The theocratic challenge to Constitution drafting in post-conflict states.

• Author: Hirschl, Ran

INTRODUCTION

Over the past few decades, principles of theocratic governance have gained enormous public support in developing polities worldwide. The countries experiencing this resurgence of religious fundamentalism are diverse, spanning the globe from central and southeast Asia to north and sub-Saharan Africa and the Middle East. The Khomeini-led revolution in Iran is perhaps the quintessential manifestation of this broad trend, (1) but newspaper headlines report almost weekly on religious fundamentalist insurgency in countries as diverse as Morocco, Pakistan, and Indonesia. Moreover, a process of "Islamization" of laws has taken place in dozens of sub-national jurisdictions: twelve northern Nigerian states led by Zamfara state; (2) Zanzibar, an island formally part of Tanzania that enjoys wide legislative autonomy; (3) the states Kelantan and Terengganu in Malaysia, where the Parti Islam Semalaysia formed a government in the 1990s; (4) and Pakistan's Northwest Frontier Province, where the Muttahida Majilis-i-Amal party has ruled since 2003. (5) Religious parties have gained a tremendous popular following in countries as diverse as Egypt, (6) India, (7) Bangladesh, (8) Nigeria, (9) Algeria, (10) and Turkey. (11) The sweeping win of the pro-Islamic AK Party in Turkey's July 2007 general election further illustrates this trend. (12) Meanwhile, religion continues to play a key role in European politics, from Catholic Ireland (13) and Poland (14) to Orthodox Serbia. (15) Evangelical Pentecostalism has become prevalent in Latin America. (16) A similar trend can be seen in North America, where religious fundamentalism, primarily the Christian Right, has become a significant political force. (17)

The theocratic wave is a major source of friction in today's world. Iraq and Afghanistan are two obvious examples, but there are, alas, many others. The mass atrocities in Darfur are linked to Islamic fundamentalists coming to power in Sudan in the late 1980s. (18) In northern Africa, a vicious decade-long war between the French-backed government of Algeria and the Islamic Salvation Front erupted after Islamists won the first multiparty election in that country in the early 1990s. (19) In the Horn of Africa, Somalia, Eritrea, and Ethiopia are entangled in a bloody religion-related cycle of sectarian violence. (20) Hezbollah (the "party of God") now threatens to overthrow the state's fragile multiparty coalition in Lebanon. (21) The struggle between the nationalist Fatah movement and the religious Hamas movement has effectively split the Palestinian people. (22) Moreover, this theocratic surge has other indirect effects on conflict areas: because political stability in Morocco and Algeria has become a primary interest of the West in the post-9/11 reality, international efforts to resolve the conflict over Western Sahara--approximately two-thirds of which is controlled by Morocco and the other third, also known as the Sahrawi Arab Democratic Republic, is actively supported by Algeria--have sunk into oblivion. (23) In short, it is hard to overstate the significance of the fundamentalist turn in late twentieth and early twenty-first century politics.

In this Article, I explore several key aspects of constitutionalism in a theocratic world. I begin by identifying the challenges posed by the theocratic surge to canonical power-sharing, consociational models for mitigating tensions in multi-ethnic polities. Second, I define the concept of "constitutional theocracy" and its emergence as a new form of governance over the last few decades. In the Article's third Part, I survey five constitutional responses to the problem of "religion and state" and examine a few innovative legal developments employed by countries in the Islamic world to hedge the challenge of constitutional theocracy. In the fourth Part, I explore the secularizing role of constitutional courts and jurisprudence in predominantly religious polities. Examples are drawn from Egypt, Pakistan, Turkey, Israel, Nigeria, Malaysia, and other polities facing deep social and political tensions along the secular/religious divide.

1. THE THEOCRATIC CHALLENGE TO CONVENTIONAL POWER-SHARING MECHANISMS

   The literature on constitutional design and engineering is voluminous. Its canonical tenor suggests that when constitutionalization is seen as a pragmatic "second order" measure--as opposed to instances of constitutionalization involving a more principled, first order "we the people" outlook--it may help institutionalize attempts to mitigate tensions in ethnically divided polities through the adoption of federalism, secured representation, and other trust-building and power-sharing mechanisms. (24) Surprisingly, however, although there are many examples of discussions of the mitigating potential of constitutional power-sharing mechanisms to ease rifts along national, ethnic, or linguistic lines, scholars of comparative constitutional design have given little attention to the increasing divisions along secular/religious lines. From an analytical standpoint, the secular/religious divide differs in at least four respects from these more obvious and commonly addressed markers of identity.

   First, more than any other divisions along ascriptive or imagined lines, the secular/religious divide cuts across nations otherwise unified by their members' joint ethnic, religious, linguistic, and historical origins. In this sense, the secularism/religiosity factor, or other closely associated distinctions such as universalism versus parochialism, is closer in nature to less visible categories such as income deciles, social class, or cultural milieu than it is to other kinds of markers such as race, gender, or ethnicity. Nationalist Catalans, Flemish, or Quebecers see themselves as autonomous people with a unique cultural heritage, language, and history that is distinct from that of Spaniards, Valons, or Anglophone Canadians, respectively. (25) By contrast, most cosmopolitan and traditionalist Egyptians define themselves as members of the same nation, speak the same language or dialects of it, treasure the Pharaoh dynasty, and share the same ancestral ties. (26) Importantly, however, some Egyptians are close adherents of religious directives, while others follow them more casually. (27)

   Second, the territorial boundaries of the secular/religious divide are often blurred. Although residents of certain regions within a given country may be more prone to holding theocratic views than residents of other regions, this divide is not neatly demarcated along territorial lines, as is often the case with ethnic or linguistic boundaries. Proponents of theocratic governance may reside in peripheral towns, or in blue collar neighborhoods at the outskirts of large urban centers. But they may also reside within a few bus stops from bastions of modernism such as art galleries, universities, shopping malls, or government buildings. This is in stark contrast to, say, Sri Lanka, where the vast majority of Tamils live in one region of the island; (28) or, better yet, Cyprus, where the territorial divide between the Greeks and the Turks is clearly demarcated. (29) Territory-based power-sharing mechanisms--or any other kind of joint governance structures that are based on the allocation of powers or goods by a regional key--may not be an efficient means for analyzing, let alone reducing, tensions along secular/religious lines.

   Third, the assumption that whole peoples share unified interests is questionable at best. Akin to early writings about the postcolonial world that tended to view post-colonial countries as a homogeneous block, populist academic and media accounts in the West tend to portray the spread of religious fundamentalism in the developing world as a near-monolithic, ever-accelerating, and all-encompassing phenomenon. (30) In contrast to the Western portrayal of religion as private and relatively benign, "politicized" religions are depicted as being a threat to reason and a hindrance to progress. (31) The Islamic world in particular has been the target of much of this critique, described by leading public intellectuals as a monolithic entity committed to a fundamentalist, anti-Western agenda. (32) The post-9/11 popular media followed suit by portraying Islamic societies as united by their religious zeal and antiliberal sentiment. In practice, however, the picture in most predominantly religious polities--Islamic, Jewish, Roman Catholic, or Hinduist is much more complex and nuanced, reflecting deep divisions and strife along secular/religious lines, as well as widely divergent beliefs, interpretations, and degrees of practice within religious communities.

   In fact, most countries that have experienced a revival of religious fundamentalism over the past few decades have long been caught between identities, worldviews, and commitments that are at once secular and religious, universalist and particularist. In virtually all of these countries, the very nature of the sociopolitical order has been highly contested; civic ideology, an often relatively cosmopolitan lifestyle, and diverse policy preferences are all often striving to establish or maintain their hegemony vis-a-vis embedded symbols of tradition, religiosity, and exceptionalism. (33)

   Principles of theocratic governance may pose a threat to the cultural and policy preferences of secular-nationalist elites in these countries. After all, theocratic governance has seldom appealed to members of the often cosmopolitan urban intelligentsia and the managerial class and state bureaucrats may see it as an impediment to progress and modernization. (34) Theocratic governance is also often at odds with principles of modern economy and may threaten the interests of major economic sectors and stakeholders. (35) And it would be an understatement to say that theocratic governments are not the type of regimes that find favor with supranational trade and monetary...