Egypt's controversial draft constitution will be put to a national referendum on 15 and 22 December. Very few of its 236 articles were agreed to smoothly by members of the Islamist-led Constituent Assembly. The draft, which was approved after a 14-hour voting session on 30 November, was strongly condemned by opponents, many of whom left the assembly prior to the final vote, criticising the drafting process.
On 1 December, President Mohamed Morsi officially received the draft constitution and called for a national referendum on 15 December amid rival mass protests between supporters and opponents, and strong dissent from judges over his 'power-grabbing' constitutional declaration of 22 November.
The position of Islamic Sharia law in the draft constitution was strongly disputed within the assembly.
Al-Azhar's new constitutional role in legislation
Although Article 2 of the 1971 constitution, which says the principles of Sharia are the primary source of legislation, remained intact in the draft constitution, two new articles have been added to emphasise the role of Sharia.
Article 219, which defines the aspects of Sharia on which laws will be based, and Article 4, which states the supreme scholars committee of Al-Azhar, the country's highest Islamic institution, should be consulted on all matters relating to Sharia, give the religious institution the right to meddle in the law-making process, according to legal expert Hisham Nasr.
"If the Constitutional Court says a law that has been approved by parliament is illegitimate, who would the parliament turn to?” Nasr wrote in an article published by Al-Arabiya earlier this month.
“The draft constitution spells out the exact pillars of Sharia from which laws are formed, so the law will be referred to the scholars at Al-Azhar for a decision,” he added, underscoring the fact that the exclusive power of the Supreme Constitutional Court to interpret the constitution has been omitted from the draft constitution.
Nasr compared Egypt's draft constitution to Iran's constitution, which he said is the embodiment of rule by jurists because it says Islamic provisions are above all legal and constitutional matters.
“Even though the article does not bind law-making bodies to abide by Al-Azhar’s opinions, would parliament object to a recommendation given by Al-Azhar?” he stated.
Al-Azhar is already facing internecine ideological conflicts within its higher tiers.
Reformists inside the institution have said moderate figures are being marginalised and replaced with "extremist" scholars who follow the ultra-conservative Wahhabi school of Islam.
Article 4 also immunises the Grand Imam of Al-Azhar from deposition by the state and even by the members of the Senior Scholars board, which is tasked with appointing him. Critics feel the immunisation of the Grand Imam will allow Islamists to exert control in the future.
“Submitting laws to Al-Azhar is in itself an encroachment on legislative authority. Laws apply to everyone equally and should not be under the jurisdiction of people who act upon a certain conviction, which means they are not impartial,” human rights lawyer Ahmed Ezzat told Ahram Online.
“Al-Azhar should not be given any role in the new constitution because its independence will be compromised if it can interfere with legislation.”
Principles of Sharia
The draft constitution includes an explanatory article (Article 219) about the meaning of the "principles" of Sharia law.
The principles of Sharia law include holistic evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunna doctrines and by the larger community.
"What is meant by holistic evidence is everything mentioned in the Quran and in the Sunna doctrine. Foundational and jurisprudential rules are those derived from general evidence that is not debatable. Credible sources are the Quran, the Sunna, consensus and analogical deduction,” the Muslim Brotherhood has said in a statement. "With this article, the debate on interpreting the principles of Sharia has been resolved completely.”
However, Nasr challenges the Brotherhood's view that Article 219 ends the debate on interpreting Sharia.
“Since interpretations of the Quran and Sunna are subject to different schools of thought and very few Sharia rulings have consensus, Article 219 does not really narrow down the legislative path of Sharia,” Nasr says.
Ezzat agrees: "Take family laws for instance, they vary greatly in the different Sharia schools of thought. How should there be a unified family law according to this constitution?"
Salafist influence: Obstacle to general freedoms?
Salafists, ultra-conservative allies of the Muslim Brotherhood, have also attempted to further stamp the mark of Islamists on the constitution.
Preacher Yasser El-Borhami, who was a member of the Constituent Assembly, said the Salafists successfully managed to modify three articles.
"There was an article in [the 1971] constitution stating no punishment without a legal text. But we objected to this article and were able to change it to ‘no punishment without a legal or constitutional text’ because if it had remained in the original format, consensual adultery, homosexuality, and usury would not be punished, as they are currently not prohibited by law," he said during a seminar in late November.
He also gave credit to Salafists for altering Article 76, which was referred to in a Brotherhood statement promoting the draft constitution in October.
"For the aim of protecting society, the draft states that no punishment will be carried out unless there is a crime and after verifying all proof of the crime. This will prepare society to understand and accept Sharia and lead to the gradual implementation of Sharia," the statement said.
Ezzat says this article opens the door for unjust punishments: "According to the new format of Article 76, a citizen can be put on trial without a specific law or stating the penalty for crime he is accused of, as now you can directly refer to Sharia for the penalty."
Borhami also believes the Salafist input was evident in Article 10, which reads: “The State, as well as society is keen to preserve the genuine character of the Egyptian family, its cohesion and stability, and to protect its moral values, all as regulated by law."
"We were able to add the word "society" to the text of the article, which will enable us in the future to promulgate an accountability act [legalising a morality police] and it cannot be argued as unconstitutional," Borhami says.
Ezzat says: "The obscure phrasing of the new Article 10 enables a state-sponsored suppression of freedom in the name of preserving morality, which would then be defined solely by Islamists."
Article 81 says freedom exists "as long as it does not contradict with the first section of the constitution," which includes Sharia law and Al-Azhar’s authority to preside over its interpretation.
This could open the door to further restrictions on freedom, Ezzat says. "For instance, if I made a film, the constitution gives Al-Azhar the authority to have the final say on it, subjecting it to censorship.
"Moreover, [Article 81] allows for the supremacy of Sharia over non-Muslims despite the presence of Article 3, which supposedly allows members of divine religions to refer to their own jurisprudence.”
A statement by the Muslim Brotherhood in October explaining their stance on Sharia's position in the constitution says, "The Muslim Brotherhood has been keen on giving Sharia the position it deserves in the constitution, in a manner that will assist parliament in legislating Sharia rules."
However, the Brotherhood's explanation of Sharia did not include specific provisions and only spoke about its larger "principles" of equality and social justice.
The draft constitution has been rejected by most opposition political groups and they are now campaigning for a 'no' vote against the controversial constitutional referendum in the little time they have left.
The first phase of the referendum polling starts on Saturday, 15 December in ten governorates and the second phase is slated for 22 December.