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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 states 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 states 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 states
part.
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