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Inside Egypt's draft constitution: Role of sharia redefined

Some observers approve of changes made in the draft constitution to articles on religious freedoms and Islamic law

Nada Hussein Rashwan, Thursday 12 Dec 2013
Egypt
Amr Moussa, center, the chairman of Egypt's 50-member panel tasked with amending Egypt's Islamist-drafted constitution, arranges the members for a group picture after finishing the final draft of a series of constitutional amendments at the Shoura Council in Cairo, Egypt, Monday, Dec. 2, 2013 (Photo: AP)
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The draft Egyptian constitution, which will be put to public referendum in a matter of weeks, comprises a major step forward in regulating the role of Islamic sharia and in allowing religious freedom, according to observers.

The previous constitution was drafted in 2012 by an assembly dominated by Islamist figures, and was subject to frequent criticism by non-Islamists for its stance on religious freedoms and on the role of sharia law.

The democratic process that followed the fall of autocrat Hosni Mubarak saw the rise of the Islamist Muslim Brotherhood to power, but following the ouster of the Brotherhood's Morsi from the presidency in July, a new roadmap was announced by the interim authorities. The controversial 2012 constitution, which had been approved by national referendum in December 2012, was suspended.

Role of Islamic sharia 

"The new draft maintains the position of sharia in social conscience, but prevents any infringements on constitutional jurisdiction," Adel Ramadan, legal affairs official at local NGO the Egyptian Initiative for Personal Rights, told Ahram Online.

"Having gone in the direction of achieving that balance, amending the articles related to the rule of sharia law to their current position in the draft was certainly a positive step."

Egypt's new draft charter maintains the original phrasing of Article 2, the essential text that cites that sharia law is the main source of legislation.

However, the mostly non-Islamist drafting committee, appointed in September by interim President Adly Mansour, has eliminated and modified the most controversial articles and text phrasings pertaining to sharia which were added by the 2012 assembly, and which were criticised at the time by many non-Islamist political figures.

Most notably, the new draft has jettisoned Article 219, which had defined the aspects of sharia on which legislation will be based.

Ramadan, who has studied both drafts, believes the elimation of Article 219 has removed the perceived political authority of Al-Azhar, the country's highest Islamic institution, from the lawmaking process.

"Article 219 posed a restriction on lawmakers," Ramadan said. "Removing it also helps eliminate possible conflict between sharia and constitutional jurisdiction."

Nader Bakkar, spokesman for conservative Nour Party which was allied with the Brotherhood in 2012 and had strongly pushed for the inclusion of Article 219 at that time, said the removal of article in the amended draft had not reduced the role of sharia law.

"The amended draft, while certainly giving more advantage to lawmakers than the old constitution, still maintains the essence of sharia and upholds the Supreme Constitutional Court's acknowledgement of its pillars, which Article 219 only reiterated."

Bakkar explained that his party, which had one representative in the 2013 drafting committee, agreed to the removal of Article 219 only because the pillars of sharia law are defined "clearly" in the preamble for the new draft -- something that was missing in the 2012 charter.

The 2013 preamble reaffirms the principles of sharia law as acknowledged by the Supreme Constitutional Court in 1985.

Moreover, in Article 7 of the amended draft, which regulates the role of Al-Azhar, the part which stated that Al-Azhar's Supreme Clerical Committee should be consulted on all matters relating to sharia has also been removed.

"The previous constitution gave political authority to an unelected religious body over state institutions," Ramadan said.

Bakkar, who said that amendments relating to Al-Azhar were all made in agreement with the three representatives of the institution in the 50-member committee, believes that the amendments have actually strengthened Al-Azhar's position in the constitution.  

"Now, Al-Azhar as an entire institution, including the Supreme Clerical Committee, is now defined clearly as the only reference body in religious affairs. This will eliminate possible infringement by any political party who wish to take the matter of interpreting sharia into their own hands."

Religious freedoms

In Article 81 in the section of the draft on rights and freedoms, a contentious sentence which stated that rights and freedoms may be exercised "as long as it does not contradict with any constitutional articles in the section on the state" was also removed.

In 2012, the sentence was strongly criticised by rights groups and non-Islamist parties on grounds that it gave way to suppressing freedoms in the name of applying Islamic sharia.

"The old Article 81 restricted the freedoms which were earned by the Egyptian people after the 25 January revolution," says Ramadan, the rights lawyer, referring to the uprising that toppled autocrat Hosni Mubarak in 2011.

Bakkar, for his part, does not seem to be fazed by the omission of the sentence his party lobbied for in 2012.

"We've made sure that the role of sharia law is established in the new preamble which sets the framework for the whole document," he explained.

"The most important part is that the constitution still prevents the approval of any legislation that would contradict with sharia law."

This, however, is still a source of concern for Ramadan.

"While there is more than one school of interpretation of sharia law, governments and upcoming state institutions which would work under the amended constitution should still always uphold constitutional jurisdiction granting the right to practice freedoms," he said.

 

2013 Constitution

2012 Constitution

Article 2

Islam is the religion of the state, Arabic is its official language and the principles of Islamic Sharia are the main source of legislation.

Article 2

Islam is the religion of the state and Arabic is its official language.

The principles of Islamic Sharia are the main source of legislation.

In the preamble: We are drafting a constitution that affirms that the principles of Islamic Sharia are the principle source of legislation, and that the reference for interpretation thereof is the relevant texts in the collected rulings of the Supreme Constitutional Court

Article 219

The principles of Islamic Sharia include general evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community.

The principles of the laws of Egyptian Christians and Jews are the main source of laws regulating their personal status, religious affairs, and selection of spiritual leaders.

Article 3

The canon principles of Egyptian Christians and Jews are the main source of legislation for their personal status laws, religious affairs and the selection of their spiritual leaders.

Article 7

Al-Azhar is an independent scientific Islamic body. It is solely responsible for all its affairs and it is the main reference in theology and Islamic Affairs. It is in charge of preaching, dissemination of religion and the Arabic language in Egypt and the world. The state is committed to providing sufficient funds to ensure it achieves its objectives.

 

Al-Azhar Grand Sheikh is independent and cannot be dismissed. The law regulates the way he is chosen from among the senior scholars.

Article 4

Al-Azhar is an independent Islamic institution, with exclusive autonomy over its own affairs, responsible for preaching Islam, theology and the Arabic language in Egypt and the world. Al-Azhar's senior scholars are to be consulted in matters pertaining to Islamic law.

The state shall ensure sufficient funds for Al-Azhar to achieve its objectives.

 

The post of Al-Azhar Grand Sheikh is independent and he cannot be dismissed. The method of appointing the Grand Sheikh from among members of the senior scholars is to be determined by law.

All of the above is subject to legal regulations.

 

 

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