Download Citizenship, Religious Rights and State Identity in Arab Constitutions

Citizenship, Religious Rights and State Identity in Arab Constitutions:
Who Is Free and What Are They Free to Do?
Nathan J. Brown
Through a study of clauses relating to religious freedoms, Nathan Brown investigates the
different and often conflicting meanings contained in Arab constitutions and the reasons for
such tensions. He demonstrates how religion in most Arab countries is much more than
individual faith: it is a juridical category tied to a state bureaucracy that has implications for
how the social life of an individual and a community is regulated, and how religious freedom
in particular is understood.
Brown highlights how Arab constitutions say multiple things with respect to religious
freedoms that are often in conflict with one another. This is because, contrary to the view that
constitution writing is proactive, most constitutions are the outcome of an iterative process:
one in which details are added as political and legal actors are confronted with new realities.
In Arab states, this process of accretion has led to an anomaly whereby provisions make
sense when examined individually, but come into conflict with one other in the overall
structure of the constitution. For example, there are provisions that guarantee religious
freedom and prevent discrimination on the basis of religion in most constitutions; yet these
states favour Islam over other religions, and sponsor a greater role for it in public life. These
tensions are built into the structure of Arab constitutions even as the language used in them
presents a singular will, devoid of any tensions. Most importantly, the clauses on religious
freedoms carve out a central role for the state in the regulation of religion within society.
What is most interesting is that this institutionalisation of religion in Arab states has very
little basis in traditional Islamic law and is, in fact, a very modern phenomenon: a product of
the experiences of state formation and expansion in the Arab world as the region made the
transition from the Ottoman empire to various forms of colonial and neo-colonial rule in the
nineteenth and early twentieth centuries. A prime example is the pre-eminence afforded to
personal status law within Arab states, even though no such category exists within traditional
Islamic law. Invented by the French in Algeria and then exported to the rest of the region,
today it is considered a bastion of Islamic law. Other examples include provisions for dealing
with the protection of minorities, which were introduced by the British; or the role of the state
in providing religious education, running mosques or collecting zakat, all of which led to the
bureaucratisation of religion and its incorporation into the state apparatus.
Finally, Brown contends that such bureaucratisation allows the state a role in deciding what
constitutes a religion; who speaks for a religious community; and how various provisions are
to be enforced. All of which results in a legal order that is neither secular nor liberal, but one
where the concept of religious freedom involves a complicated intertwining of state and
religion that is difficult to unravel. He offers an example of how this can affect the behaviour
of minority communities through a case-study on the Christians in Egypt. They vehemently
resented the government’s decision to dissolve personal status courts in 1955 on the grounds
of civic equality, since they believed these courts provided them a measure of protection not
otherwise available. In short, the ideal of uniform citizenship was considered more
threatening than differentiated citizenship.
Sharia Councils in the West: Bootstrapping and Evolving
John R. Bowen
John Bowen presents an analysis of Sharia Councils in the west and the role they play in
resolving marriage disputes among Muslim families, particularly in granting divorce to
women who request it. Comparing three British case studies with examples from France and
the Netherlands, he argues that Sharia Councils have emerged and developed differently
across Western Europe and North America; and that these differences stem both from
disparate conditions of origin and distinctive local opportunity structures. These factors
determine why Sharia Councils have seen relatively robust growth in England while being
extremely weak in France.
Bowen highlights how most clients of Sharia Councils in Britain are Muslim women (often of
Pakistani descent) seeking Islamic divorce. The Councils are fully aware of the fact that their
rulings are not legally recognised by English law and thus require a couple to begin civil
divorce proceedings before they will take up their case. Furthermore, they do not rule on
issues of child custody and marital assets, since only the civil courts can issue enforceable
orders. Nonetheless, women continue to come to these Councils for Islamic divorce alongside
civil proceedings, because of the social acceptance this creates for a woman in the family and
community, allowing her the possibility of remarriage should she so choose.
He offers reasons as to why the Councils are extremely well developed in England compared,
for example, to France. This has to do with three main factors. Firstly, migration patterns to
the UK were concentrated both in their origins (e.g. Mirpur for Kashmiri Pakistanis and
Sylhet for Bangladeshis) as well as their destinations (Bradford, Birmingham and pockets of
concentration in other major cities). This combined with the tradition of marriage between
close cousins that exists within South Asian communities leads to the effective
transplantation of villages and lineages into the diaspora, with a corresponding role for imams
and Islamic values. Secondly, the opportunities (and constraints) in receiving countries are a
major reason for the development of Sharia Councils: the British state’s recognition of and
emphasis on communities creates space for ‘community’ institutions such as mosques, while
the Sharia Councils are modelled on the state-funded Ethnic Councils of the 1960s. Finally,
many of the South Asian theological divisions (such as that between the Deobandi and
Barelvi) are reproduced in the UK as a result of these close ties with the home country.
Yet not all Councils are the same, as Bowen’s three case studies demonstrate, and their
institutional development is often shaped by public perception. The conservative Islamic
Sharia Council in London has a global clientele and is focused on ‘proceduralism’; it
approaches the standards of the civil courts when it comes to witness requirements, and
attains Islamic legitimacy through its emphasis on procedure. The Birmingham Central
Mosque is the only Islamic institution in Britain to have a female high official in its Sharia
Council and caters almost exclusively to a local clientele; its family support service evolved
as a women’s crisis centre and focuses primarily on women’s issues within marriage. While
the Hijaz Community Centre follows a Sufi tradition and often deals not simply with divorce,
but also with arbitration in commercial disputes, although this service remains highly
personalised and never approaches the level of the civil courts.
Finally, Bowen shows how the key difference between Britain and France is the local
opportunity structure. France’s strict Republican tradition, which does not accept a duality of
state and Islam and which is averse to treating marriage as ‘private’, and the very different
settlement patterns of the mostly North African immigrants, all stymied any possibility for
the growth of effective Sharia Councils.
Islamic Law in an Islamic State: What Role for Parliament?
Matthew J. Nelson
Matthew Nelson seeks to understand Pakistan’s struggle with the legal institutionalisation of
its religious identity through a history of the three phases of constitutional drafting and
amendment in 1956, 1962-3 and 1973 respectively. He traces the debates between various
social and state actors over which institution or group has the ultimate right to define law in a
Muslim society. Nelson demonstrates that, despite challenges from the executive, judiciary
and religious groups, the Pakistani parliament has emerged as the pre-eminent institution with
the mandate to define and enforce Islamic law.
According to Nelson the struggle was played out between three religious social groups, who
were crucial actors in these contests: the ‘Traditionalists’, madrasa-based ulema committed to
the autonomy of their fatwas; the ‘Nationalists’, who tried to combine the ‘dynamism’ of
Islam with the unfettered power of either parliament or the executive in drafting Islamic law;
and the ‘Islamists’, who sought to enforce a set of relatively inflexible Islamic laws through a
powerful state in which the role of the legislature was severely circumscribed. Since
Independence the Traditionalists and Islamists have allied to oppose the unfettered legislative
power sought by the Nationalists, although many of the most interesting struggles – over
whether the executive, the judiciary or the legislature has the right to interpret and enforce
Islamic Law – have taken place within the Nationalist group.
In the first phase (leading up to 1956) the key debates revolved around the Objectives
Resolution of 1949. This sought to balance the sovereignty of ‘God’ with the sovereignty of
the post-colonial state, while avoiding any reference to Sunni jurisprudence (fiqh), and with
the clear aim of undercutting the power of the traditional ulema. The Nationalists retained the
Objectives Resolution as a non-binding constitutional preamble. They also rejected the
Traditionalists’ demand for the creation of a separate, ulema-led institution to judge the
‘repugnancy’ of particular laws to Islam, asserting that only the Supreme Court had this right.
In response, the Islamists and Traditionalists adopted extra-legal methods in order to re-assert
their power. Their demand for the Ahmadiyya community to be declared non-Muslim led to
rioting and arson, with the army called in to restore order. The resulting official enquiry, the
Munir Report, strongly advised the state against taking responsibility for defining who is or is
not a Muslim, although it failed to clarify whether parliament or the executive had the right to
frame Islamic laws. Thus, although the demands of the ulema and Islamists were rejected,
divisions within the Nationalists over the balance between the branches of government were
starting to emerge. And although the 1956 constitution upheld parliamentary supremacy,
even to the extent of deciding whether or not laws were repugnant to Islam, in practice a
strong executive did not allow this to happen and within two years Pakistan’s first military
coup had taken place.
In the second phase (1962-63) a strong executive, led by Ayub Khan and endorsed by Justice
Munir’s Supreme Court, used its power to pass a series of ‘Islamic’ laws, most notably and
controversially the Muslim Family Laws Ordinance of 1961. This firmly sought to place
authority for defining Sharia law in the hands of an unfettered state and to prevent further
judicial review. It thoroughly marginalised the ulema and Islamists, whose fierce opposition
led the president to drop article 198 of the constitution. Although this reinstated the right of
each sect to interpret Islam, significantly the constitution as drafted by a strong executive
continued to uphold the principle of parliamentary supremacy vis-à-vis the crucial issue of
‘repugnancy’.
In the final phase (from 1973 to the present) Nelson argues that the principles of
parliamentary supremacy have been upheld. He notes there was little difference between
Ayub’s military regime and Bhutto’s democracy when it came to Islamic laws, as well as in
their response to pressure from Islamists and Traditionalists. Although Zia ul Haq passed an
important constitutional amendment in 1979, which gave the president the final say in
deciding whether particular laws were repugnant to Islam (after they had been scrutinised by
the Supreme Court); and although he created a Federal Shariat Court (FSC) to investigate the
issue of repugnancy, he curtailed the court’s powers once its decisions were seen as not
subservient to the interests of the executive. Nelson disagrees with those who contend that the
FSC has become the supreme arbiter of Islamic laws in Pakistan. He notes that the courts
have become more active vis-à-vis the role of religion in Pakistan’s legal system. However he
argues that fragile as it may be, constitutional authority ultimately still rests with the
legislature; and that this is a role which the judiciary has never really challenged.