A continuing challenge to contemporary legal systems is the place of Islam in constituent legal documents, whether in the constitution or in legislation regulating the making of laws.

Post-colonial Muslim nations utilised the nation-state model upon independence. These models spanning from the Midle East to Southeast Asia espouse a strong executive supported by weaker legislative and judicial branches.

States also experimented with Islam and its legal tradition in its legal systems. The experiences varied.

Saudi Arabia and Iran, for instance, lay claim that their criminal law is based on Islamic tradition. Most Muslim countries applied the Islamic tradition to personal and family laws. There was much borrowing from the French, Swiss, Dutch or British with regard to their civil and commercial matters with infusions from the Islamic legal tradition.

In the 1970s, Muslim nations experienced a wave or emergence of particular movements that fundamentally affect the constitutional place of Islam in Muslim countries. These are identified as 'oppositional nationalistic' movements who are dissatisfied with the status quo.

There were similarities in the modus operandi as for example, utilising religious symbolism to claim authenticity and legitimacy. As part of the regime, governments were expected to abide by particular detailed formulations of religious scholars.

There is much more controversy in this wave. The controversy has little to do with the aspirations of the emergent nation or community in identifying with Islam. In brief, some of the concerns relate to:

1. Treating the Syariah as a code of law containing single, uncontested legal determinations;

2. Ignoring the highly contextual socio-historical nature of most of Islamic jurisprudence;

3. Imposing a restrictive interpretation of Islam on the population and on women and vulnerable groups and claiming an exclusive right to interpretation; and

4. Allowing for a parallel power structure of clerics or particular groups which may erode the position of the elected executive and legislature.

In the light of these concerns, scholars have suggested guidelines to drafting or making laws in the event that Muslim nations desire to include the mention of Islam, the Syariah or principles of the Syariah in their constituent documents.

Firstly, the language in the constituent documents should always recognise not only Islamic principles (where considered appropriate), but also the principles of democracy, rule of law, pluralism, social justice, gender equality and equity and the country's international obligations.

While it may be acknowledged that Islam supports these principles, it is important to expressly mention these factors to avoid ambiguity in interpretation by particular groups.

Secondly, Islam or the Syariah must be mentioned in the documents in a way that it is expressed through democratic channels or processes. This is to avoid the creation of parallel power structures.

Thirdly, it is recommended that the phrase 'the basic principles of Islam' be used instead of the word 'Islam' or 'the Syariah'. The preferred phrase introduces the notion that interpretation to the teachings of Islam is not static or frozen. Interpretations are diverse and dependent on the socio-historical context of Muslims.

Fourthly, any statement on Islam and the law in the document should make equal mention of other values or principles for example, 'the basic principles of Islam, rule of law, democracy, pluralism, social justice, gender equality and equity, the values enshrined in (name of document) and the country's international obligations'.

Judicial review

It is not possible to discuss this important feature at length in this article because of the need to inquire into experiences of judicial review process of Muslim nations that spans several decades or even regime changes.

There are these options and the choice of options would certainly depend on many factors including the socio-cultural context of each country or community:

Consider it within the context of effective checks and balances among the executive, the legislature and the judiciary. In some countries, allowing judges to review the conformity of legislation with Islam carries risks where statutory law is struck down because it did not conform to their notion of Islam.

Consider making it clear that the legislature and the executive branches of government have exclusive jurisdiction to make determinations on the law's conformity to basic principles of Islam.

This however becomes a real liability where the executive dominates the legislature in Westminster-type of governments, in which case reforms in electoral democracy for representation to the legislature must first be implemented.

A safeguard to these two points, may be to ensure that laws are drafted by an independent commission of professionally trained people including Civil and Syariah trained lawyers to prevent arbitrary interpretations by untrained jurists.

Maqasid Syariah and human rights

Islamic family law is applicable in Indonesia and the province of Aceh through the Kompilasi Hukum Islam. This is applied together with the 1974 Marriage Law.

The calls for reform to family law here or elsewhere in the region, like in Muslim-majority Malaysia, would be engagements on these principles with concepts of gender equality and equity. The methodology to this process, including processes internal to the Islamic framework, remains diverse and is on-going.

The more controversial application of Islamic principles is the application of criminal law (whether hudud or taazir). The controversy threatens to derail economic and political reforms in some Muslim countries.

There is one matter which deserves singling out in the public discussions on the implementation of the Syariah in Aceh. This relates to the scope of what is meant by 'the implementation of Syariat Islam' in Aceh.

In a recent discussion on Aug 3 in Banda Aceh, Bapak Dahnial of Malikul Saleh university in Lhokseumawe opined that this calls for the development of guiding principles to the implementation of the Syariah and not the punishment of particular "moral crimes".

In this exercise, Dahnial supports the use of Maqasid Syari'ah (principles of the formulation of the Syariah) as guiding principles to law-making. It might be noted that scholars have made valuable inroads in re-examining these principles and have suggested reforms to the traditional principles and expanding upon them. This is a very important development in legal reformation.

An exciting further development would be to explore convergence of the Maqasid Syari'ah to principles and values enshrined in international treaties and standards. Indonesia is well ahead of her Asean neighbours in ratification of core human rights treaties.

The international community is in continuous involvement with this cross-cultural and civilisational engagement. This development is, in any case, part of the long tradition of the civilisational dialogue which Muslim nations have begun long before the crusades with the Greeks.

This article was first written for the Aceh-based women's NGO, Beujroh. It references the work of Khaled el Fadl and Yash Ghai.