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Max Planck Materials

On the Relation between Islamic Law andConstitutional Law in Selected Countries

1st

Edition

(January 2010)

M A X P L A N C K I N S T I T U T E

F O R C O M P A R A T I V E P U B L I C L A W

A N D I N T E R N A T I O N A L L A W

Directors: Professor Dr. Armin von Bogdandy Professor Dr. Dr. h.c. Rdiger Wolfrum


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Materials on the Relation between Islamic and Constitutional Law 1st

edition MPIL 2010


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Max Planck Materials

On the Relation between Islamic Law and

Constitutional Law in Selected Countries

1st

Edition

(January 2010)

M A X P L A N C K I N S T I T U T E

F O R C O M P A R A T I V E P U B L I C L A W

A N D I N T E R N A T I O N A L L A W

Directors: Professor Dr. Armin von Bogdandy Professor Dr. Dr. h.c. Rdiger Wolfrum


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2010 Max Planck Institute for Comparative Public Law and International Law

(MPIL), Heidelberg, Germany. All rights reserved.

This manual has been written by MPIL staff members. It relies upon contributions by

(in alphabetical order) Tarek Azizy, Tilmann Rder and others.

The manual has been produced for the MPIL Project Supporting the Constitution-

Building Process in Somalia, funded by the German Foreign Office.


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OVERVIEW:RELATION BETWEEN SHARIA AND CONSTITUTIONAL LAW

Purpose: MPIL Sharia Conference, Djibouti

Table of Contents:

NORTH & EAST AFRICA ........................................................ ........................................................... 61. Somaliland...........................................................................................................................................62. Puntland..................................................... ........................................................... .............................. 83. Sudan.......................................................... ........................................................... ............................ 104. Egypt..................................................................................................................................................11MIDDLE EAST ....................................................... ........................................................... .................. 125. Iraq ....................................................................................................................................................126. United Arab Emirates ................................................... ........................................................... ........147. Saudi-Arabia.....................................................................................................................................16CENTRAL AND SOUTH ASIA .........................................................................................................188. Afghanistan.......................................................... ........................................................... .................. 189. Iran ....................................................................................................................................................1910. Malaysia ..........................................................................................................................................2211. Pakistan.................................................... ........................................................... ............................ 25


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NORTH & EAST AFRICA

1. Somaliland

a) Relevant Provisions

Preamble Aware (...) that the Constitution was based on the following issues: a.

The Islamic Sharia; b. Conclusions from the various consultations;

(...)

Art. 5 1. Islam is the religion of the Somaliland state, and the promotion of

any religion in the territory of Somaliland, other than Islam, is

prohibited.

2. The laws of the nation shall be grounded on and shall not be

contrary to Islamic Sharia.

3. The state shall promote religious tenets (religious affairs) and shall

fulfill Sharia principles and discourage immoral acts and

reprehensible behavior.

4. The calendar shall be the Islamic Calendar based on the Hijra, and

the Gregorian Calendar

Art. 10 2. The Republic of Somaliland recognizes and shall act in conformity withthe United Nations Charterand with international law, and shall respectthe Universal Declaration of Human Rights.

Art. 12 7. The payment of Zakat is a cornerstone of Islam, and its administration

shall be determined by law.

Art. 15 3. The learning of and training in the Islamic religion is a fundamentalpath and shall be compulsoryat all levels of education. At the same time,the promotion of Quranic schools is the responsibilityof the state.

Art. 33 1. Every person shall have the right to freedom of belief, and shall not be

compelled to adopt another belief. Islamic Sharia does not accept that a

Muslim person can renounce his beliefs.

Art. 36 1. The rights, freedoms and duties laid down in the Constitution are to beenjoyed equally by men and women save for matters which are

specifically ordained in Islamic Sharia.

2. The Government shall encourage, and shall legislate for, the right of

women to be free of practices which are contrary to Sharia and which

are injurious to their person and dignity. (...)

Art. 115 The Ulema Council is independent and shall have the responsibility of:

1. Formulating formal declarations on: a) religious disagreements that

may arise; and b) any matters in which there is a conflict as to whether

they are contrary to the Sharia, or appear to the Council as being

contrary to the Sharia. The Council shall forward their declarations to


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the offices which have requested the declarations or to the Constitutional

Court, as they deem fit.

2. Undertaking research of all kinds from a religious perspective and,

particularly, in a way which advances scientific and religious knowledge.

(Also, they shall) review, and validate translated religious Sharia works,

and specially those (prior to their acceptance legally) which the courts

rely on in their rulings and those which are included in the educational

syllabus and relate to religious traditions and knowledge.

Art. 128 1. The Constitution shall be based on Islamic principles.

b) Remarks

Islam in state title: (-)

Islam as state religion: (+) see Art. 5 No. 1; freedom of religion: Art. 33.1.

Sharia as source of legislation (incl. applicability of international law): see Art. 5 No.

2, at the same time Somaliland shall act in conformity with international Law (Art. 10

No. 2)

Sharia as basis of judicial decisions: Any conflict of whether a certain matter is in

harmony with Sharia should be decided by the Ulema council (Art. 115 No 1 b).

Sharia limits President when pardoning etc. (Art. 90.5.) According to Art. 130.5.,

All the laws which were current and which did not conflict with the Islamic Sharia,

individual rights and fundamental freedoms shall remain in force in the country of the

Republic of Somaliland until the promulgation of laws which are in accord with the

Constitution of the Republic of Somaliland.

Role of Ulema: Art. 115

Personal status law & womens rights: Art. 5.2.; Art. 36

Islam as condition for attaining office of state official judge etc.: Members of

Parliament must be Muslims (Art. 41 No. 1); the same applies to President and Vice

Presidents (Art. 82 No. 2); the Chairman of the Supreme Court shall take the oath that

he swears by Allah to be true to the religion of Islam (Art. 129).

Islam/Sharia mentioned in eternity clause: Art. 127 for Principles of Islamic Sharia

Other remarks (education; financial constitutional law; etc.):Alms: (Art. 12 No. 7)

Islamic education: Art. 15 No. 3

Literature, the arts, and indigenous sports shall be specially encouraged whilst

Islamic behavior is observed. (Art. 16.3.)


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2. Puntland


Preamble: () The new Constitution of Puntland is based on the following:

Islamic Sharia ()

Art. 6 Islam shall be the only religion of Puntland State of Somalia. No any

other religion can be propagated in Puntland State, while the Islamic

Religion and the traditions of the people of Puntland are the bases of

law.

Art. 11 3. Puntland Regional Government recognizes and applies the UN

Charter and the International Laws and respects the International

Appeals for human rights, not contrasting the Islamic Sharia and

Puntland Laws.Art. 24 1. No one can be forced to a faith; different from his/her believes.

2. The Muslim person does not have the right to convert from the

Islamic faith.

Art. 32 3. All forms of personal liberty shall be in conformity with the Islamic

Sharia, Law, moral dignity, national stability or the personal rights of

the others. ()

Art. 75 1. The functions of Constitutional Court are to decide only the

constitutionality of the laws and acts thereof.

2. The law conflicts between Islamic Sharia and Secular Laws ()

3.b. Harmonization of Secular Laws and Islamic Sharia Law. ()

b) Remarks


Islam as state religion: (+) See Arts. 6; 24

Sharia as source of legislation (incl. applicability of international law): See Preamble;

Art. 11 No. 3; Art. 32 No. 3 (limitation of constitutional rights)

Sharia as basis of judicial decisions: See Art. 75 No. 2, 3b; judges of court of appeal

must have a law degree or equivalent knowledge of Islamic Sharia (Art. 69 No. 5);

the same applies to judges at the constitutional Court (Art. 76 No. 2) (a typical

condition in Islamic states). The Constitutional Court has the duty to decide upon

conflicts between Sharia and secular law, and to harmonize these sources (Art. 75).

Role of Ulema: (-)

Personal status law & womens rights: No provisions in the constitution. Womens

rights are recognized, but however, according to Art. 18 No 1, This Constitution

ensures the womens rights of independence, socio-economic and political rights thatis not forbidden in the Islamic Sharia.


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Islam as condition for attaining office of state official judge etc.: The constitution

does not prescribe that the president must be Muslim, however safeguarding Islam is

among the duties of the President (Art. 54 No. 10) and oath for all officials begins In

the name of Allah, I swear that I will respect the Islamic Religion, ... (Art. 97).

Islam/Sharia mentioned in eternity clause: (-)Other remarks (education; financial constitutional law; etc.):

Every citizen is obliged to safeguard the principles of Islam (Art. 38.2).

Education at Quranic schools is recognized as equivalent to other forms of education

(Art. 22.3).

Strike and Gathering: Reunions and manifestation shall be called off when they are

against the principle of Islam, the public health, national security and stability, moral

dignity and the public system. (Art. 37.2)


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3. Sudan


Art. 5 I Nationally enacted legislation having effect only in respect of the

Northern states of the Sudan shall have as its sources of legislation

Islamic Sharia and the consensus of the people.

Art. 1 III The Sudan is an all embracing homeland where religions and cultures

are sources of strength, harmony and inspiration.

b) Remarks


Islam as state religion: one among others see Art. 1 III

Sharia as source of legislation (incl. applicability of international law): only in the

North, see Art. 5 I

Sharia as basis of judicial decisions: The constitution recognizes Sharia as a long

established principle, however, it is mentioned negatively in the constitution (Art. 156

d) since Non-Muslims shall not be a subject of Sharia jurisprudence.

Role of Ulema: (-)

Personal status law & womens rights: (-)

Islam as condition for attaining office of state official judge etc.: No provision, but

since Islam is one religion among others there cannot be the condition that only

Muslims are allowed to hold certain offices.

Islam/Sharia mentioned in eternity clause: (-)

Other remarks (education; financial constitutional law; etc.):

A dual Banking system shall be established that consists one Islamic banking system

(...); the National Bank shall also adopt an Islamic and a conventional Bank (Art.

201).

In the Northern states laws shall regulate the collection ofZakat(Islamic Tax)(Art.20.2).


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4. Egypt


Art. 2 Islam is the religion of the State (...). Islamic law (Sharia) is the

principal source of legislation.

Art. 11 The State shall guarantee the proper coordination between the duties

of woman towards the family and her work in the society, considering

her equal status with man in the fields of political, social, cultural and

economic life without violation of the rules of Islamic jurisprudence.

b) Remarks


Islam as state religion: (+) see Art. 2 I

Sharia as source of legislation (incl. applicability of international law): (+) see Art. 2

II; International treaties have the force of law after ratification and publication

(Art.151 II).

Sharia as basis of judicial decisions: No provision (indirectly through Art. 2)

Role of Ulema: (-)

Personal status law & womens rights: Art. 11

Islam as condition for attaining office of state official judge etc.: (-)


Other remarks (education; financial constitutional law; etc.): (-)


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MIDDLE EAST

5. Iraq


Art. 2 (1) Islam is the official religion of the State and it is a fundamental

source of legislation: A. No law that contradicts the established

provisions of Islam may be established. B. No law that contradicts the

principles of democracy may be established. C. No law that contradicts

the rights and basic freedoms stipulated in this Constitution may be

established.

(2) This Constitution guarantees the Islamic identity of the majority of

the Iraqi people and guarantees the full religious rights of all

individuals to freedom of religious belief and practice such as

Christians, Yazedis, and Mandi Sabeans.

Art. 89 The Federal Supreme Court shall be made up of a number of judges

who are experts in Islamic jurisprudence and the law ()

Art. 40 Each individual has freedom of thought, conscience and belief.

Art. 58 (4)A law shall regulate the ratification of international treaties and

agreements by a two-thirds (2/3) majority of the members of the

Council of Representatives.

b) Remarks


Islam as state religion: (+) see Art. 2 I; freedom of belief is guaranteed (Art. 40); no

prohibition to change religion mentioned.

Sharia as source of legislation (incl. applicability of international law): Sharia is not

a source of legislation since there is no provision prescribing so, international law andtreaties on the other hand is mentioned in the constitution, see Art. 58 (4). In other

places (e.g. Art. 8) is mentioned that Iraq shall fulfill its international obligations.

Sharia as basis of judicial decisions: Not mentioned (but see personal status).

Role of Ulema: (-)

Personal status law & womens rights: In the Iraqi Kurdistan Region, disputes

concerning personal status issues may be resolved within the different religious

communities according to their traditions and beliefs. In the rest of the country, these

cases must be resolved by courts on the basis of state legislation.

Islam as condition for attaining office of state official judge etc.: (-)


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Islam/Sharia mentioned in eternity clause: No, but Art. 2 may not be changed during

the first two successive electoral terms (afterwards under general conditions for

constitutional amendments incl. referendum), Art. 122.



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6. United Arab Emirates

a) Relevant ProvisionsArt. 7 Islam shall be the official religion of the Union. The Islamic Sharia

shall be a principal source of legislation in the Union. (...)

Art. 12 The foreign policy of the Union shall be directed towards support for

Arab and Islamic causes and interests and towards the consolidation

of the ties of friendship and co-operation with all nations and peoples

on the basis of the principles of the Charter of the United Nations and

ideal international standards.

Art. 25 All persons shall be equal before the law. No discrimination shall be

practiced between citizens of the Union by reason of race, nationality,

religious belief or social position.

Art. 40 Foreigners shall enjoy, within the Union, the rights and freedoms

stipulated in international charters which are in force, or in treaties

and agreements to which the Union is party. They shall be subject to

the equivalent obligations.

Art. 47 No. 4 The Supreme Council of the Union shall be responsible for the

following matters:

The ratification of treaties and international agreements. Such

ratification shall be accomplished by decree.

b) RemarksIslam in state title: (-)

Islam as state religion: (+) see Art. 7; for foreigners see Art. 40.

Sharia as source of legislation (incl. applicability of international law): (+) see Art. 7;

for international treaties see 40 and 47 No. 4. The Governments of the Emirates are

responsible for the implementation international agreements concluded (Art. 125)

under the supervision of the Council of Ministers (Art. 60.7).

Sharia as basis of judicial decisions: (+) see Art. 7 (arg.: principle source or

legislation).

Role of Ulema: not mentioned.

Personal status law & womens rights: All Persons are equal according to Art. 25 S. 1,

on the other hand, gender is not listed in Art. 25 S. 2 as direct discrimination which is

absolutely prohibited and Sharia is the principle source or legislation (Art. 7).

Islam as condition for attaining office of state official judge etc.: No provisions in the

constitution.



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7. Saudi-Arabia

Note: Saudi-Arabia has no constitution in the very sense but a basic law.


Art. 1 The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with

Islam as its religion; God's Book and the Sunna of His Prophet, God's

prayers and peace be upon him, are its constitution, Arabic is its

language and Riyadh is its capital.

Art. 7 Government in Saudi Arabia derives power from the Holy Koran and

the Prophet's tradition.

Art. 8 Government in the Kingdom of Saudi Arabia is based on the premise ofjustice, consultation, and equality in accordance with the Islamic

Sharia.

Art. 23 The state protects Islam; it implements its Sharia; it orders people to

do right and shun evil; it fulfills the duty regarding God's call.

Art. 26 The state protects human rights in accordance with the Islamic

Sharia.

Art. 45 The source of the deliverance of fatwa in the Kingdom of Saudi Arabia

are God's Book and the Sunnah of His Messenger. The law will define

the composition of the senior Ulema body, the administration of

scientific research, deliverance of fatwa and it's (the body of seniorUlemas) functions.

Art. 46 The judiciary is an independent authority. There is no control over

judges in the dispensation of their judgments except in the case of the

Islamic Sharia.

Art. 48 The courts will apply the rules of the Islamic Sharia in the cases that

are brought before them, in accordance with what is indicated in the

Book and the Sunnah, and statutes decreed by the Ruler which do not

contradict the Book or the Sunnah.

Art. 55 The King carries out the policy of the nation, a legitimate policy inaccordance with the provisions of Islam; the King oversees the

implementation of the Islamic Sharia, ().

b) Remarks


Islam as state religion: (+) see Art. 1


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Sharia as source of legislation (incl. applicability of international law): Quran is the

constitution (Art. 1), international treaties are approved and amended by a royal

decree (Art. 70), in respect to application of the decree see Art. 48.

Sharia as basis of judicial decisions: (+) see Art. 46 and Art. 48; Ulema deliver

opinions on Islamic law (Art. 45)Role of Ulema: Art. 45

Personal status law & womens rights: Sharia is the basis of all judicial decisions

which includes personal status cases; the basic law further states that (family)

members shall be brought up on the basis of the Islamic faith (...) (Art. 9); and The

state will aspire to strengthen family ties, maintain its Arab and Islamic values and

care for all its members (Art. 10).Islam as condition for attaining office of state official judge etc.: Even though there is

no provision in the constitution that prescribes that any high official must be Muslim,

but however it is not imaginable that in a state which has the Quran as its constitution

any official can be a Non-Muslim.

Islam/Sharia mentioned in eternity clause: Art.


Education aims at instilling the Islamic faith in the younger generation (...), Art. 13.

Citizens must pay allegiance to the King in accordance with Quran (Art. 6)

The armed forces have the function to protect the Islamic religion, the two Holy

Sites, society, and the citizens (Art. 33)


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CENTRAL AND SOUTH ASIA

8. Afghanistan


Art. 1 Afghanistan is an Islamic Republic ()

Art. 2 (1) The religion of the state of the Islamic Republic of Afghanistan is

the sacred religion of Islam.

(2) Followers of other religions are free to exercise their faith and

perform their religious rites within the limits of the provisions of law.

Art. 3 In Afghanistan, no law can be contrary to the beliefs and provisions ofthesacred religion of Islam.

Art. 7 I The state shall abide by the UN charter, international treaties,

international conventions that Afghanistan has signed, and the

Universal Declaration of Human Rights.

Art. 130 The courts shall apply the provisions of this Constitution as well as

other laws while adjudicating cases.

When there is no provision in the Constitution or other laws for a case

under consideration, the courts shall, in pursuance of Hanafi

jurisprudence, and within the limits of this Constitution, rule in a waythat attains justice in the best manner.

1

b) Remarks

Islam in state title: (+) Art. 1

Islam as state religion: (+) Art: 2

Sharia as source of legislation (incl. applicability of international law): See Art. 3 and

Art. 7Sharia as basis of judicial decisions: Subsidiary applicability of Hanafi jurisprudence

(fiqh), see Art. 130, or Shia jurisprudence if Shiites are involved in a case (Art.

131.2). In personal status matters, courts shall directly apply Shia jurisprudence if

Shiites are involved (Art. 131.1).

Role of Ulema: Not mentioned, but Ulema council is influential

Personal status law & womens rights: see above (judicial decisions).

1Please note that many English translations of this paragraph are not precise.


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Islam as condition for attaining office of state official judge etc.: The President of the

Republic must be Muslim (Art. 62.1); this is not provided in the constitution for other

officials (however, it can indirectly be concluded from their oath of office).

Islam/Sharia mentioned in eternity clause: The provisions of adherence to the

provisions of the sacred religion of Islam and the republican regime cannot beamended. The amendment of the fundamental rights of the people is permitted only in

order to make them more effective. (Art. 49)


Party programs may not be contrary to the principles of sacred religion of Islam

(Art. 35.1); on the other hand, parties based on single Islamic schools of thought are

forbidden (Art. 35 .2).

Educational curricula must be based on the provisions of the sacred religion of Islam,

national culture, and in accordance with academic principles (Art. 45).

The state adopts necessary measures to ensure physical and psychological well being

of family, especially of child and mother, upbringing of children and the elimination

of traditions contrary to the principles of sacred religion of Islam. (Art. 54.2); this

clause is directed against tribal customs such as forced marriage and child marriage.


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9. Iran


Art. 1 The form of government of Iran is that of an Islamic Republic,

endorsed by the people of Iran on the basis of their longstanding belief

in the sovereignty of truth and Qurnic justice, in the referendum of[March 29-30, 1979], through the affirmative vote of a majority of

98.2% of eligible voters, held after the victorious Islamic Revolution

led by the eminent marji al-taqld, yatullh al-Uzm ImamKhumayn.

Art. 2 The Islamic Republic is a system based on belief in:

1. The One God (as stated in the phrase There is no god exceptAllah), His exclusive sovereignty and the right to legislate, and the

necessity of submission to His commands;

()

3. The return to God in the Hereafter, and the constructive role of this

belief in the course of mans ascent towards God;

4. The justice of God in creation and legislation;

5. Continuous leadership (immah) and perpetual guidance, and itsfundamental role in ensuring the uninterrupted process of the

revolution of Islam;

6. The exalted dignity and value of man, and his freedom coupled with

responsibility before God; in which equity, justice, political, economic,

social, and cultural independence, and national solidarity are secured

by recourse to:

a. continuous ijtihd of the fuqah possessing necessaryqualifications, exercised on the basis of the Qurn and the Sunnah ofthe Masmn, upon all of whom be peace;

b. sciences and arts and the most advanced results of human

experience, together with the effort to advance them further;

()

Art. 4 All civil, penal, financial, economic, administrative, cultural, military,

political, and other laws and regulations must be based on Islamic

criteria. This principle applies absolutely and generally to all articles

of the Constitution as well as to all other laws and regulations, and the

fuqah of the Guardian Council are judges in this matter.

Art. 12 The official religion of Iran is Islam and the Twelver Jafar school [in

usl al-Dn and fiqh], and this principle will remain eternallyimmutable. Other Islamic schools, including the Hanaf, Shfi,

Mlik, Hanbal, and Zayd, are to be accorded full respect, and theirfollowers are free to act in accordance with their own jurisprudence in


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performing their religious rites. These schools enjoy official status in

matters pertaining to religious education, affairs of personal status

(marriage, divorce, inheritance, and wills) and related litigation in

courts of law. In regions of the country where Muslims following any

one of these schools of fiqh constitute the majority, local regulations,

within the bounds of the jurisdiction of local councils, are to be inaccordance with the respective school of fiqh, without infringing upon

the rights of the followers of other schools.

Art. 77 International treaties, protocols, contracts, and agreements must be

approved by the Islamic Consultative Assembly.

Art. 167 The judge is bound to endeavour to judge each case on the basis of the

codified law. In case of the absence of any such law, he has to deliver

his judgement on the basis of authoritative Islamic sources and

authentic fatw. (...)

Article 170 Judges of courts are obliged to refrain from executing statutes and

regulations of the government that are in conflict with the laws or the

norms of Islam, (...)

Art. 177.6 The contents of the Articles of the Constitution related to the Islamic

character of the political system; the basis of all the rules and

regulations according to Islamic criteria; the religious footing; the

objectives of the Islamic Republic of Iran; the democratic character of

the government; the wilyat al-amr; the Imamate of Ummah; and theadministration of the affairs of the country based on national

referenda, official religion of Iran [Islam] and the school [TwelverJafari] are unalterable.

b) Remarks

Note: Islam dominates the entire constitution of Iran. The following remarks as well

as the above-mentioned provisions are the most important ones in the context of this

manual.

Islam in state title: (+) see Art. 1

Islam as state religion: (+) see Art. 12: Islam as interpreted by the Jafari school.

Sharia as source of legislation (incl. applicability of international law): According to

Art. 4, Islam is the source for any legislation including the constitution itself. The only

recognized religious minorities are Zoroastrian, Jews and Christians (Art. 13),

however, every Non-Muslim should be treated in accordance with the Islamic justice

and their human rights should be respected (Art. 14). International treaties etc. must

be approved by the Islamic Consultative Assembly (Art. 77) before being signed by

the President. It is worth noting that the Assembly is not allowed to enact laws which

are contrary to Islam (Art.72). If the treaties after approval and signature have the

force of law (like in many other countries), a matter about which the constitutionremains silent, then the assembly is not allowed to approve it.


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Sharia as basis of judicial decisions: Judges must base their decisions on codified

law; if these are silent they may refer to authoritative Islamic sources and authentic

fatw as subsidiary sources (Art. 167). They may not apply provisions which are in

conflict with Islam (At. 170).

Role of Ulema: Not mentioned in any article of the constitution; only the extensivepreamble highlights the role of the militant ulema in the revolution.

Personal status law & womens rights: see Art. 12. Equality between men and

women and human rights are guaranteed in conformity with Islamic criteria (Art.

20).

Islam as condition for attaining office of state official judge etc. The Guardians

Council consists of six dil fuqah and six jurists (Art. 91). The President must haveconvinced belief in the fundamentals of the Islamic Republic of Iran (Art. 115 II).

Members of the Leadership Council must be Muslims since each one of them can be

elected as the Leader and the Leader must have the qualification of a muft (Art. 107,

Art. 109 a).Islam/Sharia mentioned in eternity clause: (+) See Art. 12 S. 1; Art. 177.6

Other remarks (education; financial constitutional law; etc.): The cooperative sector,

one among the three economic sectors of Iran (Art. Art. 44.1), is concerned with

production and distribution of goods in rural and urban areas in accordance with the

criteria of Islam (Art. 44.3). Art. 44.4 sets a limit to the ownership of each of the three

economic sectors by prescribing that the ownership shall not be beyond the bounds of

the Islamic laws.


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10. Malaysia


Art. 3 1. Islam is the religion of the Federation; but other religions may be

practiced in peace and harmony in any part of the Federation.

Art 11 (1) Every person has the right to profess and practice his religion and,

subject to Clause (4), to propagate it. (...)

(4) State law and in respect of the Federal Territories of Kuala

Lumpur and Labuan, federal law may control or restrict the

propagation of any religious doctrine or belief among persons

professing the religion of Islam.[19]

Art. 12 (2) Every religious group has the right to establish and maintain

institutions for the education of children in its own religion, and thereshall be no discrimination on the ground only of religion in any law

relating to such institutions or in the administration of any such law;

but it shall be lawful for the Federation or a State to establish or

maintain or assist in establishing or maintaining Islamic institutions or

provide or assist in providing instruction in the religion of Islam and

incur such expenditure as may be necessary for the purpose.

b) Remarks


Islam as state religion: (+), Art. 3; the rulers of the federal states are heads of Islam in

their states.

Sharia as source of legislation (incl. applicability of international law):

Sharia as basis of judicial decisions: Besides the Federal Jurisdiction there are

Syariah courts (Syariah meaning Sharia in Malay) with jurisdiction in civil and

criminal matters, Art. 5 (4); 121 (1A); 145 (3); 9th

schedule List I no. 4 (a).

Role of Ulema: (-)

Personal status law & womens rights: In Art. 8 (equality), religion is mentioned as an

absolutely prohibited discrimination but not gender (Art. 8.1). Despite the guaranteed

equality between all persons, Art. 8 does not prohibit or invalidate any provisions

regulating the personal laws (Art. 8.5 (a)).

Islam as condition for attaining office of state official judge etc.: (-); regular oaths of

office do not contain reference to Islam (6th schedule).



State nationals are defined by being Muslim: Malay means a person who professes

the religion of Islam, habitually speaks the Malay language, conforms to Malay


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custom and (whose ancestors stem from the Federation of Singapore), Art. 160.2

(26th definition).

Zakat, Fitrah, Baitul-Mal or similar Islamic religious revenue may be raised but shall

be paid into a separate (not state) funds, Art. 97 (3).


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11. Pakistan


Art. 1 (1) Pakistan shall be a Federal Republic to be known as the Islamic

Republic of Pakistan, hereinafter referred to as Pakistan.

Art. 2 Islam shall be the State religion of Pakistan.

Art. 203 D The (Sharia) 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 decided 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 the Sunnah of the Holy Prophet,

hereinafter referred to as the Injunctions of Islam.

Part IX of the constitution is titled Islamic Provisions)

Art. 227 Provisions relating to the Holy Quran and Sunnah

(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. ()

Explanation2.In the application of this clause to the personal law of

any Muslim sect, the expression Quran and Sunnah shall mean the

Quran and Sunnah as interpreted by that sect.

(2) Effect shall be given to the provisions of clause (1) only in themanner provided in this Part.

(3) Nothing in this Part shall affect the personal laws of non-Muslim

citizens or their status as citizens.

b) Remarks

Islam in state title: (+) see Art. 1

Islam as state religion: (+) see Art. 2Sharia as source of legislation (incl. applicability of international law): See, Art. 227.

If a law is considered to be repugnant to Islam the president has to take steps to bring

the law in conformity to Islam (Art. 203DD).

Sharia as basis of judicial decisions: The decisions of Court of Shariat are based on

Sharia. Besides, the Supreme Court and Superior Courts comprise Shariat Bench

(Art. 203F.3; 203J.3)


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Role of Ulema: A former provision regarding the Panel of Ulema and Ulema

Members has been omitted, 203CC. However, e.g. the Senate shall include Ulema

(Art. 59.1e);

Personal status law & womens rights: No noteworthy provisions

Islam as condition for attaining office of state official judge etc.: The resident must beMuslim (Art. 41 II); Members of parliament do not have to be Muslims (Art. 62 b. (i)

there is a certain quote reserved for Non-Muslims), but however if a person is known

of violating Islamic injunctions he is not qualified to become a member of parliament

(Art. 62 c.); judges of the Federal Sharia Court must be Muslims (Art. Art. 203C. II)

Islam/Sharia mentioned in eternity clause: (-) (Art. 239 regulates the procedure)


Promotion of Islam is a states aim, since Art. 31 prescribes that measures should be

taken to enable the citizens to live their lives in accordance with Islam.

mpil materials on islam constitutions 2

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