Christians Under Attack

Thought by Western analysts and decisionmakers to be ancillary to the actual conduct of policy for most Middle Eastern Muslim countries, Islamic law’s status turns out to be constitutionally established in most of them. “Extremists” and Islamist who know this reasonably claim that if the Western-style constitutions of many Muslim countries were properly followed, they would have to yield to Islamic law. One such example comes from the article “Constitutions of the Muslim Countries Reveal the Great Betrayal” from the Webpage Kalifah.com. Calling for the imposition of Islamic law, Muslim forms of governance, and a return of the caliphate, the article alleges that the constitutions of most Muslim states already require this and so accuses those governments of betrayal. Recreating the research from the Kalifah.com article reveals that it is accurate concerning the underlying facts. A cursory review of the constitutions of a few select countries will demonstrate this point. When sampling, specific focus will be on how those national constitutions orient themselves to Islamic law and whether there is language that indicates a subordination of the nation-state to a higher governing authority.

Muslim National Constitutions

Pakistan

The Constitution of Pakistan declares Pakistan to be an “Islamic Republic” that is required to subordinate its principles of democracy, freedom, equality, tolerance and social justice to Islamic law. It specifically states that all sovereignty belongs exclusively to Allah. In furtherance of recognizing Islamic law as the base law of Pakistan , Pakistani Muslims are called to “order their personal and communal lives in accordance with the teachings and requirements of Islam as set out in the Holy Qur’an and Sunnah.”

Syria

The Syrian Constitution states that Islamic law is Syria ’s primary source of law.

The Syrian Constitution also gives explicit recognition to Syria ’s membership in a larger “Arab” nation that includes being “a part of the Arab homeland” and being a

“member of the Union of Arab Republics.”

Jordan

Jordan is the most moderate of the Muslim states surveyed in terms of recognizing the role of Islam and its governing principles. The Jordanian Constitution states that Islam is the state religion and that the state “shall safeguard the free exercise of all forms of worship and religious rites in accordance with the customs observed in the Kingdom.” In so far as the customs and traditions of the Kingdom include conformance to Islamic law, making Islam the state religion and following tradition could be interpreted to mean following Islamic law as the law of governance. (This is not to say that this is the current Royal Jordanian policy; rather that such a reading can reasonably be argued.) As with the Syrian, the Jordanian Constitution formally recognizes that it is a part of the larger “Arab Nation.”

Egypt

The Egyptian Constitution is straight-forward in stating that Islam is the official religion of the state and that Islamic law is the principal source of all law. The Constitution also gives specific recognition to the “Arab Nation” and goes so far as to proclaim that the government is to work to realize the “comprehensive unity” of that Arab Nation.

Saudi Arabia

The Saudi Arabian Constitution is perhaps the most systematic in its tying Saudi governance to Islamic law. In keeping with its Hanbali tradition, the Saudi Constitution states that the Qur’an and hadith are to serve as the basis of law for the Saudi state and, moreover, that Saudi government itself derives all of its governing authority from the Qur’an and hadith. In looking for guidance when seeking out concepts of justice, equality and consultation, the Saudi Constitution limits such inquiries to what is found in the Shari’a. The Constitution “strives for the achievement of the Arab and Islamic nation” and looks to the safeguarding of “Islamic and Arab heritage.”

Iraq

The Iraqi Constitution ties Iraqi governance to Islamic law -- to the exclusion of the democratic principles that are given superficial recognition in the text of the Constitution. The Constitution starts by stating that the official religion of Iraq is Islam; that Islamic law serves as a basis of Iraqi law; and that “no law that contradicts the established provisions of Islam may be established.” While it is true that this restrictive language is jumbled in with other restrictors relating to democracy, etc., because Islamic law is the only law specifically enumerated as a body of law that serves as a fundamental source of legislation that no law can contradict, there is no reasonable basis to deny the simple meaning of the constitutional language that the Iraqi Constitution formally subordinates itself to Islamic law. While Western drafters insist that the Iraqi Constitutions includes “guarantees [for] full religious rights of all individuals to freedom of religious belief and practice” based on specific language in the Iraqi Constitution, to the extent that such language contradicts published Islamic law, those constitutional protections can be superseded by Islamic law. As with the other Arab countries, the Iraqi Constitution gives specific recognition to the status and existence of the larger “Arab Nation.” Unique to the Iraqi Constitution, specific constitutional language associates Iraq with the Arab League in ways that add substance to the concept of a larger “Arab Nation.” The two times that the constitution associates with the Covenants of the Arab League, it specifically identifies that association in terms of being a part of the greater Islamic World.

Afghanistan

The Afghan Constitution suffers from the same defect as the Iraqi. The Afghan Constitution states that it is an “Islamic Republic,” putting Afghanistan in the same status as Pakistan and Iran . Stating that Islam is the state religion, the Constitution then says “followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of law.” Believing this language secured a religious right of tolerance; those rights are actually subsumed by Islamic law as specifically stated in the very next clause where the constitution says that “no law can be contrary to the beliefs and provisions of the sacred religion of Islam.” Islamic law has clearly stated provisions on the rights of non-Muslim subjects of the Islamic State (see Book O - “Justice” at o11- “Non-Muslim Subjects of the Islamic State”) and, as discussed earlier, on apostasy as well. Hence, any constitutional guarantees on freedom of faith would have to be interpreted in ways that are not “contrary to the beliefs and provisions of the sacred religion of Islam” which means that constitutional rights cannot have interpretations that contradict Islamic law on the rights of both Muslim and non-Muslim subjects of the Islamic State. The certainty of this point was demonstrated earlier by the example of the

Afghan Muslim apostate in Spring 2006.

OBSERVATIONS

The sampling of Middle Eastern constitutions indicates that Muslim countries formally recognize Islamic law’s role in the governance of their respective countries. For the Arab countries, there is also specific recognition of a larger “Arab Nation” that Saudi Arabia defines in explicit Islamic terms. For the other constitutions, the same point is implicit in the statement that Islamic law serves as a basis of law for the relevant national constitutions.

Concepts of an Arab / Islamic nation should be understood as an attempt to use Western nation-state language to describe the Islamic concept of Ummah. A concept that has no a real equivalent in the West, discussions of the Ummah in Islamic terms ends up seeming too opaque to most Western sensibilities. Either way, decisionmakers and analysts are prone to discount Islamic concepts they do not understand by characterizing them in cultural mythology or utopian terms. As with the associated concept of the caliphate, the Ummah is a currently existing reality given specific definition in Islamic law and reflected in the national constitutions of the Muslim countries surveyed. In terms of either the greater Arab Nation or the Muslim Ummah, one needs look no further than currently existing Ummah-level organizations like the Arab League, the Supreme Islamic Counsel, the Organization of the Islamic Conference (OIC) or the Muslim World League – all of which have demonstrated an ability to speak with authority.

Also noteworthy is that the two constitutions that the U.S. Government played a role in drafting provide strong deference to the role and supremacy of Islamic law that includes permissive language that supports “extremist” demands to constitutionally subordinate constitutional language with superseding requirements from Islamic law. A principle objective of “extremist” groups like al-Qaeda and the Muslim Brotherhood is the implementation of Islamic law in Muslim countries. Current Approach advocates failed to provide meaningful insight into how language in the Afghan and Iraqi Constitutions undercut democratic principles. (For an example of how failure to account for Isalmic law can undermine policy decisions, see Appendix B - “Is the Iraqi

Constitution Fatally Flawed?”)

When assessing secular violence in Iraq and branding it “extra-legal,” consideration should be given to the possibility that what we call “secular” violence may actually be violence associated with imposing one of two competing bodies of Islamic law – Sunni or Shia – in control of Iraq . Because both Sunni and Shia law are Islamic law, their superseding status over the Iraqi Constitution is already established. Hence, the term “sectarian violence” may be masking a real political struggle between the two bodies of Islamic law for control of Iraq through control of its constitution as called for by the Iraqi Constitution.

Islamic law is a real body of law with actual presence in the legal systems of the Muslim Middle East and, as such, has actual presence in the decisionmaking of those governments that are accountable to it. This is true as a constitutional matter of law. It is also true even if that influence remains in varying stages of latency within those countries. To the extent that countries subordinate their constitutions to Islamic law, it means that they subordinate their laws to same Islamic law that is stated in the ‘Umdat al-Salik. Hence, if the Egyptian Constitution states that Islamic law is the principle source of Egyptian Constitutional law and the ‘Umdat al-Salik addresses a specific point of law in Islamic law, then the rebuttable presumption will be that statements on a point of law cited to the ‘Umdat al-Salik should reflects the Egyptian government’s legal position on that same point of law.

While the “radical” website www.khilafah.com’s is considered Salafi because it calls for the imposition of Islamic law, Muslim forms of governance, and a return of the caliphate, it should be noted that these same goals are taught to contemporary 7th grade American Muslim students as well:

To begin with, the law of the land is the Shari’ah of Allah. The leader, or Khalifa of the Islamic nation implements the Shari’ah in society. In an Islamic political system, the leader of the political community, the Kalifa, is the head of the whole Ummah.

Also, because Islamic law holds that all law comes from Allah, that it is to be the law of the land, and that the leader should be the Caliph, it should not surprise that it is also taught to contemporary 7th grade Muslim Americans: “The duty of Muslim citizens is to be loyal to the Islamic State, to live as good Muslims, to approve of good and oppose wrong-doing and to answer the call of their leader if he needs them. (4:59)” The 7th grade text grounds its position in Qur’an Verse 4:59:

Oh ye who believe! Obey Allah, and obey the Messenger, and those charged with authority among you. If ye differ in anything among yourselves, refer it to Allah and His Messenger, if ye do believe in Allah and the Last Day: That is best, and most suitable for final determination. (Quran 4:59)

CONCLUSION

Among the constitutions from the Islamic countries reviewed, when stating that Islamic law serves as a basis of legislation, it should be noted that no other legal standards were recognized as providing such a basis in those constitutions. From a legal perspective, the omission of other enumerated bodies of law in the constitutions means that a positive preference was given to the Islamic. Hence, the national constitutions of all the countries surveyed remain true to the Islamic legal requirement to recognize Islamic law as the pre-eminent basis of all law. Because this language was found in all the constitutions surveyed, those constitutions are likewise subordinated to the same Islamic law identified in the ‘Umdat al Salik. Hence, a jurisprudential linkage between the laws stated in the English language translation of the ‘Umdat al Salik and the national laws of countries acknowledging Islamic law as the basis of their laws is established. This holds true even when regimes do not currently follow the requirements of Islamic law as this simply proves the point made by the “extremists” at khilafah.com.

If the national security community truly believes that the Current Approach accurately reflects the true state of events when asserting that “extremists” have taken “extreme” interpretations of Islamic law in furtherance of their “extreme” agendas, they should be on notice that, if such “extreme” language can be located and validated in the ‘Umdat al Salik, then it may reflect the end-state rule of law that the Islamic governments we currently assess as moderate should be following if they actually governed according to their national constitutions.

Tomorrow’s excerpt will focus on the Chairman of the Join Chiefs of Staff’s comments on doctrine and the War on Terror.

The entire report, including footnotes and text not included in these excerpts, can be found here, at the International Assessment and Strategy Center ’s website.

#  # 

Family Security Matters Contributing Editor Stephen C. Coughlin is an attorney and decorated intelligence officer, specializing in Islamic drivers to terrorism and related strategic information programs. He is a Visiting Fellow of the International Assessment and Strategy Center ’s National Security Law Project.

If you are a reporter or producer who is interested in receiving more information about this writer or this article, please email your request to pr@familysecuritymatters.org.
 
Note – The opinions expressed in this column are those of the author and do not necessarily reflect the opinions, views, and/or philosophy of The Family Security Foundation, Inc.

POSTED BY  /  http://www.familysecuritymatters.org