CONSTITUTION OF THE ISLAMIC COMMUNITY

At the level of general awareness, the Constitution is a normative document which is related to the sovereign state authority and which is based on the sovereign state power. The connection of the Constitution as the supreme norm with the state as an administrative apparatus of a political community is considered to be an exclusive relationship. Therefore, it should immediately be noted that the Constitution of the Islamic Community in Bosnia and Herzegovina should not be identified with a state constitution, that it is not a law of a higher valued which established the political and legal order, and that it is not a law in the usual sense of a norm based on the state power.

Constitution of the Islamic Community in Bosnia and Herzegovina is a normative document which defined the organization of the Islamic Community as a traditional religious organization of Bosnian Muslims, defines rights and obligations of its members and prescribes the way of operation of its organs and institutions. The Constitution represents religious autonomy of the Islamic Community and normative definition of the contents and forms of Muslims' religious life in line with original values and institutions of religion, Bosnian stream of the main tradition of Islam and historical demands of the time. In the recent past, constitutional documents have, to a greater or lesser extent, reflected formal or informal involvement of the state in normal regulation of relations and activities in the Islamic Community.

The first naming of the supreme normative document of the Islamic Community in Bosnia and Herzegovina as the constitution is related to the promulgation of the Constitution of the Islamic Religious Community of the Kingdom of Yugoslavia in July 1930, during the “6 January Dictatorship”. Enactment of the Constitution was preceded by the Law on Islamic religious community of the Kingdom of Yugoslavia, which was enacted in January 1930 and which repealed the Statute for autonomous administration of Islamic religious and educational affairs in Bosnia and Herzegovina from the time of Austro-Hungarian administration. The law repealed the autonomy of the Islamic community in Bosnia and Herzegovina and established the Islamic Religious Community of the Kingdom of Yugoslavia under the jurisdiction of the Ministry of Justice in Belgrade, and prescribed the procedure of enacting the Constitution. The procedure included drafting the text of the Constitution in the organs of the Islamic Community, its adoption by the minister of justice and legalization by the king. In the meantime, resignation of raisu-l-ulama Džemaludin Čaušević, the last raisu-l-ulama with the manshura by shaykh-al-Islam in Istanbul was extorted, the retired mufti Ibrahim Maglajlić was appointed raisu-l-ulama by the king's decree, and the seat of the Riyasat was transferred from Sarajevo to Belgrade.  

The first article of the Constitution of the Islamic Community of the Kingdom of Yugoslavia provides that Islam is a recognized religion of the Kingdom, the third article states that the Islamic Community independently manages and administers its religious, educational and waqf-property affairs, while the fifth article determines the Constitution as the third source of normative content which the Islamic Community is subject to. Regulations of the Sharia were listed as the first, and regulations of the Law on the Islamic Religious Community of the Kingdom of Yugoslavia as the second source of norms which the Islamic Community is guided by. These provisions are also included in the Constitution of the Islamic Religious Community of the Kingdom of Yugoslavia with the identical wording and at the same places. The Constitution was enacted in 1936, and it mitigated the degrading position of organs, institutions and members of the Islamic Community which had been legalized by the Law and Constitution of 1930. the new Constitution was enacted after the victory of the Yugoslav Muslim organization within the Associated Opposition at the elections of 1935 and the approval of requests by its leader, dr. Mehmed Spaho, who conditioned his participation in the government with a change in constitutional organization of the Islamic Community, staffing of its organs and institutions, and the return of the seat of raisu-l-ulama to Sarajevo.

Five years after the enactment of the second constitution of the Islamic Community, the Kingdom of Yugoslavia dissolved faced with German and Italian armies, and Bosnia and Herzegovina was included in the Independent State of Croatia by an ustasha proclamation. Despite the pressure by ustasha authorities on the one hand, and mass, genocide crimes against Bosniaks by Serbian chetnik forces on the other, leadership of the Islamic Community in Sarajevo did not agree with the enactment of a new constitution and definition of the Islamic Community according to factual conditions, which were created by German-Italian occupation and dissolution of the Kingdom of Yugoslavia, since it would have legitimized the quisling government of the Independent State of Croatia.

The first constitution of the Islamic Religious Community in the Federal People's Republic of Yugoslavia (FNRJ) was enacted in 1947, and it formally legalized Muslims' general religious right to public expression of religion and performance of religious duties, and confirmed independence of the Islamic Community in managing religious, religious education and waqf-property affairs. However, the reality was different. The one-party communist authorities advocated political totalitarianism and preferred the atheist worldview, systematically worked on devaluating and preventing the political, cultural and social influence of religion, and endeavoured to subject the remaining processed and activities in religious communities t its supervision and influence. In case of the Islamic Community, it had additionally aggravating consequences, since the importance of believers' representative organs in it was incomparably greater than in other traditional religious communities and since soon after the establishment of the FNRJ the Islamic community remained the only formally independent informal institution of Bosniaks. Although, during the war and people's liberation struggle, military and political documents of the holders of after-war power treated Bosniaks as one of the three equal Bosnian and Herzegovinian nations, and although Bosniaks had the most victims among South Slavic nations during the war, in the first years after the establishment of the one-party communist government Bosniaks were the only ones deprived of the right to their own cultural and social institutions and associations.  

Three more constitutions of the Islamic Community were enacted in the second Yugoslavia, in 1959, 1969 and 1990 respectively. The constitution enacted in 1959 was a step back compared to the Constitution of 1947. In its provisions, the Islamic Community gave up real estate as the substantive basis of the work of its organs and institutions, legitimized appropriation of waqfs by the state and confirmed the reduction of its activities to satisfying Muslims' elementary religious needs. As opposed to this one, Constitution of 1969 and particularly the Constitution of 1990 corresponded to processes of political and social reforms in Yugoslavia and constitutes positive steps forward in the normative expansion of the space of religious life of members of the Islamic Community and activity of its organs and institutions. In the Constitution of 1969, a significant breakthrough was made in the provisions which dynamized relations within the Islamic Community and opened possibilities for direct relations between the Islamic Community and religious communities and institutions abroad. The most significant constitutional novelty pertained to the change of the name of Islamic religious community to the Islamic Community. This change formally ended the normative distinction between the broader meaning of Islam and the narrow meaning of religion as a field of organization and activity of the Islamic Community. In the Austro-Hungarian period and the period of the first Yugoslavia, separation of religious and Sharia-legal, educational, waqf and cultural-historical realities of Islam had a direct practical significance. When communist authorities systematically secularized institutions of political and social life and institutionally limited activities of religious communities, in a process which, for Islam, implied closing of madrasas and maktabs, abolishing Sharia law and courts, nationalizing waqf property and disabling the work of cultural and charity institutions with Islamic label, such a distinction lost its factual meaning. The Constitution of 1990 was enacted in the circumstances of inner dissolution of socialist orders in Europe and opening processes of actual democratization in Yugoslavia. Unlike participants in drafting and enacting previous constitutions, people who drafted and adopted this one were largely freed of the need for Yugoslav ideological and political self-censorship, and provisions of this Constitution reflected the spirit of liberating the practical, live religiosity at the expense of its previous administrative restrictedness.  

Like the constitutions of the Islamic Religious Community enacted in the Kingdom of Yugoslavia, constitutions of the second Yugoslavia included similar wording in provisions on the autonomy of the Islamic Community and those on the restricted validity of the constitution as a normative system compared to regulations of Islam and state laws. The crucial formal difference among them was the fact that the procedure of enacting the constitution in the second Yugoslavia was formally limited to the Council of the Islamic Community and, in line with the principle of separation of religious communities from the state, did not include the procedural participation of the entities of political authorities. In reality, communist authorities relativized this formal limitation by the informal direct influence on the leading personalities of the Islamic Community and indirect influence on the election of members of the Council of the Islamic Community.

Dissolution of the Socialist Federal Republic of Yugoslavia was accompanied with the disappearance of the state basis for a single Islamic community in Yugoslavia, and independence of Bosnia and Herzegovina as a democratic state opened possibilities for the renewal of the autonomous Islamic Community in Bosnia and Herzegovina as an institutional framework of the original tradition of Islam and Islamic life of Bosnian Muslims. The brutal aggression on Bosnia and Bosniaks prevented a peaceful reorganization of the structures and processes of religious community of Bosniaks based on their universal Islamic sources and Bosnian historical determinants and constants. In the circumstances of the aggression on Bosnia and Herzegovina and genocidal crimes on Bosniaks, holders of responsible positions in organs and institutions of the Islamic community and renowned Bosniak intellectuals formed the Restorative Council of the Islamic Community in Bosnia and Herzegovina. In April 1993, the Council made the decision on the renewal of the autonomy of the Islamic Community in Bosnia and Herzegovina which had been established by the Statute of 1909, adopted the constitutional decision as its interim supreme normative act, elected naibu-rais and his deputy, and formed the Constitutional Committee which was to carry out activities on drafting the Constitution of the Islamic Community.

Pursuant to the decision of the Restorative Council made in August 1995, president of the Council and secretary general of the Riyasat turned the results of the Constitutional Committee's activity into the proposal of the platform for drafting the Constitution of the Islamic Community in Bosnia and Herzegovina. In January 1997, the Council adopted the proposed text of the platform and offered it to the public as a material for public discussion. The text was printed in thirty thousand copies, and over two hundred Bosniak intellectuals, recognized in religious and social studies and humanities were individually invited to contribute to the discussion. The Council acknowledged the circumstances of the true freedom of religion and independence of the Islamic Community, which had not existed before, on the one hand and, on the other, the importance of the democratic procedure and active participation of members of the Islamic Community in ensuring the normative value of the Constitution. Application of the democratic procedure followed the original Islamic requirement that important issues in Muslim community should be equally decided upon by its members, directly or through elected representatives, as well as the role of democratic rules and procedures in the development of institutions and associations of the contemporary world. Although it was a pioneer action, the discussion aroused a broad interest and a great number of specific suggestions contributed to the final definition of the text of the Constitution. The Constitution of the Islamic Community in Bosnia and Herzegovina was enacted at the session of the Council in December 1997.

In the Constitution of the Islamic Community in Bosnia and Herzegovina, autonomy of the Islamic Community is directly related to the essential content of its religious mission and its serving to needs and strivings of the Muslim community. In the matters of religion, autonomy is rooted in religious basics and organization of the Islamic Community as the institutional holder of the living tradition of Islam, original Islamic communion of Bosnian Muslims and Bosnian Muslims' awareness of belonging to the universal Islamic community. In the matters of organization and representation of the community of believers, it is based on the existence of the Islamic Community as a historical framework of Bosnian Muslims' Islamic life, its internal destiny and its external definition. Constitutional norms, as essential expressions of autonomy of the Islamic Community, have religious and moral intention and establish the religious and moral order, unlike state laws, which establish legal and political order.

The organic connection between representing religion and representing the community of believers is the most important determinant of the constitutional organization of the Islamic Community, a religious organization where there is no religious difference among members. Holders of the religious authority in representing matters of the religion include imams, grand imams, muftis, deputy raisu-l-ulama and Raisu-l-ulama. Representatives of believers in matters of the community include members of jamaat boards, assemblies and executive boards of majlises, mashihats and the Council of the Islamic Community. Positions in the Islamic Community are elective and have a limited term of office, and same persons can hold the most responsible positions twice. Participation of the holders of religious authority in representative organs is limited to less than a third of members or council members.