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 ofSharia as a source of legislation as well as practice of their interpretation by organs of constitutionalcontrol. The constitutions of practically all the mentioned countries declare Islam as a religion of thestate. 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 sourceof legislation. This status is fixed in Arabic constitutions in different forms. Some of them provide forSharia as a main source of legislation using in original text in Arabic the term main source in indefiniteform without al article. Some countries have already acquired legal practice of interpretation of theseconstitutional norms while solving claims on legislation which contradicts Sharia and its conformity with constitution. For example, the Federal Supreme Сourt of the UAE concluded that constitutionalprovision about Sharia as a main source of legislation is addressed to the legislature and not to thejudicial bodies. That is why Sharia is to be understood as a material or historical source of law. At thesame time on the basis of the given constitutional norm together with provisions of laws about judicialpower, the organ of constitutional control of UAE justified the possibility of direct implementationof Sharia norm as an official source of law. Egypt has acquired its own experience of constitutionalassertion of Sharia status. The Constitution of 1971 initially considered the principles of Sharia as amain source of legislation. However, after an amendment adopted as a result of referendum held in1980, the modified constitution provided for these principles as the leading source of legislation.The Supreme Constitutional Court decided that this constitutional provision was addressed tothe legislature. As for contradicting Sharia laws which had been adopted before the mentionedamendment took place, they are still in force and confirmative to the constitution as Sharia was notconsidered to be the leading source of legislation at that time. The role of Sharia as source of lawhas its own features in both Saudi Arabia and Libya. In general, the place Sharia occupies in thelegal development of contemporary Arab countries depends upon a number of factors but its role isdetermined mainly by legislature and first of all at the constitutional level.