Islamic Constitutionalism Research Articles

Iranian Legal System and Human Rights Protection

The state of human rights in the Islamic Republic of Iran has been criticized both by Iranians and international human right activists, writers, and NGOs. The United Nations General Assembly and the Human Rights Commission have condemned abuses in Iran in published critiques and several resolutions. The government of Iran is criticized both for restrictions and punishments that follow the Islamic Republic's constitution and law, and for actions that do not, such as the torture and killing of political prisoners, and the beatings and killings of dissidents and other civilians. The authors try to explain the real face of Iranian rules related to Human rights.

Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering

The twentieth century has seen a fundamental shift in the ways in which constitutions are understood. By the middle of the twentieth century, a new sort of constitutionalism emerged, rejecting the idea of the legitimacy of every form of political self-constitution. The central assumptions of this new constitutionalism were grounded in the belief that not all constitutions were legitimate, and that legitimate constitutions shared a number of universal common characteristics. These common characteristics were both procedural (against arbitrary use of state power) and substantive (limiting the sorts of policy choices states could make in constituting its government and exercising governance power). These procedural and substantive norms were, in turn, an articulation of a higher of the community of nations, reflecting a global communal consensus evidenced in common practice or international agreements. The authority and legitimacy of this global secular transnational constitutionalism has not gone unchallenged. On the one hand, state power traditionalists reject the notion of extra-national normative constraints on constitution making. On the other hand, there has been an intensification of challenges from universalists of different schools, from natural law theorists to pluralist constitutionalists. Among the most potent of these groups have been religious transnational constitutionalists who have argued that one or another of the current crop of universalist religions ought to serve as the foundation of normative disciplining of constitution making. But do these movements represent constitutionalism? If they do, then what are their characteristics? This article examines these questions from the context of the most developed form of theocratic transnational constitutionalism—that of Islam. The object will be to examine the great variation of Islamic and Islamic-influenced constitutions to see if these represent the emergence of a constitutionalism with characteristics that can be clearly articulated, if it is possible within this system to distinguish between legitimate and illegitimate constitutions, and if there are characteristics of this constitutionalism that clearly distinguish it from secular transnational constitutionalism. Part I critically reviews the main currents of twenty-first century notions of constitutionalism and focuses on theocracy as a principle of governance. Part II suggests the possibility of fusing the legitimating structures of modern constitutionalism with the substantive framework of theocracy to produce a possible set of characteristics that would mark a legitimate Islamic constitutionalism, distinguishing Islamic constitutions from Islamic constitutionalism. Part III then applies this understanding of theocratic constitutionalism to the constitutional families of religious constitutions in which Islamic law has become part of the structural architecture of the constitution itself, suggesting points of convergence and divergence with the values and norms of secular transnational constitutionalism.

Islamic Constitutionalism

As the first survey of the topic, this review covers Islamic constitutionalism since its emergence a century ago, showing a significant range of historical variation. The first two phases of Islamic constitutionalism are separated by a watershed, the late coming of the age of ideology, which began with the creation of Pakistan in 1947, thus predating the contemporary resurgence of Islam by some two decades. In the first phase, Islam appeared as a limitation to government and legislation, without any presumption that it should be the basis of the constitution itself. In the second phase, Islam came to be considered the basis of the constitution and the state. In the incipient third phase of postideological Islamic constitutionalism, we witness a return to the idea of limited government—this time as the rule of law according to a constitution that is not based on but is inclusive of the principles of Islam as the established religion.

CAN THE MUSLIM WORLD BORROW FROM INDONESIAN CONSTITUTIONAL REFORM? A Comparative Constitutional Approach

This paper attempts to analytically examine the possibility of constitutional borrowing for the Muslim world regardless the differences in history, system, culture, language, and cha­racteristics. It discusses this issue by looking at the arguments put forth by the oppo­nents of comparative cons­titutional interpre­tation and their counter arguments. It will consider materials from Canada, USA, South Africa, Singapore, Malaysia, and Hungary, taking the position that constitutional borrowing can be justified. The paper argues that the 1999-2002 Indonesian constitutional reform should be taken into account by other Muslim countries in undertaking their constitutional reform. The substantive approach of the Shari ‘ah that has been used in Indonesia has shown that Muslim world can reform its constitutions without the “assistance” of Western foreign policy. Indo­nesian constitutional reform has demonstrated that Islamic constitutionalism comes from within Islamic teaching and the Islamic community itself; it is a home grown product.

What do Egypt's Islamists Want? Moderate Islam and the Rise of Islamic Constitutionalism

What type of political order do Egypt's Islamists seek to create? This question is examined by studying two types of sources: the theoretical works of Egypt's most prominent contemporary Islamic thinkers and the documents issued by the Muslim Brotherhood during its 2005 parliamentary campaign. These sources indicate that a distinctively Islamic conception of constitutionalism has emerged that legitimates many of the key goals of liberal governance, including constraints on state power, governmental accountability, and protection of some civil and political rights. However, the institutions of Islamic constitutionalism support a conception of political order that differs from liberalism in important respects. These differences are most apparent with regard to the purpose of the state, the role of the individual in politics, and the function of law.

Crafting a Constitution for Afghanistan

Crafting a Constitution for Afghanistan Barnett R. Rubin (bio) Abstract On 4 January 2004, Afghanistan approved a new constitution that represents a key step forward in its political reconstruction. This article analyzes the crafting of the new Afghan basic law, from the Bonn Accords in December 2001 to the January 2004 Constitutional Loya Jirga. It discusses the obstacles overcome and the compromises made as this multiethnic country laid down the foundation for democratic government. The author also discusses whether this new constitution will enable the country to surmount the many challenges that lie ahead. On 4 January 2004, nearly all 502 members of the Constitutional Loya Jirga (Grand Council) meeting in Kabul silently stood to approve a new constitution for the "Islamic Republic of Afghanistan." President Hamid Karzai signed and officially promulgated the document on 26 January 2004, inaugurating Afghanistan's sixth constitution since King Amanullah Khan promulgated the first in 1923. Delegates hoped that this relatively liberal Islamic constitution would provide a framework for the long task of consolidating basic state structures, as the country struggled to emerge from decades of anti-Soviet jihad, interfactional and interethnic civil war, and wars of conquest and resistance by and against the radical Islamists of the Taliban movement. In his speech to the closing session of the Loya Jirga, President Karzai explained why he thought that the new constitution—which mandated a presidential system with a bicameral parliament, a highly centralized administration with unprecedented rights for minority languages, and an Islamic legal system safeguarded by a Supreme Court with powers of judicial review—would meet the needs of a desperately indigent but proud country searching for a period of stability in which to rebuild. The constitution was the next to last step in the road map to "reestablishing permanent institutions of government" outlined in the Bonn Accords of 5 December 2001. Afghans signed that agreement under UN auspices as the United States was completing the job of routing the Taliban regime that had given refuge to Osama bin Laden. The constitution provided a framework for the "free and fair elections" to choose a [End Page 5] "fully representative government" that were to complete that process. But two and a half years—the time frame of the Bonn Agreement—could hardly suffice to turn a failed state into a stable democracy. Whether the constitution, and with it the international effort in Afghanistan, could achieve its stated goals still depended on efforts beyond its scope, such as demobilizing militias and eradicating the drug trade and other illicit activities that accounted for more than a third of the Afghan economy. Unlike some postwar agreements, the Bonn Accords set out a process rather than a detailed settlement of major political issues. This reflected the time pressure under which the Accords were forged, which set a speed record as such things go. Afghanistan had been through 23 years of many-sided civil strife marked by the overt and covert involvement of regional and global powers, yet only nine days elapsed between the UN's opening of talks in the former West German capital and the affixing of signatures on 5 December 2001. Once U.S. president George W. Bush announced on October 1 that the United States would support a political transition and a UN-coordinated reconstruction program in Afghanistan, the pressure was on to cobble together a successor regime to the ousted Taliban movement, whose rule had sheltered al-Qaeda while that organization made Afghanistan into its base for global terrorism.1 Four Afghan groups participated in Bonn. The two most important were the Islamic United Front for the Salvation of Afghanistan, commonly known as the Northern Alliance (NA), which had received the bulk of U.S. military assistance leading up to and during the military operations that began on October 7, and the "Rome group" representing exiled King Muhammad Zahir Shah, a resident of the Italian capital since his overthrow by a 1973 military coup. The NA represented force on the ground and a mixture of ethnic claims with those of politicized Islam, both Sunni and Shi'ite. Figuring prominently in NA ranks were members of such northern and central ethnic groups as the Tajiks...

Gun Barrel Democracy? Democratic Constitutionalism Following Military Occupation: Reflections on the U.S. Experience in Japan, Germany, and Afghanistan and Iraq

This paper begins by arguing that the success of the United States in assisting in the creation of constitutional democracy in the post-World War II occupations of Germany and Japan is not relevant to establishing policies for the occupations of Afghanistan and Iraq at the present time. Both Germany and Japan surrendered unconditionally, their wartime leadership was thoroughly discredited, and they had long pre-war traditions of democratic constitutionalism. None of these factors is present in the contemporary situation in the Middle East and Central Asia. The prospects for constitutional democracy in these (very different) regions depend upon a hard-to-predict set of factors, the most important of which is the dominantly Muslim character of their societies. Apart from Southeast Asia, there is little experience of Islamic democratic constitutionalism, although there is no reason in principle to assume that Islam is incompatible with democracy. The harder question may be whether Islamic religious law (shari'ah) is fully compatible with constitutionalism.

In Search of Islamic Constitutionalism

This article examines the question of whether the Shari`ah is compatible with the principle and procedural form of western constitutionalism. The article will answer this question by looking at the arguments put forth by opponents of Islamic constitutional law and various counter-aguments. Using the substantive approach, I assert that the Shari`ah is compatible with constitutionalism. This position rejects both the fundamentalists’ and the secularists’ views on this subject. The Shari`ah’s principles can be a formal source or an inspiration to a constitution.

In Search of Islamic Constitutionalism

This article examines the question of whether the Shari`ah is compatible with the principle and procedural form of western constitutionalism. The article will answer this question by looking at the arguments put forth by opponents of Islamic constitutional law and various counter-aguments. Using the substantive approach, I assert that the Shari`ah is compatible with constitutionalism. This position rejects both the fundamentalists’ and the secularists’ views on this subject. The Shari`ah’s principles can be a formal source or an inspiration to a constitution.

The Rule of Law and the Politics of Reform in Post-Revolutionary Iran

This is a study of the jurisprudence of a political system in the throes of post-revolutionary reconstruction. For its analytical framework, it employs the emerging universal definition of the rule of law. It finds the main fault line for the instability of the Iranian system in the fissure caused by those who wish to reform the Islamic Republic. In the rule of law they have sought protection against the arbitrary exercise of power by the conservative clerical elite. Emboldened by electoral victories, the Reformists have pressed for the full implementation of the Islamic Constitution. That document, however, favors the hierocracy of the conservative clerics. Therefore, they too have come to employ the law as an instrument of politics. The conservative clerical jurisprudence is different from that of the Reformists. Both are rooted, however, in the unique political Islam bequeathed by Khomeini's radical revision of Iran's Shi`ism.

Politics and Islam in Contemporary Sudan

Why wasn't Islam the rallying point and battle cry of the anti-colonial movement in the Sudan? Why did the mainstream political parties and the first military regime maintain the 'secular' political structures of the colonial state? Why did the influential parties opt for an 'Islamic constitution' in the 1960s? Why did Nimeiry's regime change is course? This work attempts to answer these and related questions. Three key issues are addressed within the framework of the relationship between Islam, society and politics : the manifestation of Islam in the particular context of Sudanese society; the politicisation / repoliticisation of Islam and the Islamicisation of politics; and the mechanisms that influence the rise of a specific Islamicist force or enhance calls for Islamicisation.

Politics and Islam in contemporary Sudan

Politics and Islam in Contemporary Sudan, by Abdel Salam Sidahmed. New York: St. Martin's Press, 1996. xiv + 226 pages. Notes to p. 242. Index to p. 249. $55. For the past ten years. the Sudan has been in the international spotlight as a result of its prolonged civil war and related disasters, as well as the political orientation of its current regime. The present Sudanese government came to power through a military coup in June 1989. Since then, it has engaged in what it sees as a process of radical Islamization of state and society. This book analyzes the background of these developments and the role of Islamic discourse in contemporary Sudanese politics by synthesizing the existing literature on the political and economic history of the Sudan. Abdel Salam Sidahmed begins the discussion by pointing out that the ascendancy of the Islamists in the Sudan is a paradox in view of the country's history and its complex social structure. The Sudan was a late convert to Islam in comparison to north and west African countries. Moreover, the spread of Islam in the Sudan occurred over centuries and was associated closely with sufi tariqas (brotherhoods). which gave Islam in the Sudan a particular character. Finally, the Sudan is a multi-ethnic and multi-cultural society with a sizeable non-Muslim population. According to the author, the predominance of the Islamists in the Sudan today has its roots in the country's recent past, particularly the socio-political transformation of Sudanese society under British colonial rule (1898-1956), and in the nature of the political forces that held power in the post-independence period. The author has adopted a historical approach and has centered his analysis on the socioeconomic transformation of Sudanese society to explain the rise and the ideology of the Islamist movement. The book is divided into seven chapters, and the subjects are arranged in chronological order. The first chapter examines the political and economic impact of British colonial rule on Sudanese society, the rise of Sudanese nationalism, and the decolonization process. The second chapter focuses on political developments during the period 1956-58. Chapter three discusses the first military takeover in 1958, the popular uprising that brought it down in October 1964, and the establishment and failures of the Second Democracy, i.e., the period of parliamentary rule from 1965 to 1969. The next chapter is devoted to the debate on the Islamic constitution, which dominated Sudanese politics in the late 1960s, and the political crises that led to the military coup of General Ja`far Numayri in 1969. The fifth chapter focuses on political developments under Numayri's regime and on the conditions that led to the emergence of the Islamic Charter Front as a dominant force in Sudanese society. This group in the mid-1980s came to be known as the National Islamic Front. The last two chapters examine Sudanese politics from 1985 to the mid-1990s, focusing on such topics as the civil war, peace efforts, the Islamists' military takeover in 1989, and their subsequent effort to establish an Islamic state in the Sudan. Sidahmed argues that the strong association of Islam and politics in the Sudan can be traced to the colonial period and the development of nationalism. …

The Sudan under Islamist rule

On 30 June 1989 a group of army officers seized power in Sudan and overthrew the democratically elected government headed by al‐Mahdi. The coup was engineered by the NIF, founded in 1985 by the Muslim Brothers. This article examines how the Muslim Brothers succeeded in penetrating the army and gaining a foothold within the officer corps, and attempts to explain why a political‐religious movement opted for a military takeover. The political and ideological basis of the NIF are examined, including its adamant insistence on an Islamic state. The Sudan presents a unique case study: its three major political parties are led by leaders of Muslim movements who all support the promulgation of an Islamic constitution leading to an Islamic state. Why could Sudan not agree on an Islamic agenda without resorting to a military coup?

Political science: an Islamic perspective

Preface - Acknowledgements - Islam, Secularism and the Muslim World - Politics in Islam - Islamic Methodology in Political Science - Shari'ah: The Islamic Legal Order - Ummah: The Islamic Social Order - Khilafah: The Islamic Political Order - Muhasabah: Accountability in Islam - Nahdah: The Islamic Movement - Glossary - Appendix A: Framework of an Islamic State - Appendix B: Model of an Islamic Constitution - Appendix C: Profile of the Muslim World - Bibliography - Index

The evolution of the Iranian presidency: from Bani Sadr to Rafsanjani

In 1979, the framers of Iran's Islamic Constitution designed a weak and divided executive branch headed by a president with more ceremonial than actual powers.* A decade later, the Constitution was revised. Now, the executive branch is no longer divided and has at its helm a powerful president. Why this profound institutional transformation? And what have been its consequences? This paper addresses these intriguing questions. Specifically, from an institutional perspective, I will examine the relationship between the ideology of the architects of the Islamic Constitution and the institutional design of the presidency. I will then analyse the correlation between the design of the presidency and the performance of the office. Finally, I will discuss the relationship between the socio-economic conditions and the 1989 constitutional reform of the presidency. Analysing these relationships will also allow us to make some sense of the labyrinth of Iran's factional politics. But why focus on the presidency? Today the presidency is the most powerful institution in Iran. The president is also the only nationally-elected official; therefore, the presidency more reliably reflects the mood of the Islamic Revolution, the Iranian elites, and those permitted to participate in the political process than does any other institution.

A new interpretation of the theory ofVilayat‐i Faqih

The political theory that serves as the basis of legitimacy for the Islamic government of Iran was adumbrated in its modern form by the late Ayatollah Khomeini in his now famous lectures of 1970, and was passed into law with the ratification of the new Islamic Constitution of December 1979. There have been many attempts made since to develop or rationalize this theory along or beyond the lines laid down by the late leader of the Islamic Republic. The standard approach emphasizes the absolute authority of the just jurisprudent who holds the reins of governance as the deputy of the Hidden Imam, the chosen of God. What is more interesting, if not surprising, is the recent appearance of a new mode of interpretation for this doctrine which lays the primary emphasis on the role of the people in conferring what amounts to a second layer of legitimacy on the incumbent of the office of governance, in addition to the authority of divine appointment. The originator of this new interpretive mode is Ni'matullah Salihi-Najafabadi, the same controversial cleric who raised a storm in Ithna'ashari academic circles with his celebrated book The Eternal Martyr. In this book, Ayatollah Salihi denies the predestined character of the Imam Husayn's martyrdom. He also raises doubts about the infallibity of the Imams. In a new book, The Trusteeship of the Jurisprudent: The Governance of the Worthy, Ayatollah Salihi presents a new context for the doctrine of vilayat-i faqih in which he regards the process of the people's acknowledgement of the supreme faqih as the main element in confirming and validating his authority. By proposing what he calls a 'concrete' (insha'i) context for the application and implementation of the doctrine of vilayat-i faqih, Ayatollah Salihi implies that the prevailing mode of interpretation has been based on 'abstract' (khabari) or theoretical premises. In his view, that mode or approach ignores the necessary and vital role of the people in validating the faqih's authority. A comparison of these two approaches or modes of interpretation for the doctrine of vilayat-ifaqih reveals several theoretical problems which its expositors have faced.

Khomaini and Fadayan's Society and Politics

Under the titular leadership of Ayatollah Khomaini, Iran is struggling to establish an Islamic republic. Such a system of government, based on an Islamic constitution and underpinned by Islamic laws which are “all-encompassing and complete,” is strongly believed by him and his followers to be the panacea for all the socioeconomic and political ills of Iran and, for that matter, the whole Islamic world.

Islam and development: The Zia regime in Pakistan

Islam has been the raison d'etre of Pakistan and throughout its 33 yr of existence, Islam has played a significant role in the direction of its development. Starting from the demand for an Islamic Constitution in 1949 to the implementation of the Islamic Laws in 1979 the Islamists have been involved in efforts to establish an Islamic state. Islam as a religion emphasizes social justice and fairness, duty of man to man and to God, equality of all believers and, indeed, of mankind in the eyes of its Creator. Beyond a few matters pertaining to inheritance and to the prohibition of usury, the Koran does not concern itself with specific economic and political schemes. But Islamists in Pakistan have constantly endeavoured to force secularist-dominated governments to guide Pakistan's development trajectory towards a destination determined by them. Since 1977 and in common cause with a religiously-oriented military leadership they have gained power and are now making fundamental changes in the economic and political structures of the country. Both economic and political development indicators, however, point to Pakistan sliding into economic bankruptcy and a centralized repressive political system.

The need of Uniform Islamic Constitution for the Muslim Ummah: A study of Islamic provisions on the Constitution of selected countries

Islam is a complete code of life as stated in the holy Quran (3:19), which is the prime source of Islamic Constitution. Al-Quran, therefore, regulates the life of a human being and Constitution for the Muslim Ummah to govern their country. Hazrat Muhammad (sm) taught the Muslims to maintain, preserve, consolidate and to strengthen fraternal relations and unity among Muslims which was extended to the Khulafa-e-Rashedin regime and then Abbasid and Osmania Khilafat. At that time Muslim states were governed according to the provisions of Al-Quran and Sunnah. But at present, the Muslim Countries have departed from the Al-Quran and Sunnah. Muslims Ummah lost its central power with the end of Osmania Khilafat. Later many Muslim territory became independent one after another but they imposed more importance on geographical position, language, culture and history rather than Islam. They included in their Constitution secular, socialist, capitalist ideology and they touched some Islamic provisions in their Constitution just to give it Islamic colour. Many Muslim states have enacted many anti-Islamic provisions in their Constitution too. This article is aimed at finding and highlighting such provisions and to make a comparison among selected Constitutions of Muslim states. This article also suggests the Muslim states to enact uniform Constitution for the Muslim Ummah. doi: 10.3329/iiucs.v3i0.2665 IIUC STUDIES Vol. - 3, December 2006 (p 63-72)

The Islamic Law and Constitution

The Islamic Law and Constitution