Thursday, July 9, 2009

Advocates of a Theocratic State

Adel Guindy

Dr Ahmed Fathi Sorour, the Speaker of Egypt's People’s Assembly (since 1990) published an article titled “Between Freedom of Expression and Freedom of Belief,” which occupied 24 pages of the March 2009 issue of the Assembly's quarterly review. He later published an abridged version in Al-Hayat newspaper (May 14) and Al-Ahram (May 20, 21).
For those who do not know him well, Dr Sorour, a prominent law professor, is among other occupations, the honorary president of the Institute for Higher Studies in Criminal Science, Sicily-Italy; the president of the International Institute for Law in the Francophone Countries–Paris; and the vice president of the International Society for Criminal Law–Paris
The article deserves a lot of comments, but we will focus here on its last section, which covers the important issue of ‘the effect of a religious affiliation of a State on the balance between the freedoms of expression and religious belief.’ It starts by stating that:“Constitutions in some democratic countries establish a religion of the State. An example is Greece's constitution, which states in Article 3-1 that ‘the prevailing religion in Greece is that of the Eastern Orthodox Church of Christ. The Norwegian constitution states in Article 2 that Evangelical-Lutheran is the official religion of the State. Egypt's constitution states that Islam is the religion of the State. Constitutions of some Arab countries (U.A.E., Bahrain, Somalia, Kuwait, Oman, Qatar and Iraq) have also made the same statement.”
It is appreciated that Dr Sorour makes a point in clarifying the statement in the Greek constitution, as:“the jurisprudence has established that the religious affiliation stated in the constitution is a mere declaration about the predominant religion with no legal consequences that would justify stifling the freedom of expression or giving supremacy to the prevailing religion. That is because the constitution has explicitly guaranteed each individual’s religious freedom in the large sense, that is the freedom of religious belief and the freedom of a religious community to practice of rituals, without hindrance (Art. 13-1).”The constitution indeed states (Art. 13-1) that “Freedom of religious conscience is inviolable. The enjoyment of civil rights and liberties does not depend on the individual’s religious beliefs.”
But Dr Sorour seems to have found what he may consider to be a golden opportunity in the case of Norway. However, one must not ignore the fact that this is a rare case in the modern western world and that the text has old roots (against a backdrop of a religious war (1534-36), the result of which Norway became ‘Evangelical-Lutheran,’ not Catholic). That stipulation on the State religion is largely a formality, which does not affect - legally or practically - the laws in the country nor violates freedoms in any way. Indeed the same Article 2 starts by stating that “all inhabitants of (Norway) shall have the right to free exercise of their religion.”References (among ‘democratic countries’!) to some Arab countries which established Islam as a State religion (including the failed State of Somalia!), appears as a flimsy justification for Egypt's case (more on that later).Dr Sorour then returns to Egypt's constitution:“The statement about the official State religion in Article 2 is complimented by Article 46 which concerns the freedom of belief and the freedom of practice of religious rituals. The Constitutional Court has emphasized that (..) Egyptian constitutions have upheld these freedoms, being among the established constitutional principles in every civilized country; for every human-being may believe in whatever he wills of religions or beliefs as his conscience accepts and his soul favors, without external authority beyond convictions in the depths of the heart.”
Once more, it is wise to reiterate what the Constructional Court has emphasized as something well established in ‘every civilized country.’ The pressing question is: Why such established principles do not find their way to be applied in Egypt, but are usually subjugated in practice to Article 2 (on Sharia)? A case at point is yet another ruling by the Administrative Court (June 13) to deny Mr. Maher Al-Gohary the right to convert to Christianity, because this “contradicts Sharia.”
After going out of his way to minimize the negative effects of the constitutional text regarding the religion of State in Egypt, Dr Sorour then comes to the “real meaning of stating in Article 2 that the principles of Islamic Sharia are the main source of legislation.” He reminds the reader of other cases:
“in the constitutions of U.A.E., Bahrain and Qatar that Sharia is ‘a main source;’ in Sudan’s constitution that Sharia and Ijmaa are ‘a source’ of national laws, applicable in the northern states of the country; in Syria’s constitution that Islamic jurisprudence is ‘a main source’ of legislation; in Oman’s constitution that Sharia is ‘the source’ of legislation; and in Iraq's constitution which states that no laws contrary to the fundamentals of Islam’s provisions may be issued.” Unfortunately, Dr Sorour ignores that adopting a ‘religious law’ as a source of legislation is a particularity of only a limited number of ‘Islamic’ countries. He also reverts to the cases of some ‘brotherly Arab countries’ as a justification, ignoring that most of them are quite novice when it comes to having a constitution, and that these were mostly drafted by the same crafty Egyptian experts who had written their country’s constitution, with all its aberrations and contradictions. He ignores that the Iraqi constitution he partially quotes actually stipulates that “No law that contradicts the universally agreed tenets of Islam, the principles of democracy, or the rights cited in this Constitution (Second Chapter) may be enacted. This (constitution) (..) guarantees the full religious rights of all individuals to freedom of belief and religious practice, such as Christians, Yazidis and Sabeans.” He further ignores that many Arab countries (e.g. Algeria, Jordan, Lebanon, Libya, Morocco, Tunisia) do not mention Sharia as a source of legislation in their constitutions. He ignores that many Islamic, non-Arab, countries (e.g. Cote d'Ivoire, Indonesia, Mali, Senegal, Turkey or Uzbekistan) not only do not mention Sharia in their constitutions, but also uphold secularism, and/or mention no religion of state. He also ignores that among the examples he quoted, there are countries that consider Sharia to be ‘a’ source, or ‘a main’ source even though Muslims may represent up to 99% of the citizens; yet Egypt, a multi-faith country, with a history of progressive evolution over two centuries, has made Sharia ‘the’ main source of legislation which makes it, according to the interpretation of the Constitutional Court, the de-facto sole reference. In sum, Dr Sorour knows that Egypt has become an ‘extreme case’ (or a case of extremism!), yet he endeavors to defend her reckless course of action!
***Dr Sorour then gets to the issue of contradiction between adopting a ‘religious law’ as a source of legislation, and the freedoms:“Even if Islamic Sharia has undoubtedly a religious nature, being the essence of Islam, yet it is independent from the religious belief in being a legal system. Thus it is conceivable to apply Islamic Sharia in a non-Islamic society, on non-Muslims living in an Islamic society, or on foreigners living in (Islam’s) land, without affecting the principle of freedom of belief. This is because of (Sharia's) civilizational nature, logical basis and social values.”This must represent a logical dilemma to most mortals, but not to Dr Sorour who tries a new kind of logic! For even when he qualifies Sharia as a system with ‘an undoubted religious nature,’ he ignores these propositions and jumps to contradictory conclusions. He never bothers to explain how could Sharia be an independent legal system, that could even be happily implemented in a non-Islamic society (!), whereas it is founded on submission to certain religious injunctions? In fact (as the experts say) Sharia is not even a positive system of law, but a ‘normative corpus that regulates in detail inter-personal relations,’ without a possibility to elaborate laws based on general principles and the society’s needs.
But realizing the logical impasse, Dr Sorour deploys another idea: ‘Sharia's civilizational nature, logical basis and social values.’ However, these are by no means given facts, but a mere opinion; an opinion, moreover, that can only be expressed by a partisan biased to his own narrow religious vision. Furthermore, it is an opinion that can be easily refuted: It is enough to subject Sharia to a ‘Litmus test,’ by comparing its provisions and applications to the international conventions of Human Rights. The results are well-documented. ***When constitutions refer to certain principles, they usually do so explicitly. Egypt’s constitution is an exception when it refers vaguely to ‘principles of Saharia.’ The Constitutional Court had to come to some rescue as..“it took interest in clarifying what is meant by the ‘principles of Islamic Sharia’ to be those provisions (ahkam) which are firm, both in veracity and meaning. They are not subject to ijtihad, as their incidence does not change with time or place (Case 119 of 12/2004). Ijtihad is limited to conjectural provisions whose veracity and/or meaning are not fully confirmed (Case 18 of 5/1995).”
We notice that the court may have narrowed the scope of discussions regarding the ‘principles of Sharia,’ but it has not ventured to clearly delineate them (nor clarify those ‘firm provisions’ on which they are based).Here, one has every right to ask: In the absence of clear statements in the body of the constitution itself; who, besides men of religion, would determine what represents ‘firm provisions’? Isn't this exactly the essence of the theocratic State? (defined as a system where “the primary effort of government is to implement and enforce divine laws.” -- Encyclopedia of Politics and Religion, ed. Robert Wuthnow).
One can further wonder what would happen when certain Sharia provisions contradict in letter or spirit the international conventions on Human Rights or, indeed, other stipulations in the very same constitution? Courses on Sharia, taught in Al-Azhar as well as in law schools in secular universities, are awash with texts which reflect the non-equality between woman and man, and between non-believer and believer (i.e. Muslim). They cover a wide range of aspects, from treating dthimis, to hudud (bodily punishments); from personal status to slavery. Supposedly they are based on ‘firm provisions,’ and hence still applicable -- even if some scholars (a minority) indicate that these may not be fully enforceable in today’s societies. Are we to rely upon occasional disagreements between exegetes, hoping to find some reassurances as to our fate and to that of our country?
It is important at this point to highlight that some may warn that ‘criticizing Sharia means attacking Islam as a religion.’ Rejecting such claims which aim at muzzling mouths we emphasize that the debate is not at all religious, but strictly about fundamental legal issues, with broad political and societal ramifications.***Reaching a climax, Dr Sorour finally proclaims that:“It needs no demonstration that considering Islamic Sharia a main source of legislation does not infringe on the State’s duty to protect freedom of belief for the (followers of) other religions.”Yet again, he sees no need to demonstrate how could such contradictory statements hold together-- simply because he cannot.***How depressing to see some pillars of the regime (who occasionally declare their ‘belief’ in the ‘civil’ State, where freedom, justice, equality and democracy prevail!) act. They had better understand the disastrous implications of a theocratic State, and that many of Sharia injunctions do contradict the established principles of human rights, yet instead of devoting their talents and assuming their responsibilities to advance a badly-needed progressive agenda for Egypt, they support (knowingly or not) the cause of the Islamists whose ultimate goal is nothing but to turn the world into an Islamic abode, by ‘imposing Allah’s Law on the Earth and its inhabitants.’Woe to you, Egypt!

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