Designing Islamic constitutions: Past trends and options for a democratic future

• Autores: Clark B. Lombardi
• Localización: International journal of constitutional law, ISSN 1474-2640, Vol. 11, Nº. 3, 2013, págs. 615-645
• Idioma: inglés
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• Resumen

  • In recent years, a growing number of countries have adopted constitutional provisions requiring that state law be consistent with Islamic law (sharia). Muslims today are deeply divided about what types of state action are consistent with sharia. The impact of a “Sharia guarantee clause” (SGC) depends largely on questions of constitutional design: who is given the power to interpret and apply the provision and what procedures do they follow? This article explores the trends that gave rise to SGCs and provides a history of their incorporation into national constitutions. It then surveys a number of the remarkably varied schemes that countries have developed to interpret and enforce their SGCs, and it considers the impact that different schemes have had on society. Finally, building on this background, the article considers what types of SGC enforcement scheme, if any, are consistent with democracy. As it notes, SGCs are often found in authoritarian or imperfectly democratic constitutions. Unsurprisingly, the designers of SGC enforcement schemes in non-democratic countries have generally tried to ensure that their SGC will be interpreted and applied in a way that permitted or even promoted non-democratic policies. Nevertheless, from the experience of non-democratic countries with SGCs we can draw some important lessons about the types of SGC enforcement scheme that would allow more democratic states to promote both democratic political participation and rights. Furthermore, recent debates have erupted in Western liberal democracies about how best to reconcile rights enforcement with democracy. These help to further clarify some issues that aspirational Islamic democracies will face as they try to develop SGC enforcement schemes for a democratic society, and they provide insights into the qualities that an institution must possess if it is to address these issues effectively. A number of Muslim countries are currently debating how best to square a constitutional commitment to respect Islam with parallel commitments to democracy and rights. Acknowledging that these countries will need to tailor their SGC enforcement schemes to very different local conditions, this article describes some basic design features that effective democratic SGC enforcement schemes are likely to share.