Peppered throughout Egypt’s constitution, which is expected to pass in a referendum vote Saturday, is a renewed emphasis on Islamic law, or Shariah, as a guiding principle of the state. But some judges here said they don’t know how to enforce law defined by Shariah, and that injecting it into the courts could complicate an already turbulent period and further polarize the state.
Indeed, Shariah was one of the issues that divided the nation about the constitution: Liberals, Christians and moderates objected to it, and Islamists insisted it be a part of the document. Regardless, Egyptian President Mohammed Morsi vowed the proposed constitution would bring long-awaited stability here.
But a constitution that makes laws hard to enforce portends of persistent chaos, legal scholars say.
The articles dealing with Shariah in the draft constitution “are very complicated and no one understands them but Islamic scholars,” said Rafaat Fouda, a law professor at Cairo University.
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Shariah itself, which appears in three articles, is a vague term; so are its references in the 236-article constitution. Scholars from Al Azhar University, the predominant scholars of Sunni Islamic thought, help craft the references in response to Islamist demands.
But its enforcement hinges on scholarly interpretations that have evolved throughout Islam, and so far there is no consensus on what Shariah means. The charter leaves it unclear who has the final authority of the law and its interpretation – the legislative body, the senior Al Azhar clerics or the judiciary.
According to the proposed constitution, legislators must draft laws that abide by Islamic Shariah, which had always been the case when the 1971 constitution was enforced. When that is in dispute, it will fall to Egypt’s highest court to decide on whether the law is coinciding with Shariah or not. Shariah jurisprudence is divided among several schools of thought, some of which contradict one another.
“It opens the door to the unknown. Shariah has a million rulings,” said Hossam Eissa, a constitutional expert and co-founder of the Constitution liberal party and an opponent to the proposed charter. “You will never be able to predict the judges’ rule.”
Some judges who have reviewed the constitution said they don’t know how to interpret what is legal or not and that by introducing Shariah, rulings will vary from one court to the other as judges craft their own interpretation. Before the constitution has even passed, judges said they are worried.
“Defining Shariah varies from one person to the other. Everyone has his own point of view,” said Ahmed Abaza, a judge in the state council who had decided to boycott overseeing the referendum, criticizing the process. “There isn’t a specific definition for the term Shariah.”
Shariah has been a part of Egypt’s constitution throughout its modern history. But up until now, the provision was applied loosely, with an understanding that no law passed could violate Islam.
“Shariah was already implemented. Most of the laws and rulings were coinciding with the Islamic Shariah, except for very minor laws,” said Mohamed Mhanna, an international law professor in Al Azhar University.
But former President Hosni Mubarak led a crackdown on Islamists during his nearly 30-year rule. He detained hundreds, restricting their freedom and instituting a number of legal "reforms" to assure that no Islamist would participate in the political discourse.
Mubarak’s ouster became for some Islamists a vow to never again suffer such oppression. Egypt’s first democratic election ushered in an Islamist-driven government, led by Morsi, who ascended to power through the Muslim Brotherhood, the nation’s best-organized group.
But even members of the Brotherhood, along with conservative Salafists, cannot agree on what a sufficiently Islamic constitution looks like. And some hope to amend the constitution as soon as it is ratified to make it more in concert with Shariah.
Shariah first appears in the constitution’s second article, just as it did in the 1971 constitution, the last document to govern the state. It states that “the principles of Shariah” are the main source of legislation. But Salafists wanted stricter language.
Despite that, Salafists and other conservative Islamists supported the referendum, saying they hope that when Parliament is elected two months after the constitution passes it will amend the document, which the constitution allows.
“It doesn’t meet our aspirations. We want clear wording in Article Two that replaces the word ‘principles’ with ‘rules,’” said Bassam al-Zarqa, secretary of the Islamist Al Nour party, a member of the constitutional assembly and one of Morsi’s 17-member advisory team.
The other two references attempt to spell out who defines Shariah but make no specific mention of the courts. Article Four states that Al Azhar must be consulted on such matters; Article 219 defines Shariah to include “general evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community.”
The first round of the referendum took place Dec. 15 across 10 governorates. The balloting reflected how divided the nation is over the charter, garnering 56.5 percent of the vote. Egypt’s remaining 17 governorates will vote Saturday.
Supporters of the proposed constitution said the document is clear and based on consultations with legal scholars. Rather than creating ambiguity, they say, the constitution makes clear the importance of Shariah in the post-Mubarak Egypt.
“The reading is not left for any personal interpretation or whims,” Amr Darrag, secretary general of the constitutional assembly and a leader in the Freedom and Justice Party, the Brotherhood’s political wing. “It is accepted by Salafis, liberals, seculars and leftists. They all agree on it so far.”
The debate is not about Shariah, Darrag said, but about political opponents who oppose Morsi.
Of the Quran’s 6,236 verses, 200 deal with legislative issues, experts said. And there is no specific demand that constitutions abide by the Quran. Rather the Quran calls for all aspects of life to be in accordance with Islam, including legislation. But how this is interpreted has evolved.
“The first time religion was used in politics, it corrupted matters,” Mhanna said. “That is what’s happening now. This is strife for the nation and that will lead to serious problems later on.”