Shariah after the Arab Spring?

The context

‘Libyan Leaders’ Embrace of Sharia Raises Eyebrows’ ¹ read a headline on CNN’s website, ‘Thousands Rally Demanding Sharia Law in Tunisia’ ² read another one on AFP, ‘Egypt Officially under “Sharia Law”’ ³ read a third one on Israel Today, ‘Arab Spring Optimism Gives Way to Fear of Islamic Rise’ ⁴ warned Fox News. Such headlines, and dozens of others, have inundated the Internet since the start of what is now commonly referred to as the ‘Arab Spring’ or the ‘Arab awakening’ – a series of pro-democracy revolutions throughout North Africa and the Middle East which toppled autocratic rulers and called for free and fair democratic elections, rule of law and respect for human rights.

A number of journalists, academics and Middle East experts with various degrees of competence have been filling air time on numerous news channels, websites and radio shows warning of an impending and inevitable Islamist takeover in the case of free elections being held, almost certainly to be followed by the implementation of the strictest interpretations of shariah. I was under the impression that some of them seem to have been inspired by the ‘Free elections trap’ theory coined by Leslie H. Gelb in his article published in Foreign Affairs in 1991 ⁵ where he stated that:

It is more important for democratizing societies to have a free press than free elections. Today in most Islamic countries, free elections would produce fundamentalist victories and validate the imposition of theocracy. ⁶

Others may have been inspired by Huntington’s now legendary Clash of Civilizations theory, where he stated that:

On the other hand, within the context of its revolution, Iran in some respects has one of the more democratic regimes in the Islamic world, and competitive elections in many Arab countries including Saudi Arabia and Egypt would almost surely produce governments far less sympathetic to Western interests than their undemocratic predecessors. ⁷

The United States and a number of West European governments have been erstwhile propping up autocratic regimes and military juntas throughout the Middle East and North Africa and continue to do so, concurrently advocating the protection of human rights, the development of democracy and the rule of law. Western foreign policy-makers seem to have simply reasoned that having ‘friendly tyrants’ (as Huntington referred to them) was better than having unfriendly Islamists, running shariah-based theocracies that were bound to be anti-western.

Such western reasoning seems to have been in place for decades and was clearly manifested in the case of Egypt. Namely, when hundreds of thousands of pro-democracy demonstrators gathered in Tahrir Square in January 2011 demanding the stepping-down of Egypt’s longtime president Hosni Mubarak, who had run a police state for exactly 30 years, the United States expressed ‘concern’ ⁸ when unarmed demonstrators were met with the brutality of Egyptian security forces. Then, as the numbers of anti-government demonstrators grew to a million, the United States acknowledged the strength of the opposition and called for a ‘dialogue’ between the opposition and Mubarak’s government. ⁹ Finally, when it was clear that Mubarak’s regime was collapsing, the United States called for a ‘peaceful transition’ of power. ¹⁰

Nevertheless, the regimes of Zine El-Abidine Ben Ali, Hosni Mubarak and Muammar Gaddafi all collapsed. In the ensuing general elections deemed mostly free and fair by international observers, ¹¹ Islamist political parties won in Tunisia and Egypt, while in Libya a coalition of mostly liberals won a majority. The new democratically elected governments embarked on drafting new constitutions – and that is when accusations of Islamist underpinnings began.

The aim of this article is to answer the following question: Did the ‘Arab Spring’ pave the way for shariah-based constitutions? Since at the time of this writing (mid-2013) certain reversals of the Arab Spring are taking place (a coup d’état in Egypt) and since Tunisian and Libyan draft constitutions have not yet been approved either by parliament or by popular referendum, this work should be taken as a study of the immediate post-Arab Spring period.

Before attempting to answer that question, it will be worthwhile looking at the wider picture: the religion-state relations in North Africa and the Middle East.

Islam in the constitutions of Muslim-majority countries

The so-called ‘Muslim world’ stretches from Europe through the upper half of Africa into the Middle East and all the way to south-east Asia. It is an ethnically and linguistically diverse geographical arena, with different legal histories, customs and interpretations of Islam. All these differences are reflected within a multitude of constitutional formulations, ranging from self-declared Islamic republics to strictly laic states that are even hostile to Islam.

Some 39 per cent of the world’s Muslims live in 22 countries whose constitutions declare shariah, either its principles or its jurisprudence, as a source of law. The constitutions of countries whose constitutions provide that shariah is, in part at least, a source of law are Afghanistan, Iran, Malaysia, the Maldives, Pakistan, Bahrain, Egypt, Iraq, Jordan, Kuwait, Libya, Oman, Qatar, Saudi Arabia, Somalia, Syria, the United Arab Emirates, Yemen, Mauritania, Gambia, Nigeria and Sudan. ¹² There are also some constitutions that are ‘inspired’ by shariah but do not explicitly state it as a source of law. The constitution of Comoros, for example, states that the Comorian people will ‘draw from Islam the permanent inspiration for the principles and rules that shall govern the union’. ¹³ In a similar fashion, the constitution of Algeria lays out that ‘the institutions shall not indulge in practices contrary to Islamic morals and the values of the November Revolution’. ¹⁴

Of the 56 member states of the Organization of Islamic Cooperation, 22 provide some constitutional role for shariah, its principles or jurisprudence, either as ‘the basis of’, ‘the source of the principles of’, ‘a principal source of’, or ‘the only source of’ legislation. Some countries, such as Afghanistan, include a so-called ‘repugnancy clause’. For example, article 3 of Afghanistan’s constitution states that ‘no law may be contrary to the sacred religion of Islam and the values of this Constitution’. ¹⁵

This work will look at the constitutions of three North African countries – Tunisia, Libya and Egypt – and textually analyse them before and after their respective revolutions.

Tunisia

Libya

Egypt

An analysis instead of a conclusion

The 1959 constitution of Tunisia makes 3 references to Islam and no reference to shariah. ⁴¹ The preamble refers to the fundamentals of Islam, the Arab-Islamic identity and the Tunisian affiliation to the Arab-Islamic ummah. For comparison’s sake, the 2013 draft constitution makes 6 references to Islam and 1 reference to shariah. Article 1 in the 2013 constitution stating that Islam is the state religion has been copied verbatim from the 1959 constitution just like article 67 stating that the president of Tunisia must be a declared Muslim (a repetition of article 38 of the 1959 constitution). The 2013 constitution provides a shift in rhetoric compared with the 1959 constitution which sounded more pan-Arab with its references to the ‘Greater Maghreb’ and belonging to the ‘Arab family’. Although the constitution mentions Arab and Islamic ideals, such references do not translate to any legal commitments. Nowhere does the constitution state that Tunisia’s foreign policy shall be aligned with the interests of Islam nor does it state that the country should commit itself to strengthening ties with Muslim countries – as do the constitutions of Islamic states such as Iran, Pakistan and Saudi Arabia. Hence, it may be deduced that no changes were made as for Islam being the religion of the state and for being Muslim as a pre-condition for the Tunisian presidency.

The only reference to shariah in the 2013 constitution is related to the Financial Judiciary whose job is to oversee that public spending is done in accordance with the shariah. This is a novelty which did not exist in the 1959 constitution. Yet even the wording is somewhat unclear since article 116 speaks about ‘Shari’a principles’ without really elaborating on them. As for sovereignty, the 1959 constitution states that it belongs to the Tunisian people while the draft 2013 constitution talks about sovereignty belonging to the law. None makes any references to sovereignty belonging to God, as is the case in some Islamic republics. ⁴²

In the case of Libya, it is clearly seen that the 1969 constitutional declaration enacted after the coup d’état by Muammar Gaddafi and his ‘Free Officers’ made only several references to Islam and shariah. Islam was declared the religion of the state, Islamic heritage was declared the inspiration behind the state’s efforts to socialize the country, and shariah was declared the relevant law in governing inheritance rights. From the 1977 constitutional declaration we can deduce that it gave shariah a dominant role, on paper at least. Theoretically looking at it, all laws had to be in accordance with the shariah since the Holy Qur’an – being declared the ‘constitution’ of the state – was its main, if not its only, source of legislation. In practice, the actual role played by shariah could be subject to some serious debate. The one reference to ‘the help of Allah’ seems to be more of an emotional statement than one that could be legally enforceable.

After the revolution and the promulgation of the interim constitutional declaration, references to Islam and shariah were maintained, albeit on a lower scale. The present interim constitutional declaration makes two references to Islam and shariah. The first is when it states that young generations of Libyans ought to be brought up according to the ‘Islamic spirit’ and love of goodness and home. The second reference is the affirmation that Islam is the religion of the state and shariah is the principal source of legislation. It is worth noting that the new interim constitutional declaration proclaims shariah as the ‘principal’ source of legislation – and not the ‘only’ source of legislation, and as such leaves open the door for other, not necessarily religious, sources of law. Notwithstanding the fact that Islamic jurisprudence is the principal source of the legislation and that Islam is the religion of the state, article 17 – when referring to the legitimacy of the National Transitional Council (NTC) – states that it is derived not from Islam, but from the 17 February Revolution. ⁴³ Other than proclaiming Islam as the religion of the state and shariah as a principal source of legislation – an oft-seen wording in the constitutions of Muslim majority states – what this interim constitutional declaration lacks is the specifying of which school of shariah should be applied, and which government body will be in charge of interpreting the Holy Texts or ensuring that existing legislation is in line with shariah. One possible answer to this is that it was purposely left vague in order to gloss over different opinions on shariah among the various decision-makers who drafted the interim constitutional declaration. ⁴⁴

In the case of Egypt, one of the first noticeable differences in the 2012 constitution may be found in the preamble which refers to Egyptians as part of the Arab and Islamic nations. This is in contrast to the previous constitution’s pan-Arab references to Arab unity and the Arab nation. ⁴⁵ Article 2 which states that Islam is the religion of the state and that the principles of shariah are the principal source of legislation is a verbatim repetition from the 1971 constitution. Some Salafis had tried to push for a greater role of shariah in the new constitution, but that did not bear fruit. Perhaps the rather vague reference to the ‘principles’ of shariah without much elaboration may have been done purposely as a sort of compromise between the warring factions. But, what exactly are the principles of shariah? In 1985 the Egyptian Supreme Constitutional Court ruled on the interpretation of the previous constitution’s article 2. It ruled that shariah ‘could not operate as a binding law in its own right’. ⁴⁶ The court further elaborated that shariah provisions had to be incorporated into positive state law for judges to apply. The court further ruled that article 2 had no retroactive effect, that is, only laws enacted after 1980 had to be consistent with shariah. In 1993 the Supreme Constitutional Court brought in a second landmark ruling differentiating between the different types of shariah principles. The first group of principles was made up of those whose origin and significance was absolute [al-ahkam al-shar'iyya al-qat'iyya fi thubutiha wa dalalatiha] and for which ijtihad [interpretative reasoning] was not authorized. ⁴⁷ These principles allowed for no modification and no interpretation. ⁴⁸ Any norm which contradicts them was subject to a rule of unconstitutionality. The second group of principles was relative [ahkam zanniyya] regarding their origin, their significance, or both. They could evolve, could be interpreted differently and were adaptable to the changing environment. It was the legislators [wali al-amr] who were tasked with interpreting and establishing norms related to such rules.

According to a recent study, almost all principles identified by the Supreme Constitutional Court to date have been considered ‘relative’. Hence, the People’s Assembly had the right to adapt and codify the content of these laws in accordance with the changing needs of society. ⁴⁹

Article 4 is a novelty. It states that Al-Azhar, the ancient center for Sunni Islamic learning, shall be consulted in matters relating to shariah. The emphasis here is on ‘consultation’ and hence it clearly rules out that Al-Azhar shall have the final say in state affairs. Some critics have compared this with the role played by the Guardian Council in Iran. I would not agree with such comparisons. It cannot be deduced from article 4 that Al-Azhar will have some sort of oversight over all legislation nor will Al-Azhar be tasked with ensuring that all passed legislation is in line with shariah. To the contrary, I would argue that giving Al-Azhar a constitutional role risks politicizing the institution, and paves the way for politicians to lobby for the appointment of scholars who support their views. Others have even argued that such an institution, famed for its moderate interpretation of Islam, will serve as a mechanism to check the various Islamist parties in power through its independent Council of Senior Scholars. ⁵⁰ Some critics have argued that the Muslim Brotherhood’s Freedom and Justice Party purposely gave Al-Azhar such a role in order to suit its own ‘Islamist agenda’. I would disagree and point to a recent example whereby Al-Azhar has actually been giving the Muslim Brotherhood a headache with a draft law governing sukuk or the functional equivalent of shariah – compliant financial bonds. ⁵¹

A novelty in the 2012 constitution is article 219 which comes as a somewhat specific yet idiosyncratic amendment to the earlier-mentioned article 2 and defines what exactly is meant by ‘the principles of shariah’. Precisely what this entails in practice remains to be seen. In an analysis of that article, Clark Lombardi and Nathan J. Brown conclude that four structures will be getting particular attention in defining the article’s practical implications. The first will be the executive branch along with the State Council [Majlis al-Dawla]. Those in control of these two bodies will influence the article’s interpretation. The second is the parliament which has the ultimate authority in enacting new legislation, and future elections will determine its balance of power. Al-Azhar, with its 40-member Council of Senior Scholars will also add significance to its interpretation. Finally, the Supreme Constitutional Court will continue to play a crucial role. ⁵²

What the future holds for these countries is unclear. Changes are occurring on a daily basis, alliances are shifting, key politicians being jailed and released, even state boundaries may be subject to change (take Syria, for example). But when it comes to the role of shariah in the constitutions of these countries, I would conclude that there have not been tectonic shifts with the Islamists coming to power after the Arab Spring.