From my recent article at Arab West Report, continuing a series of interviews with members of the Committee of Fifty which wrote the constitution:
Seeking to represent all sectors of Egyptian society, the Egyptian Committee of Fifty to amend the constitution of 2012 was light on political parties. Only four seats were assigned, two for liberals and two for Islamists. This was in contrast to the Committee of One Hundred that wrote the 2012 constitution, which was heavily populated by political figures from the Islamist Freedom and Justice and Nour Parties.
After the fall of Morsi, however, few Islamists remained on the formal political scene. The Nour Party was the most prominent, representing the Salafi trend. One seat went to them, but who could represent the Brotherhood trend, with the Brotherhood boycotting the process? Announced as a representative of the Islamist trend was Kamal Hilbāwī, a former Brotherhood member who resigned in 2012 in protest of the group’s decision to field a candidate for president.
Helbawi was a member of the drafting subcommittee which was responsible to merge all articles into one contiguous text. To do so they changed articles according to language and syntax, but did not hesitate to also adapt the meanings.
But one of the most interesting points of his testimony concerns the negotiations with the Nour Party that resulted in the former Article 219, defining the principles of the sharia, moved in essence into the preamble and made subject to the Supreme Constitutional Court:
But in a compromise agreement the definition of the principles of sharī‘ah was moved to the preamble, with the term of reference being the collected rulings of the Supreme Constitutional Court. These are about 4-5 cases, he estimated, involving sharī‘ah interpretation issued by the highest court in the land since 1985. Having a definition makes sense, Hilbāwī believed, for someone might want to know what the principles of sharī‘ah are. These cases were entered into the official transcript of the constitutional proceedings, and the preamble of the constitution has equal weight with its articles, according to Article 227.
But reference to the rulings of the SCC raised the issue of why Article 219 was necessary in the first place, if the court already defined the principles of sharī‘ah. Perhaps the legislature did not adhere adequately to these rulings, but if the legal basis was there, what was the big deal? And in any case, if the language of 219 was in the SCC rulings, does this explain why the Nour Party was satisfied?
Hilbāwī dismissed the criticism by liberals of Article 219 that it would have opened up the entire corpus of sharī‘ah legal history to implementation in legislation or in court rulings. But in referring to the charge of Safwat al-Bayādī, confirmed in his testimony of the response of Sa’d al-Dīn al-Hilālī, that the testimony of Christians might not be given equal weight to Muslims, as was once in Islamic history, Hilbāwī said ‘perhaps’, in recognition of Hilālī’s rejection of 219 and his status as a very good scholar. There are still shaykhs in Egypt, mentioning Abū Islām and Mahmūd Shabān in particular, who advocate very retrograde rulings. But given the firm guarantees on equality present throughout the constitution, Hilbāwī does not expect any sharī‘ah-based impingement on general freedom.
The article also contains a first effort to understand what the religious language of sharia interpretation means. Please click here to read this and the whole article at Arab West Report.