SCC on Article 2 (Islamic Law)

Article 2 of the 2014 Constitution states, “Islam is the religion of the state and Arabic is its official language. The principles of Islamic Sharia are the principal source of legislation.”

One of the best points of entry into the subject of the SCC’s jurisprudence regarding Article 2 is the excellent 2006 article by Nathan Brown and Clark Lombardi, “Do Constitutions Requiring Adherence to Shari‘a Threaten Human Rights? How Egypt’s Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law,” which begins with a concise introduction to basic principles of Islamic law.

Another summary is available in a book written by Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge: Cambridge University Press, 2007), at pages 106-10.

A much more in-depth treatment of the subject is in the book by Clark B. Lombardi, State Law as Islamic Law: The Incorporation of Shari‘a into Egyptian Constitutional Law (Brill, 2006).

The following summary is drawn largely from those sources.

The Key Issue: Who Decides?

The Preamble to the 2014 constitution contains a sentence that states (translated), “We are drafting a Constitution that affirms that the principles of Islamic Shari‘a 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.”

Why was that sentence deemed acceptable (as was reported at the time of its drafting) to both Islamists and secularists alike?

Probably because both groups recognized that the debate about Article 2 of the constitution ultimately boils down to one key question: Who decides? Who decides what Islamic law is and how and to what extent it should be applied in formulating and enforcing state law?

Egyptian Islamists may favor the Supreme Constitutional Court (SCC) as the deciding legal authority for four reasons:

• It may be viewed as the lesser of evils, better (in the eyes of many Islamists) than the alternative of empowering Al-Azhar as the sole decider;
• The SCC has an established Article 2 jurisprudence that has generally hewed to a fairly moderate line between extremes, sufficiently judicious that both liberals and conservative Islamists can live with the results and supporting rationales;
• If the Islamists regain control of the legislature, they will want their legislation reviewed by a decider that grants considerable leeway to the legislature in deciding issues of what constitutes Islamically sound public policy; and
• Yet, in the meantime, that decider will act as an effective (as opposed to only advisory) check on excessively-secularist legislation violating generally accepted Islamic norms.

In other words, Islamists may view the SCC as being a reasonable and probably the only viable alternative as the legal decider.

History

In 1980, Article 2 of the 1971 constitution was amended to provide that the principles of Islamic law were to be “the” rather than only “a” main source of legislation. That language has remained constant in every subsequent constitution and constitutional declaration.

Over the ensuing years, the SCC has decided a series of cases in which a jurisprudence emerged concerning both its jurisdiction and standards of review in Article 2 cases. Before turning to that, an appreciation of some historical background is important. 

During the 1970’s, the neo-traditionalist scholars ('ulema) of Al-Azhar undertook a project to develop a draft code of rulings (fiqh) on relevant aspects of Islamic law, and began to call for the government to redraft laws to conform to what the Al-Azhar scholars deemed to be the controlling principles of Islamic law.

At the same time, disparate lay Islamist organizations such as the Muslim Brotherhood (MB) and Gama‘a Islamiyya (the Islamist Groups, or IG), all deeply skeptical of the competence and integrity of the Al-Azhar scholars (essentially viewing them as toadies of the government), began pushing their own legislative agendas, which sometimes coincided with the views of the Al-Azhar scholars and sometimes differed.

Public debates broke out over competing views of Islamic law, pitting Islamists (or at least neo-Islamists) against Islamists, and Islamists against Nasserists.

In the midst of that controversy, Sadat’s support was crumbling, particularly as he moved toward what eventually became the 1979 peace treaty with Israel. He may have had latent sentiment for Islamism, but he certainly had a pragmatic need to gain support in the Muslim community generally by shoring up his Islamic legitimacy.

For whatever reason, Sadat embarked on his own move toward Islamization of the law, seeking to gain the support of a critical mass of Islamists—and at the same time probably seeking to control the direction and form of Islamic legal reforms. Parliamentary committees were established to draft more Islamically “correct” legislation.

The 1980 amendment of Article 2 grew out of that movement. In 1981, after some back and forth, Al-Azhar approved parliamentary drafts of six new legislative codes: civil, judicial procedure, evidence, penal, commerce, and maritime.

Then, Sadat’s hopes for a quick Islamization of the law turned sour. The devil was in the details.

The government’s Islamization program failed to gain the support of the MB and some other Islamists, who remained deeply distrustful of Al-Azhar and its intentions. Unwilling to tolerate dissent and criticism of its proposed codes (and for other reasons), in 1981 the government banned the MB’s publications and imprisoned its leaders, along with known leaders of the more radical IG.

Then, on October 6, 1981, Sadat was assassinated, and Hosni Mubarak became President.

Under Mubarak, a state of emergency was declared and Sadat’s Islamization initiatives were reversed, while Mubarak at the same time reaching out to moderate Islamist and other Muslim leaders and released some MB figures. The proposed Islamic codes were shelved. At the same time, apparently in order to avoid appearing anti-Islamic, Mubarak actively promoted Islamic culture and empowered Al-Azhar to censure the arts.

As their political route forward closed, some Islamists decided that the best route to Islamization was through the judiciary by means of litigation calling for the application of Article 2. The litigation that followed resulted in the development by the SCC of a jurisprudence of its jurisdiction (who decides?) and the applicable standard of review (what are the governing principles of Islamic law?).

Bear in mind the role and general jurisprudence of the SCC. The SCC is a specialized court charged with deciding on the constitutionality of laws. Over the years, it has become well established that the Court views it as essential to interpret the constitution as an organic whole, not piecemeal. And, among the principles upon which the Court has taken a firm stand (sometimes to the consternation of the political branches) are separation of powers and a commitment to equitable social and economic policies, and to international norms of human rights.  

At the same time, most of the Court’s justices are devout Muslims, and at least one teaches Islamic law. So, it is against that background that the Court’s Article 2 jurisprudence must be viewed.

Jurisdiction 

The first issue that the SCC had to decide was whether Article 2 was even justiciable, whether it presented an essentially political (or religious) question into which the judiciary should abstain from entanglement. It was probably for that reason that the Court waited several years after they were received before issuing rulings in its first Article 2 cases.

When it did rule in the first two cases on May 4, 1985, one of those cases illustrated the dilemma faced by the Court if it chose to apply Article 2 to legislation enacted prior to its amendment in 1980.

Al-Azhar University had bought supplies for its medical school, but had failed to make timely payments, so the seller charged 4% interest on late payments, as he was entitled to do under the law as it existed before the 1980 amendment of Article 2, but contrary (in the view pressed by Al-Azhar) to Islamic law.

Rather than venture into the thorny and somewhat unsettled issue of whether such interest violated Islamic law, especially when the plaintiff was Al-Azhar, and at the same time avoiding the huge economic impact that would ensure if it were to hold that interest-bearing loans and investments were illegal, the Court held that Article 2 was non-retroactive, meaning it was inapplicable to laws enacted before its amendment in 1980, and that it was up to the legislature to decide whether to retain or alter those existing laws. But, if the new legislation were enacted, the Court would be obliged to apply Article 2 in reviewing the constitutionality of that new law.

The second case decided on May 4, 1985, presented a challenge to the so-called “Jihan’s Law” (Law 44 of 1979, named after Sadat’s wife, who reputedly pushed for its enactment) which increased a woman’s rights relative to those of her husband when the husband sought a divorce, essentially an equal rights for women law.

In its ruling, the Court applied its non-retroactivity doctrine to decline to apply Article 2, but nevertheless struck down the law on other grounds. The law had been enacted by President Sadat using his emergency powers to enact laws by decree as a necessary during a period in which the legislature was in recess. The SCC ruled that Sadat exceeded his emergency powers because the law did not involve a matter requiring urgent action during the legislative recess.

In both cases, the SCC dodged the Article 2 bullet, and in the process also made clear that: (1) it would not use Article 2 to disrupt the existing legislative scheme; (2) nevertheless, it would apply Article 2 standards to future legislation; and (3) it would not hesitate to strike down laws the Court deemed unconstitutional.

In so doing, the Court established an appropriately judicious foundation upon which to build its future jurisprudence without tacking toward either extreme of being a rubber stamp to approve new legislation or set itself up to be the final legal arbiter in deciding legitimately contested issues of Islamic law.

Rather, the Court established itself in a position in which it would act more like a referee than rule-maker, defining outer limits within which the government could act with Islamic legitimacy.

Substantive Jurisprudence 

Over the ensuing years, the SCC has decided a series of cases in which an Article 2 jurisprudence has emerged that is in some respects fairly clear, and in others still developing, evidencing a preference for deciding issues on a case-by-case basis.

What is clear is best summarized by Clark Lombardi:

[T]he SCC in its Article 2 jurisprudence has explicitly adopted several theses common to theories of Sunni Islamic law: a government in power is permitted to enact whatever statutes it chooses, so long as it satisfies two tests. First its legislation must not force Muslims to violate universally applicable rulings of Islamic law, which it defines as rulings that are certain ‘with respect to authenticity and meaning.’ Second, its legislation must advance the ‘goals of the shari‘a.’ (Lombardi, State Law as Islamic Law, 256)

Less clear is how the Court will rule in cases involving legitimately contested issues of Islamic law. Again, Clark Lombardi observes, "Patterns in the Court’s reasoning suggest that the justices of the SCC would prefer that their theory evolve in a progressive fashion and that it be applied to develop a liberal interpretation of Islamic law." 

Because few principles in Islamic law are sufficiently settled to meet the Court’s first test of being both universal and absolutely certain, Lombardi says, “the Court’s conclusions about the constitutionality of legislation under Article 2 has inevitably turned on its second test—whether the legislation under attack is consistent with the goals of [Islamic] law.”

Lombardi goes on to say:

The Court has also seemed to recognize two different types of goals [of Islamic law]: (specific goals of the law, which God wants certain types of law to advance; and (2) the general goals of the law, which God wants all laws to advance. The Court’s interpretation of the specific goals of the shari‘a is informed by historical patterns in the interpretation of Islamic law …. In cases where there are no specific goals of the [Islamic] law, however, or where the requirements of the specific goals are unclear, the Court invokes a general principle that God always wants people to act in a way that advances the general goals of the shari‘a. To determine whether a state law advances these general goals, the Court seems to ask primarily whether that law impedes what the justices consider to be the general welfare. The Court’s method thus devolves … into a largely utilitarian method of reasoning. Importantly, however, the justices have brought an established liberal philosophy to their analysis. They treat the enjoyment of human rights … as axiomatically good, and the justices have been reluctant to consider just or beneficial any principles that would require (or even permit) the violation of international human rights norms.

As a result, the Court has issued rulings that are consistent with conservative Muslim groups on the question of property rights, but it has rejected the traditional conservative interpretations of the shari‘a in the areas of marriage, divorce, and veiling. In sum, the SCC has to date applied the theory, and exploited its ambiguities, to elaborate Islamic law in a way that does not conflict with—and indeed reinforces—the Court’s existing jurisprudence, including their human rights jurisprudence.”
(Ibid. at 257)

It was reported by news media that Islamists who favored constitutionally enshrining the SCC’s past jurisprudence as the standard for future application of Article 2 cite decisions rendered by the Court in 1985 and 1995.

The reference to 1985 was presumably to the case discussed above striking down a law (“Jihan’s Law”) equalizing a woman’s rights relative to her husband’s when he seeks a divorce (perhaps looking only to the ruling, and failing to note that it expressly rested on non-Article 2 grounds unrelated to Islamic law).

The reference to a 1995 case was presumably to a case in which a landlord challenged a law requiring landlords to transfer an apartment lease to remaining members of a tenant’s household after the tenant died or vacated the property. The plaintiff landlord challenged the constitutionality of the law on the grounds that it violated provisions of the 1971 constitution relating to private property rights, but also as a violation of Article 2, presumably because of traditional interpretations of Islamic law protecting private property rights.

The SCC did, indeed, strike down the law as violating several provisions of the constitution, including Article 2.

In discussing the Article 2 issue, the Court found no absolutely certain answer to the question in Islamic jurisprudence, but nevertheless found (in a generally impressionistic fashion) a general policy in Islamic law that people have a right to use and dispose of their private property as they deem fit, so long as those actions do not violate some other principle or goal of Islamic law.

The result was presumably satisfying both to liberals (or at least libertarians) and conservative Islamists as a vindication of their guiding principles.

Another case sometimes cited is a 1996 case in which the SCC was asked to strike down an edict by the Minister of Education prohibiting the wearing of the niqab (full face veil) in public schools.

Although the SCC upheld the constitutionality of the ministerial decree, it did so only after articulating an analytical framework and methodology in which Islamists may find at least marginally acceptable, including a clear statement that legislation will be struck down if it contradicts absolutely certain rulings in Islamic law based on authentic and clear sources of authority, coupled with a lengthy exposition of the binding nature of such accepted and authentic rulings.

Finding no such clearly binding ruling on the subject applicable universally at all times and in all circumstances, the Court turned to the question of whether the law violated or impeded the general goals of Islamic law, and concluded that the principles governing modesty in dress of women have differing application in differing times and contexts. The goal was the promotion of dress that was as modest as possible.

Given the fact that reasonable Muslim minds differ as to what is modest, the Court could not find a sufficient basis to declare the ministerial decree to be in violation of or to sufficiently impeded that goal of Islamic law.

Again, the nature and extent of the Court’s statement of its reasoning and the respect given to the principles and goals of Islamic law probably give rise to a degree of confidence among Islamists that, even though they may not like the final result, they can respect the Court’s reasoning and thereby feel that Islamic law has been sufficiently honored and not offended.