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Max Planck Materials On the Relation between Islamic Law and Constitutional Law in Selected Countrie
Posted on October 27, 2010 at 07:33:06 PM by mb4

Max Planck Materials On the Relation between Islamic Law and Constitutional Law in Selected Countries --Somaliland & Puntland

© 2010 Max Planck Institute for Comparative Public Law and International Law (MPIL), Heidelberg, Germany. 1st Edition (January 2010)

Full-text

1. Somaliland

a) Relevant Provisions

Preamble Aware (...) that the Constitution was based on the following issues: a. The Islamic Shari‘a; b. Conclusions from the various consultations;(...)

Art. 5 1. Islam is the religion of the Somaliland state, and the promotion of any religion in the territory of Somaliland, other than Islam, is prohibited. 2. The laws of the nation shall be grounded on and shall not be contrary to Islamic Shari‘a. 3. The state shall promote religious tenets (religious affairs) and shall fulfill Shari‘a principles and discourage immoral acts and reprehensible behavior. 4. The calendar shall be the Islamic Calendar based on the Hijra, and the Gregorian Calendar”

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

Art. 12 7. The payment of Zakat is a cornerstone of Islam, and its administration shall be determined by law.

Art. 15 3. The learning of and training in the Islamic religion is a fundamental path and shall be compulsory at all levels of education. At the same time, the promotion of Qur’anic schools is the responsibility of the state.

Art. 33 1. Every person shall have the right to freedom of belief, and shall not be compelled to adopt another belief. Islamic Shari‘a does not accept that a Muslim person can renounce his beliefs.

Art. 36 1. The rights, freedoms and duties laid down in the Constitution are to be enjoyed equally by men and women save for matters which are specifically ordained in Islamic Shari‘a. 2. The Government shall encourage, and shall legislate for, the right of women to be free of practices which are contrary to Shari‘a and which are injurious to their person and dignity. (...)

Art. 115 The Ulema Council is independent and shall have the responsibility of: 1. Formulating formal declarations on: a) religious disagreements that may arise; and b) any matters in which there is a conflict as to whether they are contrary to the Shari‘a, or appear to the Council as being contrary to the Shari‘a. The Council shall forward their declarations to the offices which have requested the declarations or to the Constitutional Court, as they deem fit. 2. Undertaking research of all kinds from a religious perspective and, particularly, in a way which advances scientific and religious knowledge.

(Also, they shall) review, and validate translated religious Shari‘a works, and specially those (prior to their acceptance legally) which the courts rely on in their rulings and those which are included in the educational syllabus and relate to religious traditions and knowledge.

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

b) Remarks

Islam in state title: (-)
Islam as state religion: (+) see Art. 5 No. 1; freedom of religion: Art. 33.1. Shari‘a as source of legislation (incl. applicability of international law): see Art. 5 No. 2, at the same time Somaliland shall act in conformity with international Law (Art. 10 No. 2)
Shari‘a as basis of judicial decisions: Any conflict of whether a certain matter is in harmony with Shari‘a should be decided by the Ulema council (Art. 115 No 1 b).
Shari‘a limits President when pardoning etc. (Art. 90.5.) According to Art. 130.5., “All the laws which were current and which did not conflict with the Islamic Shari‘a, individual rights and fundamental freedoms shall remain in force in the country of the Republic of Somaliland until the promulgation of laws which are in accord with the Constitution of the Republic of Somaliland.”

Role of Ulema: Art. 115

Personal status law & women’s rights: Art. 5.2.; Art. 36
Islam as condition for attaining office of state official judge etc.: Members of Parliament must be Muslims (Art. 41 No. 1); the same applies to President and Vice Presidents (Art. 82 No. 2); the Chairman of the Supreme Court shall take the oath that he swears by Allah to be true to the religion of Islam (Art. 129).
Islam/Shari‘a mentioned in eternity clause: Art. 127 for “Principles of Islamic Shari‘a

Other remarks (education; financial constitutional law; etc.):
Alms: (Art. 12 No. 7)
Islamic education: Art. 15 No. 3
“Literature, the arts, and indigenous sports shall be specially encouraged whilst Islamic behavior is observed.” (Art. 16.3.)
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2. Puntland

a) Relevant Provisions

Preamble: (…) The new Constitution of Puntland is based on the following:Islamic Shari‘a (…)

Art. 6 Islam shall be the only religion of Puntland State of Somalia. No any other religion can be propagated in Puntland State, while the Islamic Religion and the traditions of the people of Puntland are the bases of law.

Art. 11 3. Puntland Regional Government recognizes and applies the UN
Charter and the International Laws and respects the International
Appeals for human rights, not contrasting the Islamic Shari‘a and
Puntland Laws.

Art. 24 1. No one can be forced to a faith; different from his/her believes. 2. The Muslim person does not have the right to convert from the Islamic faith.

Art. 32 3. All forms of personal liberty shall be in conformity with the Islamic Shari‘a, Law, moral dignity, national stability or the personal rights of the others. (…)

Art. 75 1. The functions of Constitutional Court are to decide only the
constitutionality of the laws and acts thereof. 2. The law conflicts between Islamic Shari‘a and Secular Laws (…) 3.b. Harmonization of Secular Laws and Islamic Shari‘a Law. (…)

b) Remarks

Islam in state title: (-)
Islam as state religion: (+) See Arts. 6; 24
Shari‘a as source of legislation (incl. applicability of international law): See Preamble;
Art. 11 No. 3; Art. 32 No. 3 (limitation of constitutional rights)
Shari‘a as basis of judicial decisions: See Art. 75 No. 2, 3b; judges of court of appeal must have a law degree or equivalent knowledge of Islamic Shari‘a (Art. 69 No. 5);
the same applies to judges at the constitutional Court (Art. 76 No. 2) (a typical condition in Islamic states). The Constitutional Court has the duty to decide upon conflicts between Shari‘a and secular law, and to harmonize these sources (Art. 75).

Role of Ulema: (-)
Personal status law & women’s rights: No provisions in the constitution. Women’s rights are recognized, but however, according to Art. 18 No 1, “This Constitution ensures the women’s rights of independence, socio-economic and political rights that is not forbidden in the Islamic Shari‘a.”

Islam as condition for attaining office of state official judge etc.: The constitution does not prescribe that the president must be Muslim, however safeguarding Islam is among the duties of the President (Art. 54 No. 10) and oath for all officials begins “In the name of Allah, I swear that I will respect the Islamic Religion, ...” (Art. 97).
Islam/Shari‘a mentioned in eternity clause: (-)
Other remarks (education; financial constitutional law; etc.):
Every citizen is obliged to safeguard the principles of Islam (Art. 38.2).

Education at Qur’anic schools is recognized as equivalent to other forms of education (Art. 22.3).
Strike and Gathering: “Reunions and manifestation shall be called off when they are against the principle of Islam, the public health, national security and stability, moral dignity and the public system.” (Art. 37.2)

http://www.mpil.de/shared/data/pdf/mpil_materials_on_islam_constitutions_2.pdf






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