Civil Law Assignment: A Commentary On Egyptian Islamic Law

Question

Task: Civil Law Assignment Task: Judicial Independence is the primary safeguard for human rights and protection of democracy in Egypt. Comment.

Answer

Judicial Independence is the Primary Safeguard for Human Rights and Protection of Democracy in Egypt
According to the research on civil law assignment, it is stated that the battle between democratic concepts and Islamic principles are always against each other. Egypt is predominantly an Islamic country which makes it viable for implementing Sharia law, which was implemented in 1954. Therefore, personal cases such as the cases related to marriage, inheritance, child custody, and divorce are administered in accordance with Sharia law. In accordance with the freedom index, the score for political rights is 6 out of 40 and civil liberties are 12 out of 60. The country is categorized as not free, thus non – democratic. There is historical evidence of the implementation of a modernized constitution in Egypt, first in 1923, and later in 1956, 1958, 1964, as well as in 1971. The concept of judicial review and judicial independence has been seeking time and again in the country but the toppling of government and militarization has impacted adversely. From a theoretical perspective, the constitutionality of legislation and thus, governance is administered and ensured by constitutional courts. This is theoretically carried out when constitutional adjudication exists. The political environment in Egypt does not provide uncorrupted judicial independence which is likely to obstruct rule of law for common citizens and can be dangerous for human rights as well. Thus, it is thoroughly believed that protection of democracy provides framework for judicial independence which ensures human rights.

The country is currently in political turmoil where fair elections have become distant. There is violence on the streets and several protests against the government in power which came through unfair and unfree elections. One can easily comprehend this as non – democratic and quite largely dictatorship or anarchy. The prominence of legal structure and framework in the country allows the implementation of judicial procedure in discretion. This imparts a degree of flexibility and provides a motion for the subject to appeal. The emergency law of Egypt has given immense powers to the police which includes the suspension of constitutional rights (Lombardi and Brown, 2005). There have been numerous cases in the past where emergency law was enforced just to prevent or repel protests. During such scenarios, the government carries out the whole activity. The main role of the judiciary is to provide political tools for equality ensuring Human Rights as well. If the judicial structure is not firm, thus human rights are also compromised and mutilated. There have been reports from Human Rights Watch, which have found the government-controlled, National Security Agency working with impunity (near – absolute). There is notable evidence of legal discrimination such as unlawful detention of Egyptian lawyers, political figures, journalists, and activists (Moustafa, 2007).

The most controversial and quite heated aspect in the judicial aspect is marriage and divorce which becomes quite conflicting with Sharia law. There have been cases and concerns placed by activists and social reformers to reform the law to incorporate equality on various fronts. It is quite simply straightforward to be related to Human Rights as everyone wants to live their own way. No one can be forced to do a particular thing or take a particular decision. The Sharia law gives authority to males and that’s why they become predominant in making decisions regarding marriage, divorce, and remarriage. Sharia Law is specifically derived from the Quran which gives a distinctive argument in a subjective manner regarding the relationship among people (parents and child or husband and wife). The most controversial aspect is derived from Hadith literature that has specified the rules of marriage. The Prophet himself believed to have an intimate relationship with Aisha who was a much later wife from Khadija, who was the first wife. It has been proclaimed that most of the Hadith literature was derived from Aisha but the relation with Prophet Mohammad was quite uplifted which is contradictory. The fundamental principle is that marriage is carried out by a contract between a man and woman (Tucker, 2008). The rank of Egypt is 125 out of 128 countries for their Rule of Law in accordance with the World Justice Project report. The concept of Rule of Law has become quite elusive and is actually a cornerstone of modern democracy. The foremost principle associated with the Rule of Law is that it must be accessible, predictable, and clear. These parameters allow the citizens to discover the right procedure for civil conduct and ensure their freedom and rights. The rule of law is quite crucial for legislative quality as it provides legal certainty to people. The perception of rule of law in Egypt is impressive because the country incorporates a well–established civil law system. The executive and parliament can propose amendments and new legislations. From the reports and analysis of OECD (Organization for Economic Cooperation and Development), Egypt has a substantial setback for a systematic review of legislation which led to the accumulation of outmoded legislation (Hofmann, 2021).

Egypt has faced difficulty in constructing the right framework to reform legislation. For example, during the pre-detention trial, a person can be held for two years in accordance with Egypt's Penal Code but in the country, it is largely ignored and authority considers the pre-trial detention as a punishment. Thus, it can be understood that Egypt has unbalanced power dynamics and unpredictable laws. The government itself lacks the necessary legal responsibilities leading them to arbitrariness and unrest. It has been recorded that over 41,000 people have been detained between 2013 and 2014 which is a big doubtful question on the integrity of judicial independence in the country. There are numerous instances where abuse of power has been observed by public officers and ministers. A constitutional amendment in 2019 has given the president to chair the Supreme Council for Judicial Bodies and Entities which creates doubts on the appointment of Judges (Parolin, 2013). When the constitutional structure is ruptured then fundamental rules in the political life of normal people are uncertain.

This is no different with Egypt where there are remarkable cases and scenarios citing interventionist political actors. A very famous example of this is the supreme constitutional court which was earned and later abandoned due to its reputation for being bold and collaborating efforts during the national uprising of 2011. It is believed that during February the same year the constitution was suspended and there were laws in the series of constitutional declarations in the constitution of 2012 which lasted only six months (Balz, 1998). The fundamentalist principles have proven a level of disintegration in the country itself. Despite the country being Islamic, there is evidence of dishonesty and overpowering each other like traditional warlords. Search level of unorthodox and unconventional activities with a radicalised mindset have pushed the country as well as its judicial structure into the back foot position. The evidence of political actors who have conducted activities as interventionists have created a huge level of conflicting uncertainty in the country. The constitutional courts and judiciary find themselves trapped during constitutional rupture or authoritative nepotism creates a greater level of inequality which is the root cause of obstruction of rule of law (Fadel, 2018). The Arab spring of 2011 has played a crucial role in the expansion of the constitution in Egypt which recognised Islamic law as a prominent framework for judicial review and state legislation. Article 2 of the new constitution ensures the Islamic law will be the source of legislation for the legal structure of the country with a couple of clauses on jurists who have been charged for interpreting it. Amidst global cues on constitutionalism and democracy, the concept of judicial ization of rights, religion, and politics fluctuated and dismantled itself in an unprecedented way. There is no doubt that the influence of Sharia law in Egypt's constitution has secularising affects the country which has also become the primary source of fresh conflicts. There has been advocacy of safeguarding the democracy and keeping it least religious as the Government of Egypt themselves find the concepts flawed. The development of judicial review was to incorporate Islamic law in a modernized and secular way but somehow the country has failed to do so. There has been evidence from Egyptian court cases related to Islamic law that produced deliberative effects which provided a sense of stability and legitimacy (Rabb, 2013). There are many Muslim countries where the enforcement of Sharia law is considered a threat to human rights and Egypt is no different. The fundamentalist and radicalised principles associated with Islamic norms have created unfortunate changes in the legal system of the constitution. The concept of democracy is based upon equality and authoritative rights for every individual. But in the case of Sharia law, there is MS guidance and equality is subsided. Earlier, the classic Islamic theory considered Sharia law as the base of constitutional interpretation and incorporated a monarchy sitting upon the obligations to the enactment of the law. But the tinge of monarchy created a turmoil of power which disintegrated many Mediterranean and Muslim countries over the years. In recent years Islamism and secularism have been highly interpreted and collaborated to be considered as future constitutional reforms. But it is still far from reach. The activities carried out on the basis of interpretation of the law and radicalization of Islam has proven the abolition of human rights or its obstruction up to a great extent (Lombardi and Brown, 2005).

It can be well understood that having constitution based on Sharia law doesn’t ensures complete freedom and rights based on democratic principles. So, the Sharia law is somehow biggest challenge for countries to incorporate democracy and rule of law as supreme governing principle in accordance to human rights. This also correlates with the fact that having a Judicial Independence is quite tough to achieve in countries where fundamentalist principles or anarchy is predominant.

References
Balz, K., 1998. The Secular Reconstruction of Islamic Law: The Egyptian Supreme Constitutional Court and the Battle over the Veil in State-Run Schools. Droit et Societe, 39, p.277.https://heinonline.org/HOL/LandingPage?handle=hein.journals/droitsc39&div=7&id=&page=
Fadel, M.H., 2018. The sounds of silence: The Supreme Constitutional Court of Egypt, constitutional crisis, and constitutional silence. International Journal of Constitutional Law, 16(3), pp.936-951.https://academic.oup.com/icon/article/16/3/936/5165822?login=true
Hofmann, A., 2021. The Consolidation of Authoritarianism in Egypt: A Systematic Erosion of the Rule of Law. Rule of Law Journal, 2(1). https://ruleoflaw.lse.ac.uk/articles/31/galley/30/download/
Lombardi, C.B. and Brown, N.J., 2005. Do Constitutions Requiring Adherence to Shari'a Threaten Human Rights-How Egypt's Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law. Am. U. Int'l L. Rev., 21, p.379. https://heinonline.org/HOL/LandingPage?handle=hein.journals/amuilr21&div=24&id=&page= Lombardi, C.B. and Brown, N.J., 2005. Do Constitutions Requiring Adherence to Shari'a Threaten Human Rights-How Egypt's
Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law. Am. U. Int'l L. Rev., 21, p.379.
https://heinonline.org/HOL/LandingPage?handle=hein.journals/amuilr21&div=24&id=&page= Moustafa, T., 2007. The struggle for constitutional power: law, politics, and economic development in Egypt. Civil law assignment Cambridge University Press. https://www.cambridge.org/core/books/struggle-for-constitutional-power/CF76353A3512A7D391EB06DD07252C73
Parolin, G., 2013. (Re) Arrangement of State/Islam Relations in Egypt’s Constitutional Transition. NYU School of Law, Public Law Research Paper, (13-15).https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2251346
Rabb, I., 2013. The Least Religious Branch: Judicial Review and the New Islamic Constitutionalism. UCLA J. Int'l L. Foreign Aff., 17, p.75. https://heinonline.org/HOL/LandingPage?handle=hein.journals/jilfa17&div=8&id=&page= Sherif, A.O., 1998. An overview of the Egyptian Judicial System, and its History. Yearbook of Islamic and Middle Eastern Law Online, 5(1), pp.xix-28. https://brill.com/view/journals/yimo/5/1/article-pxix_1.xml
Tucker, J.E., 2008. Women, family, and gender in Islamic law. Cambridge: Cambridge. https://www.cambridge.org/core/journals/ecclesiastical-law-journal/article/abs/women-family-and-gender-in-islamic-law-judith-e-tucker-cambridge-university-press-cambridge-2008-theories-in-islamic-law-3-xii-255-pp-hardback-60-isbn-9780521830447-paperback-2199-isbn-9780521537476/CF399AC7E10C1E45C7268FF63791C1DE