Notably, the 1971 Constitution saw a reference to Islamic law a main source of legislation; it stated that: “Islam is the religion of the state and the Arabic Language is its official language. The principles of Islamic Sharia are a main sources of legislation” (Article 2). This phrasing was amended in 1981 after a referendum held on May 22, 1980. The amended article states that “The principles of Islamic Sharia are the main sources of legislation.” The amendment made Sharia “the main” instead of “a main” source of legislation. The Supreme Constitutional Court has interpreted the revised Article 2 in two landmark rulings summarized below.
In 1985, the Constitutional Court was called to rule on the interpretation of Article 2. The Court ruled that Sharia could not operate as a binding law in its own right. The Court said its provisions have to be incorporated into positive state law for judges to apply. Judges could not refuse to enforce legal provisions, even if they consider the provision a violation of Sharia. In the same decision, the Court ruled that the amended Article 2 had no retroactive effect; that is, only laws adopted after 1980 have to be consistent with Sharia. Pre-existing legislation would be out of reach for the Supreme Constitutional Court and will remain in force as long as they have not been abrogated or amended by new legislation. Laws subsequent to the amendment have to respect the principles of Islamic Sharia, or else they would be unconstitutional.
In the second landmark ruling, adopted in 1993, the Supreme Constitutional Court made a distinction between two kinds of Sharia principles. The first group is rules whose origin and significance are absolute (al-ahkam al-shar‘iyya al-qat‘iyya fi thubutiha wa dalalatiha) and for which interpretative reasoning (ijtihad) is not authorized. These principles “whose origin and significance are absolute” must necessarily be applied and allow for no interpretation and no modification. Any norm which contradicts these principles is subject to a rule of unconstitutionality.
The Constitutional Court identified a second grouping of ruled which are relative (ahkam zanniyya), either with regard to their origin or to their significance, or with regard to both at the same time. They can evolve in time and space, are dynamic, give rise to different interpretations, and are adaptable to the nature and the changing needs of society. It is up to the legislation (wali al-amr) to carry out the task of interpreting and establishing the norms related to such rules, guided by individual reasoning and in the interest of the Sharia. Almost all principles of the identified by the Supreme Constitutional Court to date have been considered “relative” and hence the People’s Assembly was entitled to codify and adapt the content of these laws in accordance with the needs of society.
Under Mubarak, Egypt witnessed two constitutional amendments in 2005 and 2007, neither of which attempted to alter Article 2. The widely debated 2007 amendments included 34 articles introducing a new language of citizenship and removing the earlier references to the socialist character of the state. A clause prohibiting the establishment of political parties based on religion was also added.
Next: Post-Mubarak Era Public Debates over Sharia in the Constitution