This past week in Egypt, President Mohamad Morsi’s constitutional decree catalyzed a major confrontation with the judiciary, and spurred the constituent assembly to rush to approve a draft constitution months before the deadline. The content of the draft constitution that was passed is different from the most recent public draft in some important ways. This article by Kristen Chick looks at the major controversies:
“Islam and the State
Islamists and non-Islamists engaged in extensive wrangling during recent months over the role of Islam in the state, and the specific wording that would be used in the constitution to define how sharia, or Islamic law, relates to legislation. In the end, the drafters preserved the wording of the previous constitution: The principles of sharia are the main source of legislation. However, they also added another clause specifying what is meant by the principles of sharia.
That clause says the principles of sharia should be in accordance with the established schools of Sunni Muslim doctrine. This limits the discretion given to judges in deciding on sharia issues, and could limit them from applying a progressive interpretation of sharia. But it could also keep judges from drawing on more extreme or conservative interpretations of sharia, say rights activists.
Also included in the constitution is an article stipulating that scholars of Al Azhar, the university and mosque considered one of the most respected centers of Sunni Muslim research and learning, be consulted on matters of sharia. It does not make the Al Azhar scholars’ opinion binding.
It is the first time that a consultative role for Al Azhar has been enshrined in Egypt’s constitution.
Both of these articles are dangerous, says Michael Hanna, a fellow at The Century Foundation who tracks Egyptian politics. “What that does is begins to shift all the terms of discourse away from the civil law system and toward religiously-based strictures,” he says. “Al Azhar is enshrined in the text. Sunni jurisprudence is enshrined in the text. It begins to shift the terms of reference and privileges a certain discourse that is religiously based.”