What Egypt’s New Constitution Tells Us about Political Transition

by Corri Zoli and Courtney Schuster

There is no shortage of skepticism—or even downright cynicism—about Egypt’s new constitution, passed by a referendum in January 2014. Egyptian constitutional scholar Nathan Brown captures a general unease by calling the latest document—the third constitution in three years—a “train wreck.” However, a closer reading of the new constitution suggests this cynicism is not entirely justified. The new constitution omits a controversial article (Article 219) that was present in the previous 2012 constitution and provided a narrow and exclusive definition of Shari’a law. While a constitution is only one part of a state’s actual governance, omission of Article 219 in the latest constitution may indicate that the Egyptian government is shifting to a more pluralistic future.

Why was this seemingly benign article so controversial, and what does its elimination mean for the future of Egypt?  Clark Lombardi and Nathan Brown interpret Article 219 as reading: “The principles of the Islamic Shari’a include its adilla kulliya(general evidence), qawa`id usuli (foundational rules), and qawa`id fiqhiyya (rules of jurisprudence), and the sources considered (or established) by the Sunni madhhabs (or premodern schools of legal method).” During the 2012 constitutional process, Egyptians activists and scholars alike lamented that the Islamist language in Article 219 reflected a hopelessly biased constitutional drafting process.

Prior to the 2012 constitution, all of Egypt’s previous constitutions simply held that principles of Islamic law are the main source of legislation. Specifically, they stated, “Islam is the religion of the state and Arabic is its official language. The principles of Islamic Shari’a are the principal source of legislation.” The 2012 constitution, by contrast, defined these principles of Islamic Shari’a in Article 219. That definition enumerated the laws of Shari’a as interpreted by the conservative Salafis who instituted it, thereby excluding other groups’ interpretations.

Including Article 219, therefore, potentially had significant consequences for Egyptian rule of law. In constitutional language, the difference between “laws” and “principles” is stark. Use of the word “principles” merely requires states to follow the spiritor basis of Islamic law, leaving jurists and legislators to evolve reasoning to fit modern issues or even use lax interpretations of Shari’a. In Egypt, the “principles” language before 2012 permitted the Supreme Constitutional Court to use its own “version of modernist reasoning” rather than traditional Islamic scholars’ interpretations. The “laws” of Shari’a instituted by Article 219 in the 2012 constitution, as many noted, hampered such interpretive allowances and bound jurists to certain interpretations and jurisprudential methods associated with traditional Islam.

Although concerns that the Islamist language in Article 219 was unique to Egypt and reflected a discriminatory constitutional drafting process had merit, Article 219—which placed literal importance on Shari’a sources as proxies for law—has analogs in other Muslim countries throughout the world. Drawing on our data collected over the last two years on the constitutions in force in all state members of the Organization for Islamic Cooperation (OIC), we found that out of sixty-four constitutions from fifty-seven Muslim states, including the pre- and post-Arab Spring constitutions in Libya, Tunisia, and Egypt, there are three constitutions that expressly require the state to adhere to the “laws” of Shari’a: Egypt’s 2012 constitution, as well as those of Afghanistan (2004) and Iraq (2005). It is interesting that the strict use of Shari’a emerges not from ancient history, but from recent postconflict states’ constitutional processes, many of which involved Western consultation. Other Muslim countries’ constitutions contain less forceful language, which, Haider Ala Hamoudi argues, reflect their flexibility and, debatably, their endurance.

As we have argued elsewhere, constitutions—their contestation and debate—are important indicators of inclusive governance, particularly for states undergoing post-conflict transition.  Ultimately, Egypt’s removal of Article 219 likely reflects a public desire and tolerance for a better, more pluralistic constitutional process. While many remain appropriately skeptical about this military-directed constitutional process, the new constitution shows unmistakable signs of political coalition building, a sorely needed antidote to the recent waves of sectarianism and repression. Now the test is whether constitutional framing—itself part of a broader conversation among Arab and Muslim states and publics—will have anything to do with actual governance.

About the Author

Corri Zoli is an assistant research professor at the Institute for National Security and Counterterrorism (INSCT) – a joint graduate research center at Syracuse University’s Maxwell School and College of Law. Courtney Schuster is a 2013 graduate of Syracuse University College of Law and is an Intern at the US House Foreign Affairs Subcommittee on Terrorism, Nonproliferation and Trade.

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