CAIRO -- Peppered throughout Egypt’s constitution, which is expected to pass in a referendum vote Saturday, is a renewed emphasis on Islamic law, or Shariah, as a guiding principle of the state. But some judges here said they don’t know how to enforce law defined by Shariah, and that injecting it into the courts could complicate an already turbulent period and further polarize the state.
Indeed, Shariah was one of the issues that divided the nation about the constitution: Liberals, Christians and moderates objected to it, and Islamists insisted it be a part of the document. Regardless, Egyptian President Mohammed Morsi vowed the proposed constitution would bring long-awaited stability here.
But a constitution that makes laws hard to enforce portends of persistent chaos, legal scholars say.
The articles dealing with Shariah in the draft constitution “are very complicated and no one understands them but Islamic scholars,” said Rafaat Fouda, a law professor at Cairo University.
Shariah itself, which appears in three articles, is a vague term; so are its references in the 236-article constitution. Scholars from Al Azhar University, the predominant scholars of Sunni Islamic thought, help craft the references in response to Islamist demands.
But its enforcement hinges on scholarly interpretations that have evolved throughout Islam, and so far there is no consensus on what Shariah means. The charter leaves it unclear who has the final authority of the law and its interpretation – the legislative body, the senior Al Azhar clerics or the judiciary.
According to the proposed constitution, legislators must draft laws that abide by Islamic Shariah, which had always been the case when the 1971 constitution was enforced. When that is in dispute, it will fall to Egypt’s highest court to decide on whether the law is coinciding with Shariah or not. Shariah jurisprudence is divided among several schools of thought, some of which contradict one another.
“It opens the door to the unknown. Shariah has a million rulings,” said Hossam Eissa, a constitutional expert and co-founder of the Constitution liberal party and an opponent to the proposed charter. “You will never be able to predict the judges’ rule.”
Some judges who have reviewed the constitution said they don’t know how to interpret what is legal or not and that by introducing Shariah, rulings will vary from one court to the other as judges craft their own interpretation. Before the constitution has even passed, judges said they are worried.
“Defining Shariah varies from one person to the other. Everyone has his own point of view,” said Ahmed Abaza, a judge in the state council who had decided to boycott overseeing the referendum, criticizing the process. “There isn’t a specific definition for the term Shariah.”
Shariah has been a part of Egypt’s constitution throughout its modern history. But up until now, the provision was applied loosely, with an understanding that no law passed could violate Islam.
“Shariah was already implemented. Most of the laws and rulings were coinciding with the Islamic Shariah, except for very minor laws,” said Mohamed Mhanna, an international law professor in Al Azhar University.
But former President Hosni Mubarak led a crackdown on Islamists during his nearly 30-year rule. He detained hundreds, restricting their freedom and instituting a number of legal "reforms" to assure that no Islamist would participate in the political discourse.