Article 2 of the Constitution—after its amendment under Sadat's rule—specified the principles of Sharia as the main source of legislation. Nevertheless, the said article does not suffice as a legislative basis for hisba cases, as the article is not enforceable on its own. Courts may not directly enforce Article 2, as they need a lawmaker to codify the said principles into legal rules. This limitation in the scope of Article 2 of the Constitution is not merely independent reasoning on our part, but a decision issued by the Supreme Constitutional Court, which said that:
"The text of Article 2 of the Constitution is not enforceable in and of itself. It includes a message to the legislature encouraging it to reconsider the enforced legislation according to the principles of Sharia. The message in this constitutional text addresses the legislature, not the public, nor the judiciary. Thus, the principles of Sharia do not have the mandating force of laws unless the legislature intervenes and codifies them. Prior to such, they only act as an objective source for legislation."
The Constitutional Court added that, "In cases where the Constitutional legislature wishes to specifically include the principles of Sharia in the Constitution, or means to enforce the said principles through the courts … then there is no need to explicitly state such."[endnote 1]
The Egyptian Constitution (1971) established the principle of equality of all citizens before the Law and prohibited all discrimination on the basis of religion or gender. Article 40 of the Constitution states that, "All citizens are equal before the law, having equal rights and duties. No discrimination shall be made on the basis of gender, origins, language, religion, or belief."
Hisba is based on giving Muslims the right to file hisba cases, preventing non-Muslim citizens from the same right. Therefore, hisba cases are discriminatory on the basis of religion. They also discriminate against women since only male Muslims may bring hisba cases.
It is an established legal concept that the principle of equality applies to those who occupy the same legal position. In the personal status courts, non-Muslims are subject to the Sharia in some cases. Therefore, the unity of legal position may be applied.[endnote 2]
The concept of public order is based on a secular ideology, and applies to all citizens, regardless of religious belief. According to the concept, we cannot consider the right of a man to marry four women as part of public order while non-Muslim citizens are not allowed to claim this right, despite the fact that Islam is the religion of the majority and the official religion of the state, and that Sharia is the main source of legislation. This understanding of public order is based on the Court of Cassation ruling which said, "Although civil legislation and Law no. 462/1955 have not defined public order, it is agreed that public order is the set of rules that aim to achieve the public interest of the country, whether economically, socially, or politically. These set of rules are linked to the moral and material situation of an organized society where individuals are valued. Ideas of the society are based on an absolute secular ideology that applies general rules to all citizens and should not be linked to any religious codes. This does not negate the fact that sometimes public order bases its rules on religious codes when these codes have strong links with the legal and social system that all citizens strongly believe should be applied. We cannot base the concept of public order on religion and make some of its rules applicable to Muslims only, and other rules to Christians only. We cannot imagine that the criteria for public order can be individual or sectarian, but objective and conforming to what the majority of citizens believe in."[endnote 3]
Therefore, saying that hisba cases are based on the concept of public order implies the use of the criterion which leads to the division of the concept itself since hisba is based on discriminating between citizens on religious grounds, giving this right to Muslim citizens and not to non-Muslims. It also discriminates against women even within Islam. This destroys the concept of public order.
1. Ruling of the Supreme Constitutional Court, challenge no. 20/1 j, hearing on 5/4/1985.
2. Cassation appeal no. 29/47j., session 3/28/89, p.967.
3. See rulings on appeals no. 16, 26/48j. issued on 1/17/1979, Ahkam al-Naqd, first edition, pp. 288 onwards.
Introduction | Parts 1-3 | Parts 4-6 | Part 7 | Parts 8-10 | Parts 11-13 | Recommendations
The case of Nasr Hamed Abu Zayd index CHRLA publications index