The third paper presented at the workshop on ‘South Asian Constitutionalism and Constitution-Making’ was by Professor Shaheen Sardar Ali from the University of Warwick. The primary discussant for this paper was Dr Faisal Devji from the Faculty of History, University of Oxford. The paper, titled ‘Continuities, Discontinuities and Ruptures: Exploring Islamic constitutionalism(s) in the Muslim World’ is a work in progress. It aims to study Islamic Constitutions from a historical and comparative perspective. To this end, Ali uses two predominantly Muslim countries, Pakistan and Kuwait, as points of comparison.

Ali adopts a three stage process, borrowed from Frederic Schaffer, to study the idea of Islamic Constitutionalism. She begins by ‘grounding’ peoples’ common understanding of key concepts, and then ‘locates’ them in a historical context, before finally ‘exposing’ how these concepts are used as tools of power. For the first stage i.e. ‘grounding’, Ali has adopted a field-work centric approach to how a layperson in an Islamic jurisdiction understands the notion of an Islamic Constitution.

At the second stage, she ‘locates’ the historical context in the Medina Charter. The Medina Charter is a 7th century document believed to be drafted by Prophet Mohammed. Its relevance for the notion of Islamic Constitutionalism lies in the fact that it adopted, for its time, a surprisingly liberal approach to determine community membership. For instance, consider the notion of ‘Ummah’. It appears that the meaning of this concept has evolved over time. In the present day, ‘Ummah’ refers to the idea of common citizenship based on religious community. However, what is interesting about the Medina Charter is that, despite its antiquity, this term was used more broadly, to include people belonging to the Qureshi tribe as well as migrant Jews, thereby effectively affording membership on the basis of a geographic community.

Ali is quick to flag this, and points out that the Medina Charter has been conspicuously absent from the history of Islamic jurisprudence today. This conclusion is also borne out by Ali’s primary research. While only 1/3rd of her respondents in Kuwait were aware of the existence and content of the Charter, a larger proportion reflecting 2/3rd respondents had heard about this document in Pakistan. She ponders why native Arabs of today are less aware of the Medina Charter than Muslims from other parts of the world.

Her third stage, the process of ‘exposing’ these concepts, is still in the process of evolution. The author hopes that this enquiry will provide answers for questions such as these: how do constitutional courts in the Muslim world apply Islamic Constitutions? Are there any common trajectories that Islamic Constitutions across Muslim countries have taken?

Devji, the primary discussant, adopted an avowedly historical approach in his comments. His focus was on the Medina Charter and its absence from Muslim legal history. He suggested that, a potential explanation may be found in the opposition between political history and religious history. These two often play out as alternatives; one often develops by repressing the other. For example, Islamic scholars like Maududi have argued that sovereignty must necessarily be theological. Ultimate sovereignty is therefore, posted to God. This approach underplays the historical role of human sovereigns. As a logical corollary, political history also undervalues religious history. This may be what happened with the Medina Charter too.

One of Ali’s research questions concerns the influence of Sharia on Islamic Constitutions. She asks, what makes a Constitution Islamic? Is it the influence of Sharia? Taking on from this point, Devji highlighted the importance of distinguishing between state law and religious law in understanding where Sharia fits in this scheme. While state enacted law is often denoted by the expression ‘kanoon’, ‘Sharia’ on the other hand, is best understood as a set of religious rules providing for social self-management. This is an important caveat to bear in mind while relating Sharia to Islamic Constitutions.

In conclusion, Ali’s work may be expected to play a crucial role in shedding light on the common features that unite Constitutions across the Muslim world, and placing them in their historical context. In my view, two aspects of Ali’s work require further exposition. First, as she admits, it is important to not uncritically adopt the Medina Charter as the centre-piece for understanding Islamic Constitutionalism. Why is this document from 1400 years ago still relevant to a study of modern Islamic Constitutions? In response, Ali points to the recent resurgence of conversations surrounding the Medina Charter in Pakistan. Surely that is not a comprehensive account. Secondly, Ali also hinted at a trend towards radicalisation and non-inclusion within Islamic Constitutions in recent times. For instance, a sense of hierarchy between the Muslim and non-Muslim populations is a recurring theme in Pakistan. Is this borne out by the plurality evidenced by different schools of Islam? These questions need to be explored further in order to provide a comprehensive account of Islamic Constitutionalism.