Selous Foundation for Public Policy Research

Egypt’s New Draft Constitution Raises Concerns Over Defining Islamic Sharia Law

By Mounir Bishay


Tahrir Square, Cairo, Egypt on February 9, 2011/Wikimedia Commons

A new Constitution for Egypt has just been drafted and sent to the interim president Adly Mansour for his approval before putting it to a popular referendum. A committee of fifty representing various factions of Egyptian society, as well as ten specialists in constitutional law, worked on the project that ultimately produced the final draft containing 247 articles. If approved, the 2013 Constitution would replace the 2012 Constitution known as the Brotherhood Pro-Islamic Constitution enacted during the rule of ousted President Mohammed Morsi (June 30, 2012 to July 3, 2013).


Depending on who you ask, you can get different opinions on the proposed Constitution. Obviously, the Islamists, including members of the Muslim Brotherhood, are not happy by the fact that the new Constitution is drifting away from turning Egypt into a pure Islamic state modeled after the Brotherhood’s brand of Islam. On the other hand, Christians, and liberal Muslims, did not get what they hoped for in terms of a secular Constitution that would establish civil rule and would not place an emphasis on religion.

At the core of the problem is an article which specifies Egypt’s religious identity and thereby establishes a Muslim State. The article was first introduced in the 1964 Constitution. It appeared as the fifth article and it read: “Islam is the State’s religion and Arabic is its official language.” In the 1971 Constitution, President Anwar Sadat added the sharia clause making it the second article stating: “Islam is the state’s religion and Arabic is its official language, and the principles of Islamic sharia a source of legislation.” Then, in 1979, Sadat wanted to appease the Islamists in order to gain their support for lifting the two term limit on presidential succession, making it indefinite. In the bargain, he introduced a change in the sharia clause making the principles of sharia the main source of legislation, rather than just a source.

To calm the concerns of Egypt’s Christians and liberal Muslims over the part which introduced Islamic sharia law for the first time in Egypt’s history during the Sadat era, it was explained that principles are different from rules. Sharia principles are values such as justice, equality, peace and love, which are common among all religions. On the other hand, the Constitution didn’t call for “rules” of sharia, such as cutting off the hands of thieves, lashing drinkers and stoning adulterers. It is worth mentioning that, so far, none of these Islamic rules have been enforced, as a result of having the sharia clause in the Constitution.

Then, at the dawn of the so-called Arab Spring, the January 25, 2011 revolution took place. It ended the nearly 30-year rule of President Hosni Mubarak. Following the June 2012 presidential election, the Muslim Brotherhood rode the revolution into power to rule over Egypt. It was clear from the beginning that one of their goals was to draft an Islamic Constitution changing the phrase “principles of sharia” in the document to “rules of sharia” but they encountered fierce resistance. In 2012, the Muslim Brotherhood drafted a new Constitution leaving Article 2 unchanged but slipped in a new article numbered 219, which read: “Principles of sharia include its universal and fundamental rules derived from recognized sources in the Sunni jurisprudence.” In essence, Article 219 put the rules (rather than principles) of sharia, back into the Constitution. Article 219 was not only objectionable to Christians but also to other Muslims, such as Shiites, who do not adhere to the Sunni faith.

Another revolution took place in Egypt on June 30, 2013, this time against the rule of the Muslim Brotherhood. Once again, a new Constitution was drafted and as expected Article 219 was at the center of debate. The Islamists fought to keep it in, while Christians and almost everybody else wanted it removed. Finally, the constitutional drafting committee reached a compromise where Article 219 would be removed and replaced in the Constitution’s introduction with the Constitutional Court’s interpretation, which is: “Principles of sharia are the definitely proven and definitely established rules.”

Now, we are back to square one.

Hopes to eliminate the rules of sharia from the Constitution did not materialize; instead we were left with the definition of the Court. While it reinserted the rule of sharia in the proposed Constitution, it extremely limited its application.

For the draft of the new Constitution to be approved, it must be accepted by a simple majority of the Egyptian voters (50%+1). In the event that does not occur, it will revert back to the interim president who would then order the appointment of a new drafting committee and the entire process would begin anew.

Although this proposed Constitution is not flawless, no doubt it is a big improvement over the 2012 Morsi Muslim Brotherhood Constitution. However, it is expected to be approved by a majority of Egyptians.

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