Critique of the New Egyptian Constitution: Is the Flaw Secondary or Does It Undermine the Foundation?
Peace be upon you and the mercy of God. Brothers, regarding the Egyptian constitution put to vote; can its flaws be tolerated for the sake of achieving some benefits, or are these flaws so severe that they undermine the very foundation of religion and thus cannot be tolerated for any benefit?
Firstly, the articles objected to on religious grounds in the constitutions of Hosni Mubarak and Anwar Sadat are still present in the new constitution; nothing has been abolished. As for Article 219, which some consider their greatest achievement and an explanation of the contested articles in accordance with Sharia, this article states: "The principles of Islamic Sharia include its comprehensive evidence, its fundamental and jurisprudential rules, and its accepted sources in the schools of Sunni Islam."
Article 219: Achievement or Reproduction of the Past?
This article was previously a decision by the Constitutional Court during the era of the deposed regime (Decision No. 113 of 1994), which stated: "No legislative text may contradict the definitive religious rulings in their establishment and indication, considering that these rulings alone are those in which ijtihad (independent reasoning) is prohibited, as they represent the comprehensive principles and fixed foundations of Islamic Sharia that do not admit of interpretation or alteration."
This text during the era of Hosni Mubarak was more explicit in referring to Sharia than Article 219 in the era of the Islamists. Nevertheless, the Islamists objected to it before, and we still object to it for two reasons:
- Susceptibility to Deletion and Change: This decision is subject to cancellation. Article 217 of the new constitution, like its predecessor, allows the president and the House of Representatives to change any article. For this reason, the Islamists insisted that the article on Sharia should be "above constitutional" status, not subject to discussion, referendum, or challenge. Then they relinquished this demand, making the new article similar to the old decision. This flaw alone ends the discussion for us: that the reference to Sharia is subject to deletion and change.
- Vagueness and Ambiguity: Can the supporters of the constitution explain to us what this article means? What are its comprehensive evidence? What are its fundamental rules? What are its accepted sources? Does not this generality and ambiguity facilitate manipulation of this article? With this text, it is "yaseq" (unsatisfactory), as it allows 80% of the laws to be derived from Sharia and 20% from positive laws that conflict with Sharia. Any interpretation that prevents this is also subject to change and deletion.
Therefore, it is very easy under the new constitution to draft a law contrary to the religious text. If challenged, the response would be that it does not contradict the "spirit of Sharia" or its "lenient principles." Even if it does contradict, who said that Sharia is the only source?
Sovereignty of the People or Supremacy of Sharia?
Contrary to this ambiguity, let us see how religion is explicitly undermined in other articles:
- Article One: States that Egypt's system is "democratic." This generality is explained in Article Five and others to mean that the right to legislate belongs to humans.
- Article Five: States that "sovereignty belongs to the people." Our question to the interpreters: if this article is subject to interpretation without contradicting Sharia, why did the Salafis previously consider it their religious duty to change it? And who convinced them that it is subject to interpretation? The matter of creed is the first thing for which excuses should be closed, and the sovereignty of the people makes humans partners in the rule of God. Perhaps the Islamists rejoiced at the deletion of the word "alone" (sovereignty belongs to the people alone), making sovereignty belong to the people along with God. God is our helper.
- Article Seventy-Nine: States that "judgments are issued and executed in the name of the people," meaning they are executed not as the rule of God, but because the people wanted them. The article continues that the refusal of an official to execute them is a crime. If an official refuses to execute a ruling because it contradicts Sharia, he is considered a criminal to be punished by law.
Citizenship and Obliteration of the Creed of Loyalty and Disavowal
- Article Six and Article Thirty-Three: These articles state the principles of democracy and citizenship that equate all citizens in rights and duties. This is Western democracy in its entirety, where religion is not considered in rights and duties, allowing a Christian or an apostate to hold rule or judgment, which obliterates the creed of loyalty and disavowal.
- Political Pluralism: Article 33 states that it is not permissible to establish a political party based on "religion," meaning that members of parliament do not derive their legitimacy from Sharia, and it is not permitted for Sharia to be their identity. Instead, they derive their legitimacy from the people who elected them as legislators.
Personal Freedoms and Belief
Articles 34, 43, and 45 state personal freedom and freedom of belief and expression without framing them within Sharia. Leaving the terms of freedom unrestricted means the continued misuse of them in ways that contradict Sharia, such as calling to what God has forbidden or criticizing religious rulings.
Conclusion:
This was a brief review of some articles, indicating that this constitution has no connection to Islam and does not differ from previous constitutions in making rule belong to humans instead of God. What was the role of the Islamists during the past period? Were they exhausted ideologically and forced to make concessions until they succumbed?
We will discuss the required stance towards this constitution in a forthcoming statement, God willing. Peace be upon you and the mercy of God.