Religious Identity in the Constitution of Egypt: A Deliberate Ambiguity?

Eman Muhammad Rashwan

Cairo University

The concept of constitutional identity has no agreed definition in constitutional discourse. Sometimes it refers to a feature of a constitutional system, such as a commitment to either a presidential or a parliamentary system. It can also be used to refer to the relationship between a constitution and the broader culture in which it operates, or even the relationship between constitutional identity and national identity, which may include religious identity. Here, I will use the term ‘constitutional religious identity’ to refer to the discourse between Egypt’s Constitutions and its state religion, which is Islam.

Religious identity first appears in Egyptian constitutional texts in 1923. Article 149 of the Constitution of 1923 states: “Islam is the religion of the state and Arabic is its official language.” There is no reference to Islamic Sharia; the latter was never mentioned until its first introduction by the famous Article 2 of the Constitution of 1971. Article 2 of the Constitution of 1923 provides, “Islam is the religion of the state, Arabic is its official language, and the principles of Islamic law are a primary source of legislation.” In 1980, Article 2 was amended by the significant change of replacing the indefinite “a” before “primary source” with the definite article “the.” This change remained in place and was not returned to public scrutiny until the 2011 revolution. The post-revolution interim constitutions and constitutional declarations retained the incendiary article, passing the fireball to the drafters of the permanent constitution. In 2012, a dispute over the definition of the word ‘principles,’ which determines the scope of the application of Islamic Sharia, ended with the Islamists giving up on a change in the wording of Article 2 but inserting Article 219. The new article reads, “the principles of Islamic law include the general evidence, fundamental and jurisprudence rules, and recognized sources as acknowledged by the Sunni school of thought.” After the ouster of the Muslim Brotherhood from power in 2013, the Constitution of 2012 was amended. But Egypt’s current Constitution, enacted in 2014, preserves Article 2. It does, however, remove Article 219 and states in its preamble, “We are drafting a Constitution that affirms that the principles of Islamic Sharia are the principal source of legislation and that the reference for interpretation thereof is the relevant texts in the collected rulings of the Supreme Constitutional Court.”

Does this article mean the religiosity of the Egyptian Constitutional System? Yes and no.
While the article states, clearly, that the State has a religion, which is Islam, and that Islamic Sharia is the principal source of law, these broad headlines are followed by other provisions and applications that sometimes adhere to the religiosity of the State and sometimes defy it.

On the one hand, Article 53 of the Constitution guarantees the equality of all citizens before the law, in their rights and duties, regardless of their religion or belief, or sex. It also states, at Article 64, that the freedom of “belief” is “absolute.” The Constitution does not establish any religious courts. Moreover, Article 3 affirms that Egyptian Christians and Jews have the right to apply their respective religious laws to regulate “their personal status, religious affairs, and selection of spiritual leaders.” The Constitution does not mandate, as a prerequisite, the religion of the head of state or the head of government. Nor does it stipulate that any law contradictory to Sharia Law is void. Most importantly, the framers intended that the preamble would settle the dispute over interpreting Islamic Sharia – which is a massive body of texts, opinions, and interpretations using different arguments, methods, and conclusions – to mean “the relevant texts in the collected rulings of the Supreme Constitutional Court.” The Egyptian Supreme Constitutional Court is a division of the Egyptian Judiciary, which is completely secular in its composition. Most of the judges do not receive extensive training in Islamic Sharia. The Court has a history of liberal interpretation of Islamic Sharia, and it has always tried to find ways to apply modern interpretations of the latter rather than the more radical interpretations that would satisfy Islamists. 

On the other hand, the previously mentioned Article 64 grants the freedom to engage in religious practice and establish places of worship to followers of the enumerated religions only, thus limiting the “absoluteness” mentioned earlier in the same article. Moreover, Article 64 delegates the management of these rights to the law, which would be, naturally, restricted by other constitutional provisions, including Article 2. Spiritual references and mentions of the word “God” abound in the Constitution’s preamble and form an obligatory part of the official oath of office required to assume many of the highest positions in the State. Moreover, although the previously referenced Article 3 is an embodiment of freedom of religion, it also concretises religion-based divisions in the law and confirms the absence of a unified civil law to regulate family law for all Egyptians. This is especially true given that the family law for Muslim Egyptians derives from Islamic Sharia and the latter is the default law in these matters. As a result, in the event of a difference in the religion, sect, or desire of the parties to rely on Islamic Sharia, the courts would apply the latter to the dispute regardless of the parties' religion or preference. Finally, the Constitution does not explicitly mention a separation between the State and the church or any other religious institution. Most significantly, it does not mention Al Azhar. Al Azhar is considered the leading Islamic institution in the Sunni Muslim world and is the chief Islamic religious institution in Egypt. Although Article 7 of the Constitution merely stipulates Al Azhar as being “the main authority for religious sciences, and Islamic affairs,” a decree issued by the Supreme Council of Armed Forces (SCAF), in 2012, amended the Al Azhar Regulation Law to expand its authority. The amendments endowed Al Azhar with a reference power and supervisory role over other state authorities as “the final reference in Islamic matters.” It also gave the ‘Supreme Ulama Authority’ jurisdiction to “decide the religious affairs, laws, and social affairs that have a controversial nature.” Although this decree was issued while Islamic movements were ascendant in Egypt, it was not altered by amendment to the Constitution of 2012.

To some scholars, this constitutional design is a type of liberal or moderate adoption of Islamic Sharia within a Muslim-majority constitutional system. However, once one understands who controls the grey zone where Egypt’s constitutional religious identity stands, it becomes utterly worrying. Amidst the confusion and contradictions, civil and constitutional rights remain at the mercy of political bargains between different state authorities and political parties, with no clear expectations or points of reference. As just one example, the Presidency recently ordered the enforcement of gender equality in all judicial authorities. However, the State Council and the Public Prosecution Authority, simultaneously, insisted on only appointing a limited number of female members, who had already been working in the Administrative Prosecution and the State Suits Authorities, while forbidding female candidates from applying for entry positions through the ordinary hiring process along with their male peers. Given this incoherent identity that does not conform to a clear set of rules, it is hardly surprising that the Judiciary cannot guarantee a “civilized”, “liberal”, or “moderate” application of Sharia. The Judiciary is itself a party to this confusion and sometimes benefits from it. Constitutional identity in Egypt is, thus, a subject of speculation and contingent upon the country’s changing political mood. This is, no doubt, because no one wants to ask the uncomfortable question that will, regardless of its answer, have unpopular consequences: Is the Egyptian state religious or secular?

Eman Muhammad Rashwan, is a PhD Candidate at Hamburg University and Lecturer of Public Law at Cairo University.

Suggested Citation: Eman Muhammad Rashwan, ‘Religious Identity in the Constitution of Egypt: A Deliberate Ambiguity’ IACL-AIDC Blog (27 September 2021) https://blog-iacl-aidc.org/spotlight-on-africa/2021/9/27/religious-identity-in-the-constitution-of-egypt-a-deliberate-ambiguity.