The Legal Concept of an Islamic State According to The MB

One of the illuminating documents that determines the legal viewpoint on the notion of an Islamically-ruled state is that made by the Muslim Brotherhood (MB) in the Nasserite period. The Muslim Brotherhood put forward a draft constitution for the leaders of the July Revolution. The constitution consisted of 103 articles, drafted by Dr. Mohamed Taha Badawi, Professor of General Law at Alexandria University and member of the Legal Section, and revised by Justice Mohamed Kamil, former Head of the Military Court and Chief of the Legal Section for the Muslim Brotherhood. The draft was discussed by a committee led by late Abdel Aziz Attiyya, member of the MB head office and head of the MB administrative office in Alexandria. In the committee were also lawyer Ali Fahmi and Dr. Gharib Al-Gammal, Professor of Economics (also members of the Legal Section). The draft was adopted by the Constitutive Authority in September 16, 1952.

General Principal

In accordance with article 77 of the draft, people are born free, equal in dignity, rights and liberties without any discrimination based on origin, language, religion, or color, and they have to treat one another as brethrens. It is noteworthy to mention that this article is compatible with article I of the Human Rights Document issued in 1948. It should also be stressed that the article includes the word “people”, an inclusive neutral word in the Islamic heritage, which expels any kind of discrimination based on sex or religion. This idea of equality is confirmed by article 78, which says that each individual has the right to live freely, enjoying equality, security and safety, as secured by law.

Expunging the notion of Dthimmah (Custody of non-Muslims)

It is also stressed in article 88, which says that each individual has freedom of thought, ideology, and religion. Both these articles assert that the MB draft constitution puts forth the notion of a civil state based on citizenship and loyalty with the state. This means that the articles of the draft excluded the divisions set up by ancient scholars. For example, the draft did not determine religion when recording rights. It only mentioned the word “individual”, a clear expunction of the notion of dthimmah (custody of non-Muslims). In this respect, Dr. Ibrahim Zahmoul, Professor of Law, indicates that the draft constitution proposed by the MB put forward an the idea of one state embracing Muslims and non-Muslims under the umbrella of loyalty with the nation. It never stipulated for parliamentary membership affiliation with a particular religion or cult. Rather, as obvious in article 4, the draft stipulates that the member be an Egyptian. Furthermore, in accordance with article 25, the head of state should meet all the conditions required for the MP, and these again disregard origin, language and religion, which is still compatible with the aforementioned article 77. 

Equality

In the preamble of the draft constitution, Dr. Badawi states the following: “in our endorsement of the principle of general liberties, we are not limited to one group of the nation rather than the other”, as all are Egyptians in identity and all (in accordance with article 96) are equal concerning rights and duties, be these financial duties, or even military ones (serving in the military). Indeed, article 72 states that military service is mandatory over all Egyptians and is to be performed in the manner determined by law, with no individual having to bear inequity, or to pay any kind of tribute or poll tax, as such duties are dropped once the individual performs his service.      

The same applies to political rights: all have a right to public occupations, elections, nomination, and all other kinds of public practices. None of the items in the draft constitution imposes restrictions on such rights or imply inequity whatsoever between the citizens. Dr. Zahmoul confirms this saying that the stipulations identified for getting a post are the same as those required for parliamentary membership: the candidate should be an Egyptian of good reputation. Moreover, each individual, irrespective of his cult or creed, is given freedom of opinion and speech.

The right to resist oppression

Article 91 establishes an unprecedented right. This is, each individual living in this Islamic state, bearing the Egyptian nationality has the right to resist the oppression practiced by rulers. The statement reads: “this right, given to every citizen and to all people, is considered one of the most sacred rights and duties”. This article allows all people of different affiliations and legal statuses to strive for their rights and for stopping the tyranny of rulers. Such right is again not restricted to any particular religious affiliation. Dr. Badawi comments saying that such statement conforms to Islamic ruling, yet goes counter to entirely all democratic constitutions, which hold such right as a threat to the stability and security of the community.

 Islam is the religion of the state

According to Justice Tariq Al-Bishri, the Coptic leaders never objected to the statement (included in the 1923 constitution) that determined the state’s religion to be Islam. In fact, this statement was adopted by all successive constitutions in the modern age, despite the many amendments they have undergone hitherto. It was indeed adopted by the MB draft constitution, whereby article 97 states that Islam is the religion of the state and Arabic is its official language. This same article is believed by legalists to be reminiscent of some modern constitutions, such as the 1924 Turkish constitution. In fact, article 45 of the Portuguese constitution states that Catholicism is the state’s first religion (this was in line with the Greek constitution, which was issued in 1911 and was handed down to the successive Greek constitutions). The Greek constitution states that the Eastern Orthodox creed is the official religion of Greece. Also, article 3 of the Danish constitution states that the Lutheran Evangelical Church is the national Danish church, which implies a pro-Protestant stance. Indeed, article 5 of the same constitution states that the king should be affiliated to the Lutheran Evangelical Church. Article 7 of the Italian constitution issued in December 22, 1947 states that Catholicism is the religion of the state. This article was never expunged until 1984 in agreement with the Vatican. Several similar statements could be found in the constitutions of each of Sweden, Norway, Spain, Romania, Latin America, and Turkey. Also, article II of the Austrian constitution states that Dutch is the language of the republic, while article 116 of the Swiss constitution state that Dutch, French and Italian are the three official languages of the Swiss Union. While all the aforementioned states are old hands at democracy, none of them apprehends establishing its legislation on the basis of the main components of its culture and heritage, as long as this does not trespass on the rights of minorities. This last point finds much greater support in the draft constitution proposed by the Muslim Brotherhood, whereby article 99 reads: “The members of each cult, other than the Muslims, are left to choose their religious leaders in accordance to a law that addresses such situations”. The article thereby gives all cults of the nation the freedom of self-determination, without any interference on the state’s part.