UNITED STATES COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM
The Religion- State Relationship and the Right to Freedom of Religion or Belief:
A Comparative Textual Analysis of the Constitutions of Predominantly Muslim Countries
March 2005
Prepared by:
Tad Stahnke and Robert C. Blitt Preeta D. Bansal
Chair
Felice D. Gaer
Nina Shea
Vice Chairs
Archbishop Charles J. Chaput
Michael Cromartie
Khaled Abou El Fadl
Elizabeth H. Prodromou
Bishop Ricardo Ramirez
Michael K. Young
Ambassador John V. Hanford, III, ex officio
Joseph R. Crapa
Executive Director
U. S. Commission on International Religious Freedom
800 North Capitol Street, NW
Suite 790
Washington, DC 20002
Tel: 202- 523- 3240
Fax: 202- 523- 5020
research@ uscirf. gov
www. uscirf. gov
The Religion- State Relationship and the Right to Freedom of Religion or Belief:
A Comparative Textual Analysis of the Constitutions of
Predominantly Muslim Countries
Tad Stahnke and Robert C. Blitt*
Table of Contents
INTRODUCTION______________________________________________________ 1
I. THE RELATIONSHIP BETWEEN RELIGION AND THE STATE__________ 6
A. ISLAM AS STATE RELIGION____________________________________________ 6
Table: Defining a Constitutional Role for Religion_________________________ 7
Map: Predominantly Muslim Countries Classified by Relation with Islam_______ 7
B. ALTERNATIVES TO CONSTITUTIONAL RECOGNITION OF A STATE RELIGION_______ 8
C. CONSTITUTIONAL ROLE FOR ISLAMIC LAW, PRINCIPLES, OR JURISPRUDENCE_____ 9
i) Overview________________________________________________________ 9
ii) Islam as Source of Legislation______________________________________ 10
iii) Other Provisions for Recognition of Islamic Principles__________________ 10
iv) Other Principles in Addition to Islam May Be Sources of Legislation or the Basis for Determining Constitutional Repugnancy_____________________________ 11
II. GUARANTEE OF THE RIGHT TO FREEDOM OF RELIGION OR BELIEF12
A. MINIMUM INTERNATIONAL STANDARDS FOR CONSTITUTIONAL PROVISIONS_____ 12
B. RELEVANT INTERNATIONAL HUMAN RIGHTS INSTRUMENTS_________________ 12
i) Universal Declaration of Human Rights ( UDHR)_______________________ 12
ii) International Covenant on Civil and Political Rights ( ICCPR)_____________ 12
C. IMPLEMENTATION OF INTERNATIONAL STANDARDS IN PREDOMINANTLY MUSLIM COUNTRIES_________________________________________________________ 13
i) Constitutional Provisions that Compare Favorably______________________ 13
ii) Constitutional Provisions that Compare Less Favorably_________________ 13
iii) Freedom of Religion or Belief as a Right of Every Individual_____________ 14
iv) Constitutional Safeguards Against Coercion in Matters of Religious Belief__ 14
v) Table: Comparison of Constitutional Provisions on Freedom of Religion to International Standards_____________________________________________ 15
* Tad Stahnke, JD, Deputy Director for Policy, and Robert C. Blitt, MA JD LLM, Legal Policy Analyst, of the U. S. Commission on International Religious Freedom ( USCIRF). USCIRF is an independent federal commission created by the International Religious Freedom Act of 1998 to monitor the status of freedom of thought, conscience, and religion or belief abroad, as defined in the Universal Declaration of Human Rights and related international instruments, and to give independent recommendations to the Secretary of State and Congress. The authors wish to express their gratitude to USCIRF Commissioners and staff for making this study possible and for their comments on earlier drafts. Special thanks to Danielle Simms and Tina Ramirez for their research assistance. The authors invite feedback on this study and can be contacted at research@ uscirf. gov. D. CONSTITUTIONAL RESTRICTIONS ON THE RIGHT TO FREEDOM OF RELIGION OR BELIEF_____________________________________________________________ 16
E. PERMISSIBLE LIMITATIONS ON FREEDOM TO MANIFEST A RELIGION OR BELIEF UNDER INTERNATIONAL LAW___________________________________________ 17
III. RELATED RIGHTS: FREEDOM OF EXPRESSION, ASSOCIATION, AND ASSEMBLY__________________________________________________________ 19
A. OVERVIEW_______________________________________________________ 19
B. APPLICATION OF RELATED RIGHTS_____________________________________ 19
IV. EQUALITY AND PROHIBITION OF DISCRIMINATION______________ 20
A. OVERVIEW_______________________________________________________ 20
B. CONSTITUTIONAL PROVISIONS ON EQUALITY AND NONDISCRIMINATION THAT COMPARE FAVORABLY WITH INTERNATIONAL STANDARDS____________________ 20
C. CONSTITUTIONAL AND OTHER LIMITATIONS ON THE RIGHTS TO EQUALITY AND NONDISCRIMINATION_________________________________________________ 21
V. CONSTITUTIONAL LAW: SUPREMACY, REMEDIES FOR RIGHTS VIOLATIONS, AND REVISIONS_______________________________________ 23
A. LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS MAY BE VOID____________ 23
B. CONSTITUTIONALLY RECOGNIZED RIGHTS MAY BE SUPERSEDED BY ORDINARY LAW__________________________________________________________________ 24
C. REVIEW OF CONSTITUTIONALITY MAY IMPLICATE THE CONFORMITY OF LEGISLATION WITH ISLAM______________________________________________ 24
D. REMEDIES FOR VIOLATIONS OF CONSTITUTIONALLY RECOGNIZED RIGHTS______ 24
E. PROHIBITIONS ON CERTAIN REVISIONS TO THE CONSTITUTION_______________ 25
VI. REFERENCE TO INTERNATIONAL AGREEMENTS AND HUMAN RIGHTS INSTRUMENTS______________________________________________ 27
A. OVERVIEW_______________________________________________________ 27
B. AFFIRMATIVE OBLIGATION OR GENERAL REFERENCE TO INTERNATIONAL HUMAN RIGHTS INSTRUMENTS_________________________________________________ 27
C. INCORPORATION OF INTERNATIONAL TREATIES INTO DOMESTIC LAW__________ 27
VII. APPENDIX______________________________________________________ 29
A. TABLE I: RELATIONSHIP BETWEEN RELIGION AND THE STATE CONSTITUTIONAL PROVISIONS ( BY REGION)______________________________________________ 29
Middle East/ North Africa____________________________________________ 29
South Asia________________________________________________________ 38
East Asia_________________________________________________________ 43
Africa____________________________________________________________ 45
Europe/ Eurasia____________________________________________________ 50
B. TABLE II: THE RIGHT TO FREEDOM OF RELIGION OR BELIEF CONSTITUTIONAL PROVISIONS ( BY REGION)______________________________________________ 53
Middle East/ North Africa____________________________________________ 53
South Asia________________________________________________________ 57
East Asia_________________________________________________________ 59
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Africa____________________________________________________________ 61
Europe/ Eurasia____________________________________________________ 65
C. TABLE III: EQUALITY AND PROHIBITION OF DISCRIMINATION CONSTITUTIONAL PROVISIONS ( BY REGION)______________________________________________ 68
Middle East/ North Africa____________________________________________ 68
South Asia________________________________________________________ 72
East Asia_________________________________________________________ 73
Africa____________________________________________________________ 74
Europe/ Eurasia____________________________________________________ 79
D. POPULATION DATA AND FREEDOM OF RELIGION PROVISIONS OF NON- MUSLIM COUNTRIES WITH SIGNIFICANT MUSLIM POPULATIONS_______________________ 81
India____________________________________________________________ 81
E. SELECTED INTERNATIONAL HUMAN RIGHTS DOCUMENTS___________________ 90
i. Universal Declaration of Human Rights 1948__________________________ 90
ii. International Covenant on Civil and Political Rights 1966________________ 96
iii. UN Human Rights Committee, General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion ( ICCPR Art. 18) 1994_________________ 99
iv. UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief 1981________________________ 103
v. Vienna Concluding Document of the Organization for Security and Cooperation in Europe ( OSCE) 1986____________________________________________ 107
F. ABOUT THE U. S. COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM______ 109
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Introduction
Several current developments in constitutional drafting are spurring renewed analysis of the existing constitutional landscape of the Muslim world. In 2004, Afghanistan adopted a new permanent constitution, and Iraq’s Governing Council approved an interim constitutional document for Iraq ( the “ Transitional Administrative Law” or TAL). Iraq’s elected national assembly is expected to draft a permanent constitution in 2005. In Sudan, a new interim constitution is anticipated as a product of the Comprehensive Peace Agreement between the Government of the Sudan and the Sudan People’s Liberation Movement.
Although the drafting and approval processes have differed markedly in these countries, international legal norms and international actors have played— and will continue to play— important roles. In each country, questions have been raised about the relationship between international legal/ human rights norms and existing political arrangements in Muslim countries— especially with respect to the internationally recognized right of freedom of thought, conscience, and religion or belief. The search for reliable answers to these questions has been hindered by the dearth of specific comparative information available regarding relevant constitutional provisions in predominantly Muslim countries, 1 and the absence of any comprehensive survey of texts to provide an overall picture of the constitutional arrangements in such countries. This study represents a small but important first step in filling this urgent resource gap.
About This Study
This study analyzes the constitutional provisions currently in place concerning the relationship between religion and the state, freedom of religion or belief, and related human rights in predominantly Muslim countries.
The Muslim world stretches from Europe to Africa, through the Middle East and into Asia. Indeed, its geographical diversity mirrors a central finding of this study, that predominantly Muslim countries encompass a variety of constitutional arrangements addressing the role of Islam and the scope of the right to freedom of thought, conscience, and religion or belief, and other related human rights.
In other words, although the countries reviewed in this study share the common denominator of having a majority Muslim population, the documents surveyed here establish a broad assortment of constitutional views— ranging from Islamic republics with Islam as the official state religion, to secular states with strict separation of religion and state. Moreover, diversity on the role of Islam and the extent of guarantees for internationally- recognized human rights are also found in the constitutions of those states where Islam is proclaimed the religion of the state.
1 This study defines predominantly Muslim countries as those where more than half of the population is Muslim. Yet despite the diversity of constitutional structures, several important realities come to light through this comparative review:
• More than half of the world’s Muslim population ( estimated at over 1.3 billion) lives in countries that are neither Islamic republics nor countries that have declared Islam to be the state religion. Thus, the majority of the world’s Muslim population currently lives in countries that either proclaim the state to be secular, or that make no pronouncements concerning Islam to be the official state religion.
• Countries in which Islam is the declared state religion may provide constitutional guarantees of the right to freedom of religion or belief that compare favorably with international legal standards.
• Similarly, countries with Islam as the declared state religion may maintain constitutional provisions protecting the related rights to freedom of expression, association and assembly— or the rights of equality and nondiscrimination with regard to, inter alia, religion and gender— which compare favorably with international standards.
• A number of constitutions of predominantly Muslim countries incorporate or otherwise reference international human rights instruments and legal norms.
This wide diversity in the constitutional provisions of predominantly Muslim countries, and especially in those countries declaring themselves to be Islamic states or declaring Islam to be the state religion, is not necessarily well understood. For example, we have observed the perception that a provision found in Afghanistan’s new constitution— that “ no law can be contrary to the sacred religion of Islam”— represents the norm in the constitutions of predominantly Muslim countries. 2 As this study shows, that perception is incorrect.
Human Rights as International and Universal Legal Norms
And yet such perceptions and assumptions are not new. Since adoption of the Universal Declaration of Human Rights in 1948, critics have questioned the particular religious roots of human rights, and have explored claims of universality of human rights in the face of contradictory religious attitudes and practices. But the need for protection of certain individual rights deemed inherent and universal— and not contingent upon particular cultures or political arrangements— became a matter of global concern after the horrors of World War II. The world then came together under the auspices of the United Nations to enshrine the natural rights and freedoms available to all persons— including the right of religious freedom— as universal human rights.
The Universal Declaration of Human Rights, adopted in 1948, recognizes in its first sentence the “ inherent dignity and the equal and inalienable rights of all members of the
2 This study demonstrates that out of 44 predominantly Muslim countries, only 15 constitutions provide for Islamic law, principles, or jurisprudence as a source of, or limitation on, general legislation ( See Table II).
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human family” as the “ foundation of freedom, justice and peace in the world.” Article 18 of the Declaration addresses the relationship of religion and human rights, forbidding distinctions of any kind, including on the basis of religion, with regard to the enjoyment of those rights and freedoms. It states, “ Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”
The crucial role played by the delegate from Egypt, Dr. Mahmoud Azmi, during the drafting and passage of the Declaration serves as an illustration of the aspired universality of this document. 3 Dr. Azmi was an active defender of human rights for all individuals, including for women and minorities. He fervently advocated the passage of the Declaration and pointed to the long, multi- civilizational and multi- religious history of his own country to demonstrate that commitment to human rights is not a western but a universal human concept.
In the end, out of 58 states then in existence, no country voted against the Universal Declaration. 4 The Declaration thus represented a consensus at that moment in history on the subject of fundamental human rights, including the freedom of thought, conscience, and religion or belief. From the early years of the United Nations, Christians, Jews, Muslims, Hindus, Sikhs, Buddhists and other religious people and groups have worked together and with one another to advance human rights. These religious groups have emphasized the religious bases for human rights within their own traditions.
Now, more than 50 years later, as Iraq and Afghanistan have embarked on their own constitutional processes, questions about the compatibility of international human rights norms within Islamic societies are being raised anew. Three contentious issues, in particular concerning religion, permeated the drafting and approval of Afghanistan’s constitution and Iraq’s TAL: the appropriate constitutional role for Islam; the scope of guarantees for fundamental human rights, including the right to freedom of thought, conscience, and religion; and the equality of rights and freedoms, especially for women. As Iraq’s newly elected transitional national assembly begins the process of drafting a permanent constitution, it is likely that matters concerning religion and human rights will resurface as key, potentially divisive, issues.
About the U. S. Commission on International Religious Freedom
The United States Commission on International Religious Freedom ( USCIRF or the " Commission") is a bipartisan independent federal agency created by Congress in 1998 to advise the U. S. government on ways to advance the internationally recognized right to
3 See Susan Waltz, “ Universal Human Rights: The Contribution of Muslim States,” Human Rights Quarterly 26 ( 2004) pp. 800- 44.
4 Eight states abstained from the UN General Assembly vote on the UN Declaration of Human Rights: Byelorussia, Czechoslovakia, Poland, Saudi Arabia, South Africa, the former Soviet Union, Ukraine, and Yugoslavia.
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freedom of thought, conscience, and religion or belief as a part of U. S. policy to promote human rights around the world. As such, the Commission is concerned not with the protection of any one religion, but rather with the right of conscience and religious freedom as it is universally recognized in international legal instruments.
The freedom of thought, conscience, and religion or belief protects the rights not only of members of religious minorities within a society, but also protects the rights of individuals within a majority faith to debate and dissent from state- imposed orthodoxies. Promoting religious freedom and related human rights abroad therefore is vital to the world’s strategic, as well as humanitarian, interests. When observed, freedom of religion or belief is one of the cornerstones of stable, democratic, productive societies in which the rule of law and human rights are respected and accorded value. When denied, generations of intolerance, authoritarianism and resulting societal instability may be sown.
The USCIRF made specific recommendations on constitutional human rights guarantees in Afghanistan and Iraq in light of the unique role of the U. S. government in these situations. These recommendations were based on the standards set forth in international human rights instruments including the Universal Declaration of Human Rights ( UDHR) and the International Covenant on Civil and Political Rights ( ICCPR), to which both Afghanistan and Iraq are party.
During their constitutional drafting sessions, Afghan and Iraqi participants, as well as international actors, sought models of constitutional text that reflect international human rights standards. While many such models exist globally, the Commission found that there was a dearth of collected materials on constitutional arrangements in predominantly Muslim countries, including countries where Islam is the state religion, which may afford more readily applicable— and potentially positive— examples.
To be certain, actual implementation of constitutional provisions is dependent on a number of diverse factors, including level of state control, system of government, independence of the judiciary, individual access to the courts, and enforcement of judicial remedies. Relatedly, constitutional text alone may not necessarily reflect what is being done in practice, especially in the field of human rights. That said, constitutional text remains important for setting forth aspirational norms. It lays the groundwork for legal and political reconstruction. Even if not fully implemented upon enactment, constitutional text remains fixed as fundamental law and as a statement of national principles, and can be invoked by future generations seeking to fulfill its promise.
This comparative analysis of constitutional texts was initiated and undertaken by the Commission’s legal policy staff, Tad L. Stahnke, Deputy Director for Policy, and Robert Blitt, Legal Policy Analyst. The comparative analysis of text is intended as a departure point, and an invitation for further examination of the interpretation and application of these texts— especially with regard to their practical impact on society, and on the protection of internationally recognized human rights. The Commission and the study’s
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authors hope that others may take up this task to further advance human rights, and the right to freedom of thought, conscience, and religion or belief, around the globe.
Preeta D. Bansal
Chair, U. S. Commission on International Religious Freedom
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I. The Relationship between Religion and the State
A. Islam as State Religion
The global Muslim population is estimated at over 1.3 billion. 5 Of this figure, approximately 1 billion Muslims live in 44 predominantly Muslim countries where Muslims constitute more than half of the population. 6 Of the 1 billion Muslims living in predominantly Muslim countries, 28 percent live in ten countries that, according to the constitution, declare themselves to be Islamic states. 7 Generally, a country with a constitutional provision declaring itself to be an Islamic state distinguishes itself by seeking to promote a broader, more significant role for Islam within that country. This role can manifest itself in a number of ways, and the practical ramifications of a constitution declaring an Islamic state are not uniform.
Each of the constitutions of the ten declared Islamic states also proclaim Islam to be the official religion of the state. In other words, all Islamic states declare Islam the official state religion. That said, there are an additional 12 predominantly Muslim countries that have chosen to declare Islam as the official state religion while forgoing the potentially more far- reaching impact of also declaring the country an Islamic state. Taken together, the 22 states that declare Islam the official religion account for 58 percent— or just over 600 million— of the 1 billion Muslims living in predominantly Muslim countries. As with the smaller category of declared Islamic states, the practical ramifications of a declaration of Islam as the religion of the state vary from state to state. Within these countries, there exist a range of legal provisions, policies, and practices in the political, social, religious, and economic spheres.
In contrast to this grouping of 22 states, the constitutions of 11 predominantly Muslim countries proclaim the state to be secular. These countries account for nearly 140 million Muslims, or 13.5 percent of the 1 billion Muslims living in predominantly Muslim countries. Finally, the 11 remaining predominantly Muslim countries have not made any constitutional declaration concerning the Islamic or secular nature of the state, and have not made Islam the official state religion. This group of countries, which includes Indonesia, the world’s largest Muslim country, accounts for over 250 million Muslims ( see table below).
5 Accurate and up- to- date population data for many of the countries surveyed either does not exist or varies widely. Figures presented here are estimates and, unless indicated otherwise, are based on the U. S. Department of State’s Annual Report on International Religious Freedom 2004, prepared by the Department’s Bureau of Democracy, Human Rights and Labor. See http:// www. state. gov/ g/ drl/ rls/ irf/ 2004/.
6 All of the predominantly Muslim countries surveyed here, with the exception of Malaysia, are members of the Organization of the Islamic Conference ( OIC). One of the OIC’s primary objectives is to “ promote Islamic solidarity among Member States.” Article 2, Charter of the Organization of the Islamic Conference, March 4, 1972 ( http:// www. oic- oci. org/ english/ main/ charter. htm). Although the OIC consists of 57 member states, only 44 of these countries have a Muslim population greater than 50 percent according to data provided by the U. S. Department of State.
7 These states are: Afghanistan, Bahrain, Brunei, Iran, Maldives, Mauritania, Pakistan, Qatar, Saudi Arabia, and Yemen.
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Table: Defining a Constitutional Role for Religion
Declared Islamic States
Declared Islam as the State Religion
No Constitutional Declaration
Declared Secular States
1. Afghanistan
2. Bahrain
3. Brunei
4. Iran
5. Maldives
6. Mauritania
7. Oman
8. Pakistan
9. Saudi Arabia
10. Yemen
Ten Islamic states and:
11. Algeria
12. Bangladesh
13. Egypt
14. Iraq ( TAL)
15. Jordan
16. Kuwait
17. Libya
18. Malaysia
19. Morocco
20. Qatar
21. Tunisia
22. U. A. E.
1. Albania
2. Lebanon
3. Syria
4. Indonesia
5. Comoros
6. Djibouti
7. Gambia
8. Sierra Leone
9. Somalia*
10. Sudan**
11. Uzbekistan
1. Burkina Faso
2. Chad
3. Guinea
4. Mali
5. Niger
6. Senegal
7. Azerbaijan
8. Kyrgyzstan
9. Tajikistan
10. Turkey
11. Turkmenistan
Estimated Muslim Population:
285.5 million or approximately 28 percent of Muslims living in predominantly Muslim countries.
Estimated Muslim Population ( including declared Islamic states):
602.5 million or approximately 58 percent of Muslims living in predominantly Muslim countries.
Estimated Muslim Population:
287.5 million or approximately 28.5 percent of Muslims living in predominantly Muslim countries.
Estimated Muslim Population:
140 million or approximately 13.5 percent of Muslims living in predominantly Muslim countries.
Map: Predominantly Muslim Countries Classified by Relation with Islam
It also should be noted that of the approximately 300 million Muslims not living in predominantly Muslim countries, the vast majority are found in just a handful of states. In particular, India, Nigeria, China, Russia, Ethiopia, and Tanzania are home to over 270 million Muslims, or nearly 90 percent of those living outside of predominantly Muslim
* At the time of writing, Somalia has no recognized constitution.
** At the time of writing, parties to Sudan’s long- running civil war are contemplating the drafting of a new interim constitution.
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countries. These Muslims live under constitutional structures which are either declared secular or silent with respect to a state religion. ( See Appendix D, below.)
Under international human rights standards, a state can adopt a particular relationship with the religion of the majority of the population, including establishing a state religion, provided that such a relationship does not result in violations of the civil and political rights of, or discrimination against, adherents of other religions or non- believers. According to the UN Human Rights Committee’s General Comment on Article 18 ( freedom of thought, conscience, and religion) of the International Covenant on Civil and Political Rights ( ICCPR):
The fact that a religion is recognized as a state religion or that it is established as official or traditional or that its followers comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including articles 18 [ freedom of thought, conscience, and religion] and 27 [ rights of members of religious, ethnic and linguistic minorities], nor in any discrimination against adherents to other religions or non- believers. In particular, certain measures discriminating against the latter, such as measures restricting eligibility for government service to members of the predominant religion or giving economic privileges to them or imposing special restrictions on the practice of other faiths, are not in accordance with the prohibition of discrimination based on religion or belief and the guarantee of equal protection under article 26 [ equal protection of the law without any discrimination]. 8
In a similar vein, the European Court of Human Rights has stated that the mere existence of a state religion or established church does not violate the right to freedom of religion or belief as long as individuals are free to leave that religion or church. 9
B. Alternatives to Constitutional Recognition of a State Religion
Several countries around the world, Muslim and non- Muslim alike, have made a special recognition of a particular religion in the preamble or body of the constitution, without adopting a state religion or established church or any facially operative constitutional distinction between religions or among adherents of different religions. For example, Sudan’s constitution provides that: “ Islam is the religion of the majority of the population. Christianity and customary creeds have considerable followers.” The constitution of Greece states that the “ prevailing religion in Greece is that of the Eastern
8 Para. 9, Human Rights Committee, “ General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion ( Art. 18)”, UN Doc. CCPR/ C/ 21/ Rev. 1/ Add. 4, July 30, 1993 ( http:// www. unhchr. ch/ tbs/ doc. nsf/( Symbol)/ 9a30112c27d1167cc12563ed004d8f15? Opendocument) ( hereinafter General Comment 22).
9 Darby v. Sweden, 187 Eur. Ct. H. R. ( ser. A) ( 1990), [ 1990] ECHR 24 ( October 23, 1990), 13 E. H. R. R. 774 ( 1991) ( http:// hudoc. echr. coe. int/ Hudoc1doc/ HEJUD/ sift/ 227. txt). 8
Orthodox Church of Christ,” 10 the Georgian constitution “ recognizes [ the] special role of the Apostolic Autocephal Orthodox Church of Georgia,” 11 and Bulgaria’s constitution asserts Eastern Orthodox Christianity as the “ traditional religion.” 12 In addition, the constitution of Thailand requires that the state “ shall patronize and protect Buddhism and other religions,” 13 and according to Argentina’s constitution, the “ Federal Government supports the Roman Catholic Apostolic Faith.” 14
Finally, some constitutions make reference to God or other religious concepts but are otherwise secular in nature. For example, the Indonesian constitution provides that the “ State shall be based upon the belief in the One and Only God.” 15 The range of references to religion demonstrated here results in a variety of constitutional practices that characterize a given state’s relationship with religion. In practice, some of these relationships may contribute to violations of the right to freedom of thought, conscience, and religion or belief, and other human rights.
C. Constitutional Role for Islamic Law, Principles, or Jurisprudence
i) Overview
Twenty- two of 44 predominantly Muslim countries recognize some constitutional role for Islamic law, principles, or jurisprudence. This includes 18 of the 22 countries where Islam is the religion of the state, 16 as well as four predominantly Muslim countries where Islam is not the declared state religion. 17 In countries where a constitutional role for Islam is established, that role varies and in some cases may be restricted to specific matters, such as personal status issues or the creation of councils designed to advise the government concerning questions related to religion and religious life. 18 ( See Appendix A below.)
10 Article 3( 1), Constitution of Greece, 1975 ( as amended to 2002).
11 Article 9( 1), Constitution of Georgia, 1995 ( as amended to 2003).
12 Article 13( 3), Constitution of the Republic of Bulgaria, 1991 ( as amended to 2003).
13 Section 73, Constitution of the Kingdom of Thailand, 1997.
14 Article 2, Constitution of the Argentine Nation, 1994.
15 Article 29( 1), Constitution of the Republic of Indonesia, 1945 ( as amended to 2002).
16 Afghanistan, Algeria, Bahrain, Egypt, Iraq, Iran, Jordan, Kuwait, Libya, Malaysia, Maldives, Mauritania, Oman, Pakistan, Qatar, Saudi Arabia, U. A. E, and Yemen.
17 The additional four states that invoke Islamic principles, law, or jurisprudence in their constitutions without having declared Islam as the state religion are Comoros, Gambia, Sudan, and Syria. The four states that declare Islam the state religion but do not establish any additional role for Islamic law, principles, or jurisprudence are Bangladesh, Brunei, Morocco, and Tunisia.
18 For example, both the constitutions of Jordan and Malaysia limit the role of Islamic law. Under Jordan’s constitution, Islamic law applies only to personal status law and matters pertaining to waqfs ( Muslim religious endowments or trusts). Arts. 102- 110, Constitution of the Hashemite Kingdom of Jordan, 1952 ( as amended to 1984). Likewise, in Malaysia, the application of Islamic law is restricted to certain enumerated areas, and in most cases falls within state jurisdiction under the federal division of powers. See Ninth Schedule, List II— State List, Constitution of Malaysia, 1957 ( as amended to 1994). Although the constitution of Gambia does not declare Islam as the state religion, it similarly restricts the application of Sharia as a source of legislation to “ matters of marriage, divorce and inheritance.” Art. 7, Constitution of the Gambia, 1996.
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ii) Islam as Source of Legislation
The constitutions of several countries where Islam is the state religion, including Egypt and the Gulf states, establish Islamic law, principles, or jurisprudence as “ the basis for,” “ the principal source of,” “ a principal source of,” or “ the source of” legislation. This practice of declaring Islamic law as a basis for legislation also occurs in countries such as Syria and Sudan, which do not have a declared state religion.
In several of these cases, no additional constitutional guidance is given to address the question of what governmental body, process, or mechanism, if any, is charged with assessing the conformity of legislation with Islamic principles or law. Moreover, many of these constitutions fail to provide any further definition of the terms “ Islam,” “ sharia” ( Islamic law) or the “ fundamentals,” “ principles,” or “ jurisprudence” of Islam. In Egypt, this role has fallen to the Supreme Constitutional Court, whereas in Pakistan, the constitution specifically assigns this role to the Federal Shariat Court. 19 The ramifications of establishing a constitutionally- mandated legislative role for Islam vary from country to country, though a full analysis on this subject is beyond the scope of this study.
iii) Other Provisions for Recognition of Islamic Principles
Other examples of how various constitutions lend meaning to or implement a function for Islamic principles demonstrate that diverse arrangements exist. Article 3 of Afghanistan’s new constitution features a “ repugnancy clause” that provides “ no law can be contrary to the sacred religion of Islam and the values of this Constitution.” Moreover, under the new constitution, ordinary legislation may be used to restrict or trump the constitutional rights of individual Afghanis, since the scope of many of these rights are made subject to “ provisions of the law.” 20 In a related vein, Afghanistan’s constitution also requires that courts render decisions based on “ provisions of the Hanafi jurisprudence” when “ there is no provision in the Constitution or the laws with respect to a case under consideration.” 21
For other countries, Islamic principles are constitutionally recognized, but neither self- executing nor judicially enforceable. Article 8( 1A) of the Bangladesh constitution provides that “ Absolute trust and faith in the Almighty Allah shall be the basis of all actions.” 22 However, part 2 of the same article states that this principle, while “ fundamental to the governance of Bangladesh… shall not be judicially enforceable.” Under Algeria’s constitution, state institutions are not permitted to engage in “ practices contrary to Islamic morals.” 23 This provision is supported by a constitutionally mandated High Islamic Council charged with: ( a) encouraging and promoting ijtihad, or interpretation of Islamic law; ( b) providing its opinion on religious rules; and ( c) presenting periodic reports of its activity to the President. 24 The constitutions of
19 See Part V below.
20 For example, under art. 2, freedom to perform religious rites is permitted only “ within the limits of the provisions of law.” See also arts. 23, 27, 35, 37, 39, 40 and 50.
21 Art. 130, Constitution of Afghanistan.
22 Art. 8( 1A), Constitution of Bangladesh.
23 Art. 9, Constitution of Algeria.
24 Arts. 171- 72, Constitution of Algeria.
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Mauritania, Comoros, and Pakistan also establish advisory bodies that assess laws or other official matters in light of Islamic principles. 25
iv) Other Principles in Addition to Islam May Be Sources of Legislation or the Basis for Determining Constitutional Repugnancy
In some countries, other principles are mentioned as sources of legislation alongside Islamic law, principles, or jurisprudence. For example, in addition to “ Islamic law and the consensus of the nation, by referendum,” Sudan recognizes the “ Constitution and custom” as sources of legislation. 26 A variation of this type of clause is found in article 9 of Algeria’s constitution, which states that “ The [ government] institutions forbid… practices contrary to Islamic morals and the values of [ the] November [ revolution].”
Significantly, Iraq’s TAL establishes not only Islam as a check on legislation, but provides that legislation cannot contradict democratic principles or human rights guarantees as well. Article 7( a) of Iraq’s TAL provides that “ No law that contradicts the universally agreed tenets of Islam, the principles of democracy, or the rights cited in… this Law may be enacted during the transitional period.” 27
25 Mauritania’s constitution establishes a High Islamic Council ( art. 94), the Comoros constitution establishes a Council of the Ulemas to assist the government “ in formulating decisions that affect the religious… life of the country” ( art. 36), and Pakistan’s constitution creates a Council of Islamic Ideology ( art. 228).
26 Art. 65, Constitution of Sudan.
27 Notably, a recent conference on Islam and democracy concluded that if a constitution is to recognize Islamic law or principles, the relevant constitutional language should “ always recognize not only the basic principles of Islam, but also the principles of democracy, pluralism, social justice, rule of law, and [ a country’s] international obligations.” Rand Center for Asia Pacific Policy, “ Democracy and Islam in the New Constitution of Afghanistan: Conference Proceedings,” January 2003, 2. USCIRF Commissioner Khaled Abou El Fadl was a participant in this conference before his appointment to the Commission. 11
II. Guarantee of the Right to Freedom of Religion or Belief
A. Minimum International Standards for Constitutional Provisions
The minimum international standards required for an effective constitutional guarantee of the right of freedom of religion or belief may be extracted from the UDHR and the ICCPR. These minimum standards include:
• Universal applicability to everyone as individuals, regardless of religion or belief;
• The freedom to manifest a religion or belief, either individually or in community with others, in public or private;
• Freedom to manifest all aspects of a religion or belief, including worship, teaching, practice, and observance;
• No coercion that would impair the freedom to have or to adopt a religion or belief of one’s choice. 28 ( Aspects of a constitution that could constitute coercion include: ( a) no provision for equality or the prohibition of discrimination on the basis of religion; or ( b) separate political rights for citizens of different religions); and
• Limitations on the right to freedom of thought, conscience, and religion or belief only in certain circumstances as provided for under international law ( see below).
B. Relevant International Human Rights Instruments
i) Universal Declaration of Human Rights ( UDHR)
Article 18 of the UDHR provides:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. 29
ii) International Covenant on Civil and Political Rights ( ICCPR)
Article 18 of the ICCPR provides:
28 According to the UN Human Rights Committee, “ Article 18.2 [ of the ICCPR] bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non- believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert. Policies or practices having the same intention or effect, such as, for example, those restricting access to education, medical care, employment or the rights guaranteed by article 25 [ political rights] and other provisions of the Covenant, are similarly inconsistent with article 18.2. The same protection is enjoyed by holders of all beliefs of a non- religious nature.” Para. 5, General Comment 22.
29 Universal Declaration of Human Rights, adopted and proclaimed by General Assembly resolution 217A ( III), December 10, 1948 ( http:// www. un. org/ Overview/ rights. html).
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1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion, which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. 30
C. Implementation of International Standards in Predominantly Muslim Countries
i) Constitutional Provisions that Compare Favorably
Several predominantly Muslim countries have constitutional guarantees of the right to freedom of religion or belief that, on their face, compare favorably with these international standards ( see Appendix B). For example, the constitutions of Pakistan and Bangladesh provide that, subject “ to law, public order and morality… every citizen shall have the right to profess, practice and propagate his religion,” 31 and Iraq’s TAL guarantees that “ Each Iraqi has the right to freedom of thought, conscience, and religious belief and practice. Coercion in such matters shall be prohibited.” 32
ii) Constitutional Provisions that Compare Less Favorably
Conversely, several countries where Islam is the state religion have constitutional provisions regarding the right to freedom of religion or belief that, on their face, do not compare favorably with all aspects of international standards. Examples include provisions:
( a) Limited to worship or the practice of religious “ rites”; 33
( b) Limited to one or more religions or class of religions; 34 or
30 International Covenant on Civil and Political Rights, adopted by General Assembly resolution 2200A ( XXI), December 16, 1966, entry into force March 23, 1976 ( http:// www. unhchr. ch/ html/ menu3/ b/ a_ ccpr. htm) ( hereinafter ICCPR).
31 Art. 20( a), Constitution of Pakistan. Article 41( 1)( a) of the Bangladesh constitution is drafted in a similar manner.
32 Art. 13( f), Iraq TAL. The TAL also “ guarantees the full religious rights of all individuals to freedom of religious belief and practice.” See Art. 7( a), TAL.
33 See for example, Egypt ( art. 46), Morocco ( art. 6), and Afghanistan ( art. 2).
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( c) Allowing limitations on freedom of religion by any ordinary law rather than only those limitations permitted under international law. 35
iii) Freedom of Religion or Belief as a Right of Every Individual
Several countries with predominantly Muslim populations have constitutions that clearly specify that the right to freedom of religion or belief is to be extended to either every citizen or every individual. For example, Pakistan and Senegal extend the right of freedom of religion and belief to “ every citizen” and “ all citizens,” whereas Indonesia’s provision covers “ every person.” 36
However, other constitutional provisions in many countries where Islam is declared to be the state religion are less clear, raising the possibility that only groups, rather than individuals, are afforded protection. Failure to provide explicit protection for individuals means that— depending upon interpretation and application— the group or the state may define the exact parameters of the right to freedom of religion or belief rather than the individual. Consequently, individuals may not be protected fully in their freedom to dissent from established religious teachings ( i. e. an individual’s right to have a religion or belief that differs or dissents from the rules or doctrines of a religious group with whom that individual might be associated). 37
iv) Constitutional Safeguards Against Coercion in Matters of Religious Belief
Finally, several constitutions contain provisions designed to protect individuals against coercion that would impair the freedom to have or to adopt a religion or belief, further bolstering protections for the freedom of thought, conscience, and religion or belief. Examples of countries that include such provisions in their constitutions include Albania, Bangladesh, Pakistan, Azerbaijan, Sierra Leone, Turkey, Malaysia, and Sudan. 38 These provisions cover a wide range of areas and generally seek to protect individuals from being compelled to:
• Participate in religious practices or become a member of a religious community;
• Reveal or profess a religion or belief publicly;
• Receive religious instruction or education of a religion that is not one’s own;
• Take an oath contrary to one’s religion; or
• Pay a tax that is used for the purposes of a religion other than one’s own.
34 For example, under article 13 of Iran’s constitution, “ Zoroastrian, Jewish, and Christian Iranians are the only recognized religious minorities, who, within the limits of the law, are free to perform their religious rites and ceremonies…” Under art. 2 of Afghanistan’s constitution, recognition of religious freedom is limited to non- Muslims.
35 See for example, Afghanistan ( art. 2), Yemen ( art. 41), Bahrain ( art. 22), Kuwait ( art. 35), Maldives ( art. 25), and Libya ( art. 2).
36 Pakistan ( art. 20( a)), Senegal ( art. 8), and Indonesia ( art. 28( e)). Other countries with similar individual guarantees include Albania, Bangladesh, Malaysia, Mauritania and Kyrgyzstan ( see Appendix B).
37 Several predominantly Muslim countries have constitutions that do not frame freedom of religion and belief specifically as an individual right, including Algeria ( art. 36), Bahrain ( art. 22), and Egypt ( art. 46).
38 Albania ( art. 24( 3)), Bangladesh ( art. 41( 2)), Pakistan ( art. 21), Azerbaijan ( art. 71( IV)), Sierra Leone ( art. 24), Turkey ( art. 24), Malaysia ( art. 11( 2)), and Sudan ( art. 24) ( see Appendix B below).
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v) Table: Comparison of Constitutional Provisions on Freedom of Religion to International Standards
Generally Compare Favorably
Establish Specific Safeguards Against Religious Coercion
No Provisions or Provision only for the Right to Worship
Provisions that Do Not Define Rights on an Individual Basis or Limit Rights to One or More Enumerated Groups
Provisions that Permit Limitations Not Enumerated Under International Standards
Middle East & North Africa
Iraq ( TAL)
South Asia
Bangladesh
Pakistan
East Asia
Indonesia
Malaysia
Africa
Chad
Djibouti
Gambia
Guinea
Mali
Niger
Senegal
Sierra Leone
Sudan
Eastern Europe & Eurasia
Albania
Azerbaijan
Kyrgyzstan
Tajikistan
Turkey
Turkmenistan
Uzbekistan
Middle East & North Africa
Iraq ( TAL)
South Asia
Bangladesh
Pakistan
East Asia
Malaysia
Africa
Sierra Leone
Sudan
Eastern Europe & Eurasia
Albania
Azerbaijan
Turkey
Uzbekistan
Middle East & North Africa
Algeria*
Bahrain
Egypt
Iran
Jordan
Kuwait*
Lebanon
Libya
Morocco
Oman
Qatar
Saudi Arabia*
Syria
Tunisia*
U. A. E.
Yemen*
South Asia
Afghanistan
East Asia
Brunei
Maldives*
Africa
Comoros*
Mauritania*
Somalia**
Eastern Europe & Eurasia
n/ a
Middle East & North Africa
Bahrain
Egypt
Iran
Jordan
Lebanon
Libya
Oman
Syria
U. A. E.
South Asia
Afghanistan
East Asia
Maldives
Africa
Burkina Faso
Eastern Europe & Eurasia
n/ a
Middle East & North Africa
Bahrain
Iran
Jordan
Kuwait
Libya
Oman
U. A. E.
South Asia
Afghanistan
East Asia
Brunei
Maldives
Africa
Djibouti
Gambia
Niger
Sierra Leone
Eastern Europe & Eurasia
Turkey
* Countries with no constitutional provisions concerning freedom of religion specifically.
** At the time of writing, Somalia has no recognized constitution. 15
D. Constitutional Restrictions on the Right to Freedom of Religion or Belief
Several countries with constitutions establishing Islam as the state religion either do not contain guarantees of the right to freedom of religion or belief, or contain guarantees that, on their face, do not compare favorably with all aspects of international standards. Examples of such countries include Iran, Libya, and Oman. Some countries, such as Egypt and Saudi Arabia, assert that these restrictions flow from the position of Islam as a declared state religion and/ or the role of Islam or sharia in the legal system. 39 Nevertheless, the United Nations Human Rights Committee ( HRC), the body that assesses compliance with the International Covenant on Civil and Political Rights ( ICCPR), has concluded that restrictions made on this basis constitute violations of the ICCPR. For example, the HRC expressed concern about “ infringements of the right to freedom of religion or belief” in Egypt, deplored “ the ban on worship imposed on the Bahai community,” and called on the government to ensure that “ its legislation and practice are consistent with article 18 of the Covenant.” 40 In the case of Yemen, the HRC called on the government to “ ensure that its legislation and practice are in line with the provisions of the Covenant and in particular that the right of persons to change their religion… is respected.” 41 In addition, the Committee noted “ with concern the situation of discrimination against women in matters of personal status, more particularly in marriage and divorce as well as the rights and duties of spouses,” and requested that the government ensure that “ in all fields in the life of society, women enjoy complete equality with men, both in law and in fact.” 42 ( see Part E below).
In all cases, it should be emphasized that differences may exist in practice between written provisions and actual enforcement of rights. Indeed, violations of the right to freedom of religion or belief are not restricted to countries with a declared state religion; similar violations likewise may occur in countries where the constitution does not provide for a state religion or established church. 43
39 See UN Human Rights Committee, “ Summary Record of the 2048th Meeting: Consideration of Reports Submitted By Egypt Under Article 40 of the Covenant,” UN Doc. CCPR/ C/ SR. 2048, October 23, 2002, UN Committee on the Elimination of Racial Discrimination, “ Reports Submitted By Saudi Arabia Under Article 9 of the Convention,” UN Doc. CERD/ C/ 370/ Add. 1 and Corr. 1, September 20, 2001, and UN Committee on the Elimination of Racial Discrimination, “ Summary Record of the 1558th Meeting: Consideration of Reports, Comments and Information Submitted By Saudi Arabia Under Article 9 of the Convention,” UN Doc. CERD/ C/ SR. 1558, March 10, 2003.
40 Para. 17, Human Rights Committee, “ Concluding Observations of the Human Rights Committee: Egypt” UN Doc. CCPR/ CO/ 76/ EGY, November 28, 2002 ( http:// www. unhchr. ch/ tbs/ doc. nsf/ 0/ 89189f6057f03fdec1256c68002f1ec4? Opendocument).
41 Para. 20, Human Rights Committee, “ Concluding Observations of the Human Rights Committee: Yemen” UN Doc. CCPR/ CO/ 75/ YEM, July 26, 2002 ( http:// www. unhchr. ch/ tbs/ doc. nsf/( Symbol)/ 83b4694b87b1f1abc1256c0500253d65? Opendocument).
42 Para. 7, Human Rights Committee, “ Concluding Observations of the Human Rights Committee: Yemen” UN Doc. CCPR/ CO/ 75/ YEM, July 26, 2002.
43 After reviewing the state party report submitted by Uzbekistan, the HRC concluded that the government must abolish legislation that requires “ religious organizations and associations to be registered to be entitled to manifest their religion and beliefs,” as well as a Penal Code provision “ which penalizes the failure of leaders of religious organizations to register their statutes,” since those provisions were found to violate article 18 of the ICCPR. Para. 24, Human Rights Committee, “ Concluding Observations of the Human Rights Committee: Uzbekistan”, UN Doc.
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That said, several countries with a declared state religion or an established church provide generally effective protection in law and in practice to the right to freedom of religion or belief and related human rights ( for example, Norway, Denmark, and Iceland). The circumstances under which such protection occurs include:
( a) Constitutional and/ or legislative guarantees in line with international standards for upholding freedom of thought, conscience, religion or belief and related human rights, as well as effective mechanisms to enforce these guarantees in practice;
( b) Enforceable prohibitions of discrimination on account of religion or belief; and
( c) Strong adherence to rule of law and international human rights norms, including access to enforcement mechanisms for these norms through international institutions such as the European Court of Human Rights.
E. Permissible Limitations on Freedom to Manifest a Religion or Belief Under International Law
Under international standards, no limitations whatsoever are permitted on the freedom to have or adopt a religion or belief of one’s choice. The guarantee of freedom from coercion to have or to adopt a religion or belief and the liberty of parents and guardians to ensure religious and moral education also cannot be restricted. 44 However, the freedom to manifest a religion or belief may be limited in certain circumstances according to ICCPR Art. ( 18)( 3). In the words of the UN’s HRC:
• Article 18.3 [ of the ICCPR] permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.
• In interpreting the scope of permissible limitation clauses, States parties should proceed from the need to protect the rights guaranteed under the Covenant, including the right to equality and non- discrimination on all grounds specified in articles 2, 3 and 26.
• Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18.
• The Committee observes that paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if
CCPR/ CO/ 71/ UZB 26/ 04/ 2001 April 24, 2001 ( http:// www. unhchr. ch/ tbs/ doc. nsf/( Symbol)/ CCPR. CO. 71. UZB. En? Opendocument).
44 Para. 8, General Comment 22.
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they would be allowed as restrictions to other rights protected in the Covenant, such as national security.
• Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.
• The Committee observes that the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition. 45
Despite these principles laid out by the HRC, a number of predominantly Muslim countries that have ratified the ICCPR have constitutional provisions that, on their face, permit limitations that are not consistent with international standards. 46 For example, in Afghanistan, the right to manifest religion is contingent upon “ provisions of the law”, 47 which may enable limitations of the right based on non- enumerated grounds. In addition, provisions in other countries introduce limitations not recognized under international standards including recognition of a limited list of religious communities, 48 “ public policy,” 49 “ established customs,” 50 “ decorum,” 51 “ the order established by law and the regulations,” 52 and state sovereignty and national security. 53
45 Para. 8, General Comment 22 ( emphasis added).
46 At the same time, specific limitations not in accordance with the views of the HRC also exist in countries such as Maldives, which has not signed the ICCPR. Under the Maldives constitution, the rights to freedom of conscience and expression may be restricted on the grounds of “ protecting the basic tenets of Islam.” Art. 25, Constitution of the Republic of Maldives.
47 Art. 2, Constitution of Afghanistan.
48 Art. 13, Constitution of Iran.
49 Art. 35, Constitution of Kuwait.
50 For example, Libya ( art. 2), and Bahrain ( art. 22).
51 Art. 14, Constitution of Jordan.
52 Art. 11, Constitution of Djibouti.
53 Art. 25, Constitution of Gambia. Article 14 of Turkey’s constitution also expresses a limitation to the right of freedom of religion based on national security grounds.
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III. Related Rights: Freedom of Expression, Association, and Assembly
A. Overview
Many manifestations of religion or belief also fall within the scope of the related rights of freedom of expression, association, and assembly. Thus, protection of the right to freedom of religion or belief is enhanced by effective constitutional guarantees of these related rights.
As with the freedom to manifest religion or belief, the rights to freedom of expression, association, and assembly also are subject to restriction only in limited circumstances under international standards such as the ICCPR. Restrictions on these rights may be imposed only as prescribed by law and where necessary “ in the interests of national security or public safety, public order… the protection of public health or morals or the protection of the rights and freedoms of others.” 54
B. Application of Related Rights
In several countries where Islam is the religion of the state, the constitutional provisions on the rights to freedom of expression, association, and assembly provide that the right can be circumscribed by any ordinary act of the legislature, rather than under the specific circumstances envisioned under international law. 55 However, other countries having Islam as a state religion do maintain provisions on these rights that, on their face, compare favorably with international standards. 56
From among the related human rights discussed above, freedom of religion or belief is intimately linked with the right to freedom of expression. For example, enforcement of offenses of blasphemy and injury to religious feelings may conflict with the right to freedom of expression. These types of laws “ can be used to suppress the expression of religious beliefs or opinions on religious issues that are perceived to be incorrect by or are unpopular with adherents of other religious groups, particularly the dominant group.” 57 Although outside the reach of this study, a robust analysis of how such conflicts are addressed in practice is crucial for determining the scope of freedom of religion or belief in a given country.
54 See articles 19, 21 and 22, ICCPR.
55 See for example Pakistan, art. 19, which subjects the right of freedom of expression to, inter alia, “ any reasonable restrictions imposed by law in the interest of the glory of Islam,” Bahrain, art. 23, which allows for freedom of expression “ provided that the fundamental beliefs of Islamic doctrine are not infringed, the unity of the people is not prejudiced, and discord or sectarianism is not aroused,” and Yemen, art. 41, which provides that “ The State shall by law secure freedom of thought and expression whether orally, in writing or in pictures and as provided for by law.”
56 See for example Algeria, art. 36 and Bangladesh, art. 41.
57 Tad Stahnke, “ Proselytism and the Freedom to Change Religion in International Human Rights Law,” 1999 B. Y. U. L. Rev. 289.
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IV. Equality and Prohibition of Discrimination
A. Overview
Many of the constitutions of predominantly Muslim countries contain provisions addressing:
( a) Equality before the law;
( b) Equality of rights and freedoms ( including in some cases specific provision of equal rights for men and women); and
( c) Non- discrimination in rights or other official activities on the basis of, inter alia, religion and gender.
B. Constitutional Provisions on Equality and Nondiscrimination that Compare Favorably with International Standards
Not all countries with Islam as a declared state religion have opted to make equality subject to Islamic law. Several countries with Islam as the state religion maintain equality provisions that reflect international standards. 58 For example, article 12 of Iraq’s TAL guarantees that:
All Iraqis are equal in their rights without regard to gender, sect, opinion, belief, nationality, religion, or origin, and they are equal before the law. Discrimination against an Iraqi citizen on the basis of his gender, nationality, religion, or origin is prohibited. Everyone has the right to life, liberty, and the security of his person. No one may be deprived of his life or liberty, except in accordance with legal procedures. All are equal before the courts.
Oman’s constitution states that “ All citizens are equal before the Law and share the same public rights and duties. There is no discrimination between them on the ground of gender, origin, colour, language, religion, sect, domicile, or social status.” 59 Similarly, Algeria provides that “ citizens are equal before the law without any possible discrimination on the basis of birth, race, gender ( sex), opinion or all other conditions or personal or social circumstance.” 60
58 According to the HRC, discrimination, as used in the ICCPR, “ should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.” In the same respect, the HRC also found that article 26 of the ICCPR ( equal protection) does not “ merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities.” Para. 7 and 12, Human Rights Committee, “ General Comment No. 18: Non- discrimination”, CCPR/ C/ 21/ Rev. 1/ Add. 1 ( 1989), 10 November 1989 ( http:// www. unhchr. ch/ tbs/ doc. nsf/ 0/ 3888b0541f8501c9c12563ed004b8d0e? Opendocument).
59 Oman, art. 17.
60 Algeria, art. 29.
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The constitutions of some predominantly Muslim countries go even further in asserting the right of equality and protection from discrimination. For example, Syria’s constitution guarantees “ for women all opportunities enabling them to fully and effectively participate in the political, social, cultural, and economic life” and provides that “ citizens are equal before the law in their rights and duties.” 61 Likewise, Chad’s constitution ensures that “ Chadians of either sex have the same rights and the same duties” and extends “ to all equality before the law, without distinction of origin, race, sex, religion, political opinion, or social position.” 62
C. Constitutional and Other Limitations on the Rights to Equality and Nondiscrimination
At least five constitutions of countries where Islam is the religion of the state, including Egypt and Bahrain, explicitly make equality subject to Islamic principles or the rules of Islamic jurisprudence regarding the treatment of men and women. 63 Qualifying equality in this way may subject women to discriminatory treatment in law and practice, particularly with regard to personal status issues such as marriage, divorce, and inheritance. Typically, this issue does not arise in secular states, where the principle of equality is expressed without qualification.
Still other predominantly Muslim countries’ constitutions provide exceptions from general nondiscrimination provisions for personal status issues such as adoption, marriage, and divorce, 64 or limit the application of equality to specific rights, 65 or do not address the issues of equality and discrimination altogether. 66
Finally, the constitutions of a number of predominantly Muslim countries may restrict to Muslim citizens the right to serve in government positions, and particularly to hold executive power. This is achieved by requiring a specific Islamic oath or by stipulating that only Muslims can hold a given position. For example, in Yemen, the president, vice- president, members of the House of Representatives, prime minister, and other ministers must take the following constitutional oath: “ I solemnly swear to God the Almighty that I shall abide by the Holy Koran and the Sunnah of Prophet Muhammed…” 67 Alternatively, according to the Tunisian constitution, only a Tunisian citizen “ of Moslem religion… may present himself as a candidate for the Presidency of the Republic,” in Syria, “ the religion of the President of the Republic shall be Islam,” and in Pakistan, “ A person shall not be qualified for election as President unless he is a Muslim.” 68 In other predominantly Muslim countries, an Islamic oath is required by individuals before being permitted to take office.
61 Syria, arts. 45 and 25.
62 Chad, arts. 13 and 14.
63 Bahrain, art. 5( b); Egypt, art. 11; Iran, arts. 20- 21; Saudi Arabia, art. 8; and Yemen, art. 31.
64 Sierra Leone, art. 27( 4)( d) and Gambia, art. 33( 5)( c).
65 For example, compare the Moroccan constitution’s provision “ Men and Women enjoy equal political rights” ( art. 8), with Azerbaijan’s more broadly formulated, “ Men and women have equal rights and freedoms” ( art. 25).
66 See for example Brunei.
67 Yemen, art. 159.
68 Tunisia, art. 40, Syria art. 3( 1), and Pakistan art. 41( 2).
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This restriction also may manifest itself in more specific forms, whereby practice of a particular strand of Islam is established— often in favor of another Muslim community— as a prerequisite to political office. For example, in the Maldives, a “ person shall be qualified to be elected as President if he is a Muslim of Sunni following;” and in Brunei, “ No person shall be appointed to be Prime Minister unless he is a Brunei Malay professing the Muslim religion and belonging to the [ Shafeite] sect of that religion.” 69
69 Maldives, art. 34( a), and Brunei, art. 4( 5) emphasis added.
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V. Constitutional Law: Supremacy, Remedies for Rights Violations, and Revisions
A. Laws Inconsistent with Fundamental Rights May Be Void
The constitutions of at least three predominantly Muslim countries which have established Islam as the state religion, as well as Iraq’s TAL, contain a provision that makes void any law inconsistent with fundamental rights as set out in the constitution. 70 For example, article 26 of Bangladesh’s constitution provides:
( 1) All existing law inconsistent with the provisions [ on fundamental rights] shall, to the extent of such inconsistency, become void on the commencement of this Constitution.
( 2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.
Pakistan’s constitution also provides safeguards for protection of fundamental rights under article 8:
( 1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter [ on fundamental rights] shall, to the extent of such inconsistency, be void.
( 2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extend [ sic] of such contravention, be void. 71
More generally, the constitutions of several predominantly Muslim countries provide for the supremacy of the constitution over other laws and regulations, and also establish a constitutional court or other official body to assess the conformity of laws to the constitution, including guarantees of human rights. Malaysia’s provision on constitutional supremacy is not as specific as Bangladesh’s, yet it still provides that the constitution:
is the supreme law of the Federation and any law passed… which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void. 72
70 These countries are: Bangladesh, Pakistan, and Maldives ( art. 31).
71 It should be noted that Pakistan’s constitution also tasks a Federal Shariat Court with examining “ 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.” If such a law is determined to be repugnant to those injunctions, “ such law or provision shall, to the extent to which it is held to be so repugnant, case [ sic] to have effect on the day on which the decision of the Court takes effect See Art. 203( D)( 1) and ( D)( 3)( b), Pakistan.
72 Art. 4( 1), Malaysia.
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B. Constitutionally Recognized Rights May be Superseded by Ordinary Law
Some constitutions do not entrench supremacy for human rights guarantees and as a consequence, in certain situations these guarantees may be superseded by an ordinary act of legislation. As noted above, Afghanistan’s new constitution, on its face, permits ordinary legislation to restrict or trump fundamental individual rights. Other countries with similar provisions include Senegal, Yemen, and Iran. 73
C. Review of Constitutionality May Implicate the Conformity of Legislation with Islam
In states where Islamic principles, law, or jurisprudence are established in the constitution as a basis or standard of legislation, a judicial or other body empowered to assess the constitutionality of laws may also have the authority to review legislation for its conformity to Islam. One example is the Supreme Constitutional Court of Egypt, which, in addition to enforcement of constitutionally recognized human rights, has been tasked with interpretation of the constitution’s provision that “ Islamic jurisprudence is the principal source of legislation.” 74 In the Iraq TAL, “ Islam… is to be considered a source of legislation,” 75 and article 44( b)( 2) provides the Federal Supreme Court with:
Original and exclusive jurisdiction, on the basis of a complaint from a claimant or a referral from another court, to review claims that a law, regulation, or directive issued by the federal or regional governments, the governorate or municipal administrations, or local administrations is inconsistent with [ the Transitional Administrative Law].
Another example is Afghanistan’s new constitution, which establishes that “ no law can be contrary to the sacred religion of Islam and the values of [ the] Constitution,” 76 and also empowers the Supreme Court to review legislation for conformity to the constitution, provided such a review is made at “ the request of the Government and/ or the Courts.” 77 As noted above, the Afghan constitution also requires courts to apply Hanafi jurisprudence where the constitution or existing laws are silent. 78
D. Remedies for Violations of Constitutionally Recognized Rights
Some constitutions provide explicitly for remedies for violations of constitutionally recognized rights, including violations by government officials. In Turkey, “ Everyone whose constitutional
73 Art. 8, Senegal, Art. 41, Yemen, Art. 13, Iran,
74 Art. 2, Egypt.
75 Art. 7( a), Iraq TAL.
76 Art. 3, Afghanistan.
77 Art. 121, Afghanistan.
78 Art. 130, Afghanistan. See Part III( C)( iii) above.
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rights and freedoms are violated has the right to request prompt access to the competent authorities” and the “ State is obliged to indicate in its transactions, the legal remedies and authorities the persons concerned should apply and their time limits.” 79 Sudan’s constitution sets out a similar provision under article 34:
Every aggrieved person who has exhausted means of grievance and complaint to the executive and administrative organs, shall have the right of access to the Constitutional Court to protect the freedoms, sanctities and rights set out in this Chapter; and the Constitutional Court may according to due process exercise the power to annul any law or order that contravenes the Constitution and restore the right to the aggrieved or compensate him for damage sustained.
Albania, Azerbaijan, and Bangladesh also provide for such remedies in their respective constitutions. 80
E. Prohibitions on Certain Revisions to the Constitution
Another notable provision found in several constitutions seeks to entrench certain state- defining elements by preventing their modification. In some cases, such as Chad, these protected provisions guarantee the secular nature of the state and the fundamental rights of its citizens. The Chadian constitution specifies that:
No procedure of revision may be started or pursued if it interferes with:
- the integrity of the territory, independence or national unity;
- the republican form of the State, the principle of the division of powers and secularity;
- the freedoms and fundamental rights of the citizen… 81
In contrast, the prohibition on revisions found in the constitutions of several countries where Islam is the religion of the state protects the Islamic character of the state. According to Iran’s constitution:
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… and the… official religion of Iran [ Islam]… are unalterable. 82
Finally, Algeria’s constitution demonstrates that both fundamental rights and Islam as a state religion may be considered essential state characteristics that cannot be subject to revision.
79 Art. 40, Turkey.
80 Art. 4, Albania, art. 60, Azerbaijan, and art. 44, Bangladesh.
81 Art. 225, Chad.
82 Art. 177, Iran. See also Morocco, art. 106.
25
According to the constitutional text, no constitutional revision “ may impinge on… Islam, as the religion of the State [ or on] fundamental liberties, on the rights of man and citizen.” 83
83 Art. 178( 3) and ( 5), Algeria. See also Qatar, arts. 145- 146, Afghanistan, art. 149, and Iraq, art. 3( a). Kuwait’s constitution permits revisions with respect to the role of Islam; however it prevents amendments with respect to “ the principles of liberty and equality…[ unless such an amendment serves] to increase the guarantees of liberty and equality.” Kuwait, art. 175. 26
VI. Reference to International Agreements and Human Rights Instruments
A. Overview
Protection of the right to freedom of religion or belief can be enhanced by constitutional references to international human rights instruments, including human rights treaties to which the country is a party. The application of these international human rights protections, if considered part of the domestic law of the state and enforceable through the courts or other means, can supplement other constitutional provisions on human rights.
B. Affirmative Obligation or General Reference to International Human Rights Instruments
The constitutions of predominately Muslim countries address in a variety of ways international human rights documents such as the UDHR and other international agreements to which the state is a party, including the UN Charter and the ICCPR. Some of these constitutions may contain an affirmative obligation to abide by specific international human rights instruments. For example, article 7 of Afghanistan’s new constitution declares that the state “ shall abide by the UN charter, international treaties, international conventions that Afghanistan has signed, and the Universal Declaration of Human Rights.” In a similar manner, article 6 of Yemen’s constitution provides that the state “ shall abide by the United Nations Charter, the Universal Declaration on Human Rights, the Arab League Charter and the universally recognized rules of international law.”
States with constitutions that lack any specific affirmative obligation to abide by international human rights instruments may, nonetheless, make reference more generally to “ international… treaties and the generally recognized norms of international Law conducive to the promotion of peace and security,” 84 subscribe “ to the principles and objectives of the Charter of the United Nations,” 85 or respect “ the international charters and treaties… to which it is a party.” 86 Other constitutions may allude to such documents in their preambles, 87 whereas others make no reference at all to any international documents or treaties.
C. Incorporation of International Treaties into Domestic Law
Several primarily Muslim countries’ constitutions provide that an international agreement duly ratified by the state has the force of law. In some of these countries, in addition to ratification, an
84 Art. 10, Oman.
85 Art. 28, Algeria.
86 Art. 6, Qatar.
87 See for example, Lebanon, Guinea, and Mali.
27
enactment by the legislative body is required for an agreement to have the force of law. Examples include Chad and Egypt. 88
88 Chad, art. 222 and Egypt, art. 151 28
VII. Appendix
A. Table I: Relationship Between Religion and the State Constitutional Provisions ( By Region) 89
Middle East/ North Africa
Country
% Muslim
Islamic or Secular State?
Islam State Religion?
Islamic Law Source of Law or Legislation?
Constitutional Formulation
Algeria90
99%
n/ a
Yes
No
Article 2
Islam is the religion of the State.
Article 9
The [ government] institutions forbid:
…
– practices contrary to Islamic morals and the values of [ the] November [ revolution].
Article 171
Next to the President of the Republic, a High Islamic Council is established… especially to:
– encourage and promote ijtihad [ independent legal interpretation of Islamic law];
– to provide its opinion on the religious rules on what is submitted to it…
Article 178
No constitutional revision may impinge on:
…
2. The democratic character based on plural parties.
3. Islam, as the religion of the State.
…
5. On fundamental liberties, on the rights of man and citizen.
...
89 All constitution excerpts, unless indicated otherwise, are taken from the most current volume of Albert P. Blaustein and Gisbert H. Flanz, eds., Constitutions of the Countries of the World ( New York: Oceana Publications, Inc.). All population data are taken from the Annual Report on International Religious Freedom 2004, prepared by the U. S. Department of State’s Bureau of Democracy, Human Rights and Labor ( http:// www. state. gov/ g/ drl/ rls/ irf/ 2004/) and the U. S. Department of State’s Country Background Notes ( http:// www. state. gov/ r/ pa/ ei/ bgn/).
29
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of Law
or Legislation?
Constitutional Formulation
Bahrain91
98%
Islamic
Yes
Yes
Article 1
a. The Kingdom of Bahrain is [ a] fully sovereign, independent Islamic Arab State…
Article 2
The religion of the State is Islam. The Islamic Shari’a is a principal source for legislation…
Article 5
b. The State guarantees reconciling the duties of women towards the family with their work in society, and their equality with men in political, social, cultural, and economic spheres without breaching the provisions of Islamic canon law ( Shari’a).
d. Inheritance is a guaranteed right governed by the Islamic Shari’a.
Article 120
c. It is not permissible to propose an amendment to Article 2 of this Constitution, and it is not permissible under any circumstances to propose the amendment of… the principles of freedom and equality established in this Constitution.
Egypt92
90%
n/ a
Yes
Yes
Article 2
Islam is the religion of the State… Islamic jurisprudence is the principal source of legislation.
Iran93
99%
Islamic
Yes
Yes
Article 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 Qur’ānic justice…
Article 2
The Islamic Republic is a system based on belief in:
1. the One God ( as stated in the phrase “ There is no god except Allah”),
90 Constitution of Algeria, 1996 ( as amended to 2002).
91 Constitution of the Kingdom of Bahrain, as promulgated by King Hamad bin Isa Al Khalifa on February 14, 2002.
92 Constitution of the Arab Republic of Egypt, 1971 ( as amended to 1980).
93 Constitution of the Islamic Republic of Iran, 1979 ( as amended to 1989). The Iranian Constitution contains a lengthy preamble and numerous additional provisions touching on the relationship between Islam and the state.
30
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of Law
or Legislation?
Constitutional Formulation
His exclusive sovereignty and the right to legislate, and the necessity of submission to His commands;
2. Divine revelation and its fundamental role in setting forth the laws…
Article 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 fuqahā’ of the Guardian Council are judges in this matter.
Article 12
The official religion of Iran is Islam and the Twelver Ja’farî school [ in uṣūl al- Dîn and fiqh], and this principle will remain eternally immutable. Other Islamic schools, including the Ḥanafî, Shāfi’î, Mālikî, Ḥanbalî, and Zaydî, are to be accorded full respect, and their followers are free to act in accordance with their own jurisprudence in 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 in accordance with the respective school of fiqh, without infringing upon the rights of the followers of other schools.
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…
Article 177
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 wilāyat al-’ amr; the Imamate of Ummah… [ and
31
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of Law
or Legislation?
Constitutional Formulation
the] official religion of Iran [ Islam] and the school [ Twelver Ja’fari] are unalterable.
Iraq 192594
n/ a
n/ a
Yes
In certain matters.
Article 13
Islam is the official religion of the State…
Article 76
The Shara [ Sharia] courts alone shall be competent to deal with actions relating to the personal status of Moslems and actions relating to the administration of Waqf foundations.
Iraq 2004 ( TAL) 95
97%
n/ a
Yes
Yes
Article 3 [ Supreme Law]
( A) This Law is the Supreme Law of the land and shall be binding in all parts of Iraq without exception… Likewise, no amendment may be made that could abridge in any way the rights of the Iraqi people cited in Chapter Two… reduce the powers of the regions or governorates; or affect Islam, or any other religions or sects and their rites.
Article 7 [ State Religion, Freedom of Religion, Arab Nation]
( A) Islam is the official religion of the State and is to be considered a source of legislation. No law that contradicts the universally agreed tenets of Islam, the principles of democracy, or the rights cited in Chapter Two of this Law may be enacted during the transitional period. This Law respects 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.
Jordan96
95%
n/ a
Yes
In certain matters.
Article 2
Islam shall be the religion of the State…
Article 104
The Religious Courts shall be divided into:—
( i) The Sharia Courts
( ii) The tribunals of other Religious Communities.
94 Constitution of the Kingdom of Iraq, 1925. British and Foreign State Papers, 1926, Part I, Vol. CXXIII, London 1931, 383- 402 ( http:// www. geocities. com/ dagtho/ iraqiconst19250321. html) or via the constitution finder project at the T. C. Williams School of Law, University of Richmond ( http:// confinder. richmond. edu/).
95 Law of Administration for the State of Iraq for the Transitional Period ( TAL), March 8, 2004 ( http:// www. cpa- iraq. org/ government/ TAL. html).
96 Constitution of the Hashemite Kingdom of Jordan, 1952 ( as amended to 1984). 32
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of Law
or Legislation?
Constitutional Formulation
Article 105
The Sharia Courts shall have exclusive jurisdiction in the following matters in accordance with its special laws:
( i) Matters of personal status of Moslems
( ii) Cases concerning blood money ( diyeh) where the two parties are Moslems or where one of the parties is not a Moslem and the two parties consent to the jurisdiction of the Sharia Courts.
Article 106
The Sharia Courts shall apply in its proceedings the provisions of the Sharia Law.
Article 108
The tribunals of Religious Communities are the tribunals of the non- moslem [ sic] religious tribunals which were or will be recognized by the Government as being established in the Hashemite Kingdom of Jordan.
Kuwait97
85% of residents
n/ a
Yes
Yes
Article 2
The religion of the State is Islam, and the Islamic Sharia shall be a main source of legislation.
Article 18
…
Inheritance is a right governed by the Islamic Sharia.
Lebanon98
70%
n/ a
No
No
n/ a
Libya
97%
n/ a
Yes
Yes
Constitutional Proclamation, 11 December 196999
Article 2
Islam is the religion of the State and Arabic is its official language. The State protects religious freedom in accordance with established customs.
Article 8
… Inheritance is a right which will be governed by the Islamic Shari’a.
97 Constitution of the State of Kuwait, 1962.
98 The Lebanese Constitution, promulgated on May 23, 1926 ( as amended to 1995).
33
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of Law
or Legislation?
Constitutional Formulation
Morocco100
99%
n/ a
Yes
No
Article 6
Islam is the religion of the State which guarantees to all freedom of worship.
Article 19
The King… ensures the observance of Islam and the Constitution. He is the protector of the rights and liberties of the citizen, social groups and collectivities.
Article 106
The monarchic form of the State as well as the provisions relating to the Islamic religion cannot be the object of a constitutional revision.
Oman101
99% of citizens
Islamic
Yes
Yes
Article 1
The Sultanate of Oman is an Arab, Islamic, Independent State with full sovereignty and Muscat is its Capital.
Article 2
The State’s religion is Islam and Islamic Sharia is the basis for legislation.
Article 10
The Political Principles:
…
Laying suitable foundations for consolidating the pillars of genuine shura emanating from the country’s heritage, values and its Islamic Sharia, taking pride in its history while adopting the useful contemporary methods and tools.
Article 11
The Economic Principles:
... Inheritance is a right governed by Islamic Sharia.
99 Libya has not had a constitution since the overthrow of King Idris in 1969. The Revolutionary Command Council published its Constitutional Proclamation on December 11, 1969. The subsequent Declaration on the Establishment of the Authority of the People ( 1977) noted at article 2 that “ The Holy Kuran is the constitution of the Socialist People’s Libyan Arab Jamahiriya.”
100 Revised Constitution of Morocco, 1996. Adopted by referendum September 13, 1996 and promulgated October 7, 1996.
101 Basic Statute of the State of Oman, 1996.
34
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of Law
or Legislation?
Constitutional Formulation
Qatar102
99% of citizens
n/ a
Yes
Yes
Article 1
Qatar is an Arab State, sovereign and independent. Its religion is Islam, and the Islamic Law is the main source of its legislations. Its system is democratic, and its official language is the Arabic language...
Article 51
The right of inheritance is inviolable and is governed by the Islamic Law.
Saudi Arabia
99% of citizens
Islamic
Yes
Yes
The Basic System of the Consultative Council ( Decree A/ 90), 1992103
Article 1
The Kingdom of Saudi Arabia is an Arab and Islamic sovereign state. Its religion is Islam, and its constitution, the holy Quran and the prophet’s Sunnah…
Article 6
The citizens will take allegiance before the monarch in line with the holy Quran and the prophet’s Sunnah.
Article 7
The rule in the kingdom depends on the holy Quran and the prophet’s Sunnah.
Article 8
The rule in the kingdom is based on justice, consultations and equality in accordance with the Islamic Sharia.
Article 23
The state protects the Islamic creed, carries out its Sharia and undertakes its duty towards the Islamic call.
Article 46
The judicial authority is an independent organ and nobody has authority
102 Permanent Constitution of the State of Qatar, adopted by referendum on April 29, 2003.
103 Saudi Arabia has no written constitution. After releasing the decree cited here, King Fahd Ibn Abdulaziz affirmed that the announcement of the basic system of government was only an authentication of regulations already emanating from sharia.
35
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of Law
or Legislation?
Constitutional Formulation
over the judges except the authority of the Islamic sharia.
Article 48
The system of judges which is applied to all cases presented before it is, sharia rules according to the teachings of the holy quran, the sunnah, and the regulations set by the ruler provided that they do not contradict the holy Quran and sunnah.
Article 55
The king will rule the nation according to the rulings of Islam and supervise the application of sharia ( Islamic laws), the state’s general policy and the protection and defense of the country.
Syria104
90%
n/ a
No
Yes
Article 3
( 2) Islamic jurisprudence is a main source of legislation.
Tunisia105
98%
n/ a
Yes
No
Article 1
Tunisia is a free State, independent and sovereign; its religion is… Islam, its language is Arabic and its regime is the Republic.
U. A. E. 106
96%
n/ a
Yes
Yes
Article 7
Islam shall be the official religion of the Union. The Islamic Shari’ah shall be a principal source or legislation in the Union…
Yemen107
100%
Islamic
Yes
Yes
Article 1
The Republic of Yemen is an independent, sovereign, Arab Islamic State which is inseparable and no part of it shall be ceded. The Yemeni people is part of the Arab and Islamic nation
Article 2
Islam is the religion of the State and Arabic is its official language.
Article 3
The Islamic Sharia’a ( jurisprudence) shall be the source of all legislations.
104 Constitution of the Syrian Arab Republic, 1973 ( as amended to 2000).
105 Constitution of the Tunisian Republic, 1959 ( as amended to 1993).
106 The 1971 Provisional Constitution of the United Arab Emirates was made permanent under Constitutional Amendment No. ( 1) of 1996.
107 Constitution of the Republic of Yemen, 1994.
36
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of Law
or Legislation?
Constitutional Formulation
Article 23
The right to inherit according to Islamic Sharia’a shall hereby be guaranteed by law.
Article 46
… Crime and punishment shall be determined by the provisions of Sharia’a and law...
Article 59
The defence of religion and the country is a sacred duty and military service is an honour... 37
South Asia
Country
% Muslim
Islamic or Secular State?
Islam State Religion?
Islamic Law Source of Legislation?
Constitutional Formulation
Afghanistan108
99%
Islamic
Yes
No law can be contrary to Islam.
Article 1
Afghanistan is an Islamic Republic, independent, unitary and indivisible State.
Article 2
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.
Article 3
In Afghanistan, no law can be contrary to the sacred religion of Islam and the values of this Constitution.
Article 130
When there is no provision in the Constitution or the laws with respect to a case under consideration, the court shall follow the provisions of the Hanafi jurisprudence within the provisions set forth in this Constitution to render a decision that secures justice in the best possible way.
Article 131
Courts shall apply Shia jurisprudence in cases dealing with personal matters involving the followers of the Shia Sect in accordance with the provisions of the law.
In other cases as well, where no provisions of this Constitution and other laws apply and both sides of the case are followers of the Shia Sect, courts shall resolve the case according to laws of this Sect.
Article 149
The provisions of adherence to the provisions of the sacred religion of Islam and the republican regime cannot be amended.
Bangladesh109
88%
n/ a
Yes
No
Article 2
The state religion of the Republic is Islam, but other religions may be
108 Constitution of the Islamic Republic of Afghanistan, 2003.
109 Constitution of the People’s Republic of Bangladesh 1972 ( as amended to 1996).
38
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of
Legislation?
Constitutional Formulation
practiced in peace and harmony in the Republic.
Article 8
( 1A) Absolute trust and faith in the Almighty Allah shall be the basis of all actions.
( 2) The principles set out in this Part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh, and shall form the basis of the work of the State and of its citizens, but shall not be judicially enforceable.
Maldives110
100%
Islamic
Yes
Yes
Article 1
The Maldives shall be a sovereign, independent, democratic republic based on the principles of Islam…
Article 7
The religion of the State of the Maldives shall be Islam.
Article 16
( 2) Every person who is charged with an offence shall have the right to defend himself in accordance with Shari’ah…
Article 23
( 1) Property of persons shall be inviolable. No person shall be deprived of his property except as provided by law or Shari’ah.
Article 38
The President shall be the supreme authority to propagate the tenets of Islam in the Maldives. 111
Article 43
The powers of the President shall be exercised subject to Shari’ah and the Constitution. Nothing shall be done in violation of Shari’ah or the Constitution.
110 Constitution of the Republic of Maldives, 1998.
111 According to Article 156, “ Propagation of the tenets of Islam means the administration of the faith, beliefs and the doctrines of Islam and the facilitation of the practice of the same.”
39
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of
Legislation?
Constitutional Formulation
Article 156
In this Constitution the word ‘ law’ also includes the norms and provisions of Shari’ah established by the Noble Quran and the traditions of the Noble Prophet, and the rules derived therefrom.
Pakistan112
96%
Islamic
Yes
Yes
Article 1
( 1) Pakistan shall be [ a] Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan.
Article 2
Islam shall be the State religion of Pakistan
Article 31
( 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 endeavour, as respects the Muslims of Pakistan,—
( a) to make the teaching of the Holy Quran and Islamiat compulsory… 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;
…
Article 203( C)
( 1) There shall be constituted for the purposes of this Chapter a court to be called the Federal Shariat Court.
( 2) The Court shall consist of not more than eight Muslim [ Judges], including the [ Chief Justice], to be appointed by the President.
Article 203( D)
( 1) The Court may… examine and decided the question whether or not any law… is repugnant to the Injunctions of Islam, as laid down in the
112 Constitution of the Islamic Republic of Pakistan, 1973 ( as amended to 2002).
40
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of
Legislation?
Constitutional Formulation
Holy Quran and the Sunnah of the Holy Prophet...
…
( 3) If any law or provision of law is held by the Court to be repugnant to the injunctions of Islam,—
( a) the President… or the Concurrent Legislative List, or the Governor… shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam; and
( b) such law or provision shall, to the extent to which it is held to be so repugnant, case [ sic] to have effect on the day on which the decision of the Court takes effect.
Article 227
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
…
( 3) Nothing in this Part shall affect the personal laws of non- Muslim citizens or their status as citizens.
Article 228
( 1) There shall be, constituted… a Council of Islamic Ideology, in this part referred to as the Islamic Council.
( 2) The Islamic Council shall consist of such members… as the President may appoint from amongst persons having knowledge of the principles and philosophy of Islam as enunciated in the Holy Quran and Sunnah, or understanding of the economic, political, legal or administrative problems of Pakistan.
Article 229
The President or the Governor of a Province may, or if two- fifths of its total membership so requires, a House or a Provincial Assembly shall, refer to the Islamic council for advice any question as to whether a proposed law is or is not repugnant to the Injunctions of Islam.
Article 230
( 1) The functions of the Islamic Council shall be—
41
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of
Legislation?
Constitutional Formulation
( a) to make recommendations to [ Majlis- e- Shoora ( Parliament)] and the Provincial Assemblies as to the ways and means of enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in all respects in accordance with the principles and concepts of Islam as enunciated in the Holy Quran and Sunnah;
( b) to advice [ sic] a House, a Provincial Assembly, the President or a Governor on any question referred to the Council as to whether a proposed law is or is not repugnant to the Injunctions of Islam;
( c) to make recommendations as to the measures for bringing existing laws into conformity with the Injunctions of Islam and the stages by which such measures should be brought into effect; and
( d) to compile in a suitable form, for the guidance of [ the Majlis- e- Shoora] and the Provincial Assemblies, such Injunctions of Islam as can be given legislative effect. 42
East Asia
Country
% Muslim
Islamic or Secular State?
Islam State Religion?
Islamic Law Source of Legislation?
Constitutional Formulation
Brunei113
67%
Islamic114
Yes
No
Article 3
( 1) The religion of Brunei Darussalam shall be the Muslim Religion according the Shafeite sect of that religion. Provided that all other religions may be practiced in peace and harmony by the person professing them in any part of Brunei Darussalam.
( 2) The Head of the religion of Brunei Darussalam shall be His Majesty the Sultan and Yang Di- Pertuan [“ Supreme Ruler”].
Indonesia115
87%
n/ a
No
No
Article 29
( 1) The State shall be based upon the belief in the One and Only God.
Malaysia116
60.4%
n/ a
Yes
In certain matters.
Article 3
( 1) Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
…
( 4) Nothing in this Article derogates from any other provision of this Constitution.
NINTH SCHEDULE
Legislative Lists117
List II— State List
1. Except with respect to the Federal Territories of Kuala Lumpur and Labuan, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption,
113 Constitution of Brunei Darussalam, 1959 ( as revised to 1984). Although some provisions were suspended under a State of Emergency in December 1962 and others since independence on January 1, 1984, the government maintains that the constitution remains the supreme law.
114 Brunei defines itself as an Islamic state that “ honors everything which embodies Islam in a moderate way.” The National Philosophy of Melayu Islam Beraja ( MIB), or Malay Islamic Monarchy, is the nation's “ formal guiding light” and represents a blend of Malay culture, the teaching of Islamic laws and values and the monarchy system. According to Brunei’s government, since Islam is tolerant of all religions, “ the MIB philosophy cannot be viewed as a force which stifles the practice of other religions.” It is expected that MIB “ be esteemed and practiced by all.” ( http:// www. brunei. gov. bn/ government/ mib. htm).
115 Constitution of the Islamic Republic of Pakistan, 1973 ( as amended to 2002).
116 Constitution of Malaysia, 1957 ( as amended to 1994).
117 This section sets out the division of legislative powers between the federal and state governments in Malaysia. Sharia courts are regulated on the state level.
43
legitimacy, guardianship, gifts, partitions and non- charitable trusts; Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public places of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organisation and procedure of Syariah [ sharia] courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law, the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.
44
Africa
Country
% Muslim
Islamic or Secular State?
Islam State Religion?
Islamic Law Source of Legislation?
Constitutional Formulation
Burkina Faso118
60%
Secular
No
No
Article 31
Burkina Faso is a democratic, unitary and secular State.
Chad119
54%
Secular
No
No
Article 1
Chad is a Republic, sovereign, independent, secular, social, one and indivisible, founded on the principles of democracy, the rule [ règne] of law and justice.
The separation between State and religions is affirmed.
Comoros120
99%
n/ a
No
No
Preamble
The Comorian people solemnly affirm their will to:
draw from Islam the permanent inspiration for the principles and rules that shall govern the union…
This preamble forms an integral part of the Constitution.
Article 9
The Union will have exclusive jurisdiction in the following matters: religion, nationality, currency, foreign relations, external defense, and national symbols.
Article 36
… the Council of the Ulemas and the Economic and Social Council shall assist as needed, the government of the Union… in formulating decisions that affect the religious, economic and social life of the country.
Djibouti121
99%
n/ a
No
No
Article 1
The State of Djibouti shall be a democratic sovereign Republic, one and indivisible. It shall ensure the equality of all citizens before the law, without distinction as to origin, race, sex or religion. It shall respect all beliefs.
118 Constitution of Burkina Faso, 1991 ( as amended to 1997).
119 Constitution of the Republic of Chad, 1996.
120 Constitution of the Union of Comoros, 2001, adopted by referendum. Translated from the French by USCIRF. Original French version available at http:// www. accpuf. org/ com/ constit. htm and http:// portail. droit. francophonie. org/ doc/ html/ km/ con/ 2001dfkmco1. html. According to the State Department, as of March 2004 the National Assembly is tasked with finalizing a new constitution for the Union. A new government was appointed in July 2004.
121 Constitution of the Republic of Djibouti, 1992.
45
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of
Legislation?
Constitutional Formulation
Gambia122
95%
n/ a
No
In certain matters
Article 7
In addition to this Constitution, the laws of The Gambia consist of—
…
( f) the Sharia as regards matters of marriage, divorce and inheritance among members of the communities to which it applies.
Article 100
( 2) The National Assembly shall have no power to pass a Bill—
…
( b) to establish any religion as a state religion;
…
Article 137
( 1) A Cadi Court shall be established in such places in The Gambia as the Chief Justice shall determine.
…
( 4) The Cadi Court shall only have jurisdiction to apply the Sharia in matters of marriage, divorce and inheritance where the parties or other persons interested are Muslims.
Guinea123
85%
Secular
No
No
Article 1
Guinea is a unitary, indivisible, secular, democratic and social Republic. It shall assure equality before the law for all citizens, without distinction of origin, race, ethnicity, sex, religion and opinion. It shall respect all beliefs.
Mali124
90%
Secular
No
No
Article 25
Mali is an independent, sovereign, indivisible, democratic, secular and social Republic. Its principle is government of the People, by the People and for the People.
Mauritania125
100%
Islamic
Yes
No
Article 1
Mauritania is an indivisible, democratic and social Islamic Republic.
Article 5
Islam shall be the religion of the people and of the State.
122 Constitution of the Gambia, 1996.
123 Fundamental Law of the Second Republic of Guinea, 1990
124 Decree 92- 073 of 25 February 1992 Concerning Promulgation of the Constitution.
125 Constitution of the Islamic Republic of Mauritania, 1991.
46
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of
Legislation?
Constitutional Formulation
Article 94
There shall be instituted next to the President of the Republic a High Islamic Council composed of five ( 5) members.
…
It shall formulate opinions concerning the questions about which it has been consulted by the President of the Republic.
Niger126
90%
n/ a
No
No
Article 4
The Republic of Niger is one and indivisible, democratic and social.
Its fundamental principles are:
• …
• the separation of the State and of religion.
Article 8
The Republic of Niger is a State of Law ( État de droit). The Republic shall assure to all the equality before the law without distinction of sex, of social, ethnic or religious origin. The Republic shall respect and protect all faiths. No religion [ nor] belief shall assume… political power nor interfere in the affairs of the State.
Article 136
…
The republican form of the State, multipartism, the principle of separation of State and religion and the provisions of articles 36 and 141 of this Constitution cannot be the object of an amendment.
Senegal127
94%
Secular
No
No
Article 1
The Republic of Senegal is secular, democratic, and social. It assures the equality before the law of all citizens, without distinction of origin, race, sex ( or) religion. It respects all faiths.
Sierra Leone128
60%
n/ a
No
No
Article 5
( 1) The Republic of Sierra Leone shall be a State based on the principles of Freedom, Democracy and Justice.
126 Constitution of the Republic of Niger, 1999.
127 Constitution of the Republic of Senegal, 2001.
128 Constitution of Sierra Leone, 1991.
47
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of
Legislation?
Constitutional Formulation
Article 6
( 2) … the State shall promote national integration and unity and discourage discrimination on the grounds of place of origin, circumstance of birth, sex, religion, status, ethnic or linguistic association or ties.
Somalia
99%
A new administration for Somalia was recently established but the country remains without a recognized constitution. 129
Sudan130
65- 75%
n/ a
No
Yes
Article 1
… Islam is the religion of the majority of the population. Christianity and customary creeds have considerable followers.
Article 4
Supremacy in the State is to God the creator of human beings, and sovereignty is to the vicegerent people of the Sudan who practice it as worship of God, bearing the trust, building up the country and spreading justice, freedom and public consultation. The Constitution and the law shall regulate the same.
Article 18
Those in service in the State and public life shall envisage the dedication thereof for the worship of God, wherein Muslims stick to the scripture and tradition, and all shall maintain religious motivation and give due regard to such spirit in plans, laws, policies and official business in the political economic, social and cultural fields in order to prompt public life towards its objectives, and adjust them towards justice and up- rightness to be directed towards the grace of God in The Hereafter.
Article 65
Islamic law and the consensus of the nation, by referendum, Constitution and custom shall be the sources of legislation; and no legislation in
129 The Transitional National Government ( TNG), established in August 2000, had a three year mandate to draft a new constitution and hold elections. The TNG failed to accomplish this goal, but the process is ongoing. In October 2004, Abdullahi Yusuf Ahmed was sworn in as Somalia’s new president in Kenya. However, security concerns have kept Yusuf and the new parliament in Nairobi. Other governing bodies continue to control various cities and regions of Somalia, including Somaliland, Puntland, and traditional clan and faction strongholds. The negotiations that allowed a new administration to be established for Somalia have been conducted under the auspices of the Inter Governmental Authority on Development, a regional body comprising Kenya, Uganda, Sudan, Somalia, Ethiopia, Eritrea, and Djibouti.
130 Constitution of the Republic of the Sudan, 1998.
48
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of
Legislation?
Constitutional Formulation
contravention with these fundamentals shall be made; however, the legislation shall be guided by the nation’s public opinion, the learned opinion of scholars and thinkers, and then by the decision of those in charge of public affairs.
Article 139
( 3) [ No constitutional amendment] shall… come into force where it amends the provisions of the basic fundamentals, save after the same is also passed by the people in a referendum and signed by the President of the Republic. The basic provisions and fundamentals are:—
( a) Islamic law and the legislative consensus of the people by the referendum, the Constitution or custom are the prevalent sources of law;
( b) the human being has the freedom of creed and worship, and the citizen has the freedom of expression and the organization of political association, in accordance with the provisions set out in this Constitution;
…
49
Europe/ Eurasia
Country
% Muslim
Islamic or Secular State?
Islam State Religion?
Islamic Law Source of Legislation?
Constitutional Formulation
Albania131
65- 70%
n/ a
No
No
Article 3
The independence of the State and the integrity of its territory, dignity of the individual, human rights and freedoms, social justice, constitutional order, pluralism, national identity and inheritance, religious coexistence, as well as coexistence with, and understanding of Albanians for, minorities are the bases of this State, which has the duty of respecting and protecting them.
Article 10
1. In the Republic of Albania there is no official religion.
2. The State is neutral in questions of belief and conscience, and also, it guarantees the freedom of their expression in public life.
3. The State recognizes the equality of religious communities.
4. The State and the religious communities mutually respect the independence of one another and work together for the good of each of them and for all.
5. Relations between the State and religious communities are regulated on the basis of agreements entered into between their representatives and the Council of Ministers. These agreements are ratified by the Assembly.
6. Religious communities are juridical persons. They have independence in the administration of their properties according to their principles, rules and canons, to the extent that interests of third parties are not infringed.
Azerbaijan132
96%
Secular
No
No
Article 7
I. The Azerbaijan State is a democratic, law- governed, secular, unitary republic.
Article 18
I. In the Azerbaijan Republic religion is separated from the State. All religions are equal by law.
II. The spread and propaganda of religions which humiliate human dignity and contradict the principles of humanity are banned.
III. The State education system is of secular character.
131 Constitution of Albania, 1998.
132 Constitution of the Azerbaijan Republic, 1995 ( as amended to 2002).
50
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of
Legislation?
Constitutional Formulation
Kyrgyzstan133
80%
Secular
No
No
Article 1
1. The Kyrgyz Republic ( Kyrgyzstan) is a sovereign, unitary, democratic republic created on the basis of a law- governed secular state.
Article 8
3. Religion and all cults are separate from the state.
4. In the Kyrgyz Republic the following is not permitted:
…
• Organization of political parties on religious and ethnic grounds. Religious organizations must not pursue political aims and tasks
• Interference by members of religious organizations and cults with the activity of state organs;
• Activity of foreign political parties, public associations, religious and other organizations detrimental to the constitutional system, state and national security.
Tajikistan134
95%
Secular
No
No
Article 1
The Republic of Tajikistan is a sovereign, democratic, law- governed, secular, and unitary State.
Article 8:
…
No single ideology of a party, social association, religious organization, movement, or group may be recognized as the State [ ideology].
…
Religious organizations are separate from the State and may not interfere with State affairs.
Article 100
The republican form of government, the territorial integrity, the democratic, law- governed, secular, and social nature of the State are unchangeable.
133 Constitution of the Kyrgyz Republic, 1993 ( as amended to 2003).
134 Constitution of the Republic of Tajikistan, 1994 ( as amended to 2003).
51
Country %
Muslim
Islamic or
Secular
State?
Islam
State
Religion?
Islamic Law
Source of
Legislation?
Constitutional Formulation
Turkey135
99%
Secular
No
No
Article 2
The Republic of Turkey is a democratic, laic and social state governed by the rule of law...
Article 174
No provision of the Constitution can be construed or interpreted as rendering unconstitutional the Reform Laws… which aim… to safeguard the laic character of the Republic, and which were in force on the date of the adoption by referendum of the Constitution of Turkey.
Turkmenistan136
89%
Secular
No
No
Article 1
Turkmenistan is a democratic, law- governed and secular State, in which the State administration is implemented in the form of a presidential republic.
Uzbekistan137
88%
n/ a
No
No
Article 61
Religious organizations and associations shall be separated from the state and equal before law. The state shall not interfere with the activity of religious associations.
135 Constitution of the Republic of Turkey, 1982 ( as amended to 2002).
136 Constitution of Turkmenistan, 1992 ( as amended to 2003).
137 Constitution of Uzbekistan, 1992.
52
B. Table II: The Right to Freedom of Religion or Belief Constitutional Provisions ( By Region)
Middle East/ North Africa
Country
Islam State Religion?
ICCPR
Ratification Status138
Constitutional Provisions for the Right to Freedom of Religion or Belief
Algeria
Yes
Sep. 12, 1989
Article 36
The freedom of conscience and the freedom of opinion are inviolable.
Bahrain
Yes
Not a State Party
Article 22
Freedom of conscience is absolute. The State guarantees the inviolability of worship, and the freedom to perform religious rites and hold religious parades and meetings in accordance with the customs observed in the country.
Egypt
Yes
Jan. 14, 1982139
Article 46
The State shall guarantee the freedom of belief and the freedom of practice of religious rites.
Iran
Yes
Jun. 24, 1975
Article 12
The official religion of Iran is Islam and the Twelver Ja’farî school [ in uṣūl al- Dîn and fiqh], and this principle will remain eternally immutable. Other Islamic schools, including the Ḥanafî, Shāfi’î, Mālikî, Ḥanbalî, and Zaydî, are to be accorded full respect, and their followers are free to act in accordance with their own jurisprudence in 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 in accordance with the respective school of fiqh, without infringing upon the rights of the followers of other schools.
Article 13
Zoroastrian, Jewish, and Christian Iranians are the only recognized religious minorities, who, within the limits of the law, are free to perform their religious rites and ceremonies, and to act according to their own canon in matters of personal affairs and religious education.
Article 14
In accordance with the sacred verse (“ God does not forbid you to deal kindly and justly with those who
138 ICCPR. Ratification dates according to the United Nations Treaty Collection Status of Multilateral Treaties Database, last updated October 22, 2004 ( http:// untreaty. un. org/ English/ treaty. asp).
139 Egypt attached the following declaration: “... Taking into consideration the provisions of the Islamic Sharia and the fact that they do not conflict with the text annexed to the instrument, we accept, support and ratifiy [ sic] it ...”
53
Country
Islam
State
Religion?
ICCPR
Ratification
Status138
Constitutional Provisions for the Right to Freedom of Religion or Belief
have not fought against you because of your religion and who have not expelled you from your homes” [ 60: 8]), the government of the Islamic Republic of Iran and all Muslims are duty- bound to treat non- Muslims in conformity with ethical norms and the principles of Islamic justice and equity, and to respect their human rights. This principle applies to all who refrain from engaging in conspiracy or activity against Islam and the Islamic Republic of Iran.
Article 23
The investigation of individuals’ beliefs is forbidden, and no one may be molested or taken to task simply for holding a certain belief.
Article 26
The formation of parties, societies, political or professional associations, as well as religious societies, whether Islamic or pertaining to one of the recognized religious minorities, is permitted provided they do not violate the principles of independence, freedom, national unity, the criteria of Islam, or the basis of the Islamic Republic. No one may be prevented from participating in the aforementioned groups, or be compelled to participate in them.
Iraq 1925
Yes
Jan. 25, 1971
Article 13.
Islam is the official religion of the State. Freedom to practice the rites of the different sects of that religion, as observed in Iraq, is guaranteed. Complete freedom of conscience and freedom to practice the various forms of worship, in conformity with accepted customs, is guaranteed to all inhabitants of the country provided that such forms of worship do not conflict with the maintenance of order and discipline or public morality.
Article 16
The various communities shall have the right of establishing and maintaining schools for the instruction of their members in their own tongues, provided that such instruction is carried out in conformity with such general programmes as may be prescribed by law.
Iraq 2004 ( TAL)
Yes
Jan. 25, 1971
Article 7
( A) Islam is the official religion of the State… This Law respects 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.
Article 13
( F) Each Iraqi has the right to freedom of thought, conscience, and religious belief and practice. Coercion in such matters shall be prohibited.
54
Country
Islam
State
Religion?
ICCPR
Ratification
Status138
Constitutional Provisions for the Right to Freedom of Religion or Belief
Article 15
( C) No one may be unlawfully arrested or detained, and no one may be detained by reason of political or religious beliefs.
Jordan
Yes
May 28, 1975
Article 14
The State shall safeguard the free exercise of all forms of worship and religious rites in accordance with the customs observed in the Kingdom, unless such exercise is inconsistent with public order or decorum.
Article 19
Congregations shall have the right to establish and maintain their own schools for the education of their own members provided that they will comply with the general provisions of the law and submit to the control of government in matters relating to their curricu