The Reference of Islamic Sharia in the Yemeni Constitution between Legislative Restriction and the Rigid Constitutional Core: A Study in Normative Gradation and the Theory of the Constitutional Bloc

Abstract

This study examines the normative status of the reference to Islamic Sharia in the Yemeni Constitution by analyzing the position of Article (3) within the normative hierarchy of the constitutional system, in light of the theories of the constitutional bloc and substantive limitations on constitutional amendment. The central problem of the study is to determine whether the provision stating that Islamic Sharia is "the source of all legislation" is limited in its effect to guiding the legislative authority, or whether it entails a normative impact extending to constitutional review of laws and the limits of constitutional amendment. The study adopts an analytical approach to interpret the relevant constitutional texts, a comparative approach by drawing on certain comparative constitutional experiences, as well as a historical approach to trace the evolution of the drafting of Article (3) between 1990 and 1994. The findings of the study indicate that Article (3) is not to be understood as a merely symbolic or political text, but rather represents a constitutional rule with a binding normative effect in the legislative domain. The study further reveals that this provision is capable of being considered among the referential texts that may be relied upon in constitutional review, and that its content is connected to the foundational principles relating to the constitutional identity of the state. The study also concludes that the reference to Islamic Sharia occupies a superior normative position within the Yemeni constitutional structure, approaching the scope of the constitutional bloc and the rigid constitutional core, which justifies the assertion that definitive Sharia rulings enjoy objective protection that limits the possibility of their amendment or any derogation from their content, even in the absence of an explicit entrenchment clause. Finally, the study concludes that the proper activation of this constitutional text requires a disciplined constitutional judiciary that balances respect for the constitutional reference with the requirements of legislative flexibility.