–Mohamed Abdelaal, Indiana University Robert H. McKinney School of Law, Alexandria University School of Law
Immediately after the Egyptian Revolution in 2011, which ended thirty years of repression and dictatorship under the regime of former President Hosni Mubarak, Egyptians faced the serious challenge of electing a new president and building a new Egypt. Amidst these transitions, the country has witnessed the rise of the Islamists, a phenomenon that has given birth to a bitter battle with the Liberals regarding Egypt’s status as a religious or secular country. Article 2 of the 2012 Constitution, which lists the principles of sharia law as the main source of legislation, plays a pivotal role in steering this debate.
Egypt’s path towards the Islamization of its constitution went through many historical stages. In Egypt, the idea of “Islamization of the constitution” does not mean designing a religious state, but rather embracing the principles of the Islamic shari’a in the constitution. In other words, the battle over Article 2 of the Constitutional Declaration followed many historical precedents that shaped the Article. The whole story started in Ottoman Egypt; however, the argument that took place in Ottoman Egypt was not as polarized as the one that is happening today because in Ottoman Egypt no calls were ever heard to govern irrespective of the shari’a or to abolish it.
Indeed, prior to the 2012 Constitution, Article 2 did not raise any difficulty in its application thanks to the constant interpretation of the Egyptian Supreme Court (SCC). The SCC established two levels of review under which a law’s constitutionality is to be tested. Firstly, the legislation must not violate the authentic rules of the shari’a as described by the Court. Secondly, the legislation must be consistent with the general purposes of the shari’a (maintaining life, property, lineage, reason, and honor) so that it does not impede human justices and welfare.
However, Articles 4 & 219 of the 2012 Constitution are likely to put the SCC’s interpretation at stake. On the one hand, Article 4 reads, “…Al-Azhar Senior Scholars are to be consulted in matters pertaining to Islamic law…” Giving the fact that Al-Azhar is a prominent Islamic institute that is affiliated with religious men and religious education, this article could be construed to mean a push back towards the religious guilds, because Al-Azhar must be consulted in any legal dispute that might raise a sharia issue as well as any legislation that is related to Islamic sharia. On the other hand, Article 219 defines “the principles of Islamic sharia” as found in Article 2 to mean “evidence, rules, jurisprudence and credible sources accepted in Sunni doctrines and by the larger community.” This article constitutes a real threat on the SCC’s interpretation of Article 2 because it restricts the discretion of the Court to consult other Islamic jurisprudences beside the Sunni doctrines. Further, the article could reduce the predictability of law. Sunni doctrine is teeming with many different opinions since Sunni scholars disagreed among themselves regarding certain issues. This could lead to a discrepancy in the outcome of the same legal issue, depending on the particular approach of each judge.
Suggested Citation: Mohamed Abdelaal, Egypt’s Constitution: The Religious Pot, Int’l J. Const. L. Blog, May 2, 2013, available at: http://www.iconnectblog.com/2013/05/egypts-constitution-the-religious-pot