The Egyptian constitution was passed on December 25, 2012. Even though Islam’s influence in the constitution was mainly symbolic, it served as a useful political tool in a country where this religion represents a strong and effective rallying point.
The Egyptian public space is teeming, chaotic, and wild. It may appear confusing to many observers, who often have difficulty distinguishing between factual information, trivia, and lies. Optimists may argue that this vitality is reflective of the country’s on-going democratic transition. Indeed, on the streets and in radio and TV programs, the drafting of Egypt’s new constitution was intensively and tirelessly discussed.
Islam was at the center of many of these debates and served as the foundation on which political actors articulated their opinions. It was in support of the application of “Sharia”that tens of thousands of Salafis gathered in Tahrir Square on November 9, 2012. During the constitutional referendum, the Nour Party, the main Salafist political party, titled its conferences the Sharia and the Constitution. The Muslim Brotherhood continuously proclaimed that the constitution would introduce a “civil state” without undermining Egypt’s Islamic cultural identity. Finally, the over-representation in the Constituent Assembly of members with Islamic affiliations was used to justify the start of a series of withdrawals from the constitutional process by secular actors.
Consensus was achieved fairly quickly on the constitution’s Islamic articles. Despite its centrality in the constitutional debate, Islam has played a largely symbolic role as it does not bear concrete legal implications.
While Article 3 assigns al-Azhar, Egypt’s revered school of Islamic theology, a role in the interpretation of Sharia, its opinions are advisory and non-binding.
Article 2, which establishes “the principles of Sharia” as the main source of law, was already included in the old constitution. Annexed to this provision is Article 219, which defines the “principles of Sharia.” The Article is an interesting novelty, as it fixes the notion of “principles of Sharia” with a religious vocabulary.
For its supporters, Article 219 was intended to amend the Supreme Constitutional Court’s interpretation of Article 2 with the aim of bringing Egyptian law closer to the Islamic texts. Indeed, in its jurisprudence, the Court has distinguished between absolute principles of Sharia and non-absolute principles of Sharia.
The latter refers to Islamic norms. The Court has considered these principles as varying according to time and place, and has granted the parliament the freedom to interpret and adapt them to society’s needs.
By contrast, the Court has treated absolute principles as binding upon the legislator. This constraint has, nevertheless, been minimal, as the Court has tended to understand these as general principles expressing the normative purpose of the Islamic system rather than as a catalogue of explicit rules.
It is true that applying religious terminology to constitutional interpretation is likely to push judges and lawmakers to substantiate their arguments by making references to Islamic texts. As such, it is likely that, as a result of the constitution’s new articles, the Supreme Constitutional Court will tilts its teleological interpretation of the Sharia’s absolute principles toward the Islamic corpus.
This should still, however, allow legislators substantial room to manoeuver. Indeed, the Islamic normative repertoire is neither consistent nor complete and includes gaps which the Supreme Constitutional Court and parliament may be able to adapt to their own perspectives. As reflected in Article 219, there is a rich and diverse Islamic jurisprudential cannon that include the various Sunni legal school (Hanafi, Shafi’i, Hanbali, Maliki) each with its own perspective and norms concerning the nature, content, and techniques of interpretation.
While legal considerations may not adequately explain Islam’s dominance over the constitutional debate, a look at Egyptian society is more instructive. Observers agree that, since the beginning of the 1970s, Arab societies have experienced a process of “Islamization.” Since the debacle of the Six Day War with Israel, Islam is assumed to have replaced Arab nationalism as the primary social cement..
Indeed, the majority of Egyptians appear to be quite pious, assigning religion a central place in everyday life. This religious commitment is expressed through various social practices, such as wearing the veil or enrolling children in evening Quran classes.
Against this background, it seems that Islamizing the constitutional debate enabled political actors to make the discussion relevant to the majority of people and connect it to their daily lived practices. Through this process, complex political questions were transformed into a simple binary: are you for or against Islam in the political sphere?
This interpretation is all the more plausible as traditional democratic institutions, a classical aspect of constitutional debates, have not historically been embedded in Egyptian political culture.
From the colonial period to the Mubarak regime, parliaments and governments have existed inside the country. Real power was, however, always located in other dimensions: those of the British administration, the inner circle of the authoritarian dictator, or within the Ministry of Interior.In light of this history, it would seem difficult to focus the population’s attention on discourses about the powers of administrative regulatory authorities, the President’s right to dissolve parliament, or the balance of power between the lower and upper houses of parliament.
Islam seems to representa preferred channel for political entrepreneurs to connect with the Egyptian people, who have become a potential clientele for these political actors since the opening up of the country’s political scene.
In the theatre of Egyptian politics, Islam is the light revealing the characters’ identity to the public. The credits feature the authentic and upright Salafists, the reasonable secularists who distinguish between the political and religious spheres, and the Muslim Brotherhood, a hybrid of the previous two that has undergone metamorphoses according to the act, the décor, and the audience. The mise en scène of the constitutional play is carried out by the media, which uses Islam as a dramatic resource. Indeed, this fabrication of an existential social challenge, the transformation of Egypt into an Iranian-style theocracy vs the dismembermet of its Islamic character, has caused ticket sales to jump.
In the end, neither existential option seems plausible. Rather, in the wake of the constitution’s passage, the country will likely follow a path that is singular as well as gradual. If the constitution is to frame Egypt’s future, this will depend on a complex combination of social, economic, political, and legal factors. Indeed, a constitution does not impose itself on a society but enters into exchanges with it in a mutually constitutive relationship between socio-political and legal practices.