the two major communities has been in force since 1923.

Most of the Arab countries – including Egypt, Libya, Oman, Saudi Arabia, and even Syria – proclaim the Shari’ah to be the “principal source of legislation.”

Outside the Arab world the leading Islamic countries which recognize Islam as their State religion are Malaysia, Pakistan and Bangladesh.

In Malaysia the Constitution declares Islam to be the State religion. But the Malay Constitution does not incorporate the kind of extensive Islamic provisions as are found in the Constitution of Pakistan.

The Pakistan Constitution of 1973 directs the State to establish the “Islamic way of life.” It also declares that “all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Qur’an and Sunnah” and that no law shall be enacted which is repugnant to such injunctions.

To assist the State in carrying out this mandate there is in Pakistan a constitutional body called the Council of Islamic Ideology. And there are Shari’at courts, including an apex body called the Federal Shari’at Court, to adjudicate on Islamic matters and enforce the Shari’ah law.

Treating the belief that Prophet Muhammad was the last Prophet of God as a fundamental part of the faith, in Pakistan all groups of the Qadiani community were declared to be non-Muslim religious minorities by a constitutional amendment effected in 1983.

A Sharia’h Enforcement Law was enacted in Pakistan in 1992. One of the country’s four provinces known as Sarhad has recently enacted a law, called the Qanoon-e-Hisbah, for a strict enforcement of Islamic religious precepts and practices. The Supreme Court had earlier disallowed its enactment on a Presidential reference invoking the court’s advisory jurisdiction, but eventually the law was adopted with some changes made to satisfy the test of constitutional validity.

Separated from Pakistan in 1971, Bangladesh had begun as a secular state but had soon amended its Constitution to proclaim Islam as its State religion. The Bangladesh Constitution opens with the Qur’anic invocation Bismillah-ar-Rahman-ar-Rahim (in the name of Allah, the Beneficent, the Merciful). The Preamble refers to the pledge of the people that “faith in the Almighty Allah” shall be among the fundamental principles of the Constitution. It is then declared that “The State religion of the Republic is Islam, but other religions may be practised in peace and harmony in the Republic”.

In the Republic of Maldives situate in the Indian Ocean all State dignitaries have to be Muslim – among them being the President, Vice-President, ministers, legislators, law officers, judges and atoll chiefs – and even franchise is restricted to the Muslims. All elected and nominated State dignitaries have to take oath “in the name of Almighty Allah” and to swear, inter alia, that they would “obey the religion of Islam”. Though assuring equality and equal protection of law, the Constitution also proclaims that “Every citizen shall have the freedom to express his conscience and thoughts, orally or in writing or by other means, unless prohibited by law for .protecting the basic tenets of Islam.”

The word “law” as used in the Maldives Constitution, it is clarified, “also includes the norms and provisions of the Shari’ah established by the Noble Qur’an and the Traditions of the Noble Prophet and the rules derived therefrom.” This clarification is in addition to several references to the Shari’ah in the Constitution as the source of legal actions – e. g., that an accused will have the right of defense as per the Shari’ah, and that nobody shall be deprived of his property except in accordance with the Shari’ah.

In Afghanistan the new Constitution of 2004 opens with the Arabic invocation to “God, the Merciful, the Compassionate” and declares in the Preamble that the Afghans have adopted the new Constitution “with a firm faith in God Almighty and relying on His mercy and believing in the sacred religion of Islam.” The opening Articles further declare that “Religion of the State is the sacred religion of Islam” and that “No law can be enacted to in contravention of the beliefs and provisions of the sacred religion of Islam.” The State can introduce reforms, inter alia, for “eliminating customs contrary to the principles of sacred religion of Islam.”

After providing all these provisions relating to Islam in the Afghan Constitution, it is clarified that “The provisions of adherence to the fundamentals of the sacred religion of Islam and the regime of the Islamic Republic cannot be amended.”

Most of the countries which recognize Islam as their state religion at the same time guarantee to all their citizens freedom of religion – belief and practice – and also assure their religious minorities all their legitimate rights as per international norms. In Pakistan, for instance, the Constitution proclaims that:

(a) “Subject to law, public order and morality, every citizen shall have the right to profess, practice and propagate religion; and every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.”

(b) “No person shall be compelled to pay any special tax the proceeds of which are to be spent on the propagation or maintenance of any religion other than his own.”

(c) “No person attending any educational institution shall be required to receive religious instruction, or take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or worship relates to a religion other than his own. In respect of any religious institution, there shall be no discrimination against any community in the granting of exemption or concession in relation to taxation.”

(d) “Subject to law, no religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any educational institution maintained wholly by that community or denomination; and no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth.”

(e) “All citizens are equal before law and are entitled to equal protection of law. The State shall safeguard the legitimate rights and interests of minorities, including their due representation in the Federal and provincial services.”

Similar provisions are found in the Constitutions of Bangladesh, Malaysia, and several Arab countries having Islam as their State religion including Egypt, Kuwait and the United Arab Republic.

There seems to be a firm belief in these countries that adoption of a state religion does not mean curtailing religious freedom and civil rights of the citizens belonging to the other faith traditions.

2. Public & Private Laws

Among the Muslim-dominated countries the Islamic penal law is now in force only in six countries – viz., Iran, Libya, Pakistan, Sudan, Saudi Arabia and Northern parts of Yemen.

Libya originally followed the Egyptian Penal Code based on secular sources but enacted in the 1970s a number of laws to enforce afresh the Qur.anic Hudood in respect of the offences of homicide, theft, fornication, qadhf, and consumption of alcohol.

Similar laws in respect of all the aforestated offences were enacted from 1979 onwards in the Republic of Sudan.

In Pakistan the country’s old Penal Code of 1860 was amended from 1979 onwards to enforce the Qur’anic Hudood in respect of theft, fornication, qadhf, homicide and consuming alcohol. The Hudood Ordinances and Orders issued one after the other amended various provisions of the old Penal Code enacted in undivided India in 1860. Penalties for blasphemy against the Holy Qur’an and the Prophet were inserted into the Penal Code in 1982 Some changes have been recently made in the Zina Ordinance of 1979 in order to mitigate some of its strict provisions.

Family rights and relations are regulated by religious precepts in all the countries recognizing Islam as the State religion. Religious family laws have, however, been reformed and codified in most of these countries mainly to effect gender and juvenile justice.

Among the countries which have fully codified the Islamic family law are Algeria, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Somalia, Syria, Tunisia, United Arab Emirates and Yemen.

Partial codification and reform of Islamic family law has been undertaken in Afghanistan, Bangladesh, Brunei, Iran, Malaysia and Pakistan.

In Iran the two Family Protection Laws enacted before the Islamic Revolution have been repealed and the original Islamic law stands restored.

In Malaysia every State has its own Administration of Muslim Law Acts (with some verbal differences in the title). The federal legislature enacted a Law Reform (Marriage and Divorce) Act in 1976 and an Islamic Family Law (Federal Territory) Act in 1984. The latter Act has since been virtually adopted by most of the States by incorporate the same or similar provisions into their own local laws bearing a similar title.

In Pakistan a Muslim Family Laws Ordinance was enforced in 1961 to introduce some reforms in the traditional Muslim family law. The Shar’iat Application Act 1937 in force in undivided India was replaced in 1962 with a new comprehensive Shari’at Application Act.

In Bangladesh the old Shariat Application Act of 1937 remains in force. The country has enacted some special laws for the protection of women’s rights.

In Afghanistan the Constitution says that “While processing the cases, the courts shall apply the provisions of this Constitution and other laws. When there is no provision in the Constitution or other laws regarding ruling on an issue, the court’s decision shall be in accordance with the Hanafi jurisprudence and in a way to serve justice in the best possible manner according to laws of this sect.” There is, however, a supplementary provision saying that the Shi’a Muslims would be governed by the Shi’a law.

In Saudi Arabia the Supreme Judicial Council of the country has prescribed certain legal treatises of the Hanbali school to be used by the courts in the adjudication of matters relating to family relations and property.

Religion-based family laws of the religious minorities have generally been untouched in the Muslim-dominated countries. In Egypt and Jordan family disputes among the Christians are to be settled by special Christian tribunals. The Moroccan Code of Personal Status 1958, as amended in 2005, protects the Jewish law for the local Jewish minority. In Bangladesh Hindu law remains where it stood in the subcontinent on the day it attained independence from British rule, while in India it has been subjected to massive reforms.

B. Second Model

The most prominent Muslim-dominated country of the world practising this model – in which Islam is not formally recognized as the State religion and yet the Islamic affairs are regulated and Islamic law enforced by the State – is the Republic of Indonesia.

Indonesia has no State religion but its Constitution refers to the attainment of independence “by the grace of God Almighty” and declares that the “State shall be based upon the belief in one and only God”, while assuring “all persons the freedom of worship, each according to his/her own religion or belief.”

Freedom of religion and non-discrimination on religious grounds is assured by constitutional documents also in several other countries falling in this category of religion-state relations.

There is in Indonesia an official establishment for Islamic religious affairs. Islamic law mixed with the local customary law known as the adapt is applied by the State courts in all parts of the country.

Another prominent country falling under this model is the Republic of Nigeria. Without giving a formal status to Islam under its new Constitution of 1999, Nigeria takes care of Islamic affairs through government agencies and applies Islamic family law to its Muslim citizens. There is an apex judicial body known as the Shari’ah Court of Appeal and several enactments regulating the Muslim religious courts.

The Republic of Niger in Africa constitutionally describes itself as a secular state. Islamic religious affairs are, however, organized by the State and Islamic family law remains applicable to the Muslims.

Most of the other Muslim-dominated countries in Asia and Africa whose constitutions do not proclaim Islam to be State religion or the Shari’ah to be the main source for legislation do officially organize Islamic affairs and apply Muslim family law. There are in many of these countries official, semi-official or parastatal bodies to supervise the religious matters of the Muslims like the waqfs and mosques and Haj and some of them have also official machineries for the collection of zakat.

C. Third Model

Prominent Muslim-dominated countries practicing this model – which has no place for Islam or its law in its constitutional and legal systems – are Albania, Azerbaijan, Bosnia-Herzegovina, Kazakhstan, Kyrgyzstan, Tajikistan, Turkey, Turkmenistan and Uzbekistan.

Some of these countries have enacted special laws regulating religion or its various aspects in accordance with the general provisions of their respective constitutions relating to the status of religion and citizens’ religious rights. Among such laws are the Azerbaijan Law on Freedom of Religious Beliefs 1992 (amended in 1996-97); Uzbek Law on Religion 1998; Tajikistan Law on Religion 2006.

In Turkey the Islamic family law had been abandoned in 1926. Family relations and inheritance in the country are now regulated by the Turkish Civil Code of 1926 drawn mainly from the Swiss Civil Code of 1912.

In Nigeria there is apex judicial body called the Shari’ah Court of Appeal and its provincial counterparts. These are regulated by the Nigerian Constitution of 1979 and a special law enacted in 1967.

III. Islam & its Law in Muslim-Minority Countries

Among the Muslim-minority countries we find two different models of religion-state relations determining the legal status of Islam and its law. These are : —

First Model : — in which either there is no State religion, or a religion other than Islam is legally recognized as the State religion, but the Muslims enjoy religious freedom and are governed by the Shari’ah law in religious and other private matters to varying extent.

Second Model : — in which there is no legally recognized religion and the State cannot, or does not, have a role in the affairs of religion of any community including the Muslims; nor does it apply any religion-based law including the Shari’ah to any community.

A. First Model

India is the topmost Muslim-minority nation in the world having the second largest Muslim population on the globe (150 million).

There is no State religion in India and by the dictates of the Constitution the State cannot discriminate between the citizens on the grounds of their religious persuasions. All citizens are equal in the eyes of the State, and all are entitled to equal protection of the laws. Religious liberty is guaranteed to individuals, groups, denominations and communities – there is for the people freedom of conscience and of professing, practising and propagating religion; while for the religious denominations there are rights to mange their own affairs in religion; establish and maintain religious and charitable institutions; and acquire, own and administer property.

Of course religious liberty is enjoyable in India within the parameters of public order, morality, health and general constitutional provisions, and it is further made clear that religious liberty shall not inhibit the State in providing measures of “social welfare and reform” and “regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.”

There is in India a sort of a State establishment for Islamic religious affairs. There is a Central Haj Committee – a statutory body to regulate the annual Haj pilgrimage – and a Central Wakf Council to have surveillance of Muslim waqfs scattered all over the country. Both these bodies have their provincial counterparts in most Indian states. Unlike Pakistan and Saudi Arabia Zakat is, however, not collected by any State agency.

The Muslim Personal Law (Shari’at) Application Act of 1937, enacted during the British rule and yet in force, mandates the State courts to apply the Shari’ah to the cases of private law if both parties are Muslim. After independence this law has been amended in three South Indian States to extend it also certain subjects falling in the domain of provincial legislative powers.

In Singapore there is no State religion but the Constitution of 1963 guarantees religious rights to “every person” and “every religious group.” Besides mandating the state to “constantly care for the interests” of religious minorities in general, it especially directs the legislature to make laws for “regulating Muslim religious affairs.” [Articles 15, 152-153]. An Administration of Muslim Law Act has been in force in Singapore since 1966 drawn on the pattern of similar laws enacted in Muslim-dominated States of Brunei and Malaysia.

The Philippines had enacted a Code of Muslim law in 1977. It is based mainly on the Shafei law and the recent legislation of the Arab countries on family matters.

In the Republic of Sri Lanka – where Buddhism is the officially sponsored and protected religion – there are in force a Muslim Marriage and Divorce Act of 1951 and a Muslim Mosques, Charitable Trusts and Wakfs Act of 1956. A statutory body called the Muslim Marriage and Divorce Advisory Board recommends to the government measures necessary for the administration of Muslim law.

In the Buddhist-dominated Burma a basic law of 1898 directs the State courts to apply Muslim law to the Burmese Muslims in matters of personal status and succession. A number of laws enacted for the Muslims in India during the British rule had been extended to Burma and remain in force there.

In Kenya Shari’ah law is administered by the Muslim religious courts working under the Kathis Courts Act of 1967.

B. Second Model

The most notable example of this model – in which there is a wall of separation between the State and religion and therefore no special provision for Islam or its law – is China.

No special provision for religion in general or for the Chinese Muslims in particular have found a place in the successive Chinese Constitutions though these basic laws of the country have referred to freedom of religion and rights of the national minorities. The same is true also of the statutory laws enacted in China, except that the Land Reforms Law of 1950 made a brief reference to mosques providing rules for their acquisition.

After a long spell of anti-religion policies China enacted a new Law on Religion in 2004 indicating a significant shift in its policy towards religious freedom. The law, enforced in 2005, provides regulations for religious bodies, places, personnel, finances, property and functionaries. The law applies equally to all religious communities including the Muslims of China.

The position in western countries having sizable Muslim populations, like France and the US, may not be too different from China.

In France the doctrine of lacite aims at keeping State and religion in watertight compartments, though this doctrine is not necessarily applied to all the religious communities with the same vigour.

In the so-called ‘non-establishment clause’ relating to religion in the Constitution has the same legal effect as the doctrine of lacite in France. And, there too the practice on this regard does not seem to be absolutely uniform

IV. Conclusion

Going by the constitutional and legal provisions relating to Islam and its law and the State policies and governmental practices in various Muslim-dominated and Muslim-minority countries, one often finds inherent contradictions, conflicts and a belief-practice dichotomy.

It seems that a formal allegiance to Islam and its law through constitutional and legal provisions may not necessarily make a society truly “Islamic.” Nor is such a formal allegiance absolutely essential for a country for following the Islamic principles of governance in practice.

A comparative study of the situation in both Muslim-dominated and Muslim minority countries in the light of their constitutional and legal provisions relating to Islam and its law and their policies and practice in this regard would indeed be fascinating.

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