Gamal Heshmat: The 2nd Article in Egypt's Constitution is Supported by Most Egyptians
Gamal Heshmat: The 2nd Article in Egypt's Constitution is Supported by Most Egyptians
Saturday, August 4,2012 18:21

I’m very surprised at how some individuals continuously raise the dust about the second article in the Egyptian Constitution, which defines Egypt’s identity, language, religion and the source of its legislation.

So far, the majority of Constituent Assembly (CA) members are in favor of Article 2 text as per 1971 Constitution, including Christian and Muslim members, as well as those representing all political and social currents, like secularists, liberals and leftists. The question, then, is: over what do they differ in the CA?

Those belonging to the Salafist movement demanded the Article must be amended, either by deleting the word ‘Principles’ or inserting the word ‘Rulings' in the text of the Article, which states, "Principles of Islamic Sharia are the main source of legislation".

Doubts persisted, while some even demanded that a phrase be added to state that Al-Azhar should be referred to for interpretation of Article 2 in any disputes. Some others demanded that a phrase should be added to specifically mention that non-Muslim followers of heavenly religions may appeal to their religious strictures on matters pertaining to personal status and their religious affairs.

Some got involved in the dispute just to stoke the fire of sedition, while others rejected the whole Article. Conflicting extremes seem to take center stage, although things are a lot simpler than all that, when we consider history and experience.

There are two situations which I will mention here to illustrate that dispute does not entirely serve patriotic Egyptians, but opens the gates of unwarranted sedition and strife, that the text of the Article as it is, in fact, is good for Muslims and Christians, and that it is the optimal solution – without any deletions or insertions.

First: Pope Shenouda III based on the text of Article II, as it is today, his rejection of a court ruling allowing divorce for reasons other than those agreed upon by the synod, a ruling issued by the Supreme Administrative Court.

At the time, Pope Shenouda III mentioned that his refusal was in compliance with Article 2, which states that Islamic Sharia is the main source of legislation, which allows for Christians to appeal to their own religious strictures on matters pertaining to personal status and their religious affairs – a refined, clear and direct understanding of the Article.

Second: Under this Article, with the same wording, the People’s Assembly (lower house of Egyptian Parliament) records document that in session seventy, in July 1982, codifying Islamic Sharia was completed, after four years of hard work by specialized committees and scholars of Egypt expert in all fields.

In the words of Dr. Sufi Abu-Taleb in that session (where he was the People’s Assembly Speaker):

"Putting Islamic Sharia into practice, properly applying its provisions, is a return of the Egyptian people – indeed the whole Arab and Muslim nation – to their true Arab and Muslim identity, after the long alienation we experienced under foreign law for more than a century. This puts an end to the contradiction between the moral principles and values ??– that grew from this good earth and the civilized framework that connects its people – and between man-made laws.

"In codifying and applying Sharia, both the provisions of Islamic law and constitutional principles are taken into account, including freedom of religion for non-Muslims, and ensuring equality between Muslims and non-Muslims in rights and duties.

"The interpretation of any provision in the Constitution must be in line with and not in isolation from the rest of the Constitution’s texts. It is also recognized that the principles of Islamic Sharia allow non-Muslim followers of heavenly religions to appeal to their religious strictures on matters pertaining to personal status – like marriage and divorce. Law scholars have long since settled on this established opinion.

"The most important features of the new legislation are as follows:

1. Provisions are taken from the letter of Islamic law or derived from a relevant rule or from one of its basic sources of legislation, without adhering to a particular jurisprudential doctrine. Hence, provisions are derived from the views of scholars relevant to the conditions of society today.

2. The technical committees entrusted with preparing this legislation were careful to mention the original statement for each of the legal texts, or the legal source, basis, principle or rule on which it was based or from which it was derived, so that in interpreting any of these, one can refer to Islamic jurisprudence, instead of always resorting to foreign frameworks.

3. As for new social relationships and financial transactions which law scholars have never addressed, the committees endeavored to set down provisions consistent with the conditions of society and the spirit of the era, making sure they also conform to the spirit of Islamic law and its principal sources. Examples include: bank and insurance transactions, and tools of financial investment.

4. In order to preserve the heritage of Egyptian jurisprudence and the principles of justice, historically established over the past century, the committees were careful to use familiar legal terms, in all legislation and Article wording, unless absolutely necessary. The content and meaning remained always compliant with Islamic jurisprudence.

"Legislations already completed:

1. Draft Law of Civil Transactions – more than 1000 Articles (committee rapporteur: Dr. Gamal Al-Otifi)

2. Draft Law of Evidence – 181 Articles; and Draft Law of Litigation – 513 Articles (committee rapporteur: Mumtaz Nassar)

3. Draft Penal Law: General, Punishment and Judicial Sentences – 635 Articles (committee rapporteur: Hafez Badawi)

4. Draft Law of Maritime Trade – 443 Articles (committee rapporteur: Justice Ahmed Ali Moussa)

5. Draft Code of Commerce – 776 Articles (committee rapporteur: Dr. Mohamed Kamel Leila)."

Those words of the People’s Assembly Speaker remind us of the great effort made over four years, and should calm the minds of both zealots and agitators, so everyone should put their efforts to good use, in the right direction, without delay.

More importantly, the speech of the People’s Assembly Speaker describes how to implement these legislations.

"This historical achievement, which was instigated and launched by your venerable Assembly, still requires a huge effort that must be made by all those who wish success for Sharia laws, each in his or her respective areas of specialization. This also requires that we should start now, as follows:

1. Create a social climate for the acceptance of new legislations, using all media outlets, holding hearing sessions to explore the subjects that came into being in society after ending Independent Reasoning, where the relevant committee has already adopted some of the suggested views.

2. Organize training courses to give judges the opportunity to study and absorb the new legislations.

3. Modify law school programs in Egyptian universities in line with new legislations."

The People’s Assembly Speaker then gave the rapporteur of each committee an opportunity to review the general outlines of each law.

Incidentally, when a Nour Party MP submitted a bill for banditry punishment, I said - in the Proposals and Complaints Committee – that there was no need for new additions that have not been carefully thought out, but collected from various books without in-depth knowledge or sufficient analysis, and that we should instead breathe life into existing legislation – so we would not undermine or subvert powerful legal frameworks.

I would certainly urge those who cause confusion, chaos and controversy for no good reason, to leave alone Article 2. Based on it, without any amendments, Christians in Egypt were referred to their own laws.

Islamic law was codified into law articles ready for review and approval by the People’s Assembly, which has been prevented from performing its role, after it won legitimacy exceeding all other institutions in the history of Egypt.

But what can we do with conspirators and plotters desperately endeavoring to stop Egypt’s natural evolution after the January 25 revolution? They are determined to derail the revolution which threatened their power and influence and exposed their corruption and treachery.

I urge all to rethink their discourse before raising problems, to look for points of agreement, and to consider what has been achieved already, so we do not waste time that we may well come to regret later.

Dr. Mohamed Gamal Heshmat

University Professor and Member of Parliament affiliated with the Freedom and Justice Party

http://ikhwanweb.com