Nazneen Rasinna H & Mohd Imran
In the previous article of this series, we discussed reference of country’s history in the preamble of modern constitutions. In this article we will analyse the reference of God or deity in the preamble of modern constitutions and the nature of the State, i.e., Secular or theocratic. We will also look forward to see as to whether these constitutions also declare the State as a secular country along with specifically referring to God or deity in the preamble of the constitution. Out of the 44 modern constitutions we studied, 14 have made reference to God or Deity explicitly in their Preamble. They are Afghanistan, Bahrain, Bhutan, Bolivia, Democratic Republic of Congo, Dominican Republic, East Timor, Ecuador, Eswatini/Swaziland, Hungary, Iraq, Kenya, South Sudan and Zimbabwe. Interestingly, out of these 44 modern constitutions, the word ‘secular’ was found only in the preamble of constitution of Congo.
Despite mentioning God or Deity in their Preamble, some countries surprise us by declaring the following: Bolivia declaring that the State is independent of religion (Article 4); East Timor guaranteeing that the religious denominations are separated from the State (Article 45 (1)) and Kenya’s steadfast stand that ‘there shall be no State religion’ (Article 8). Kenya has given the right to follow their personal laws to its people explicitly. East Timor and Ecuador have provided a unique right – right to confidentiality of information about one’s religion.
Therefore, as per the pattern found, a reference to God in the preamble is not a proof of being a theocratic State. For examples, the preamble of the Constitution of Kenya acknowledges the ‘supremacy of the Almighty God of all creation.” However, Article 8 of the Constitution provides that there shall be no State religion. The preamble of Hungarian constitution makes a reference to God but the constitution explicitly provides for the separation of State from church. Moreover, the preambles of Zimbabwe and Dominican Republic’s constitution make a reference to God but there is no provision in the constitution which could make secular or theocratic. It means the constitutions of these two countries make no declaration on the religious or secular nature of the State. South Sudan is an interesting case study. It does mentions God in the Preamble and at the same time it declares the State to multi-religious and it to be different from Religion. It grants a list of religious rights under Article 23.
Out of 44 constitutions- 12 countries have prescribed State religion; 16 countries have declared themselves as Secular State; seven countries do not explicitly use the word ‘secular’ in the constitution but there is clear cut provision on the separation of the State and the Church; nine countries have no provision in the constitution on secularism, religion of the State or the separation of the State from church.
The countries declaring to be a theocratic democratic State provide the name of the State religion. For example, Article 1 of the Constitution of Libya reads as follows, “Libya shall be an independent democratic state in which the people shall be the source of all powers. Its capital shall be Tripoli, Islam shall be its religion and Islamic Shari’a shall be the main source of legislation.” Similarly, the Article 10 of Maldivian constitution provides, “The religion of the State of the Maldives is Islam. Islam shall be the one of the basis of all the laws of the Maldives.”
Article 361 of the Burmese constitution recognizes the special position of Buddhism as the faith professed by the great majority of the citizens of Burma. The Union is bestowed with a duty to assist and protect the religions recognized utmost by the constitution (Art. 363). It may be contentious as to whether these articles make Buddhism State religion of Burma or not. However, there is no doubt that Buddhism has been placed at a higher place than the other religions as apparent from Art. 361.
Bhutan remains a peculiar case of study as it provides for its own version of secularism. According Cambridge dictionary, secular means ‘not having any connection with religion.’ The popular understanding of secularism is separation of the State and the Church but Bhutan refers to the secular traditions while explain the meaning of national flag. For examples, the preamble of the constitution provides that the upper yellow half in the National Flag that touches the base symbolizes the secular tradition. The Majesty King is the upholder of the spiritual (lower orange half) and secular (upper yellow half) foundation of Bhutan.
As per Article 3 of the constitution of Bhutan, Buddhism is the spiritual heritage of Bhutan. The Druk Gyalpo (dragon king) is the protector of all religions in Bhutan. Unlike other countries, Buddhism in Bhutan is not only a religion but also a spiritual heritage of the State and religious institutions and personalities have responsibility to promote this spiritual heritage (Buddhism). What is more interesting to note is that on the one hand there is a separation of religion from the politics; one the other hand religious institutions and personalities have been considered above the politics (Article 3).
Almost all countries have guaranteed Freedom of Religion in one way or the other, except the Constitution of Somalia where Article 2 (2) provides that no religion other than Islam can be propagated in the country. Afghanistan has assured that the ‘Followers of other faiths shall be free within the bounds of law in the exercise and performance of their religious rituals’ (Article 2). South Sudan has incorporated it by maintaining its multi-religious nature of State, by declaring an elaborate list of religious rights under Article 23 and its conscious efforts to enjoin religious tolerance (See Articles 8 and 46). Nine countries – Bahrain, Bhutan, Democratic Republic of Congo, Dominican Republic, East Timor, Eswatini/Swaziland, Hungary, Kenya and Zimbabwe – have guaranteed freedom of Conscience which stands on a higher pedestal more than Freedom of Religion. Bahrain Constitution of 2002 has declared in Article 22 that the ‘Freedom of Conscience is absolute’.
The Right of Freedom of Religion remains non-derogable even in case of State of Defense or Siege, (what in India would be called emergency) in Democratic Republic of Congo, Dominican Republic and East Timor. These three have explicit and specific prohibitions in Articles 61, 263 and 25 respectively in each of their Constitutions.
The above analysis has shown in a compulsive way that mere mentioning of God or Deity in the Preamble itself does not make a State so religiously rigid or compulsive. This makes us one to go back to the age-old debate on Secularism – between the western and the so-called non-western version. This analysis would better fit into the version of secularism, where secularism would mean equal respect to all religion rather than the diversion or absolute separation of religion from politics/State. In spite of having a divine aspiration in their Constitutional Preambles, the States never forget to respect all other people’s faith and belief – a much needed trend in Modern Constitutions considering the current geo-political scenarios.
In the next article we will discuss the provisions related to customary international law in the constitutions. In the initial study, we have found that for some countries customary international law is not only part of the national legal system but also have priority over the national laws.
Opinion expressed by the authors are personal.