Sharia in the Supreme Constitutional Court

Islamist protests at the Supreme Constitutional Court, December 2012

Islamist protests at the Supreme Constitutional Court, December 2012

From my recent article at Arab West Report, in the series on Egypt’s constitution. This text opens with a consideration of Salafi participation in both the 2012 and 2014 charters, and proceeds then to examine their chief triumph:

This article [219 in the 2012 constitution] was quickly scrapped by the new committee, but the [Salafi] Nūr Party representative continued to press. His lone leverage was in the desire of the transitional government to frame its discourse as anti-Muslim Brotherhood, in response to a popular revolution, rather than as anti-Islamist per se, and certainly not as anti-Islam. The presence of Nūr legitimized greatly.

For their troubles, they received a small reference in the preamble of the constitution. It was agreed upon at the very close of proceedings, and states:

‘We are drafting a Constitution that affirms that the principles of Islamic Sharī‘ah are the principal source of legislation, and that the reference for the interpretation of such principles lies in the body of the relevant Supreme Constitutional Court Rulings.’

But what does this mean for future legal interpretation? Is it only a means for them to save face, or will it have real impact on future constitutional rulings? A partial answer is to examine one of these relevant rulings, from 1996, and see what it says. Two girls were expelled from school for wearing the niqab, a garment that covers all but the eyes. The court ruled against them, as they appealed to sharia law and freedom of religion:

Sharī‘ah establishes the necessity of morality, the judge argued, even quoting the Qur’an. But sharī‘ah nowhere establishes that a woman must wear a niqab. On the contrary, and in dismissive wording, it compared such a woman as kept from interacting with society and going around as a covered ghost.

The constitutional guarantees of belief and individual freedom, the judge explained, are to follow and practice a religion in the manner the religion instructs. Since scholars differ about the nature of a woman’s dress, there is no firm principle on this matter in sharī‘ah. Therefore, the government is within its rights to establish a dress code as it sees fit, while staying within the principle of modesty as is clearly required by Islam.

Sharī‘ah, the judge wrote, is principally about truth and justice, and is naturally progressive to change with the time and place. This guarantees it flexibility and vitality, so as to guard its purposes (maqāsid) in preserving religion, life, reason, honor, and property. No one scholar’s view should be made holy over another’s, and even the Companions of the Prophet made their rulings based on the benefit of the people. There is no reason to either consider or cancel them, but to judge independently based on the benefit of today.

Salafis originally wanted to tie sharia interpretation to traditional rulings, not just purposes, as interpreted by senior scholars from the Azhar. These provisions were written into the 2012 constitution but lost in its 2014 amendments. Seeing such a ruling as this, it is clear they do not trust the court.

But maybe they got what they wanted, through the court, even in what evaded them in 2012:

In order to replace the sharī‘ah-escaping word ‘principles’, the Nūr Party sought to change it in Article 2 with the more strict ‘rulings’ (ahkām). They did not gain consensus, and even in Article 219 the words translated as ‘rulings’ do not reflect the strictures of the Arabic ahkām.

But the SCC states in its May 18 judgment that Article 2 is based on the ahkām of sharī‘ah, in its foundations and general principles, using language reminiscent of Article 219. Furthermore, these ahkām may not be violated where they are maqtū’ bi thubūtiha au bi dallālitiha. This phrase means that the rulings are clear and proven, either by the Qur’an directly (thubūt) or through jurisprudential reasoning (dallālah).

But this is not restricted only to hukm qata’i, where there is one accepted meaning only. It includes also hukm zanni, where many meanings and interpretations have been suggested. The point is that sharī‘ah encompasses the historic work of scholarship, and legislation must not transgress its bounds. Within this sharī‘ah heritage, no voice is sacred and new voices may emerge with the times. But as the parliament creates law, the judiciary judges within the hedge of sharī‘ah. This is not the language of a judge seeking to ignore it.

But perhaps this is all legal semantics, and what really matters is who is in charge. From the conclusion:

It may not be the language of the constitution that is of paramount importance, but who writes it. The 2012 constitution signaled a transition to a new Islamist order; the 2014 signaled a reversal. The reversal, however, includes preamble language authored by the Salafis, and the terms of debate bound by Article 2.

If correct, this interpretation suggests the forces of reversal remain in control, and less-than-Islamist rulings are likely to issue from the SCC. But it also suggests that Salafis have a place at the table, and may through this constitutional nod win either legislation or rulings that reflect conservative religion.

In this sense, does their defense of sharī‘ah mean also the defense of their existence? It is too early to tell, but it has resulted, at least, in a public constitutional reminder that sharī‘ah remains the basis of legislation.

That this reminder can be interpreted flexibly fits well the overall ambiguity of the political situation, Nūr included.

Please click here to read the full article at Arab West Report.

Advertisements

What's your opinion?

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s