Research Paper: Afghanistan, Jordan, Malaysia
In 1966, the King of Saudi Arabia, Faisal, was wondering: “A Constitution? Why? The Koran is the oldest and the most efficient constitution in the world”. Almost fifty years later, all Muslim countries seem to have changed their mind and they all have a constitution. However, many of them have introduced Shari’a as a source of legislation in their constitution. Shari’a literally means “path” according to Clark Lombardi an expert on Islamic law. Shari’a is revealed in divine signs and must be interpreted by humans. Islamic law is based on four main sources: the Quran, Islam’s holy book with the literal word of God, the hadith which is a record of the actions and saying of the Prophet, ijma which is a consensus made by Islamic scholars and giyas which is a way of thinking based on analogies to deal with the problems uncovered by the holy texts. Many Muslims countries incorporate Islamic law in their constitutions by making Islam the official religion of the country or by declaring Shari’a as a source of the nation’s laws. Even if each legal code is unique, different models have emerged: some are secular states such as Tunisia and some others are declared Islamic States, such as Saudi Arabia and Iran. Between these two extreme models, the role of Islam in the constitutions of Muslim countries considerably varies. This wide diversity in the constitutional provisions of Muslim countries and especially in the countries declaring themselves to be Islamic states or declaring Islam to be the state religion is sometimes misunderstood. Moreover, implementation of these various constitutions also varies. Also, this paper will establish the different role of Islam in the Constitution of in three Muslim countries, Afghanistan, Malaysia and Jordan. Then, it will discuss the implementation of constitutional Islam in these three countries and the eventual inconstancy with human right that may emerge in the actual implementation of the Constitution. Of the three cases examined in this paper, the case of Afghanistan, established as an Islamic state show that Islam is the state religion and that Islamic law is the only source of law, while Islamic law is only one source of the law and its jurisdiction is limited to certain matters and territories in both Malaysia and Jordan.
First, in the three countries of Afghanistan, Jordan and Malaysia, Islam has a role in the Constitution and Islamic law is at least one source of legislation. The new Afghan Constitution was adopted in December 2003 by the Loy Jirga and entered into force on 26 January 2004. The Preamble of the Afghan Constitution underlines the Afghan people’s faith in God and their belief in the sacred religion of Islam. Many provisions in the Constitution clearly state the dominant position of Islam in all aspect of life, such as education and political life. If many provisions demonstrate the Islamic character of the State, the three first articles are clearly the most important to understand the essential role of Islam in the Constitution. The first article of the Constitution establishes that Afghanistan is an Islamic Republic. Article 2 briefly states that “the religion of Afghanistan is the sacred religion of Islam. Followers of other religions are free to perform their religious rites within the limits of the provisions of law”. Islam is religion state and a limited freedom of religion is explicitly mentioned. Indeed, recognition of religious freedom is at least limited to non-Muslims. As regards of the relation between the Constitution and the Shari’a, Article 3 is undoubtedly the most relevant provision. It states “In Afghanistan, no law can be contrary to be the beliefs and provisions of the sacred religion of Islam”. The Shari’a is therefore the only source of law in Afghanistan and many provisions shows the concern of the authors of the Constitution to make sure that Islamic law permeates the whole text. Indeed,...
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