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Tuesday, December 4, 2012

An Examination Of Egypt's Draft Constitution Part I: Religion And State – The Most Islamic Constitution In Egypt's History.

An Examination Of Egypt's Draft Constitution Part I: Religion And State – The Most Islamic Constitution In Egypt's History.(Memri). By: L. Lavi.* President Mursi recently declared commitment to implementing religious law. 
According to Mursi, "all agree that the Islamic shari'a is the constitution that rules all aspects of life. Only what was conveyed in the honorable Koran will be read and only it will be heeded… [The Koran] will be the basis for all matters pertaining to the general populace – not only Muslims – and to their activities in politics, agriculture, economy and all other fields." 
In practice, however, the MB has generally sided with the relatively moderate Al-Azhar in the partial (rather than full) implementation of the shari'a. Its stance on this matter points to the movement's pragmatism and its willingness to make compromises on its ideology as it makes the transition from a persecuted opposition to the ruling power responsible for the country's stability. Nonetheless, senior MB officials have made it clear that they still consider full implementation of the shari'a to be their end-goal, but one to be achieved at a later stage, once the people's hearts and minds have been gradually attuned to this.(Sheikh Yusuf al-Qaradawi explains the general principle ... Sharia Gradually No Chopping Hands for 1st Five Years.)
Following is a summary of the articles in the draft constitution pertaining to the status of religion.

Article 1, which deals with Egypt's orientation, was amended. It now defines the Egyptian people as "part of the Islamic nation," a definition that did not appear in the previous constitution.

Article 2, which defines Islam as the "state religion" and "the principles [our emphasis] of Islamic shari'a" as "the main source of legislation," remains intact. The decision to leave it unchanged was a compromise between the Salafis and the liberals. The Salafis wanted the word "principles" either deleted or replaced with the word "directives"; in other words, they wanted full implementation of the shari'a, as in the early days of Islam. The liberals would have preferred to see the entire article deleted and Egypt defined as a civil state, or, at the very least, to leave the article with its original wording and to interpret the term "principles of the Islamic shari'a" as universal principles of justice, liberty, and equality. Leaving this article unchanged also reflects an effort of the MB to convey to the West and to the Egyptian citizens that its rise to power did not portend a radical Islamization of Egypt.

Article 219, added to the constitution to clarify Article 2, states: "[The expression] 'principles of Islamic shari'a' refers to the general methods of juridical argumentation, to fundamental juridical rules and principles, and to the [written] sources recognized by the Sunni juridical schools." Its role is to prevent a narrow reading of Article 2, like the liberals want or like the interpretation given by the Supreme Constitutional Court in 1996, according to which legislation from then on would be in keeping only with limited parts of the shari'a about which the various jurisprudential schools within Islam are in agreement. Article 219, in contrast, gives Article 2 a broader reading, which would enable the implementation of a larger part of the shari'a and require legislation to conform to the principles of Sunni law. The article was intended to appease the Salafis and to dispel the charges leveled against the MB that it had given up on implementing the shari'a by its opposition to the amendment of Article 2. Out of consideration for liberal circles, this article was placed toward the end of the constitution, and not immediately following Article 2, in order to indicate that it was of lesser importance. Article 219 allows the codification of the shari'a and enables discrimination against all who are not Sunni Muslims, including Shi'ites. It is not clear at this point how it will affect legislation in practice.

Article 3, newly added to the constitution, defines "the canon principles of Egyptian Christians and Jews" as "the main source of legislation for their personal status laws, their religious affairs, and the selection of their spiritual leaders." This article was introduced in order to create a semblance of tolerance and to appease the Copts, who claimed that Article 2 would serve as a basis for discrimination against them; however, it does not refer to other non-Muslim religions, such as Bahais.

Article 4 was added to the draft constitution in order to consolidate the status of Al-Azhar as the state's religious authority. It defines Al-Azhar as "an encompassing independent Islamic institution, with exclusive autonomy over its own affairs" and the Al-Azhar Sheikh as an "independent" position-holder who "cannot be dismissed." In other words, this article recognizes Al-Azhar as the supreme religious body of Egypt and presents it as an apolitical body independent of the regime. Nevertheless, Article 4 states: "Al-Azhar senior scholars are to be consulted in matters pertaining to Islamic law" – a concept that appeared in the platform of the MB's Freedom and Justice Party. The inclusion of this clause in Article 4 reflects the great influence of the MB on the draft constitution. Its inclusion is also aimed at requiring the Supreme Constitutional Court – the sole body with the authority to interpret the laws and determine whether they are in keeping with the constitution, including with the principles of the shari'a mentioned therein (Article 175) – to consult with Al-Azhar on matters pertaining to the shari'a. At the same time, the opinion of Al-Azhar in matters of Islamic shari'a is not binding. The phrasing is the outcome, on the one hand, of pressure by the Salafis to divest the Supreme Constitutional Court of its exclusive authority to interpret principles of shari'a, and, on the other hand, of taking into consideration the liberal voices that call to refrain from giving the religious establishment legislative authorities. The Supreme Constitutional Court, and not Al-Azhar, remains.

Article 5 states that "sovereignty is for the people; it is they who exercise and protect it, and safeguard national unity, and they are the source of authority, in the manner specified in the constitution." This phrasing is contrary to the position of the Salafis, who insisted upon writing that sovereignty is for the Lord.

Article 6 states that "the political system is based upon the principles of democracy and shura (an Islamic principle obligating the ruler to consult with authoritative advisors)." This addition, too, represents an attempt to please both the liberals, who wished to define Egypt's regime as democratic, and the Salafis, who wished to avoid the term democracy and use the term shura instead. The inclusion of both terms represents a compromise between the two approaches. The Salafis on the Constituent Assembly agreed to this phrasing on the grounds that it distinguishes Egyptian democracy from Western-style democracy and defines Egypt as a parliamentary regime subject to Islamic tradition, which means that practices such as same-sex marriage, for example, are not permitted. Conversely, moderate Islamic and liberal circles accepted this phrasing on the basis of the rationale that shura is a component of democracy and does not detract from the democratic character of the regime. The article goes on to state that the political system is based upon the principles of "citizenship (under which all citizens are equal in rights and duties), multi-party pluralism, peaceful transfer of power, separation of powers and the balance between them, the rule of law, and respect for human rights and freedoms." This was intended to clarify that despite the inclusion of Islamic principles, Egypt is not a theocracy.
Article 6 also abolishes the prohibition on forming denominational parties – which was part of Article 5 of the previous constitution – specifying instead that "no political party shall be formed that discriminates on the basis of gender, origin, or religion." The ban on denominational parties was added by Mubarak in 2005 to the 1971 constitution in order to prevent the MB from forming a political party and running for parliament. The new phrasing means that a party may not restrict its membership on the basis of religion.

Article 10 states: "The family is the basis of society and is founded on religion, morality, and patriotism. The state and society strive to preserve the genuine character of the Egyptian family, its cohesion and stability, and to protect its moral values, all as regulated by law. The state shall ensure maternal and child health services free of charge and shall enable the reconciliation between the duties of a woman toward her family and toward her work..." This article omits the clause, present in the previous constitution, that specifies that the state shall ensure equality between men and women without violating the directives of the Islamic shari'a. This clause was rejected by women's organizations, which feared that subjecting women's equality to the directives of the shari'a would lead to lowering the legal age of marriage, mandating the hijab, denying women the right to divorce, etc. The Salafis, for their part, insisted upon the inclusion of the reference to the shari'a, refusing to let the equality clause stand without it. The clause in the 1971 constitution that ensured women representation in parliament was also removed from the draft constitution. There is, however, some attempt to address the issue of discrimination – albeit not specifically with regard to women – in Article 33, which states: "All citizens are equal in the eyes of the law. They have equal public rights and duties without discrimination."

Article 43 states that "freedom of belief is an inviolable right" and that "the state shall guarantee the freedom to practice religious rites and to establish places of worship for the divine religions [our emphasis]." Human rights organizations wanted the article to include the words "absolute freedom of belief," claiming that the weaker phrase "freedom of belief" prevented one from converting to another religion. Moreover, this article provides for the worship of monotheistic religions only, in contrast to the previous constitution, which did not restrict freedom of worship to specific religions of any kind.
Article 44 states that "insult or abuse of all religious messengers and prophets shall be prohibited." This article was added on the initiative of Al-Azhar in order to prevent blasphemy. The original proposal was to prohibit affront to the essence of God and to the Companions of the Prophet, but, following pressure by Shi'ites and Copts, only part of Al-Azhar's proposal was accepted.Read the full story here.

* L. Lavi is a research fellow at MEMRI.

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