The need of Uniform Islamic Constitution for
the Muslim Ummah
A study of Islamic provisions on the
Constitution of selected countries
Md. Abdul Awal Khan
3. Sources of
Constitutional Law
Legislation, judge-made laws,
conventions and practices are the sources of Constitutional law. The
authoritative books on Constitutional law can be treated as source of
Constitutional law but they have persuasive force only.9
3.1 Sources of
Islamic Constitutional Law
There are at least six sources of
Islamic Constitution, such as Al-Quran, Al-Sunnah, Conventions of rightly
guided Caliphs, rulings of great jurists, Constitution of Medina and
Constitution of some contemporary Islamic states.10
3.2 Peoples
Republic and Islamic Republic
Republic is a form of Government in
which sovereign powers rest with the people either with the entire body of
active citizens or with a major part of it.11 So in Peoples’
Republic is where people are the source of sovereign power of the state. On the
other hand, in Islamic Republic, Allah is the source of sovereign power.
3.3 Secularism
and Islam
Secularism is an ethical system
founded on the principles of natural morality and
independent of revealed religion or
supernaturalism.12 Secularism is free from any
religious touch, which is opposed to
the view of Islam.
3.4 Monarchy and
Islam
Islam supports democracy and opposes
autocracy and monarchy. The Head of the state of Islamic state is elected.13
Almighty Allah revealed many verses against monarchy in several places of the
Holy Qur’an. “They are those who if we establish them in the land, establish
regular prayer and give zakat, enjoin the right and forbid the wrongs.” These
persons are appointed through democratic process and act as representative of
Almighty Allah. Again, Allah said “ that home of the hereafter we shall give to
those who intend not high handedness or mischief on earth”15. Allah
says against Kingship or monarchy. “Kings when they enter a country despoil it
and make noblest thus do they behave”. Again He says, “as for the boat it
belonged to certain men in dire want. They piled on the water. I but wished to
render it unserviceable, for there was after them a certain King who seized on
every boat by force.”17 So Al-Quran
is against monarchy but at present many Muslim states are ruled by monarchs.
Kingdom of Saudi Arabia is a glaring example.
3.5 Sovereignty
in Islam
“Sovereignty’ is derived from the
Latin word supernuus which means supreme. The definition of the term is varied
but “it always signifies the highest governmental and legal authority of some
sort.”18 The attributes and characteristics of sovereignty are said
to be permanence, exclusiveness, all-comprehensiveness, indivisibility and absoluteness. “If a ble and subject to the supervision, how can it be
sovereign? What can possibly be the concept of sovereignty liable to
supervision and accountability?
Clearly, the State is not sovereign,
nor are the people. Nor do they exercise a power without accountability .......
the power they exercise, either by mass reflexes and extra-legal means or
through regular channels of a truly democratic society is in no way a power
without accountability”22. The Quran stresses in many verses
regarding sovereignty of Allah who is omnipotent, All-powerful.23 He
has to refer to none and to render account to none.24 He is the
source and fount of all authority.25 He is the only one whose
authority and power nothing can limit or restrain26 and He alone is
above all aberration and error.
“Verily, His is the Creation and His
is the Law.28 And those who do not make their decisions in
accordance with that revealed by Allah are (in fact) the unjust. The Command is
for none but Allah He hath commanded that ye obey none but Him: that is the
right path.30 Follow the revelation sent unto you from your Lord,
and do not follow the ( so-called) guardians other than Him.31 And
those who do not make their decisions in accordance with that revealed by Allah
are (in fact) the disbelievers.
In law, sovereignty implies an unqualified power
of enacting, amending or repealing laws. Constitution or legislature in an
Islamic country is not sovereign in that sense because it doesn’t have the
power to make any law that it likes. That power being limited by the
restrictions imposed by Islam on law making which are permanent, can’t be removed
by any process of legislation.33 This concept of sovereignty i.e.
absolute sovereignty belongs to Allah, which is followed in the Islamic
Constitution.
to be continued . . . .
