https://plus.google.com/.../posts/JEZD75hL2cX7 mins ago - Of Clark B. Lombardi and Shari`a Clauses 1 Clark B. Lombardi University of Washington School of Law © Clark Lombardi 1 USIP Position Paper The Challenges ...
University of Washington School of Law
© Clark Lombardi
USIP Position Paper
The Challenges and Opportunities of Islamic Review:
Lessons for Afghanistan from the Experiences of other Muslim Countries
Clark B. Lombardi University of Washington School of Law Over the last fifty years, many Muslim countries have drafted or amended their constitutions to include a type of clause that I will call here “ Shari`a Clauses.” These clauses provide that all state legislation must be consistent with Shari`a.
All countries that have written Shari`a Clauses into their national constitution sooner or later must grapple with certain basic questions. Among them are the following: Are these clauses justiciable—that is, can judges enforce them by reviewing laws for consistency with Islam and striking down laws that do not comply? If so, what type of judicial institution should be entrusted with the job of Islamic review? What method of reasoning should this institution use to interpret the Shari`a Clause? Finally, how can the Shari`a Clause be harmonized with other constitutional commands that the state protect democracy and the principles of international human rights law? Having written a Shari`a Clause into its 2004 constitution, Afghanistan must soon address one, and likely all, of these questions.
Given the central position of Islam in Afghan history and the strong role that Islam has played in the formation of Afghanistan’s national identity, it makes sense that the drafters of Afghanistan’s 2004 constitution included a Shari`a Clause. Article 3 of the 2004 Afghan constitution states, “In Afghanistan, no statute [qanun] can be contrary to the beliefs and rulings [ahkam] of the sacred religion of Islam.”
It appears that no Afghan court has decided a case interpreting this provision to date. Thus, we are not
certain the clause is justiciable. For reasons I will describe, however, it seems likely that the clause will ultimately be found justiciable. If so, Afghans must decide what institution will interpret the Shari`a Clause.
As I will describe, choosing a method of interpretation will not be a simple task.
As Afghan scholars, judges and government officials prepare to resolve the open questions of how to implement Article 3 of the constitution , they might benefit from the experience of other countries that hav
e already grappled with the challenge of applying a Shari`a Clause. Afghanistan will find that there are remarkably different approaches to interpreting and implanting such clauses. It will also find that a few judiciaries have found ways to interpret Is lamic law consistently with a large number of liberal rights.
Indeed, judges in some countries have exercised Islamic review in a way that not only tolerates
government protection of human rights, including women’s rights, but actually requires such protection as a matter of Islamic law. In this paper, I will describe how different nations answered for themselves the types of questions that await Afghanistan.
I will then consider what, if anything, Afghanistan can learn from them.
Is Article 3 of the 2004 Afghan Constitution (Afghanistan’s Shari`a Clause) justiciable?
Whenever a nation adopts a constitution with a Shari`a Clause, that nation must address a threshold question: Is the clause justiciable? If a Shari`a Clause is “non-justiciable,” judges have no power to enforce it. The executive and legislature have the sole power to decide what Islam requires. Once the political branches have concluded to their own satisfaction that their legislation is consistent with Islam, the courts cannot
question their judgment. To put it differently: the courts are not empowered to hear court cases asserting that the state legislation or regulations are unenforceable on the grounds that they are inconsistent with Islam.
It may seem strange that a country would adopt a Shari`a Clause but conclude that courts should not enforce it. There are, however, a number of valid reasons to adopt non-justiciable Shari`a Clauses.
Thus , the drafters of some constitutions have deliberately inserted into Shari`a Clauses explicit language that declares the clause to be non-justiciable.
In other cases, constitutions have Shari`a Clauses without explicit language precluding judicial enforcement of the clause; nevertheless, judges read a principle of non-justiciability into the clause and thus declare themselves incompetent to police compliance with the Shari`a.
That said, the public in Muslim countries has generally soured on the idea that Shari`a Clauses should be non
-justiciable. Accordingly, non-justiciability is increasingly the exception and not the norm.
To date, no Afghan judicial body has issued any formal ruling declaring a law consistent or inconsistent with Article 3 of the 2004 constitution.
All indications, however, are that Afghan scholars and judges believe that Article 3 is justiciable.
Afghans thus should begin to discuss both who should review laws for consistency with Islam and what methods
Afghans want those people to use.
Should the judicial institution entrusted with the power of constitutional review establish a special bench to handle cases of Islamic review?
If, as most expect, Article 3 will be held justiciable, then it raises the question of who should interpret and apply the provision and strike down laws that are inconsistent with “the beliefs and rulings of the holy religion of Islam.” In Afghanistan, this question is complicated by the ongoing debate about who has the power of judicial review.
Although Afghanistan’s constitution seems to assume that the power of judicial review exists in some
judicial entity, debate has emerged about whether the entity with the power of judicial review is the Supreme Court or, instead, the constitutionally created judicial commission commonly referred to as the Article 157 Commission.
Whichever institution ultimately emerges to exercise judicial review, a second question will need to be answered. Should the institution that practices judicial review establish a specialized bench to review consistency of laws with the Shari`a? Some countries have decided that questions of Islamic review require special expertise. Iran, for example, provides that before legislation enters into force, it should be subject to
Islamic review. Iran places the power of abstract Islamic review entirely in a specialized body of Islamic scholars.
In Pakistan, the constitution provides for Islamic review of legislation by a hybrid institution known as the Federal Shariat Court. This institution is dominated by judges but also includes some Islamic scholars.
(There is some ambiguity about what qualifies someone as a scholar qualified to sit on the court.
Technically they are supposed to be “`ulama” a term that is sometimes reserved for scholars with specialized
training in traditional approaches to Islamic legal interpretation. Some people who have occupied the seats reserved for `ulama do not seem, however, to have this type of training.)
Some countries with justiciable Shari`a Clauses have concluded that the legal training provided to those being trained for the nation’s legal professions generally equips students with the training necessary to resolve questions of Islamic review. Such countries allow regular benches of their constitutional court(s) to resolve all questions of constitutional review, including questions of Islamic review.
Such countries include Egypt and the United Arab Emirates (U.A.E.).
In Afghanistan, both the Supreme Court and the Article 157 Commission can by law establish special benches. Under the 2004 constitution, the Supreme Court can be staffed either by people trained generally in law or by people trained specifically in Islamic law.
The constitution does not clearly specify the structure of the court. Apparently, a court organization law could be enacted that would require a specialized bench to hear cases of Islamic review—a bench where at least some members have specialized training in Islamic law. Similarly, the structure of the Article 157
Commission is left to be formed and organized by a future law, subject only to the proviso that the President
has the power to appoint all members.
It too could be structured with a special bench. The experience of other countries, however, suggests that establishing a specialized bench may not be necessary in Afghanistan, and it even gives reason to believe that a special bench could lead to some unnecessary problems. Special benches are useful in countries where the public deems the regular judiciary unqualified to engage with Islamic scriptures or legal reasoning. Afghanistan differs from most countries that have specialized benches because most members of the judiciary have historically had strong training in Islamic law. Afghan universities generally have two departments
which train legal professionals: the Faculty of Law and Political Science; and the Faculty of Shari`a.
These faculties, once almost entirely separate from each other, now have at least some overlap in course coverage and at some universities there is cross-teaching across faculties. Nevertheless, they still emphasize different legal subjects and continue to maintain significantly different identities and cultures.
Importantly for the question of Islamic review in Afghanistan, the judges on the courts of general jurisdiction,
including most judges on the Supreme Court, have historically been trained in the Shari`a faculties, which provide systematic training in both classical Hanafifiqh and modernist theories of Islamic law.
So long as this situation continues, it is not clear that a specialized bench would contain more expertise than a regular bench of the courts or commission.
If graduates of Afghanistan’s Faculties of Law and Political Science begin to staff the judiciary in greater numbers,
Afghanistan may face new pressure to create a specialized bench for the purpose of performing Islamic review—one dominated by judges who are graduates of a Shari`a faculty.
Establishing such a bench will still, however, have the costs that we will describe below.
If recruitment patterns for the judiciary suggest that the judiciary as a whole may soon come to be seen as incapable of carrying out Islamic review,
Afghanistan may want to focus new energy on projects of educational reform that have recently been discussed.
Already some universities have begun to explore how they might coordinate the legal curriculum taught in
their faculty with the one taught in the Shari`a faculty.
More support for these projects may help to ensure the ongoing viability of a unified process of regular judicial review and Islamic review.
That would be a good thing, because dividing the processes of regular judicial review and Islamic review can have significant costs.
Creating a special bench for interpreting the Shari`a Clause can create significant inefficiencies. In cases where Islamic review occurs separately from all other judicial review, cases that implicate two constitutional issues (one of which involves a question of © Clark Lombardi
consistency with Islamic law) would need to be divided. The Islamic issues must be heard before one bench and the non-Islamic issues heard before a different bench.
Furthermore, by forcing a single tribunal simultaneously to address all Islamic and non-Islamic challenges to a law, a nation increases the chances of a decision that consciously addresses the potential tensions between Islamic and non-Islamic provisions and, ideally, comes up with an interpretation of these provisions that harmonizes them. Given the credibility of Afghan judges on questions of both Islamic and secular law and the need for efficient constitutional adjudication, it seems unnecessary for Afghanistan’s judges to place the power of Islamic review in a special tribunal.
What method of interpretation should those who practice Islamic review use?
No matter who is entrusted with the power of Islamic review, that institution will have a difficult task. It
will have to identify “the beliefs and rulings of Islamic law” and then will have to determine whether state legislation is consistent with these norms.
If Afghans today actually agree dunanimously upon the method that Muslims should use to identify the rulings of Islamic law, this task would perhaps be straightforward. There is, however, no uniform agreement on questions of interpretive methodology.
Not only do Sunni and Shiite Muslims differ in Afghanistan, but there are also considerable points of
disagreement among Sunni Muslims.
In the pre-modern era, Sunni Muslims recognized four different “schools” of law as equally orthodox, and even within a particular Sunni school it was understood that different scholars could reach slightly different interpretations of God’s law.