Islamic Law in an Islamic Republic

Nelson, Matthew J.

doi:10.1017/9781107707443.010

Cited by 6 publications

(4 citation statements)

References 24 publications

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“…Instead, it reflected the views of Muslim religious leaders serving on a separate advisory board known as the Talimat-e-Islamia Board (Board of Islamic Education). This Board was convened alongside the CA by a subcommittee of the CA known as the Basic Principles Committee (BPC) (see Nelson 2016). Initially, its views pressing for an "Islamic" state in Pakistan were rejected.…”

Section: Religious Freedom In a Muslim-majority Republicmentioning

confidence: 99%

Constitutional Migration and the Meaning of Religious Freedom: From Ireland and India to the Islamic Republic of Pakistan

Nelson

2019

J of Asian Stud

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Building on current research regarding constitutional migration, this article shows how constitutional provisions protecting religious freedom (“subject to public order”) arrived in the Islamic Republic of Pakistan, not via colonial British or traditional Islamic sources—both explicitly rejected—but via deliberate constitutional borrowing from “anti-colonial” precursors in Ireland and, especially, India. Drawing on Ernesto Laclau's notion of “empty signifiers,” the article highlights the shifting political circumstances that transformed the meaning of Pakistan's borrowed constitutional provisions. Even as core texts guaranteeing an individual's right to peaceful religious practice were imported, political, legal, and conceptual modulations ensured that specific forms of peaceful religious practice were refashioned as a source of religious provocation and, therein, public disorder. Far from protecting religious freedom, this repurposing of imported constitutional clauses tied to “the politics of public order” underpinned the formal legal restriction of an otherwise explicit right.

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Section: Religious Freedom In a Muslim-majority Republicmentioning

confidence: 99%

Constitutional Migration and the Meaning of Religious Freedom: From Ireland and India to the Islamic Republic of Pakistan

Nelson

2019

J of Asian Stud

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“…2. Matthew J. Nelson [6] writes an article on the role of the parliament in an Islamic Republic for the Foundation of Law, Justice and Society. The author mentions the example of Pakistan in his article that Pakistan has struggled with the constitutional relationship between its parliament and sharia since the beginning.…”

Section: Mohamed Abdelaalmentioning

confidence: 99%

The Principle of Separation of Powers between Sharia and the Positive Law: a Case Study on the Constitutional System of Saudi Arabia

Salameh¹

2018

Proceedings of 1st International Conference of Law and Justice - Good Governance and Human Rights in Muslim Countries: Experien

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The aim of this study is to clarify the extent of the influence of the separation principle of powers in the constitutional system of Saudi Arabia, as it is one of the main principles of democratic systems. Sharia law is the supreme system in Saudi Arabia which necessitates determining the stand of Sharia among this principle. The principle of separation of powers has not been defined in the governance system of the First Islamic State. Therefore, this study seeks to define it. The study on the Saudi constitutional system, the constitutional articles of the Basic System of Governance, the Saudi Cabinet system, and Shura Council system led to the conclusion that the Saudi constitutional system did not take the principle of separation of powers, but merely mentioned that the powers of the country are three and the judiciary is independent. This study showed the overlap between the executive and legislative powers, which means that the Shura Council cannot be considered an independent legislative power. The Islamic political system defines the principle of separation of powers in a different meaning as compared to its definition by contemporary political systems; this is due to the special nature of the Islamic political system. What is worth mentioning is that the Islamic system does not prevent applying the principle of separation of powers in their contemporary application; however, there are certain restrictions in Sharia when applying this principle. In light of the developments in the international community and the claims of rights, freedoms and democracy, Islamic societies and countries that take the Islamic law as a basis for their constitutional system cannot ignore these claims for much longer. Democracy is a western concept, which means it does not necessarily comply with the provisions of Sharia, and so, the importance to develop a concept which is consistent with the Sharia provisions of the Islamic states is increasing. However, what should also be taken into consideration is the social, economic and political developments and the demands of individuals.

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“…This time the court held that the legislature's promulgation of regulatory measures (stipulating the boundaries of peaceful religious practice) was unfettered. In effect, hewing closely to a pattern of Supreme Court jurisprudence privileging the power of parliament-as-a-whole in matters of religion (Nelson, 2015)-a point that also figured prominently in the debates that led to Pakistan's second constitutional amendment-the Court did not intervene to reduce existing levels of legal uncertainty regarding the protection of fundamental rights; it actually introduced a measure of uncertainty by highlighting the power of each elected legislature to "regulate" such rights and, therein, to determine which types of peaceful religious practice, under which conditions, might be seen as a "threat to public order" deserving, not protection, but prohibition.…”

Section: Malaysia: Polarizing Activistsmentioning

confidence: 99%

“…These include provisions regarding (a) freedom of religious belief and practice (“subject to public order”); (b) a prohibition on legislation considered “repugnant to Islam”; (c) “the legislative primacy of parliament” (in light of “advice” from a special council charged with assessing matters of repugnancy); (d) the formation of a Federal Shariat Court (1980) to determine whether laws are “repugnant to Islam”; and (e) ongoing debates about the extent to which, via constitutional amendments or routine legislation, parliament or the executive can make laws (including emergency laws) that do not merely regulate but substantively annihilate fundamental religious rights. See Nelson (2015).…”

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confidence: 99%

Is the Rule of Law an Antidote for Religious Tension? The Promise and Peril of Judicializing Religious Freedom

Schonthal

Moustafa

Shankar

2015

American Behavioral Scientist

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For years, a particular way of thinking about the relationship between religious strife, law, and legal processes has influenced conversations among scholars, human rights activists and policy makers. This way of thinking sees law as an antidote to religious tensions. "Rule of law," the logic goes, acts as a force of moderation and, in matters of religion, serves as a key tool for mollifying or resolving disputes. One does not have to go far to find examples of this paradigm. In a December 2013 speech to the United Nations General Assembly, the Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt, celebrated the power of law to help resolve chronic patterns of religious violence and hatred. He insisted that [a]n open constitutional framework that allows free manifestations of existing or emerging religious pluralism on the basis of equal respect for all is a sine qua non of any policy directed towards eliminating collective religious hatred by building trust through public institutions. (United Nations General Assembly 2013: 11) According to Bielefeldt, institutions of law-above all constitutions and the courts that interpret them-serve as bulwarks against religious strife, polarization and hatred. Constitutional law, he insists, is central to resolving conflicts among religious

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Islamic Law in an Islamic Republic

Cited by 6 publications

References 24 publications

Constitutional Migration and the Meaning of Religious Freedom: From Ireland and India to the Islamic Republic of Pakistan

Constitutional Migration and the Meaning of Religious Freedom: From Ireland and India to the Islamic Republic of Pakistan

The Principle of Separation of Powers between Sharia and the Positive Law: a Case Study on the Constitutional System of Saudi Arabia

Is the Rule of Law an Antidote for Religious Tension? The Promise and Peril of Judicializing Religious Freedom

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