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: 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 un-Islamic? 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. non-religious) 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