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Utilizing historical case studies from Iran, Afghanistan, Egypt, and Iraq, Chapter 4 delves into the question of how, why, and when the Islamic supremacy clause entered constitution making in the Muslim world and how it affected the incorporation of human rights in the constitutions of Muslim-majority states. It illustrates that both human rights and Islam are often democratically and popularly demanded by majorities in some Muslim countries; therefore, both represent popular aspirations rather than theocratic imposition. That is, they are often carefully bargained and compromised provisions in constitutions.
Chapter 2 introduces a model Islamic constitution. Using this model constitution, it empirically illustrates the universe of constitutional Islamization, providing data on which countries and regions have adopted constitutional Islam and in what form. It also ranks these countries in an index according to their Islamicity and then observes how the incidence of all forms of Islam in a constitution correlates with demography, geography, colonialism, and human rights.
On July 3, 2013, General Abdel Fattah el-Sisi, Egyptian Army Chief, ousted President Mohamed Morsi from power. Morsi, elected in 2013, had been Egypt’s first ever democratically elected president. Following the coup, the Chief Justice of the Supreme Constitutional Court of Egypt, Adly Mansour, was installed as interim president; Morsi was put under house arrest and several members of the Muslim Brotherhood – the political party to which Morsi belonged - were either arrested or killed. General el-Sisi also suspended the 2012 constitution, which was promulgated only a few months earlier, and issued a constitutional decree to make amendments to the constitution.1 The amendments were to be proposed by a constitutional committee composed of fifty members.
2 The committee had hardly begun its work when foreign observers began to refocus most of their attention on speculating just how “Islamic” the amended constitution might be.3 And indeed, the committee was soon in a gridlock over the role of Islam in the new constitution.4 Egypt’s 1971 and 2012 constitutions had contained clauses entrenching the principles of Islamic law as the primary source of legislation; accordingly, some had called the 2012 constitution an “Islamic” Constitution, while others had alleged that it leaned toward “conservative” Islam.
In much of the Muslim world, the idea of incorporating Islam into a constitution seems to be very popular and, in some cases, understood as a panacea for political ills including, but not limited to, corruption and autocracy. It is sometimes assumed that adopting Islam in political life will resolve a range of social, political, and economic problems and therefore democratic demand for the incorporation of Islam during constitution-making moments often appears strong. This is not new: constitution making in the Muslim world since almost a century and a half earlier has sought to grapple with this tension where the adoption of “modern” constitutions must be blended and synchronized with Islamic concepts to remain legitimate and acceptable to the masses – so that the resulting outcome is an “Islamic” constitution.
Chapter 1 introduces the theory of Islamic constitutionalism and examines the popularity of Islamic constitutional clauses in political life and how they originated along with constitution making in the Muslim world. It describes the constitutional history in four monarchies: Tunisia, the Ottoman Empire, Egypt, and Iran. The chapter demonstrates that the idea of "Islamic constitutionalism" itself originated in parallel to, and not in isolation from, the idea of modern European "constitutional democracy," beginning with the Ottoman and Persian "constitutions" of the mid-nineteenth and early twentieth centuries, respectively, partly as a defense mechanism in the face of ubiquitous "Europeanization" of politics. As such, it traces how and why, in an era of European colonial domination, the constitution becomes the focal point in the state where the negotiation or balancing between "Islam" and "liberal" democracy takes place. It is thus the starting point for realizing the twin popular ambitions – of rights and Islam.
Chapter 3 deals with Islamic supremacy clauses, source of law clauses, and repugnancy clauses, which are present in almost half of all Muslim countries’ constitutions. Islamic supremacy clauses subjugate all lawmaking to Islam, shari‘a, or Islamic precepts. This chapter traces the origins and incidence of these clauses – by finding their birth in British colonial law – and traces their relationship to demography, geography, colonial history, and human rights provisions.
Having identified that “Islamic” constitutions also often, counterintuitively, contain many democratic features and rights, Chapter 5 moves from the analysis of Islam and rights in a constitutional “textual” setting to the question of how the interaction between the two plays out in practice when litigating. It does so by using examples of court cases (for example, of women’s rights, access to justice, etc.) in Egypt and Pakistan, where the two different strands of the constitution – rights and Islam – could potentially have conflicted but did not. It shows how “modernist” judges interpreted the Islamic supremacy clauses to not only protect the rights of citizens but in some cases, for example, in cases where the right to “access to justice” was at stake, also used such clauses to develop new rights. However, it also illustrates that in other cases – such as to do with blasphemy – the Islamic content of the constitution can and has been used to erode rights to freedom of expression and even to freedom of religion. Nevertheless, the chapter’s contribution is to draw on comparative scholarship to argue that a political pursuit of Islam does not necessarily need to impede rights provided various institutional measures are in place – including independent courts with the power to engage in judicial review, competing and intellectually robust religious authorities and legislatures that can actively construct and critique religious narratives of law, and, above all, a state that can bring those with “extreme” interpretations (e.g. Salafi parties) into the nonviolent political arena and challenge them politically.