Sharia and the New Egyptian Constitution

By IndepthAfrica
In Article
Nov 28th, 2013
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The single greatest priority of the United States and other Western governments towards Egypt should be to encourage the drafting of a constitution based on full equality of all citizens. This means the new constitution cannot be based in Sharia law.

The US and EU claim to care about human rights and women’s rights, which were increasingly suppressed and targeted under Morsi. After Morsi’s ouster, Copts have borne the brunt of Muslim Brotherhood outrage through targeted murders and kidnappings of Copts and destruction of their churches, monasteries, schools, homes and businesses. According to a recent Reuters report, Egypt is the very worst country in which to be a woman: “Egypt scored badly in almost every category, including gender violence, reproductive rights, and treatment of women in the family and their inclusion in politics and the economy.”

Unfortunately, many in the West seem blind to the far-ranging impact that the denial of religious freedom has on an entire society. Citing from The Price of Freedom Denied, a letter from the international religious freedom community to President Obama, says, “where there is less religious freedom, there is less women’s empowerment, less economic development, and more political instability and conflict, violent extremism and terrorism.”

If we want to see an Egypt in which poverty is decreased due to economic development, in which women are empowered to participate in politics, receive an education, work, and travel without fear of harassment; in which individuals can practice their faith both publically and privately without fear of attack on their person, possessions, and houses of worship, and a country that is stable without constant terrorists attacks, the single greatest antidote would be to ensure religious freedom for all, which has been proven through Pew research to improve all these other aspects of society and economy.

This is the very discussion happening with the drafting of the new constitution in Egypt. Islamists such as the Salafists (the “export” version of the notorious Saudi Wahabis), and those sympathetic to the Muslim Brotherhood insist that the new Constitution must be based on Sharia law even more explicitly than previous constitutions have been. If the constitutional committee does not comply, they face the threat of even greater terrorism and violence by the Muslim Brotherhood and a withdrawal of support from the Salafists in finalizing the constitution.

Egypt’s constitutions saw the mention of Sharia for the first time when Sadat in 1971 inserted in Article 2 that “principles of Sharia” be “a” main source of legislation. In a further effort to appease Islamists, he changed the stipulation in 1980 to make “principles of Sharia the main source of legislation.” In an attempt to clarify these “principles,” the Constitutional Court defined them (in May 1993) as the “Sharia injunctions, which are peremptory in proof (of origin) and significance,” somewhat limiting the possibility of applying the myriads of interpretations and rulings that date back to the tenth century. The Court further clarified that the constitutional article was addressed to legislators (not to judges) and that it was not applicable retroactively on existing laws.

Family status is entirely based on Sharia and matters related to adoption, heritage or custody apply to non-Muslims as well. More important than impacting the legislation over three decades, Article 2 had a devastating effect on Egypt. It implicitly justified treating non-Muslims as second class citizens and set the foundation of the process of Islamization of the country. Both Mubarak’s regime and the Islamists, led by the Brotherhood, participated in a competition, whose terrain was the media, education and societal behavior, to be regarded as “more pious” than the other. It set the stage for the emergence of “religious parties,” calling for ever more Sharia-compliant measures. Appealing to raw religious passions and instincts of uneducated masses, they used “the ballot box” to democratically impose fascistic rule–just as happened with the Brotherhood during the past two years.

While Copts represent 12-15% of the country’s population, the percentage of elected parliamentarian Copts has not exceeded one percent in any assembly since 1952, and was nil in 1995. By comparison, their number was mostly around 8-10%, and seldom below 4%, in the preceding three decades. Unwritten rules on marginalization/exclusion lead to the fact that Copts number less than 2% in the judiciary, diplomatic corps, military/police, university posts, media, etc. They are excluded from all “sensitive” departments/posts. Only days ago, Major General Essmat Morad, director of the Military Academy, said that 32 Copts were admitted this year, among 2510 new students, representing a meager 1.3%– further proof of the deep-rooted discrimination against Copts in Egypt. Women (who attained suffrage in 1956) also remain seriously under-represented.

Something frequently lost on Western non-Muslims is that basing a constitution on Sharia law allows for government sanctioned discrimination against all religious minorities, including Muslim minorities, such as Shia Muslims. Copts, Shia Muslims, Jews, and Baha’i have all in various ways lived as second-class citizens in Egypt since the Constitution was based on (principles of) Sharia law.

Basing the constitution directly on “Sharia law” would further constitute a quantum leap, taking Egypt back by centuries, and bringing it closer societally to Afghanistan, Iran or Somalia. A whole plethora of existing problems would worsen based on such institutionalized inequality. Some examples of typical Sharia law injunctions:

i) The application of barbaric bodily punishments, such as stoning, amputation of limbs, crucifixion, or flagellation;

ii) A Muslim killer of a non-Muslim cannot get capital punishment;

iii) Non-Muslim’s court testimony cannot be accepted against a Muslim;

iv) Child marriage upon reaching puberty; and

v) Deployment of “Virtue and Vice Police”

Although Egypt has signed international treaties and documents such as the United Nations Declaration on Human Rights which guarantees full religious freedom under Article 18, the Egyptian Constitution was based in Sharia law. This means in practice that the government, abiding by Islamic law, would regularly deny religious freedom to minorities. The state only recognizes the 3 “Abrahamic” or “heavenly” religions of Islam, Judaism, and Christianity. Since religion is recorded on mandatory state ID cards, Baha’i and members of other faiths would have to leave their religious affiliation blank or select one of the faiths recognized by the State. Non-recognition of other faiths obviously created a large hardship in matters of employment, education, marriage, wills, custody, and much more. Furthermore, conversion away from Islam was basically prohibited by the state. Those who tried to leave Islam were frequently arrested, harassed, or even tortured by police. When extremists, or families, beat and even killed apostates, the government would not intervene. At times, entire Coptic villages or neighborhoods have been attacked by Muslim mobs just for accusations of conversion or alleged romantic relationships between Muslim and Christians.

Additionally, Copts have received rare permits for repairing churches, let alone approval to build new ones. Building a church is subject to draconian rules and requires a presidential decree in each and every case. In the past six years, only four churches have been decreed. Despite increased attacks and demolition of over sixty churches, not a single one has so far been repaired, as previously promised by the army.

This is the background and lens through which Copts and all other religious minorities are viewing the current debate on Egypt’s new constitution. They have every reason to be concerned that freedoms, for which they demonstrated in the streets, will once again be lost through institutionalized discrimination.

What is worse, this key point of institutionalized inequality has barely featured in any major discussion by Western governments. The United States in particular should be aware of this problem. The US intervened in both Iraq and Afghanistan and was present through the drafting of both new constitutions; neither of which guaranteed full religious freedom because they are based in Sharia. The result has been a mass exodus of at least half of Iraq’s Christians and the closure of every church in Afghanistan. Unless Egypt’s new constitution treats all of its citizens equally, we will continue to see increased violence against Copts with impunity and an even larger exodus of Copts fleeing the country. The fate of other religious minorities will be equally dire.

One proposed solution has been to stipulate in the new constitution that legislation may not be contrary to “the overall principles of Sharia and human rights conventions and treaties.” Despite the fact that these two frames of values are often 180 degrees apart, their simultaneous reference in the constitution would provide some kind of “checks and balances.” Also, the notion of “overall” principles of Sharia would provide some room for more “progressive” interpretations. Supposedly this would protect religious minorities from the inequality of being ruled by the fuller extent of Sharia law.

There is also the possibility (even the likelihood) to maintain “Article 2″ as is. While it may be grudgingly accepted by Salafists and would help the transitional Egyptian government maintain control, it will undermine the spirit and freedoms won in the revolution. Ultimately, minorities will still be second class citizens.

For these reasons, the constitutional committee must perform their duty in equally protecting all Egyptian citizens under the new constitution by not basing it in Sharia law or on the principles of Sharia. This is a golden window of opportunity to realize the dreams of all Egyptians by creating a society that is more stable, empowers women to fully participate, and that flourishes economically.

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