Shari'a of Civil Code? Egypt's Parallel Legal Systems

An Interview with Ahmad Sayf al-Islam

by Karim El-Gawhary
published in MER197

Egyptian courts have increasingly become a site of political struggle between Islamists and secularists. In a state that restricts political parties and open political debate, courts are now one of the main venues for political expression for groups such as the Muslim Brothers. In the last few years, their lawyers have filed dozens of cases against what they perceive as “un-Islamic” writings by secular intellectuals or “un-Islamic” government decisions. They use the ambiguity inherent in the Egyptian legal system, which seems torn between mainly secular codified positive laws and the rules and regulations of the shari‘a, as interpreted by Islamic law scholars.

Ahmad Sayf al-Islam, a 45-year-old leftist lawyer not to be confused with his colleague affiliated with the Muslim Brothers, specializes in political opinion cases. He was part of the defense team working for the release of Youssef Chahine’s film The Emigrant. He also defended Cairo University professor Nasr Hamid Abu Zayd, who was forcibly “divorced” from his wife on the grounds that his writings made him an apostate. Sayf al-Islam originally studied politics and finance at Cairo University. Later, while serving a five-year prison term, he completed a law degree. Currently he is defending publisher ‘Abd al-Mu‘ti al-Hegazi and poet ‘Abd al-Mun‘im Ramadan against a suit filed by an Islamist lawyer for an “un-Islamic” poem published in the literary magazine al-Ibda‘. Karim el-Gawhary spoke with Ahmad Sayf al-Islam in September 1995.

In the case of Chahine’s film, The Emigrant, a judge based his decision to ban the film on shari‘a. In the next phase of the legal battle, the film was allowed on the basis of the civil code. In the case of Nasr Hamid Abu Zayd, the first judge rejected the case, citing the civil code, while a second judge later decided to divorce Abu Zayd from his wife arguing on the basis of shari‘a. Has shari‘a become a parallel legal system in Egypt?

Shari‘a is an integral part of the Egyptian legal system, especially in matters of personal status. Technically Youssef Chahine’s case was not a case where shari‘a could be applied. In Nasr Hamid Abu Zayd’s case, however, some issues of the personal status law were involved, so the decision on this case is worth debating.

The problem is on two levels. First, part of Egyptian law is based on shari‘a. Second, there is a cultural atmosphere in Egyptian society that leans toward the use of shari‘a to revise cases and pressure judges to make decisions outside of the existing law. In the area of personal status, some articles leave the field wide open for interpretations by individual judges. One article states that if no coded text can be found, the judge can refer to Islamic jurisdiction -- namely the Hanafi school, the dominant school of Islamic law in Egypt.

Islamist lawyers have argued for years that shari‘a plays a prominent role in the Egyptian legal system. They cite Article 2 of the constitution, which speaks of the principle that shari‘a is the main source of Egypt’s legislative system.

This article was introduced by Anwar al-Sadat. He changed the article in the 1980s from “a” main source to “the” main source. It was part of using the Islamists against the left. The actual text says that the principles of shari‘a are the main source of the legislation. But what do “principles” mean in this case? The Constitutional Court and the Court of Cassation stated that it is not the responsibility of the courts to decide whether or not to use shari’a; rather, the parliament must consider this article when writing new laws.

But Islamist judges see this as a ticket for direct application of shari‘a.

Some Islamists want to apply things literally while others argue that times have changed and there is a need for reinterpretation. Let’s take jizya, the head tax for non-Muslims, for example. There are three different views on this among the Islamists. Some say this is a kind of tax non-Muslims paid because they were exempted from military service. Today both Muslims and non-Muslims enter the military, so this tax has become obsolete.

Another view sees jizya as a deliberate humiliation to make non-Muslims understand that they are second-class citizens. This idea is especially prominent in the old law books, when jizya was seen as the right of the victor. Today we find this idea in some of the statements of the Jihad group. In the case of Nasr Hamid Abu Zayd, the judge argued that Abu Zayd is an unbeliever on the grounds that he rejected jizya.

The third Islamist view sees jizya as a kind of “fine” for not being a Muslim, but they give the ruler the right not to impose it. This is just one example of how, when they go into legal detail, Islamists have a problem deciding which norms are still to be used.

Is there any way the two legal systems can be reconciled?

Today there is indeed a struggle between the two existing legal systems. Part of the struggle is politically motivated and has no real legal base. Islamic jurisprudence, like Roman law, is indeed one of the sources of modern law. There have been attempts in this century to reform and codify Islamic law in Egypt. This is the spirit in which the Court of Cassation today interprets the law. They do not take the French codes literally but try to widen or narrow them according to our own legal traditions. Done in this way, there is no real problem between the different schools of thinking. Traditions can have a positive role in the building of a modern society. The problem starts when certain political forces interpret every legal case dogmatically.

Going back to Article 2 of the constitution, is there a direct contradiction with other articles in the constitution?

Article 40 says that there is equality between citizens, and there should be no discrimination on the basis of religion, sex or race. Let’s apply this to Egyptian society, which consists of Muslims and Christians. Is it possible for the parliament, based on Article 2, to pass laws which discriminate between religions? This would violate Article 40. The only solution is to say that Article 2 refers to the general principles of shari‘a.

In the trials of Nasr Hamid Abu Zayd, the Islamic legal principle of hisba played a central role.

Hisba is a legal procedure which gives a Muslim the right to go to court to defend not only his own rights but also the rights of God. In this case, the lawyer Muhammad al-Samada, who filed the case against Abu Zayd and his wife, Ibtihal Younis, has, from the viewpoint of the civil code, no right to do so because he has no personal interest. But according to the hisba principle, he can file on the basis that he is a Muslim and sees the rights of God violated.

Was this the first time the hisba principle was applied in an Egyptian court?

We haven’t had religious shari‘a courts since the court system was unified in 1955. Whether or not the hisba principle is still part of the legal system is an open question. Ten years after the unification, the Court of Cassation decided that hisba can be used in personal status law. This was in a case from the Delta town of Mansoura. A landlord tried to kick out a woman who rented one of his flats. He filed a case against her and lost. Then he filed again on the basis of hisba, saying that the woman changed her religion from Islam to Christianity. The case went through several courts, and the Court of Cassation finally accepted the use of hisba in that case, despite the fact that it was a fight about a flat and had nothing to do with the violation of God’s rights. The court didn’t say that hisba was part of the civil code, but applied the shari‘a directly.

How do the civil code and shari‘a intersect?

First, there are shari‘a rules which are codified in civil law. There are few problems involved here. The second concerns the personal status law. If the judge doesn’t find a law in the civil code, he must go back to the Islamic jurisdiction of the Hanafi school. This is a gray area. This not only takes a large effort from the judge, but here is also where problems like the principle of hisba appear.

The third intersection occurs in the civil code itself. Article 2 of the civil code states that if the judge doesn’t find a text in the civil code, he should go back to ‘urf (the law of tradition). If he can’t find anything in the ‘urf, then he must judge according to the principles of shari‘a. If he doesn’t find anything there, then he must judge according to the principle of justice.

But religion interferes in other ways in the court system. Judges often cite scholars from al-Azhar University, just as a judge in the US might consult with specialists in medicine, sociology or psychology.

Indeed, according to the status given to it by civil code regulations, al-Azhar has authority in religious affairs. For example, it has the right to control publications that deal with Islamic issues. That is not a big problem. If al-Azhar oversteps its authority, then a lawyer can file a civil case against it. The problem lies elsewhere: Normally, when a judge asks a specialist, he merely takes the opinion of the specialist into consideration. In Egypt, the opinion of al-Azhar has de facto legislative power. This, combined with the fact that some political forces want to use al-Azhar to bring their interpretations into the courts, is a dangerous development.

So the courts have developed into a political battlefield.

Look at Nasr Hamid Abu Zayd’s case. In the civil code there is no article that deals with apostasy. So they started a divorce case because that is the only way they can force the court to deal with apostasy. There is a lawyer in Mansoura who has filed about 15 criminal lawsuits against journalists, writers and university teachers. There are criminal law codes that state that anyone who insults religion can be punished by fine or imprisonment. A case was filed against Naguib Mahfouz’s book “Children of Gabalawi,” against Gamal al-Ghitani for an article he published in Akhbar al-Adab, and against Ahmad Hegazi, chief editor of al-Ibda‘ for publishing a poem. Some of these cases were referred to al-Azhar to judge if the writings were “against Islam.” This gives al-Azhar an enormous role -- larger than it has legally. The problem here is not the law but the political atmosphere.

During the last few years many decisions were taken, especially by the lower courts, which are not based on existing law. Is one reason for the chaotic legal situation also the low level of education of the new generation of judges?

The whole society is currently living in chaos, which influences not only the courts but all state institutions. That is also true of our educational system, or disaster emergencies such as the earthquake in October 1992 and the strong rains in the south of Egypt in December 1994. Adding to this is the enormous workload on individual judges. One day they are in the penal courts, the next day in civil courts and then later in commercial courts. In Imbaba, one court district in Cairo, a judge might have 300 cases in a daily session. It is humanly impossible for him to read and prepare for them all.

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