March 2, 2012
by Kurt Werthmuller
On February 27th, Khaled Saad, an Egyptian legal consultant at the American Bar Association-Rule of Law Initiative in Egypt, insightfully argued here in EgyptSource that "the most immediate threat to religious freedom, if one exists, lies not in amending Article 2 [of the current Egyptian constitution, which identifies Islamic law as the principal source of legislation], but in interpreting the same text differently to justify a strong role for Sharia in the political system and public life." He is also correct in recognizing the diverse spectrum of players and agendas – Islamist, military, conservative, and liberal – who are clamoring for a role in the constitutional revision process, and their general public insistence on the role of religious tolerance in that process.
However, Saad is too optimistic regarding the efficacy of the current system's checks and balance, and the future satisfaction of Islamist parties and leaders with a broad, vague application of Article 2. The real crux of the problem is that Egypt's newly-empowered Islamists are not seeking an ambiguous, loosely-defined Islamic reference for Egypt: rather, despite important and substantial differences among the range of the country's Islamist parties and leaders, they do agree on the integration of a conservative (and restrictive) interpretation of Islamic law into Egyptian governance. Their only real difference in this regard is in their conception of timing: the Muslim Brotherhood argues that this should happen through a gradual political process over a broad period of time, while most Salafi groups (which likewise differ in some specifics) generally argue for a rapid, even immediate, application of strictly-defined Sunni jurisprudence.
Saad's discussion of the status of religious minorities is particularly illustrative of the limitations inherent in the retention of Article 2 and in likely Islamist interpretations of its application. He notes that "in 2011, Pope Shenouda III reiterated his support for the preservation of Article 2, which he believed was essential to preventing sectarian violence, but with the caveat that the article should be expanded to guarantee the right of non-Muslims to refer to their own religious doctrine in personal status matters." This reference is problematic in two ways. First, Pope Shenouda is an important ecclesiastical figure, but he does not represent a unified Christian voice. His opinion on this issue certainly does not reflect the vast majority of Copts for whom the retention of Article 2 remains anything but "essential" in their struggle for social and civil equality.
Second, the concept of maintaining separate sets of personal status law for different religious groups (e.g., in matters of marriage, divorce, pious endowments, etc.) is a sad throwback to the Ottoman millet system, which worked in pre-modern society but should have no place in 21st century Egypt. This approach is, in fact, antithetical to civil society, in which all citizens are equally protected by a unified system of justice based on citizenship and mutual accountability– not religious identity. And yet, it is this "separate but equal" framework which the range of Islamist approaches consistently sanction.
Just this week, for example, Yasser al-Borhami, an influential Salafi preacher with close ties to the Nour Party (which holds roughly one fourth of Egypt's new parliament),proclaimed that affording non-Muslims the freedoms inherent in civil society "is allowed in personal matters but not in matters that are common between Christians and Muslims, where the provisions of the Sharia must be applied." In other words, Copts may settle personal matters amongst themselves, but in all other matters in which their lives intersect with broader Egyptian society, they should be governed by a legal system that would, for example, charge income tax for wage earners while also levying a hefty poll-tax on all non-Muslim men. This sort of ideology does not bode well for the prospect of greater rights, liberties, and participation for all members of Egyptian society in the years to come.
Saad concludes his analysis by arguing that "there is every reason to believe that the new Egypt can be both an Islamic state and a civil state based on rule of law." Theoretically, a state that loosely identifies with Islam as a broadly-defined "frame of reference" – à la Germany's Christian Democrats – may be able to co-exist with a robust and tolerant civil society. But such a vision is simply not what any constituents of Egypt's powerful Islamist movement have in mind for the nation's future. As much as the institution of rule of law is indeed one of Egypt's most dire and urgent needs, what meaning will it hold in the long term if it is appropriated to support a strict Islamist vision of jurisprudence, or as the Muslim Brotherhood's founder Hasan al-Banna described it: "a reform of the law, so that it will conform to Islamic legislation in every branch?"
His reformist brother, Gamal al-Banna, has argued that this vision is, in fact, incompatible with a true and vibrant civil society– and until there is an incontrovertible sea change to the contrary within the long-range program of Egypt's Islamists, I am forced to agree.
Kurt Werthmuller is an Adjunct Fellow at Hudson Institute's Center for Religious Freedom.
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