By Helena Swanson-Nystrom
Egypt’s 2012 Constitution included the principles of Islamic law as the “principal source” of national legislation. This clause had been in the country’s constitution since 1980, and the Supreme Constitutional Court (SCC) had assumed primary authority to articulate the application of sharīʿa in Egypt’s legal system. However, the 2012 Constitutional Assembly adopted a new constitutional design requiring that the Body of Senior Scholars at al-Azhar, the premier training institution for Sunnī jurists, be consulted on all matters of Islamic Law. This interim constitution shifted authority over the interpretation of Islamic law away from the SCC. An example of this shift manifested during the debates and adoption of the Ṣukūk Bill—legislation designed to create sharīʿa-compliant state bonds—when al-Azhar offered significant criticism of the bill. Although the 2012 Constitution was replaced in 2014 and the clause referring to al-Azhar’s new role removed, that institution’s increase in institutional authority over matters of Islamic law has remained significant.
The Pre-Revolutionary Role of Islamic Law in the Egyptian Legal System
Before the Revolution that culminated in a new constitution in 2012, Egypt’s constitution went through a number of changes. Before 1971, Egypt’s legal system included elements of traditional and non-traditional law, the result of a “historic compromise” between religious and secular elites. The 1971 Constitution codified the role of Islamic law in the country’s legal system, affirming, “The principles of Islamic law are a chief source of legislation” (emphasis added). The 1980 Constitution further elevated the role of Islamic law, making it “the chief source of legislation” (emphasis added). Throughout this time, litigation was one of the few ways to push back against secularization of the Egyptian legal system, and the Supreme Constitutional Court (SCC) played the primary role of interpreting the role and application of sharīʿa to be limited and principles-based.
Egypt’s 2012 Interim Constitution: Expanded Role for the Jurists
The parties involved in the 2012 Constitutional Assembly had different positions on how to structure the role of Islamic law. The Muslim Brotherhood’s Freedom and Justice Party (FJP) wanted to keep the existing language and structure, in order to prevent limitations from being placed on a parliament that they would soon lead. However, the Salafī al-Nour Party wanted to give strong oversight authority to al-Azhar in order to constrain FJP’s parliamentary power. Meanwhile, liberals were interested in maintaining the existing language, and potentially introducing an explanatory clause to limit how broadly any future SCC could interpret and apply Islamic law.
In a compromise between these competing interests, the Constituent Assembly maintained the upholding the “principles of Islamic law” as “the chief source of legislation” and the SCC maintained sole judicial review. However, the new constitution also stated that “The al-Azhar’s Body of Senior Scholars is to be consulted in matters pertaining to Islamic law.” An explanatory clause was also included, clarifying that “the principles of Islamic law comprise its foundational texts, its jurisprudential canons and legal maxims, and the sources recognized by Sunni law schools.” This explanatory clause arguably adopted a definition of Islamic legal principles that was less stringent and less consistent than the SCC’s previous interpretation of sharīʿa.
The Interim Constitutional Arrangement in Practice: the Ṣukūk Bill
The passive constitutional language that mandated al-Azhar “be consulted in matters pertaining to Islamic law” was not interpreted to solely apply to instances of SCC judicial rulings. Instead, it applied to legislation as well. When Parliament introduced the Ṣukūk Bill to create sharīʿa-compliant state bonds, the Salafī al-Nour party insisted that the proposed legislation be referred to al-Azhar for review. Al-Azhar’s Body of Senior Scholars accordingly provided significant criticism of the bill, which went far beyond the ways in which the SCC had interpreted sharīʿa through case law in ways that included points that were arguably unrelated to “principles of Islamic law.” Compelled by al-Azhar’s significant populist and political capital, Parliament implemented almost all of al-Azhar’s recommendations.
Current Institutional Authority
After President Mohamed Morsi was ousted in 2013, provisions of the 2012 Constitution—including the mandatory referral to al-Azhar—were dismantled. The constitution was ultimately replaced in 2014, and the 1980 language and structure regarding Islamic law were restored. However, these short-term constitutional changes offered multiple long-term lessons. The Ṣukūk Bill incident indicates that constitutional design is more important that the actual language adopted and showed that institutions, when given the chance and afforded new authority to engage in the interpretation of Islamic law, would not rely on prior SCC case law to frame how sharīʿa should be understood. Moreover, although the 2012 constitutional changes were dismantled, the implications are still at play. Today, the views of institutional stakeholders regarding the role of sharīʿa continue to gain relevance and infringe upon the SCC’s sole authority, particularly those—like al-Azhar—with significant political capital.