Constitutional Status of Sharia as Main Source of Legislation in Arabic Countries

Abstract

The article touches upon the analysis of the constitutions of Arabic countries in terms of the status of Sharia as a source of legislation as well as practice of their interpretation by organs of constitutional control. The constitutions of practically all the mentioned countries declare Islam as a religion of the state. Arabic lawyers understand this principle in a different way. According to the prevailing view, the assertion of Sharia role in the legal system demands its constitutional recognition as a source of legislation. This status is fixed in Arabic constitutions in different forms. Some of them provide for Sharia as a main source of legislation using in original text in Arabic the term main source in indefinite form without al article. Some countries have already acquired legal practice of interpretation of these constitutional norms while solving claims on legislation which contradicts Sharia and its conformity with constitution. For example, the Federal Supreme Court of the UAE concluded that constitutional provision about Sharia as a main source of legislation is addressed to the legislature and not to the judicial bodies. That is why Sharia is to be understood as a material or historical source of law. At the same time on the basis of the given constitutional norm together with provisions of laws about judicial power, the organ of constitutional control of UAE justified the possibility of direct implementation of Sharia norm as an official source of law. Egypt has acquired its own experience of constitutional assertion of Sharia status. The Constitution of 1971 initially considered the principles of Sharia as a main source of legislation. However, after an amendment adopted as a result of referendum held in 1980, the modified constitution provided for these principles as the leading source of legislation. The Supreme Constitutional Court decided that this constitutional provision was addressed to the legislature. As for contradicting Sharia laws which had been adopted before the mentioned amendment took place, they are still in force and confirmative to the constitution as Sharia was not considered to be the leading source of legislation at that time. The role of Sharia as source of law has its own features in both Saudi Arabia and Libya. In general, the place Sharia occupies in the legal development of contemporary Arab countries depends upon a number of factors but its role is determined mainly by legislature and first of all at the constitutional level.