In his essay, “Islam and Constitutionalism,” Sohail H. Hashmi boldly confronts a difficult question: Are Islam and constitutionalism compatible? On his account, a functioning constitutional system has three essential features: (1) limited and accountable government; (2) adherence to the rule of law; and (3) protection of fundamental rights. While virtually all majority-Muslim states have embraced the idea that a constitution is an essential feature of modern governance, the features of constitutionalism identified by Hashmi have often been conspicuously absent from these states. In responding to him, I will focus on the ability of majority-Muslim states to embrace the third element of constitutionalism—the protection of fundamental rights—with a focus on the fundamental right to religious freedom.
Of course, identifying “protection of fundamental rights” as an essential feature of constitutionalism begs the question: which rights are fundamental? The Universal Declaration on Human Rights (UDHR) is based on the idea that certain fundamental rights can and should be accepted by people of all nations and culture. However, the rights asserted in the UDHR have been resisted in some majority-Muslim states as incompatible with their religio-cultural values.
The explicit assertion of the freedom to “change” one’s religion in Article 18 of the UDHR has been especially controversial. While the inclusion of Article 18 did not prevent Syria, Iran, Turkey and Pakistan from voting for the UDHR, the Saudi Arabian delegation objected to it and therefore abstained. Similarly, the reservations of some majority-Muslim states about the right to change one’s religion led to its deletion from the International Covenant on Civil and Political Rights (“ICCPR”)—although other majority-Muslim states supported its inclusion.
So-called “Islamic” declarations on human rights also disclose this tension. The 1981 Universal Islamic Declaration of Human Rights guarantees “freedom of belief, thought, and speech” and, provides for a person’s “right to freedom of conscience and worship in accordance with his religious beliefs.” However, in 1990, the Organisation of Islamic Cooperation (OIC) composed the Cairo Declaration on Human Rights, which does not identify freedom of religion as a “fundamental and nonderogable” right, and stipulates that “[a]ll the rights and freedoms stipulated in this Declaration are subject to the Islamic Sharia.” And since 1999, the OIC has proposed the Defamation of Religions Resolution. This Resolution expresses a view of free speech that, when reflected in legislation, enables public and private actors to suppress the speech and religious exercise of minorities.
Courts in majority-Muslim states have also pushed against international religious freedom norms when dealing with draconian blasphemy laws. In Pakistan, Martial Ordinance XX, passed in 1984 after the ascendency of Islamist General Zia-ul-Haq, prohibits the members of the Ahmadiyya community from engaging in religious activities that in any way resemble those of mainstream Muslims. Despite remonstrations from the U.N., General Zia made his priorities clear: “Ordinance XX may violate human rights but I don’t care.”
In the 1993 case of Zaheerudin v. State, where a group of Ahmadis challenged the constitutionality of Ordinance XX, the Pakistani Supreme Court looked to international law and U.S. religious freedom jurisprudence for guidance, implicitly accepting these sources as legitimate. However, in gross contravention to the principles of each, the Court upheld Ordinance XX, finding that it fell within the narrow “public order” exception to religious freedom protections. According to the Court, if Ahmadis persisted in engaging in the religious activities not shared by mainstream Muslims, the latter’s religious feelings would be insulted, potentially leading to a violent reaction. In privileging “religious feelings,” the Court essentially protected majority interpretations of religion over minority ones. And in so doing, the Court flipped the very concept of human rights on its head, choosing to protect ideas and feelings instead of humans, as human rights are designed to protect.
Similarly, in Indonesia, in response to a 2010 case seeking the repeal of the 1965 Blasphemy Act, the Indonesian Constitutional Court chose to uphold the Act. Like the Zaheerudin Court, it misconstrued international law and determined that the Act fell within the “public order” exception to religious freedom protections.
The Court also noted repeatedly that Indonesia is (in apparent contrast to the Western world) an intrinsically religious country: “The rule of law principle upheld by Indonesia [is one of a] law-based state that enshrines the principles of belief in one God as the main principle… not a state that separates religion and the state, and not merely based on individualis[tic]… principles.” According to the Court, the Blasphemy Act furthered the directive in the preamble to the Indonesian Constitution to “protect all the people of Indonesia” by protecting Indonesia’s six officially sanctioned religions (Islam, Buddhism, Catholicism, Protestant Christianity, Confucianism, and Hinduism) from public reproach—thus ensuring that the public at large would remain committed to religious principles. Throughout the opinion, broad religious freedom and free speech rights were presented as Western and secular.
Despite these deep misunderstandings of what the fundamental right to religious freedom entails and its compatibility with Muslim societies or religious values more generally, many Muslim scholars have advanced a variety of proposals for protecting fundamental rights in majority-Muslim states.
Hashmi, for instance, argues that the Islamic public law known as Sharia can be used to protect fundamental rights. He draws upon the twelfth-century Mu’tazili school of jurisprudence, which taught that moral truths (including “justice, equality, and the submission of human beings to a transcendent authority”) are “objective categories, discernible by human reason” and that the purpose of Sharia is to ground “political order” in these moral truths. The details of “legal minutiae” used to accomplish this are “changeable” through itjihad—the exercise of independent juristic reasoning to provide answers when the Qur’an and Sunna (practice) of Mohammad are ambiguous.
In contrast, Abdullahi An-Na’im argues, in Towards an Islamic Reformation, that Sharia is inseparable from the legal code historically associated with it—a code that he ultimately concludes is incompatible with religious freedom. Accordingly, he advocates an alternative approach.
An-Na’im contends that the Qur’an was revealed in two stages: at Mecca and at Medina. He argues that the earlier “Mecca stage” represents the “eternal and fundamental message of Islam” which includes “complete freedom of choice in matters of religion and faith.” Although this message shifted when Mohammad and his followers migrated to Medina, An-Na’im insists that it was “postponed for implementation under appropriate circumstances.” He urges that the time is now ripe to implement it in Islamic public law.
However, despite their differences, Hashmi and An-Na’im agree not only that there is an authentically Islamic basis for fundamental rights, but also that fundamental rights must be explained within this Islamic framework in order for majority-Muslim societies to accept and successfully implement them.
Hashmi contends that any “secular path, especially if it follows the French model of laïcisme that attempts to keep religion completely out of the public sphere, will be a difficult one for other Muslim states to follow.” He finds that recent history “has shown that if Islam is not incorporated into the political order, it will become the ideological basis for those who challenge the very legitimacy of that order.” Thus, he urges Muslim constitutionalists to “find … resources within Islamic thought.” Echoing this analysis, An-Na’im states that “it is unlikely that majority of Muslims will permanently accept secularization of their public life.” Leading authorities on international religious freedom agree; as Georgetown professor Thomas Farr has noted, “no democratic Islamic political philosophy or practice can possibly develop on the premise that religion is a private matter separate from the function of politics.”
Modern-day Muslim thinkers have found the needed “resources within Islamic thought” in the Qur’an, Sunna, and Islamic history. For example, in “The Qur’anic Case Against Apostasy,” Abdullah Saeed draws attention to Qur’anic verses that support broad religious freedom rights and points out that “there is no evidence that the Prophet Muhammad himself ever imposed [penalties for apostasy].” Similarly, Abdelaziz Sachedina argues that absolute religious freedom is deeply rooted within the Qur’anic paradigm of religious life. According to him, if the Qur’an is properly understood as a universal moral guide for all humanity, and each individual has the inherent God-given ability to discern right from wrong, its message transcends the bounds of religious distinction. This “inclusivist” theological paradigm, in which the religious “other” is a spiritual equal, provides a firm basis for the freedom to choose and change one’s faith. Sachedina thus states that, “Muslim thinkers working on human rights must engage in Islamic theology rather than Islamic law.”
Hashmi describes the history of efforts at constitutionalism in majority-Muslim countries as “rather bleak.” Protecting fundamental rights has proven particularly problematic, in substantial part because of concerns that certain rights held to be fundamental by Western states—like the right to absolute religious freedom—are incompatible with majority-Muslim countries’ religio-cultural values. However, the work of Hashmi, An-Na’im and other Muslim scholars who have drawn upon resources within Islamic thought to support absolute religious freedom strongly suggests that it is both necessary and possible to place this fundamental right on an authentically Islamic foundation and ensure that it is adequately protected politically. Their work not only gives confidence that fundamental rights can be supported by drawing upon Islamic resources, but also that, more broadly, an authentically Islamic constitutionalism is possible.
 See Mary Ann Glendon, “The Rule of Law and theUniversal Declaration of Human Rights,” 2 Nw. U. J. Int’l Hum. Rts. 5, 3 (2004). As not all of the rights asserted in the UDHR have always been recognized as fundamental (e.g., the right to universal suffrage), the list implicitly allows for the possibility that further rights could be recognized. In an annual report issued on November 2012, the U.N. Population Fund described “family planning” as a “human right.” See United Nations Population Fund,State of World Population 2012, available at http://www.unfpa.org/webdav/site/global/shared/documents/publications/2012/EN-SWOP2012-Summary-final.pdf
 See Paul M. Taylor, Freedom of Religion: U.N. and European Human Rights Law and Practice, at 36 (2005).
Abdullahi Ahmed An-Na’im, Towards an Islamic Reformation, 177 (1990). However, prominent scholars have criticized An-Na’im’s interpretation of Sharia’s historical legacy. See Dr. Sherman Jackson’s critique atNinth Annual American Learning Institute for Muslims (ALIM) Winter Program, January 15-19, 2010.
 Thomas F. Farr (2006): “Retooling the Middle Eastern Freedom Agenda: Engaging Islam.” The Review of Faith & International Affairs. http://repository.berkleycenter.georgetown.edu/ RETOOLING%20THE%20MIDDLE%20EASTERN%20FREEDOM%20AGENDA%20-%20FARR.pdf
 Abdullah Saeed, “The Qur’anic Case Against Apostasy,” available at http://www.thepublicdiscourse.com/2011/02/2716 (last visited November 21, 2012). See also Abdullah Saeed, “The Islamic Case for Religious Liberty,” available at http://www.firstthings.com/article/2011/11/the-islamic-case-for-religious-liberty (last visited November 21, 2012).
In response to: Islam and Constitutionalism
Sohail Hashmi makes what seems to be a very reasonable case for the compatibility of Islam and constitutional government, and for the role of a reformed sharia as the foundation for the development of constitutionalism today. However, his case founders upon his not having given sufficient weight to the obstacles to this development, though his…
I’m deeply grateful for Professor Hashmi’s lead essay and would recommend it to anyone interested in the intellectual history of Islam or curious about the distinctions between a modern Islamic view of the relationship between government and religion and the modern, dominant view of the Christian and post-Christian West. It is not, in fact, my…