Constitutionalism is: (1) a system of classification, (2) the core object of which is to define the characteristics of constitutions (those documents organizing political power within an institutional apparatus), (3) to be used to determine the legitimacy of the constitutional system as conceived or as implemented, (4) based on rule of law as the fundamental postulate of government (that government be established and operated in a way that limits the ability of individuals to use government power for personal welfare maximizing ends), and (5) grounded on a metric of substantive values derived from a source beyond the control of any individual. (Id.).Much of the substance of the great debates between constitutionalist systems now tends to center on the framework of substantive values that ought to be incorporated in legitimate constitutional systems.
Constitutionalist theory assumes that a single substantive framework will be adopted by any state. States that do not are supposed to be in some sort of dynamic but ultimately transitory state of development—moving from a set of unifying substantive principles, to another. Still. is it possible to have it both ways—to develop principles of theocratic constitutionalism while retaining an adherence to the normative structure of transnational constitutionalism, and especially those parts of transnational constitutionalism focused on human rights developed through and under the authority of non-religious bodies? Is it possible to blend a foundational basis for constitutional substance within the structures of a religion and still preserve the privilege of the normative values of the community of nations understood as constitutionalism?
Indeed, much of the great variations in constitutionalism currently arise from great differences in constitutionalist ideology, in those metrics of substantive values on which classifications are understood, the characteristics of constitutions are assigned values, legitimacy is understood and rule of law is framed. From this definition it is possible to begin to theorize the emerging variants of values based constitutionalism that have arisen since 1945. Traditional nationalist constitutionalism situates the source of its values in the transcendent genius of the people of the nation itself. Transnational constitutionalism situates those legitimating substantive values in their expression by consensus of the community of nations. Natural law constitutionalism is grounded in universal values based on humanity’s nature or aspirations. Theocratic constitutionalism grounds those values in the imperatives of a privileged religious system. Lastly, rationalist constitutionalism situates such values in higher order rational systems—from free market to Marxist-Leninist. (Backer 2009).
Constitutionalism theories ought to suggest that the answer to these questions is no. (Backer 2009). Such a constitutional stance, like that of the antebellum United States, presents a state in a dynamic stage of its development. Even in a state grounded in rule of law process and values constitutionalism, a constitutional structure grounded in two or more inconsistent foundational values systems presents a contradiction that eventually requires resolution. In the United States a choice was made and equilibrium was reached through war. The American context was the contradiction of slavery in a federation grounded on values of freedom and human dignity as those ideas were understood at the time). Quoting Scripture, Abraham Lincoln understood this even as he prepared for a martial resolution of the contradictions of American constitutional values. “’A house divided against itself cannot stand.’ I believe this government cannot endure, permanently, half slave and half free. I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided.” (Lincoln 1858). The basic values of transnational and theocratic constitutionalism may be irreconcilable—and putting the two frameworks within one system may merely set up a series of internal tensions that will inevitably explode. Indeed, as I have suggested in analyzing the difficulties of reconciliation attempted by others (Hirschl 2008), “the fundamentals of religious substantive constitutionalism and the secular transnational constitutionalism of the developed world are incompatible.”(Backer 2008a). The reason is as basic as it is simple: “Within the constitutional framework, religion is no longer an object with which a political community must deal. Instead, religion serves as the foundation on which political communities are constituted.” (Backer 2008).
But others suggest that a better answer might be maybe. (Abu Odeh 2004). The argument is grounded in the idea that Islamism in Muslim majority states is at best only a partial expression of the legal culture of those states. As such, the “combination of presence (of Islamic law) and absence (of legal transplant) in the course materials assigned to by Islamic law instructors, the scholarship of law in the Islamic world by Islamic law scholars as well as by Comparativists, betrays an ideological project.” (Id., at 792). Instead, “Giving Islamic law an overarching status analytically in our approach to law in the Islamic world, distorts our understanding of legal phenomena in these countries. Islamic law should be approached as one, but only one, of the constitutive elements of law that has not only been de-centered by the transplant but also transformed.” (Id., at 823). Because Muslim majority states have lived with both a long tradition of Isalmist state and law system construction and its transformation/invasion/transformation by foreign and transnational law-culture systems, such states might well represent a place where the two, now blended in a dynamic brew, can somehow mix to produce a stable something.
It is not clear how, then, the dynamic state of constitutionalism—poised between the transnational and the theocratic—will resolve itself in these states. A look at the constitutionalist structure of two states poised between transnationalism and Islamism provides insights into both the dynamism of the process of extracting a foundation of values for constitutional systems, and the possibility of contradiction and instability when states look at constitutional values systems as composed of extractable and detachable ideas among which states might pick and choose to suit their needs.
Pakistan is a state that has yet to find itself—at least from a constitutionalist perspective. As recent scholarship has suggested, reflecting a common understanding, Pakistan stands between constitutionalist rule structures, each of which has been naturalized within powerful national elites, which use and discard them to suit their objects of political supremacy. (Scalapino 1986). He notes that by the 1980s it had become clear that “in the judiciary system, three traditions compete: the British legal tradition, the autocratic military tradition, and the Islamic legal tradition. And the government, as in Bangladesh, betrays its concern over legitimacy by promising constitutionalism and the restoration of some form of parliamentarism.”; also stating that “[i]n recent times, the Pakistan military led by Zia ul-Haq have sought legitimacy through a measure of Islamization, but this goal too is challenged, principally by the Westernized middle class.”
Pakistan’s constitution has increasingly moved from a secularist internationalist orientation to one grounded in religion, a move that has pitted the executive against the judiciary. This understanding was well put recently:
What used to be the preamble to previous constitutions is now an operative part of the current Constitution as Article 2-A, and very much defines its ethos as a non-secular one. Yet, recent Pakistani judgments have put a halt to the discussion regarding whether Article 2-A can trump other constitutional provisions—thus acting as a sort of grundnorm—and have declared instead that it stands on an equal footing with other provisions of the Constitution, no more and no less. Indeed, these judgments have firmly precluded and strongly warned against an interpretation of Article 2-A which would raise it to the point of being a litmus test for gauging, evaluating, and potentially justifying the judiciary to strike down any other constitutional provisions. (Siddique & Hayat 2008, 368).
Siddique and Hayat explain that while “acknowledging that various such provisions may be inconsistent with Article 2-A, the courts clearly warned that such an interpretive approach would undermine the entire Constitution”). (Id.; see also Azfar 1991, 49-86). Others see the move toward institutionalized Islam as a means of staving off something worse. (Azfar 1991, 49-86). Azfar suggests that by “imposing Islamic laws from above, Zia may have saved Pakistan from a fundamentalist revolution from below like the one that took place early in his tenure in neighboring Iran. . . . Internally Zia’s most lasting contribution could be resolving the issue of the role of Islam in the state. Nonetheless, the question is not dead; several of the parties supporting Prime Minister Nawaz Sharif wish to enact legislation incorporating the key elements of Zia's Shariat Ordinance.” (Id., 78).
But does this all amount to a theocratic constitutionalist project? Is Pakistan instead merely privileging the sensibilities of Islam within a functioning transnational constitutionalist system? Is Pakistan up to something else? These question requires a look at the document itself. The Constitution of Pakistan (1973) “has been undermined greatly by a circular pattern of military coups interspersed with short lived civilian rule. . . . Not until 1973 would a constitution be written by a democratically elected assembly. Even following that, the document has been continually reshaped by coups and the wishes of powerful members of Pakistan’s political elite.” (Bajoria 2008). The government of Pakistan is thus grounded in a constitution derived from the original colonial Government of India Act (1935) that has been modified over the last half century to move from a Western style post colonial framework, to one that appears to have embraced Islamist conceptions of state and government, while not abandoning its original transnational constitutionalist focus.
Pakistan is currently constituted as an Islamic Republic, in which Islam is the state religion. (Constitution of Pakistan art. 2). The term “Muslim” is also defined for purposes of the constitution. See id. art. 260(3) (a) (“Muslim” means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him), the last of the prophets, and does not believe in, or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad (peace be upon him).”). Ironically, the definition of non-Muslim is notable for its selective omission of Jews. (See id. art. 260(3) (b)). Lastly, though there is no explicit prohibition of non-Muslims attaining high office, the constitutionally prescribed oaths of office do not contemplate non-Muslim office holders. (See id. arts. 42, 91(4), 92(2), 53(2), 61, 65, 102, 131(4), 132(2), 127, 168(2), 178, 194, 203(c) (7), 214, 244). Within that context, the former Preamble to the Constitution was modified in one critical respect, now stating the obligation to make “adequate provision . . . for the minorities to profess and practice their religions and develop their cultures,” was modified to eliminate the word “freely” from before the word “profess” so that the obligation is no longer to ensure that minorities can freely profess; that obligation is now reduced to mere profession) (See id. art. 2(A), app.). Thus modified, it was inserted in an appendix and made a part of the Constitution. Id.).
Among the provisions of this former preamble are a number that touch on the religious constitution of the state, as well as its adherence to fundamental rights obligations not necessarily tied to religion. (See id.) These include the following: the full observation of “the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam;” the obligation to enable Muslims “to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah;” the protection of “fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;” safeguarding the “legitimate interests of minorities and backward and depressed classes;” and securing the independence of the judiciary (Id.). The Constitution also lists a number of policy principles made applicable to all state organs. (Id. arts. 29-40). While most guarantee fundamental process ands substance rights, they do so without reference to religion. (See, e.g., id. art. 33 (elimination of prejudice); art. 34 (empowerment of women); art. 35 (protection of family); art. 36 (protection of “legitimate rights” of minorities); art. 37 (promotion of social justice); art. 38 (promotion of social and economic well being).
Islam, to the extent it is incorporated, is limited in its application to Muslims. Thus, for example, Article 31 provides that “(1) Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah. (2) The state shall endeavor, as respects the Muslims of Pakistan: (a) to make the teaching of the Holy Quran and Islamiat compulsory, to encourage and facilitate the learning of arabic language and to secure correct and exact printing and publishing of the Holy Quran; (b) to promote unity and the observance of the Islamic moral standards; and (c) to secure the proper organisation of Zakat, (usher) auqaf and mosques.” (Id. art. 31). The state, thus, appears empowered to legislate specifically for Muslims, but in a way that cannot infringe on the rights of minorities. (See id. art. 203C(2) (illustrating this point within the black letter of the Constitution itself through, for example, the creation of a Federal Sharia Court, whose membership is limited to Muslims). It appears susceptible to other constraints as well, including Art. 2(A) and the Principles.
In addition, the solidarity clause supports both secular and political aims. (Id. art. 40). Under that provision, “The State shall endeavour to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity, support the common interests of the peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means.”). (Id.). But this balance appears to be upset by the Islamicizing provisions of Part IX, the Islamic Provisions. (Id. arts. 227-231). The basic provision is set forth at id. art. 227(1) (“All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.”). An Islamic Council is established to implement the provisions of Article 227 of the Pakistan Constitution, as well as to advise Parliament with respect to Islamization. See id. arts. 228-30; see also id. at art. 231 (noting this is to be done in accordance with rules to be established by the Council and approved by the President); id. at art. 227(3) (providing an exemption for non-Muslims citizens). The relationship of minority faith communities to Islam is thus based on a toleration of practice within an overall pattern of subordination and conformity to the religio-political normative system of Islam—an assimilation of other faiths into the weltanschauung of Islam and their reconstruction as a “soft Christianity” and other religions now in the minority. (Backer 2008a; on soft religion, see Backer Aug. 27, 2007; Etzioni 2003, 65).
In other respects, though, the government, as constituted, presents the usual picture of conventional separation of powers, with a president (Pakistan Constitution, arts. 41-49), a legislature (Id. arts. 50-89; see also id. arts. 62(d)-(e) (stating membership in Parliament is limited to Muslims in good standing, though this provision is suspended for non-Muslims, who need only demonstrate a “good moral reputation”), and a judiciary. (Id. pt. VII, chs. 1-4). The superior courts have jurisdiction to hear claims of violations of the rights of individuals. (See id. arts. 184(3)). That provision states that (“the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article.”); see also id. art. 199(c) (“Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II shall not be abridged.”).
But, again, the vectors of constitutionalism turn in on themselves. In addition to the secular courts, the Constitution directs the creation of a Federal Shariat Court. (Id. pt. VII, ch. 3A). The jurisdiction of the Federal Shariat Court appears to upend the secular focus of the judicial structure of the state. (See id. art. 203(D) (1) (noting the Constitution vests the Shariat Court with a broad jurisdiction. “The Court may, (either of its own motion or) on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam.”). Where the Shariat Court determines that a law or provision is repugnant to Islam, “such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.” (Id. art. 203D(3) (b)). In addition, “(a) the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam.” Id. at art. 203D(3) (a). Decisions of the Federal Shariat Court are binding on all courts save the Federal Supreme Court. (Id. art. 203GG). With respect to such cases, the appellate jurisdiction of the Supreme Court is limited, and its constitution is reordered—stripping all non-Muslims from any participation rights in those decisions. (Id. art. 203F). Literally construed, these provisions could effectively strip the Federal Supreme Court of its jurisdiction and create a hierarchy of constitutional values in which Islam trumps all, in a way preserved by a guardianship of Muslim members of the polity. But there is sufficient ambiguity to make this issue subject to interpretation. Recall that articles 184(3) and 199(c) of the Pakistan Constitution confer broad jurisdiction on the secular courts to hear complaints of violation of fundamental rights. Id. arts. 184(3), 199(c). How one reads the hierarchy of rights (Part I versus Part IX) and hierarchy of jurisdiction (Shariat system versus secular system) is not clear. See id. pts. I, IX.
Taken together, the provisions of the Pakistan Constitution suggest an integrated legitimate theocratic constitutionalist system. The constitution limits the power of the state. Arbitrary actions by individuals holding state power governmental are avoided. Rule of law provisions apply both to the protection of the rights of individuals and the exercise of power by the state. There is a scrupulous attention to separation of powers and the suggestion of popular participation (though the deficiencies of Pakistani democracy are well known). But the protection of substantive rights—the normative limits on constitutional power appear founded on Islam. Both the courts and the legislature are made subject to the structures of Islam and the institutions of the state are bent to be those of an Islamist state. Of course, the consequences, in terms of human rights and the rights of non-Muslim citizens of Pakistan will be different under this regime than under one grounded in the conventional normative structure of secular transnational constitutionalism. But for all that, for the full members of the polity (Pakistani Muslims), a deep rule of law regime has been established.
But in the case of Pakistan, one may well have a case of sham or partial theocratic constitutionalism. Fully evolved on paper, its reality is clouded by the great struggles among those who have not acceded to the power or principle of the constriction of the state on these theocratic grounds. As applied, Pakistan suggests a polity at war with itself over the meaning and application of its Constitutional settlement. Just as the foundation of the federal republic became a critical source of contention among the elites of the antebellum United States, Pakistani elites are currently struggling for control of the character of Pakistani constitutionalism as grounded in secular or religious principles. The institutional center of that struggle is the judiciary. (Redding 2004, 764-65). Tina Karkera references a notorious case involving the rape of a woman, explaining that “[f]earing a continued struggle between the competing jurisdictions of the High Court and the Shariat Court, the Supreme Court of Pakistan took over the case, ordering all files in the case to be sent to the Supreme Court” (Karkera 2006, 169). For the moment, the Pakistani secular courts have been able to narrowly interpret the jurisdiction of the Shariat courts, asserted their power as final arbiter of constitutional interpretation, and narrowed the meaning of un-Islamic. (Redding 2004, 773-807). Thus, for example, Ali Adnan Ibrahim noted that the Pakistani Supreme Court remanded a decision of the Shariat Court outlawing interest (riba) in all forms on the grounds that “in order for the Federal Shariat Court to conduct ‘thorough and elaborate research . . . of financial systems . . . prevalent in the contemporary Muslim countries’” (Ibrahim 2008, 695, citing United Bank Ltd. v. M/S Farooq Bros (2002). But the rules under which this balance between secular and theocratic constitutional values is mediated remains unclear, more dependent on the power of elites and their ability to infiltrate public constitutions, than inherent in the structuring of the system itself. Such a system is unlikely to remain stable.
Egypt presents a variation on the Pakistani situation. Contemporary Western scholars have noted the difficulties of Egyptian governance.
The Egyptian experience has witnessed radical, violent revolutionary Islamic activism and the institutionalization of Islam socially and politically; diverse state policies toward Islam in the struggle of government and ruling elites to maintain their legitimacy and their world, with its lifestyle, power, and privileges; the growing polarization (as in many Muslim societies) between Islamists and secularists and government officials; advocacy of, and then reneging on, the government's official commitment to democratization, justified by the charge that “fundamentalists” are out to “hijack” democracy; and, finally, the widening of a confrontation between state security forces and Muslim extremists to include moderate as well as violent revolutionaries. (Esposito & Voll 1996, 173).
The Constitution identifies the State as being an Arab Republic with Islam as its official religion. (Constitution of Egypt, arts. 1 & 2). Egypt is a rule of law state in which the “[s]overeignty of the law shall be the basis of rule in the State.” (Id., art. 64). That sovereignty has two aspects—the “state is subject to law” and the “independence and immunity of the judiciary are two basic guarantees to safeguard rights and freedoms.” Id., art. 65. For that purpose, the “State shall guarantee accessibility of judicature for litigants, and rapid decision on cases. Any provision in the law stipulating immunity of any act or administrative decision from the control of the judicature is prohibited.” Id., at art. 68. See also id., art. 166 (“Judges shall be independent, subject to no other authority but the law”).
To the end of constructing a rule of law state, process constitutionalism is established. The constitution institutes a government marked by a separation of powers. The constitution recognizes a traditional separation of powers of a parliamentary republic among an executive consisting of the President of the Republic (id., arts, 73-85, 137-152) and the “government” (id., arts., 153-163); the legislature (id., arts. 86-136), a judiciary (id., arts. 164-173) and a constitutional court (id., arts. 174-178). However, this separation of powers division appears tilted in favor of executive authority. (See, e.g., id., art 144 (power to issue regulations), art. 147 (power to issue decrees with force of law), and art. 152 (power to call for popular referenda). As one analyst concluded: “the Egyptian legislature has little power relative to the executive. Egyptian law gives the executive power over the legislature in many areas.” (Sorenson 2008, 242). That institutionalization of formal procedural protections extends to both actions of the state and its institutions, and actions against individuals. Thus, for example, with respect to criminal actions against individuals, there “shall be no crime or penalty except by virtue of the law” and penalties “shall be inflicted only for acts committed subsequent to the promulgation of the law prescribing it” (id., art. 66), “right to litigation is inalienable and guaranteed for all, and every citizen has the right to have access to his natural judge” (id., art. 68), criminal actions shall not “be made except under an order from a judiciary body, save for cases defined by the law” (art. 70), and “should be informed forthwith of the reasons for his arrest or detention. . . . have the right to communicate, with whoever he deems fit to inform, and ask for his help in the manner regulated by the law. . . . [and] shall be promptly faced with the charges levelled against him. Any person may lodge an appeal to the courts against any measure taken to restrict his individual freedom.” (id., art. 71).
Moreover, constitutional amendment, though a power ultimately vested in the people (Egyptian Constitution, art. 189 (amendment proposed by Presdent or National Assembly and then subject to approval by popular vote)), is to some extent also controlled by a distinct body, the Shura Council. (See id., arts. 194-205). The Shura Council has similar powers with respect to treaties (id., art. 194(3), and must be consulted wirth respect to a number of legislative matters. Id., art. 195. The Shura Council is to some extent a direct proxy for the people, including its lowest socio-economic classes, and to some extent a reflection of the privileged power position of the President. “Two thirds of the members shall be elected by direct secret public balloting, half of whom at least must be workers and farmers. The President of the Republic shall appoint the other third.” (Id., art. 196.) For all that there are some problematic provisions under principles of transnational constitutionalism—among them the so-called anti-terrorism provisions of the Constitution. (id., art. 174). That provision declares that the “State shall seek to safeguard public security to counter dangers of terror. The law shall, under the supervision of the judiciary, regulate special provisions related to evidence and investigation procedures required to counter those dangers . The procedure stipulated in paragraph 1 of Articles 41 and 44 and paragraph 2 of Article 45 of the Constitution shall in no way preclude such counter-terror action.” (id.). In addition, the “President may refer any terror crime to any judiciary body stipulated in the Constitution or the law.” (Id.). These provisions constitutionalize emergency legislation in place for some time. They remain controversial. (Divisive Egypt Reforms Approved 2007). Equally problematic is the authority of the President over the police. (See, id., art. 184). Article 184 states that “Police Authority shall be a statutory civil body. Its Supreme Chief shall be the President of the Republic. The Police Authority shall perform its duty in service of the people, maintain peace and security for citizens, maintain order, public security and morality, and undertake the implementation of the duties imposed upon it by laws and regulations, in the manner prescribed by the law.” (id.). It might be possible to see in these provisions a privileging of process over substantive protections by vesting the President with large police powers that might be exercised as long as all legal formalities are observed, especially when the police powers are read together with the anti terror provisions of the constitutions. (See id., art. 174).
Substantive constitutionalism is also privileged within the formal structure of the Egyptian Constitution. The language is that of modern transnational constitutionalism. The family is protected. (Id. at Art. 9 (“The family is the basis of the society and is founded on religion, morality and patriotism. The State is keen to preserve the genuine character of the Egyptian family-together with the values and traditions it embodies-while affirming and developing this character in the relations within the Egyptian society.”). The Constitution recognizes the equality of all citizens under the law. (Id. at Art. 40). The economic structure of the state is organized as a socialist democracy whose means of production are owned by the people. (Id. at Arts. 4 & 24). The constitution also recognizes a values based limitation on the power of the state with respect to the individual. For example, the constitution covers rights and protections from illegal searches and seizures (Id., art. 44), freedom of religious belief (Id. at Art. 40 (“They have equal public rights and duties without discrimination on grounds of race, ethnic origin, language, religion or creed.”); and art. 46 (“The State shall guarantee the freedom of belief and the freedom of practice of religious rites.”)), and freedom of assembly. (Id., art. 54). Freedom of the press is also protected. (Id., Art. 48). The Constitution describers the press as “a popular, independent authority exercising its mission in accordance with the stipulations of the Constitution and the law.” (Id., art. 206). But the press is also limited in the manner of its expression and the scope of its actions. It is required to behave in accordance with a constitutionally mandated mission: “It shall thus express trends of public opinion, while contributing to its formation and orientation within the framework of the basic components of society, the safeguard of the liberties, rights and public duties and respect of the sanctity of the private lives of citizens, as stipulated in the Constitution and defined by law.” (Id., art. 207).
Lastly, the constitution forbids political parties formed on the basis of religion. (See, id., art. 5). That provides that “Citizens have the right to establish political parties according to the law and no political activity shall be exercised nor political parties established on a religious referential authority, on a religious basis or on discrimination on grounds of gender or origin.” (Id.). It is true that religion is privileged as a general matter within the constitutional framework. For example, religious instruction is imposed as a state and family obligation. (See, id., art. 9). In addition, article 19 provides that “Religious education shall be a principal topic of general education curricula.” (Id., art. 19). However, the constitution itself does not privilege a single religion in that context. This contrasts with the Iranian and Saudi Constitutions, both of which privilege Islam in the black letter of the constitution itself. And, indeed, according to one Western analyst, the purpose seems to be to privilege nationalism over religion in the hierarchy of values that are captured and directed by the state. (Pink 2003).
But though the language of the constitution appears to embrace the core of the substantive values framework transnational constitutionalism, there are a number of provisions that suggest an alternative framework of substantive constitutionalism. First, the constitution points to a nationalist values basis for law: “Society shall be committed to safeguarding and protecting morals, promoting genuine Egyptian traditions. It shall give due consideration, within the limits of law, to high standards of religious education, moral and national values, historical heritage of the people, scientific facts and public morality.” (Id., art. 12). And the constitution imposes a positive obligation on the state to abide by and promote these principles. (Id.).
Second, one religion is privileged among others: “Islam is the religion of the state and Arabic its official language. Principles of Islamic law (Shari'a) are the principal source of legislation.” (Id., art. 2). That constitutional privileging appears to incorporate the legal structures of Islam into the substantive and procedural framework of Egyptian constitutionalism. But the language is ambiguous. It is not clear, for example, what “principal source” means. The ambiguity extends to the judicial role in the incorporation of Islamist values. On the one hand, the secularization of the judicial function suggests a move away from theocratic values. Egypt was among a group of Muslim majority states that abolished its religious courts—Islamic, Christian and Jewish—and folded their jurisdiction into the secular court system. (Soremnson 2008, 242). On the other hand, that secularization placed control of religious matters of the minority community in the hands of a secular court system subject to the overarching obligation to adopt a greater sensitivity to Sharia in its decisions. (Egyptian Constitution, art. 2). “There is also evidence that judges are increasingly relying on Sharia as a legal basis for their decisions. Sorenson, supra, 242. Thus, in effect, the judiciary has been secularized as a formal matter, but to assert control the judiciary then deploys the religious laws over which it has sought a measure of control. The state apparatus becomes theocratic, but rather than under the guidance of imams, it internalizes the power of religious interpretation ads a matter of public and constitutional law. Yet, there is a sense of the centrality of Islam in at least area of constitutional limitation on state legislative power—the rights of women. (Egyptian Constitution, art. 11, which provides, “The State shall guarantee harmonization between the duties of woman towards the family and her work in the society, ensuring her equality status with man in fields of political, social, cultural and economic life without violation of the rules of Islamic jurisprudence.”). And there is an indication of a hierarchy of religious tolerance, whose limits have recently been tested. Thus, for example, the Egyptian government had traditionally limited recognized three religions—Islam, Christianity and Judaism—forcing adherents of other religions to greater difficulties in vindicating even the right to obtain identity papers. “The Cairo Court of Administrative Justice granted the request of Baha’i Egyptians to obtain birth certificates and identity cards without indicating any religious affiliation. The decision overturned the government’s policy of forcing Baha’i Egyptians to choose one of the three state-recognized religions of Islam, Christianity and Judaism as a prerequisite for obtaining identification documents.” (Egypt: Court Prohibits Withholding Documents from Baha’is 2008).
Egypt represents that peculiar case of the state that occupies a space between the secular and the religious forms of transnational constitutionalism. It is a compromise state, a state that seeks a reconciliation of the irreconcilable. That makes for a certain level of volatility. It is a state at war with itself over its understanding of its fundamental character. Some see both stability and positive value in the ability of one segment of the state apparatus (the courts) to slow the move toward a particular view of the black letter of its constitution (Hirschl 2004, 1822 (on the efforts of the Egyptian Supreme Court to recast Egyptian constitutionalism through the construction of a constitutionalist jurisprudence). Others might see same efforts by the courts as evidence of future civil strife—much like that which boiled over in the United States in 1861. One can argue that, like the Egyptian Supreme Court today, the U.S. Supreme Court in the early Republic also took a principled, interpretive stance, but one that was hardly reflective of a political consensus on the nature of the federation and the power of the general government of the union. It took a civil war and substantial constitutional revision for such a position to ultimately be vindicated. (Backer 2001, 179-93). The tension remains—and the ambition. Egyptian constitutionalism represents an attempt to secularize Islam or to engineer an Islamist values constitutionalism in which the state is both bound by, but directs, the religious establishment to which it is subject. In that sense, Egyptian constitutionalism offers an inversion of the Iranian model, and a variation from the Afghani model. As one commentator noted: “In Saudi Arabia and Iran, supreme religious councils dictate how Islamic law is applied and, to a large extent, have veto power over legislation. In mixed religious-secular systems, such as in Egypt, sharia personal law courts are integrated into a Western-based legal system, and a secular supreme court has the final say,” (Otterman 2005, referencing statements of Nathan Brown, of the Carnegie Endowment for International Peace).
The Egyptian Supreme Court’s assertion of authority to declare the meaning of Shari’a, and its willingness to mold that interpretive authority flexibly appears to permit a blending of secularist and religious universalism by providing a point from which convergence of substantive results is possible, even if the process to get to this result is different. “In fact, the Court established its own interpretation of ijtihad irrespective of the contradictory opinions in Islamic jurisprudence, the fiqh, and its traditional methods. The SCC [Egyptian Supreme Constitutional Court] thereby positioned itself as a de facto interpreter of religious norms.” (Hirschl 2004, 1827). Thus, for example, Ran Hirschl noted that in its role as arbiter of Shari’a compliance, the Egyptian Supreme Constitutional Court, like its Pakistani counterpart,
has departed from the ancient traditions of the fiqh (Islamic jurisprudence or the cumulative knowledge and science of studying the Shari'a) schools and has developed a new framework for interpreting the Shari'a. Specifically, the Court has developed a flexible, modernist approach to interpreting the Shari'a that distinguishes between ‘unalterable and universally binding principles, and malleable application of those principles.’”
(Hirschl 2004, 1824) . See also Clark Lombardi and Nathan Brown use the example of Egypt’s judicial engagement with Sharia to suggest the possibility of an Islamist jurisprudence than can produce results similar to those expected under a secular transnational constitutionalist legal regime. (Lombardi & Brown 2006). Yet that balancing appears to favor Islam over other minority positions. As one member of civil society reported, “Egyptian human rights workers are seeking support from the international community to stop Muslim judges from using Shariah law to undermine custody rights of Christian mothers.” (Islamic judges strip Christian mothers of children Muslim fathers, courts fear youth may switch religions, eat banned foods, 'go to church', 2008). But it may not make for a model of either theocratic constitutionalism or its secular nationalist or transnationalist counterparts. This is a state that fails in both respects.
Yet this failure may be necessary for the survival of the Egyptian state apparatus as currently constituted. As a transnational constitutionalist state, the construction of the state apparatus suffers some potentially severe de-legitimating features—including the weakness of separation of powers, the anti-terrorism powers of the police and courts, the internal authority of the military, and restrictions on the powers of the press. Moreover, its privileging of Islam is also problematic. On the other hand, as a theocratic constitutionalist state it also fails because it has not ceded authority to the religious establishment in matters of Sharia interpretation. That function remains with the state courts, most of whose judges are unlikely to be recognized as legitimated invested Islamic scholars or jurists. Nor is there a requirement for such qualification in the Constitution. It might well be that the dynamism of straddling transnational and theocratic constitutionalism serves the state well for the moment—allowing it to retain for itself substantial power while taking advantage of the popular notions of incorporating religious law principles in secular law. As one commentator noted in assessing the failure of American style civil society based litigation related challenges to the Egyptian regime. “The ultimate collapse of the human rights movement, the continued weakness of opposition parties, . . . demonstrate how litigation alone, without support from broad sectors of society, was insufficient to protect the SCC [Supreme Constitutional Court]-civil society coalition from collapse.” (Mustafa 2006, 173). But others see these efforts in a more positive light. (Hicks 2006, 64-88). The Egyptian state thus asserts theocratic constitutionalism as a defense against its transnationalist constitutionalist critics, and asserts transnational constitutionalist principles against theocratic and theocratic constitutionalist critics; a delicate balancing act indeed!
What can we learn from this excursion through two constitutions of Muslim majority states whose populations are quite ethnically and culturally distinct? First, constitutionalism remains a messy business, especially as states seek a foundation of constitutional values on which to ground its political organization. Second, values foundations can create contradiction when attempted to be conflated. Both Egypt and Pakistan evidence the difficulties of harmonizing systems based on different base postulates--one assuming that values are an expression of the customary constitutional traditions of the community of nations, the other assuming that only the divine can legislate basic values, values that are not subject to negotiation. Third, when such systems are conflated, then states appear to evidence a dynamic state of constitutional law. In one sense constitutional law becomes bifurcated--practiced one way at a certain level fo political organization, and another elsewhere. Academics and civil society elements tend to focus on the formal state apparatus at the highest level of organization. From that perspective it might appear that transnaitonalist elements are prevailing. Yet from the perspective of the village, the tradesunions, and local government, the opposite might be true. Much of what happens to the lowest classes, the poor, rarely risews to the notice fo the international class. But that is also the danger--for it is when those consigned to the social strata of political indifference are able to invoke legal process that the tensions within the system are exposed. Death sentences for apostasy, stoning for sexual relations outside marriage and the like, raised by the poor seeking a transnationalist justice normally beyond their reach, that will serve as the spark to provoke movements toward one or another focus for the constitutional order.
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