What is the future of secularism in Egypt? LSE MSc student Sajjad Dewji takes a close look at the role of Egypt’s Constituent Assembly and constitutional courts to answer this question in his opinion piece.
By Sajjad Dewji
While the victory of Muslim Brotherhood presidential candidate Mohammed Morsi raises concerns about the future of secularism in Egypt, it is the country’s Supreme Council of the Armed Forces (SCAF) as well as state institutions such as the Constituent Assembly and the judiciary that will, as much as or more so than the office of the president, influence the potential shift towards Islamism or secularism.
The Constituent Assembly, the committee tasked with creating the new Egyptian constitution, has been engulfed in controversy following the resignation of many of its members and continued questions about its constitutionality. Creating a new constitution is obviously no easy task, but there have always been vigorous debates concerning the degree to which Islamic law should be given authority in the Egyptian constitution.
The Egyptian constitution was established in 1971 under the leadership of President Anwar Sadat. During Sadat’s time, the Islamist movement re-emerged and grew in Egyptian society for multiple reasons. These reasons include the perceived failure of secular nationalism during the regime of Gamal Abdel Nasser as well as the strategic use of religion and religious symbols and support of Islamic groups by Sadat’s regime to counter leftist and Nasserist forces.
The new constitution, established in 1971, was the first Egyptian constitution to acknowledge the role of Islam and the shari’a, explicitly stating Islam as “the religion of the state” and the shari’a as “a principal source of law” in Article 2. Sadat amended Article 2 in 1980 to declare shari’a as “the principal source of legislation,” thereby fulfilling the aspirations of the Islamists.
After the fall of Mubarak, the Supreme Council of Armed Forces issued a provisional constitution in 2011 in which Article 2 remained the same — with shari’a as “the principal source of legislation.” Although the extent of authority given to shari’a in the next constitution remains to be seen, it is highly unlikely that the role of Islamic law would be decreased under an Islamist-dominated Constituent Assembly though the final makeup of the assembly is unclear.
How the Article 2 clause has been interpreted and enforced historically by the Egyptian judiciary is a different matter altogether and probably more significant. Such instances in which national laws have been challenged as being unconstitutional as a result of Article 2 are worth examining to consider how the judicial system has dealt with litigation involving Islamists. The Egyptian Supreme Constitutional Court (SCC), also established in 1971, is the only institution allowed to exercise this kind of judicial review in matters pertaining to the constitution and has faced hundreds of challenges by Islamists relating to laws charged with being unconstitutional because of Article 2.
The first — and perhaps the most prominent case — was launched by the Sheikh of al-Azhar, ‘Abd al-Halim Mahmud (1910-1978). Al-Azhar had been ordered to pay interest on an overdue payment and Mahmud, on behalf of the university, challenged the constitutionality of the interest owed because charging interest is against shari’a. In 1985, the SCC decided that Article 2 could not be applied retroactively, that the article would only apply to laws legislated after 1980 and that all previous laws would be gradually brought into conformity with the shari’a. With this ruling, the SCC set a precedent called the principle of “non-retroactivity” of Article 2, allowing the court to dismiss similar challenges to laws that were in place before 1980. It was through technical loopholes like this that the SCC rejected Islamist litigation – most of which involved issues regarding alcohol, gambling, and prostitution – on an ongoing basis.
The fact that Islamist challenges have been routinely rejected and rarely successful demonstrates that the purpose and meaning behind Article 2 of the constitution differ among various groups. While Article 2 does allow and ease Islamist challenges to national laws and the civil code, Egyptian institutions have maintained a primarily secular perspective in this regard and perhaps consider the article to be more symbolic than literal. Occasionally, other articles in the constitution, such as Article 46 that protects freedom of religion, were actually given precedence over Article 2.
While the Constituent Assembly is meeting with influential stakeholders, such as Ahmed al-Tayeb, the Grand Sheikh of Al-Azhar, to discuss potential changes to Article 2, what the future holds in terms of the application of Article 2 in the newly-democratic Egypt depends largely on the extent of influence held by SCAF and by the judges who sit in the SCC. The current panel of judges who sit on the SCC are Mubarak-appointees and were responsible for the judicial decrees that saw the dissolution of the Muslim Brotherhood-dominated parliament. If the SCC continues to be dominated by remnants of the Mubarak regime, it may well operate in the same way that is has in the past. But new faces may lead to novel ways of interpreting Article 2 and may disrupt the precedent set by previous SCC judges leading to a more Islamist or more secular application of the constitution.
While Islamists have had a difficult time using Article 2 to further an Islamist agenda, there remains one main body of law in Egypt that continues to be based on the shari’a, namely the personal status laws which govern the private affairs of Egyptians, such as inheritance, child custody, marriage, divorce and others Considering the largely conservative nature of the society and the influence of Islamist organizations, reforms regarding personal status laws are not generally tolerated and are, therefore, politically costly. Previous governments have been hesitant to secularize and properly codify these laws and tried to maintain a balance, appeasing both Islamists and secularists as much as possible.
Personal status laws are also unique in the way that they have been established in the recent past. While they can be legislated by parliament, the most common way that they have been established is through the office of the President. Especially in the case of personal status laws, most of the laws established have followed this procedure and were called decrees-laws. Under the Mubarak regime, the reason for this was to avoid intense and lengthy debates in parliament.
There are multiple criticisms made by secularists and other reform advocates concerning the current personal status laws in Egypt. Many of the critics are concerned with the lack of rights for women under these laws. Women have difficulty accessing the courts, paying legal fees, and ensuring enforcement of the judgment. In addition, women’s rights advocates claim that various aspects of the personal status laws, as interpreted by scholars and judges, are discriminatory against women by not granting equal rights in cases of marriage, divorce, polygamy, child custody, guardianship, land ownership, inheritance, and testimony.
The prospects for the future of personal status laws in Egypt depend primarily on the extent of powers which the SCAF give to the president and whether the new parliament, once elected, will take it upon itself to introduce legislation related to personal status laws. With Morsi in power and with the Muslim Brotherhood and other Islamists dominating over state institutions, reform does not seem to be likely and unfortunately, in my opinion, a best-case scenario would be one wherein additional Islamist legislation is not passed or decreed.
Sajjad Dewji is currently an MSc Student in Comparative Politics (Conflict Stream) focused on religion and politics in the MENA region at LSE as well as a research intern for the Quilliam Foundation. He can be reached at S.Dewji@lse.ac.uk and followed on Twitter @SajjadDewji.
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