No, It's Not the Same Sharia Provision as in the Old Egyptian Constitution
I've now been in a few debates about Egypt's new draft constitution, which will be put to a vote next week -- in fact, I debated Abbas Barzegar, an assistant professor of Islam at Georgia State University, on Sean Hannity's radio show on Monday. As one would easily predict, it has become a key talking point of the constitution's Islamist supporters that, in so far as concerns sharia (Islam's societal framework and legal code), the new constitution marks no change. The new draft simply repeats, it is said, the old Sadat/Mubarak-era constitution's stipulation that the "principles of sharia" govern.
This is an absurd claim. Of course, that won't stop them from trying to make it fly ... or stop the Western media, in the throes of spring fever, from repeating their assertions.
The new constitution's provisions have been well summarized by Professor Rubin, whose post -- which addresses this subject in addition to several other important ones -- I highly recommend. I want to begin by stepping outside the substance of the constitution, though. Note that the non-Islamist factions resigned from the constituent assembly (the body tasked with drafting the new constitution) in explicit protest over its transparent Islamist character. Does anyone really think this would have happened if the new constitution were not a sharp turn toward Islamic supremacism and its attendant oppression of women, religious minorities, homosexuals, and other non-Islamists?
Now, back to substance. Yes, article 2 of the draft repeats the former constitution's command that "Principles of Islamic Sharia are the principal source of legislation." This repetition leads Islamists and their apologists to contend that adherence to sharia won't be any more strict under Islamist rule than it was during Mubarak's reign -- notwithstanding that right now, even before the new constitution has been formally adopted, there is already far more sharia governance (and oppression) than there was before the old regime fell.
In reality, the new constitution's repetition of article 2 is just the beginning of the discussion, not, as the Muslim Brotherhood's apologists would have it, the end. From the premise of sharia principles as the core, the new constitution proceeds with three radical innovations.
First is the way the new constitution fleshes out what is meant by "principles." The term will be governed by the four classical schools of Sunni Islamic jurisprudence. These four schools consider virtually all questions to have been settled a millennium ago. This means Islamic reformers and modernizers will be foreclosed from effecting any softening of classical sharia's adhesive provisions. To be sure, the Brotherhood may not reinstate the stoning of adulterers and other cruel hudud penalties tomorrow. But that will be based on a political calculation -- as my friend David Goldman has observed, Egypt is a financial basket case and can't afford to give irrevocable offense to its Western white knights (assuming they are still capable of being offended by anything Islamists do). The point is that there will be no legal retreat on classical sharia, and gradually it will become ever more repressive.
That is also the guaranteed outcome of the second innovation: The new constitution appoints al-Azhar University, the ancient seat of Sunni learning, as the final arbiter of what sharia means. This thrusts the scholars of that institution (whose alumni include Omar Abdel Rahman, the Blind Sheik of World Trade Center bombing fame, and Sheik Yusuf al-Qaradawi, the Muslim Brotherhood's top jurist) into the full range of Egyptian life and affairs, since there is no aspect of human endeavor that sharia would not control.
Finally, there is Article 81, which follows the disingenuous scheme Islamists have previously adopted in the Declaration of Human Rights in Islam (also known as the "Cairo Declaration") and in the constitutions of such other new "Islamic democracies" as Afghanistan and Iraq. That is, after a few soothing lines about how individual "rights and freedoms" are sacrosanct, not "subject to disruption or detraction," the constitution goes on to say: "Such rights and freedoms shall be practiced in a manner not conflicting with the principles pertaining to State and society included in Part I of this Constitution." And what are those "principles" in the "State and Society" section of the draft? Why, they are the ones that say principles of sharia govern all legislation -- again, "principles" as construed by al-Azhar, using the ancient interpretations of the four classical Sunni schools of jurisprudence. Bottom line: Egyptians have only the rights and freedoms permitted under sharia.
When all the verbal camouflage is swept away, the new constitution delivers on what Mohamed Morsi, during the Egyptian presidential campaign, promised he would deliver: "The sharia, then the sharia, and finally the sharia." As the now-dictator elaborated at the rally on the eve of the election (in a speech translated by MEMRI):
This nation will enjoy blessing and revival only through the Islamic sharia. I take an oath before Allah and before you all that regardless of the actual text [of the constitution]. … Allah willing, the text will truly reflect [the sharia], as will be agreed upon by the Egyptian people, by the Islamic scholars, and by legal and constitutional experts…. Rejoice and rest assured that this people will not accept a text that does not reflect the true meaning of the Islamic sharia as a text to be implemented and as a platform. The people will not agree to anything else.