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Constitution

By:
Ludwig W. Adamec
Source:
The Oxford Encyclopedia of the Islamic World What is This? Provides comprehensive scholarly coverage of the full geographical and historical extent of Islam

Constitution

Governance in Islam may best be understood as a development from the classical theory of the caliphate (khilāfah) and the concept of rule by the “pious sultan,” more or less integrated with modern constitutional government. The model for the Islamic state was the Charter of Medina, a contract between Muhammad, the prophet and statesman, and his Muslim/Jewish community (ummah). It permitted the coexistence of Muslims with other monotheists having a revealed scripture (ahl al-kitāb, people of the book, i.e., Jews and Christians), who enjoyed freedom of worship in return for loyalty and payment of a poll-tax (jizyah).

Abū al-ḥasan ʿAlī al-Māwardī (d. 1058) was one of the first political philosophers to define the Sunnī concept of the caliphate at a time when it was beginning its decline as a viable institution. His book Al-aḥkām al-sulṭānīyah (The Ordinances of Government) proposes that in the Islamic state, sovereignty belongs to God, and his commands, as revealed in the Qurʿān complemented by the sunnah (traditions), are the foundations of Islamic law (sharīʿah). The caliph was a guardian, not a legislator, and was elected after investiture (bayʿah, lit. profession of loyalty) by the ahl al-ḥall wa-al-ʿaqd (the people [with power] to loose and to bind). The purpose of governance (wilāyah) was to enjoin right and forbid wrong, to make possible a life that would safeguard salvation, and to protect and expand the Islamic world, the dār al-IslāmSee AHL AL-ḥALL WA-AL-ʿAQD; BAYʿAH; and WILāYAH]. Once chosen, the caliph was obeyed out of piety by some, out of fear by others. The Mongol invasion and the demise of the ʿAbbāsid caliphate in the thirteenth century gave military commanders (emirs or sultans) the power to rule, and autocratic government, whether monarchical or presidential, became legitimized on the model of the “pious sultanate.”

A Modern Development.

Constitutionalism in the Islamic Middle East is a modern phenomenon meant to curb the arbitrary powers of rulers. It arose as a result of economic mismanagement and the growth of Western influence encouraged an elite of landowners and other notables to demand limits on the authority of their rulers.

The first modern contract between a Muslim ruler and his subjects was the Sened-i ittifak (document of concord, 1808), hailed by some as the Turkish “Magna Carta,” in which the Ottoman ruling class pledged their loyalty to Sultan Mehmed II in exchange for protection of their status and possessions. It was soon abrogated: subsequent decrees of 1839 and 1856 proclaimed equal rights for Muslims and non-Muslims in response to European pressures, but the sultan remained supreme.

Modern constitutions patterned on Western (often Belgian) models were drafted (Ottoman, 1876; Tunis, 1861; Egypt, 1882; Iran, 1906). They were short-lived or were amended to suit the wishes of an autocratic ruler, a colonial power, or a mandatory government.

Constitutional documents drafted by newly independent states after the end of World War II, whether nationalist, socialist, or traditional, tended to be liberal in nature. They provided for the protection of life and property, the inviolability of the home, and religious freedom, but were also characterized by strong executive power. Autocratic government has been the rule rather than the exception. The monarch or president summons and dismisses parliament and appoints and dismisses ministers. Political parties tend to be weak, sectarian, or cliquish, headed by charismatic leaders. Modernization did not promote the establishment of democratic government. For example, two states with working democracies are Pakistan and Turkey, but in both countries the military sees itself as the guardian of the political process and intervenes to remove elected officials.

Revivalism.

The failure of nationalist, socialist, and secular governments has encouraged the emergence of a revivalist movement that wants to create an Islamic state. Inspired by Aḥmad Ibn Taymīyah (d. 1328) and drawing on the teachings of Sayyid Quṭb (d. 1966), ḥasan al-Bannā (d. 1949), Abū al-Aʿlā Mawdūdī (d. 1979), and Ayatollah Ruhollah Khomeini (d. 1989), it demands revolutionary change, including the abolition of western innovations, the overthrow of secular and traditional regimes, and the establishment of a state where sovereignty belongs to God, the sharīʿah is the law, and an elected emir governs with the aid of a council of experts (shūrā). Most Islamists do not exclude women from participation in public life, but they maintain that womenʾs primary function as mothers and wives necessarily restricts their sphere of activity.

The Islamic constitution of Shīʿī Iran (1979) gave supreme power to Ayatollah Khomeini, who ruled “in the absence of the Hidden Imam.” During Khomeini's lifetime the ayatollah al-ʿuẓmā (the highest jursconsult) became the arbiter of the legislative process. Upon Khomeini's death, the constitution was amended to remove the requirement that the leader be a marjaʿ-i taqlīd (Ar., marjiʿ al-taqlīd) on grounds that it was more important to have an incumbent who was considered well versed in administrative matters; it was also reasoned that no successor could be found who would embody the same qualities and attributes as Khomeini. Sunnī Islamists, by contrast, tend to follow a republican model, granting a council of ʿulamāʿ merely consultative powers. Muhammad Zia ul-Haq of Pakistan and ʿUmar al-Bashīr of Sudan, both military men, legitimized their rule by implementing Islamist programs.

The Islamist concept of governance is highly idealistic; it is puritanical and egalitarian, but at the same time totalitarian in character. It assumes that once elected, the emir will not abuse his absolute powers, and that a restoration of early institutions will solve the socioeconomic problems of the Islamic world.

When the governments of Mullah Mohammad Omar in Afghanistan and of Saddam Hussein in Iraq were eliminated as a result of American and allied intervention, new attempts at introducing constitutional governance into the Middle East began with the drafting of constitutions in 2004 and 2005. The populations of the two countries are similar in size and are heterogeneous, with a variety of sectarian and ethnic communities. In Afghanistan the Shīʿah are a minority, while in Iraq they constitute a majority. Both states were founded as monarchies whose rulers were ousted by revolutionary regimes; most recently, Afghanistan was ruled by the theocratic regime of the Taliban, and Iraq by a secular dictatorship. Stability was enforced by draconian measures, and the people had to obey the edicts of the rulers.

Iraq and Afghanistan.

The United States and its allies set about to establish transitional authorities that prepared the countries for elections and the drafting of constitutions, which were approved in 2004 and 2005. The documents are liberal, with a bill of rights guaranteeing the protection of life and property, free speech, freedom of thought and religious belief, the sanctity of private residences, the right to fair, speedy, and open trials, free education and health care for all, etc. Pashto and Dari (Farsi) were recognized as the official languages in Afghanistan, and Arabic and Kurdish in Iraq; to protect minority cultures, other languages are counted “official” in areas where they predominate.

Potential problems remain: Islam is supreme, “no law can be contrary to the beliefs and provisions of the sacred religion of Islam” (Afghan, Ch. 1, Art. 3); “Islam is a [not the] main source of legislation,” and no law may contradict Islamic and democratic standards (Iraq). The constitutions secure equal rights for women and representation in parliament and public life, but Islamic law, as interpreted by traditional clergy, reduces a woman's legal status by requiring the testimony of two women for that of one man in a sharīʿah court. As to the question of a unitary versus a federal system of government, Afghanistan opted for a unitary system with a strong president, whereas in Iraq the Shīʿī/Kurdish bloc opted for a federal system with considerable autonomy at the expense of the interests of the Sunnī Arab minority. But challenges are already emerging: the Afghan opposition wants to change to a parliamentary system with a strong prime minister and local election of provincial governors. Iraq's constitution was accepted with the compromise that parliament make changes to win acceptance of the Sunnī minority which was largely excluded from the drafting process. Those changes have yet to be made.

Assessment.

It is too early to predict the outcome of the effort at democracy-building, and considerable support from international bodies may be needed to bring it to fruition. The drafting of the Ottoman Constitution of 1876 was not unlike the present effort in the Middle East: it provided for a parliament that included every ethnic and sectarian community; rabbis, priests, and ʿulamāʿ embraced in the streets, the entire empire was euphoric. It soon became apparent that the interests of the members of parliament were irreconcilable; they agreed on very little, including the budget, and Abdülhamid II prorogued parliament and ruled with emergency powers for the next thirty years. In this light, the prognosis for Afghanistan and Iraq seems less than encouraging.

Bibliography

  • Akhavi, Shahrough. Religion and Politics in Contemporary Iran. Albany: State University of New York Press, 1980. Analyzes clergy-state relations to identify the pressures of increasing secularization in society and the response to these pressures by the leaders of religious institutions.
  • Binder, Leonard. Religion and Politics in Pakistan. Berkeley: University of California Press, 1963. Discusses attempts at drafting a constitution for the Islamic state of Pakistan in the early 1950s and lists the views of the Board of Taʿlīmat-i Islāmīyah (Islamic Teachings) on such questions as the qualifications of the head of state, elections, and the separation of powers.
  • Esposito, John L., ed.Voices of Resurgent Islam. New York and Oxford: Oxford University Press, 1983. Discusses questions of Islamic identity, the pioneers of the Islamic resurgence, and Muslim perspectives on a resurgent Islam.
  • Europa World Year Book, 1992. London: Europa Publications, 1992. Reference source with historical and political summaries of the countries of the world, including their constitutions.
  • Kimmens, Andrew C., ed.Islamic Politics and the Modern World.New York: H. W. Wilson Company, 1991. Fifteen contributors discuss such topics as the failure of the secular ideal, Islamic revival, and radical resurgence, the Salman Rushdie affair, and the future of Islamic politics.
  • Piscatori, James P., ed.Islam in the Political Process. Cambridge: Cambridge University Press, 1983. Eleven contributors examine Islamic politics in a number of Muslim states.
  • Rosenthal, Erwin I. J.Islam in the Modern National State. Cambridge: Cambridge University Press, 1965. Discusses the unity of religion and politics in classical Islam and the place of Islam in the nation state. Although dated in some of its assumptions, the 1965 work is an excellent source on Islam in the post–World War II nation-state.
  • Rosenthal, Erwin I. J.Political Thought in Medieval Islam. Cambridge: Cambridge University Press, 1958.
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