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Sharia and the new Egyptian constitution

While the ultraconservative Salafist Nour Party lost the battle over Egypt's new constitution, it is likely they will survive politically, and could even take the lead in the Islamist movement

Hicham Mourad , Thursday 19 Dec 2013
Views: 5953
Views: 5953

Egypt's new draft constitution provides better protection for fundamental freedoms and human and minority rights as well as for women and youth, and gives special attention to socio-economic rights, such as education and health.

However, a major issue, among many others, attracted attention throughout the process of drafting of the constitution: the place of Islam and Sharia law in public life.

As expected and already shown in the first draft submitted by the 10-Member Committee of experts on constitutional law, the text prepared by the 50-Member Committee has been stripped of all references to Sharia, inserted by the Islamists, the Muslim Brotherhood and Salafists, in the 2012 Constitution, and emphasised the "civil" character of the state. This process provoked a bitter debate between liberals — who dominated the committee — and the only representative of the Salafists, the member of Al-Nour Party, supported from time to time by Al-Azhar Institution, represented by three members on the committee.

But the balance of power within the 50-Member Committee, given the general political context after the fall of the regime of the Muslim Brotherhood, did not allow Nour Party to assert its ultraconservative views. The party's representative was beaten in almost all issues of "Islamic identity" that he defended.

This was particularly the case when the controversial Article 219, introduced under Nour Party pressure in 2012, which gave a strict definition of the "principles of Sharia," was eliminated from the draft constitution. According to Article 2, the principles of Sharia are "the main source of legislation." The attempt of Nour Party to introduce, after the abolition of Article 219, a definition of "the principles of Sharia" in the preamble of the new draft constitution also failed.

The new text thus returns to the formula of the 1971 Constitution, in effect under former presidents Hosni Mubarak and Anwar Sadat, which merely mentions the principles of Sharia as "the main source of legislation" without giving them a particular definition, leaving their interpretation to the High Constitutional Court (HCC). Deleted Article 219 limited the powers of interpretation of the HCC, considered as too liberal by Islamists.

The 2012 Constitution also granted Al-Azhar a say, though not mandatory on legislators, on issues related to Sharia. This situation generated fears of the expansion of the role of the religious institution in political and public space, and even, for some, the establishment of a theocracy. This provision is deleted from the new draft constitution, with the agreement of Al-Azhar, which does not want to intervene in the thorny issues of politics.

In the same vein, Article 76 of the 2012 Constitution has been deleted. It provided that a crime may be inferred directly from the text of the constitution, without explicit mention in the penal code. Legal experts interpreted this provision as paving the way for the application by courts of punishments under Sharia law, without the need for prior legislation on specific categories of crime.

The inclusion in the preamble to the draft constitution of the formula "civilian government" is another indication of the de-Islamisation of the national charter. The term "civilian" was neither in the 1971 Constitution nor, a fortiori, in that of 2012.

After the unfortunate experience of the Muslim Brotherhood in power, the liberals, supported by representatives of the three Egyptian Churches — the Coptic, Catholic and Anglican — insisted on introducing this term to cut short any attempt to Islamise the state in the future. This desire to emphasise the civilian character of the state gave rise to an intense debate with the Salafists, which had been joined by Al-Azhar. Nour Party was opposed to any inclusion of the term "civil," as for them it reflects Western and secular values. The liberals wanted initially to use the formula of "civil state," which was rejected by Nour Party and Al-Azhar, because for them it could mean a "secular state." The compromise formula was, finally, "the establishment of a democratic and modern state," with a ”civil government.”

On another level, the draft constitution prohibits in Article 74 the establishment of political parties on religious or sectarian bases. It thus returns to the formula of the 1971 Constitution. However, the question of religious parties remains. These parties, 11 in total, were created after the popular uprising of 25 January 2011, under the constitutional declaration of March 2011, promulgated by the Supreme Council of the Armed Forces, which also prohibited the establishment of religious parties. The latter, to circumvent the difficulty, avoided making clear reference in their statutes and programmes to their religious nature, but their action and discourse betrayed this dimension. The political context of March 2011 is certainly not that of December 2013, at least for what is left of the Muslim Brotherhood and its political party, the Freedom and Justice Party (FJP), currently frozen.

It is likely that the Salafist Nour Party, the second political force after the FJP in the last parliament, which was dissolved, will survive this prohibition. It is the only Islamist party that agreed to the roadmap announced by the army following the dismissal of Mohamed Morsi 3 July. It also participated in the drafting process of the constitution and refrained from withdrawing from the 50-Member Committee despite the setbacks it suffered, when virtually all of its demands were rejected. The party called on its supporters to vote "Yes" for the draft constitution in the upcoming referendum in January.

This position can be explained by the fact that Nour Party is aware that the wind has turned and that the Islamists have lost the dominance they gained after the fall of Mubarak. Its leadership is both realistic and ambitious. It certainly lost the battle of the constitution, given the new balance of power established after the overthrow of the Muslim Brotherhood, but taking into account the weak anchor of liberal parties in the electorate, it keeps the hope and the ambition of inheriting the dominant position of the FJP in parliament and in political life.


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25-12-2013 04:18am
modis operandi
westermn intelligence operatives use bombings to bring fear to voters in hpes they will vote for secular or right wing parties....likud gop have always used these types of tactics as their populations became more liberal....its the only way they can egypt the goal will be to never again see the muslim brotherhood get elected....the latest bombing of course was blamed on the mb
Comment's Title

22-12-2013 09:05pm
Islam is facing fascism not liberalism
GordonHide: The real balanced view is that we should allow the masses to decide. And the masses say they want to be ruled by Islam, not by secularism. Secularism is not part of Islam, Secularism and Islam are oxymoron. We in Egypt held elections three times and every time the people said Yes-a big yes-for the Islamists. But the problem is that secularists in our country are fascist-minded. They refuse to have the ballot box as our ultimate arbiter. They insist on killing and imprisoning their political opponents. Hence, the conflict in Egypt is not really between Islam and liberalism....but rather between Islam and secular fascism. It is true that the MB is the most popular and democratic party in Egypt. This is why the fascist secularists will not allow them to tke part in political life. Those who murder people and rape women in the desert can't be true advocates of democracy. They can not be entrusted to hold honest elections. Savagery, Barbarianism, and tyranny can't be expressions of "Democracy" eve if dressed in secular attire.
Comment's Title

21-12-2013 04:57pm
State secularism - a more balanced view
@Nabil Fahmi State secularism is not opposed to religion. It is a commitment to treat all philosophies in a neutral manner insofar as they can be accommodated by the law. Neither does state secularism have a moral axe to grind. It asserts the primacy of the constitution and the law made by the representatives of the people over any other source of authority. You may think this blasphemously puts man's law above God's. But what is God's law but the interpretation of scripture by clerics? If the people want to live by some cleric's interpretation of God's law then let their representatives enact that law as the law of the land insofar as the constitution permits it. I haven't read this particular constitution but one of the primary purposes of a good constitution is to safeguard certain basic rights of individuals whatever their philosophy. The constitution should prevent the enactment of laws which will oppress minorities by curtailing their constitutional rights. Thus the tyranny of the majority is avoided. At the end of the second world war America forced new constitutions of American design on both Germany and Japan. These were documents based on the American experience perhaps not that well tailored for the local German or Japanese populations. Both German and Japanese constitutional lawyers must have gained great experience adapting those constitutions to make Germany and Japan the great success stories they are today. A wise Egyptian leader might have called for German and Japanese constitutional lawyers to advise on a new constitution. Your view that a secular constitution will lead to immorality is unfounded. Human societies had functional moral codes of conduct which served them well long before Islam was founded. When you consider the amount of dysfunction in most majority Islamic societies today you should be thinking that there might be a better way of running things. Corruption and maladministration are best controlled by systems not by hoping that greater pious religiosity will make men honest and more diligent. Certainly corruption and incompetence in government exists in the West but it is kept within reasonable bounds by such devices as the separation and independence of powers of the different organs of government, by safeguarding freedom of expression and ensuring there is a strong independent news media able to criticise all aspects of society including government. Giving one religion governmental powers and then implementing strong blasphemy laws is a certain recipe for long term governmental disaster.
Comment's Title
22-12-2013 07:50pm
Secularism can be corrupt as well
Corruption in the west is held at bay not because of secularism, but because of democracy and the rule of law. Othersise, Egypt is one of the most corrupt states under the sun. And that is not because of religion but because of the lack of democracy.
22-12-2013 02:59pm
Gordon Genius!
Thanks Gordon, brilliant! 1000 points for you!
Henrey Beshoy-lawyer
22-12-2013 01:38pm
You are not tellig the truth, Sir.
You say "State secularism is not opposed to religion. It is a commitment to treat all philosophies in a neutral manner insofar as they can be accommodated by the law" But in article 74 of the constitution states that political parties cannot be based on Islam, but can be based on other ideologies. So where is the equality? Where is the Balance? The state is not being neutral between Islam and e.g. Marxism. The state is actually sifing with and favoring Marxism.

Abu Fadi
21-12-2013 03:25pm
In America they say "give me freedom or give death"
If Copts insist on denying Muslims in Egypt the right to take part in political life based on our Islamic convictions, yes we will fight them. Secularism is a part of Christianity, not a part of Islam.
Comment's Title

Huda Abdul Hamid
21-12-2013 03:21pm
My religion is my politics and my politics is my religion.
Who are you to tell me that I must accept secularism, a Christian concept. 95% of Egyptians are Muslims and they want to be ruled by Islam. So, pls shutup. I am fed up with your fascism and tyrannical thoughts.
Comment's Title
23-12-2013 06:37pm
Speak for yourself!
Secularism is not a Christian concept or invention, my dear, it is a world view,completely independent from any kind of relligion that's all. When the hell you will learn this???? Please take a book and read the definition before your repeat this nonsense like a parrot! It is not true also that 95 % of Egyptians are Muslims, it is less than this, there are at least 15 % if not more from other religions. Can you please only speak for yourself!

Nabil Fahmi
20-12-2013 06:30pm
secularism -not religion-is dirty
The secularist argument that religion shouldn't be contaiminated by politics is scandalous. The argument implies that politics should be based on mendacity, deception, deceitfullnes and dishoesty. Well, what happens when morality is left at home? It means public life would be run by thieves, murderers, whoremongers, adulterers and fornicators....those who have no morality!! Islam rejects this. I believe true Christianity also rejects this. This also shows that these depraved secularists represent a tiny minority of the Egyptian people.
Comment's Title

Nabil Fahmi
19-12-2013 06:00pm
Criminal anti-Islam constitution
The new constitution seeks to eradicate Islam from public life. In article 74, it allows all sorts of secular, liberal, Communuist and Marxist political parties. Only Islamic parties are outlawed. This is why this constitution must be destroyed to smithereens. This constitution is a ready prescription for civil war. I will kill anyone telling me that as a religious Muslim I have no right to take part in political life.
Comment's Title
20-12-2013 09:29pm
fake troll
It is really obvious how desperate you Ikwan trolls are. You know very well that secularism is not part of Christianity, as it has existed since the ancient Greece's time. And neither Islam nor Communism are. But you have run out of topics to whine and brag about. You here that claim to kill someone, who are you, "God on Earth"? Only God has the right to take someone's life. Islam and politics are two different things, Islam is a beautiful religion and politics is dirty, our Phrophet Muhammad (pbuh) never engaged in politics, it were the Caliphs who came later that engaged religion in state affairs. People like you are spoiling the name of us Muslims, we don't need any givernment to tell us to behave according to religion, because it is forcing someone who is insecure and weak. We will do it regardless of the government.
20-12-2013 01:57pm
you've missed the point
You are jumping to conclusions. It doesn't say that as a muslim you cannot participate in public life. Your religion, whichever one it is, is your private relationship with your god and has nothing to do with politics. And islman is not welcome in politics precisely because of attitudes like yours which can only solve problems by killing the person who disagrees with you. That is barbarism and totalitarianism. If everyone reacts like you, then yes there can be civil war, but only because you choose it. Civil war is not a fatality, but is the easy way out for those who are unable to sit around the table and discuss matters in a civilised way with other people. I suggest you do some serious thinking about what is happening in the north african and middle eastern countries dominated by political islam, and you will then see the destruction and misery it creates. If Islam were to offer something positive and good to people's lives, then it would be more welcome than it is today. So
Nabil Fahmi
20-12-2013 10:41am
I am Muslim, not Christian, and secularism is not part of my traditions
My eligion is my morality. I can not leave my morality at home. I am Muslim, not Christian. I can't worship God in the Mosque and the devil in the street. Besides, Islam is not a private matter.
19-12-2013 11:24pm
Interesting comment...
Your last sentence is very enlightening.... You as a religious Muslim are talking about killing...You have all rights to take part in political life as a religious Muslim as long as you leave your religion at home in privacy where it belongs to. Is this really so difficult to understand?

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