Posted: December 13, 2012
Critics say Egypt's draft constitution, which was drawn up and approved mostly by Islamists, doesn't represent all Egyptians. They say the draft gives key Islamic scholars too much power on a broad range of legislative issues.
Egyptian clerics from Al-Azhar University hold a national flag as they shout support for President Mohammed Morsi and a new constitution at a rally in Cairo on Dec. 1. Secular and Islamist Egyptians disagree on the constitution, which critics say gives too much power to the clerics of Al-Azhar, the seat of Sunni Islam learning. Khaled Desouki
Egyptians are deeply divided over a draft constitution that will be put to a nationwide referendum starting Saturday. The document was drafted by an assembly dominated by Islamists. Most secular members of the panel, along with women and Christian representatives, walked out in protest before the draft was complete.
Critics say the draft gives key Islamic scholars too much power on a broad range of legislative issues, but it's still unclear what that would mean in practice.
Islamic law, or Shariah, has long been a central part of the Egyptian legal system. If voters approve the new constitution, that role will be expanded.
The constitution calls for religious scholars at Cairo's Al-Azhar University to weigh in on national legislation. The school is the seat of Sunni Islam, where scholars propagate Islamic religion and culture worldwide. Al-Azhar, an institution more than a thousand years old, is seen as relatively moderate in its read of Shariah.
On a recent afternoon, Al-Azhar clerics, in long robes and red and white turbans, lined a busy Cairo street. They chanted "Al-Azhar says yes to the constitution."
But even Al-Azhar is divided on the issue: A smaller group of its clerics marched in a rally against the draft, which was videotaped and posted on the website Ahram Online.
Who Would Have The Final Say?
The draft constitution gives Al-Azhar's clerics an advisory role in matters related to Islamic law, although it does not say that the clerics' opinions are binding on the Constitutional Court, Egypt's highest judicial body.
"The Constitutional Court does not eliminate Al-Azhar's role; neither does Al-Azhar eliminate the Constitutional Court's role," says Atteya Fayyad, a professor at Al-Azhar who was a member of the assembly drafting the constitution.
He sees the two institutions working smoothly together, and points out that the court has asked Al-Azhar for its opinion in the past.
But Nathan Brown, a professor at George Washington University, says the issue will arise even if Al-Azhar's opinions aren't binding.
"Anytime you have Al-Azhar weighing in on a topic, it's going to be difficult for any political force or party or leader to go against it," Brown says.
Khaled Fahmy, the chairman of the history department at the American University in Cairo, says there's a dangerous loophole in the Al-Azhar clause. He says the draft isn't clear about whether the court or Al-Azhar holds final authority.
"This means that the Egyptian legal and constitutional framework is now subject to enormous pressure, because we can have now two bodies in the country, with equal weight, with different reference points, on which to interpret that central text," Fahmy says. "This is a recipe for disaster."
Shariah Provisions Unclear
Some Egyptians are worried about what an expansion of Shariah in legislation would mean for them.
"Any people different than the Islamist fundamentalists would be persecuted under the Shariah law," computer programmer Mina Samy said at a recent protest.
But historian Fahmy says it's unclear what the Al-Azhar provision, and another clause that defines the principles of Shariah, would mean in practice if the draft constitution passes.
"What exactly is meant by Shariah is a key question, and so far no one has dared to give a precise answer to this question," he says.
Nathan Brown says he expects little would change overnight.
"What I would expect, however, would be a slow move toward drawing much more on Islamic law when making ordinary Egyptian legislation," he says.
Brown says the provisions may open the door for Shariah to influence other legal areas, like criminal law. This would be a break from the past, when Shariah was pre-eminent mostly in personal status issues.
"I think where that will clash most with the aspirations of liberals and human rights groups and so on might be in areas of gender equality, and it might be in issues of sort of cultural expression — novelists, filmmakers might find a bit more of a restrictive environment," he says.
Analysts in Egypt say the impact of these provisions depends largely on whether Islamists continue to dominate the government.
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