Draft Egyptian Constitution Makes Gender Equality Conditional on Shari’a

November 5, 2012 - 5:37 AM

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An Egyptian woman celebrates in Cairo's Tahrir Square after President Hosni Mubarak resigned, on Friday, Feb. 11, 2011. (AP Photo/Hussein Malla)

(CNSNews.com) – Egyptian women who joined their male compatriots in the protest movement that brought down the Mubarak regime face the likelihood that a new national constitution will retain a provision making gender equality in the country conditional on shari’a (Islamic law).

Egypt moved closer to a new constitution Sunday, when political parties reportedly reached agreement on remaining sticking points, including the role of shari’a and gender equality.

The agreement came on the same day President Mohammed Morsi of the Muslim Brotherhood met with heads of political parties to discuss breaking deadlocks in the drafting process, although presidential spokesman Yasser Ali told a press conference Morsi had not intervened in the work of the Constituent Assembly. The 100-member body, which is dominated by Islamists, is responsible for drafting the new document.

The Al-Masry Al-Youm daily quoted Constituent Assembly member Younis Makhyoun as saying party representatives had reached a deal on the text, which is now subject to a national referendum.

Makhyoun focused on the contentious article two – a key concern for Egypt’s Coptic Christian minority – which in the old (1971) constitution said: “Principles of Islamic law (shari’a) are the principal source of legislation.”

Some Islamists wanted article two strengthened in the new text by dropping the word “principles” or replacing it with “rulings,” but the Muslim Brotherhood promoted a compromise that retained “principles,” while adding an explanatory paragraph defining principles as those emanating from the Qur’an, the Hadith (traditions regarding Mohammed) and “sources accepted by main Sunni scholars.”

Another clause in the draft constitution, article 68, retains wording from the 1971 document stating that women and men are equal “without violating the principles of shari’a.”

In a statement posted on its English-language website Sunday, the Muslim Brotherhood justified its stance on this article.

“On family and women, article 68 states equality between men and women without prejudice to the provisions of Islamic law; so international treaties that call for violating shari’a in any way cannot achieve such purposes, like attempts to legalize homosexuality or sexual relations outside wedlock, and so on,” it said.

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An Egyptian woman presents flowers to Egyptian army soldiers in Tahrir Square, downtown Cairo, on Saturday, Feb. 12, 2011, the day after President Hosni Mubarak resigned. (AP Photo/Khalil Hamr)

The legal status of women under shari’a goes far beyond those issues, however, affecting a range of matters including inheritance, divorce, the right to own property, and legal standing.

In countries where provisions of shari’a are in place, a woman’s testimony in court carries half the weight of that of a man. A rape victim in Iran or Saudi Arabia, for instance, is required to present four male witnesses to back her claim, failing which she can herself be charged with adultery.

Under Iran’s shari’a-based penal code “blood money” – the prescribed compensation to be paid to the heirs of a murder victim – for a woman is half the sum of that for a man.

The country’s shari’a-compliant civil code states “A man can divorce his wife whenever he wishes to do so” (article 1133/4) and “If the wife refuses to fulfill duties of a wife without legitimate excuse, she will not be entitled to the cost of maintenance” (article 1108). Maintenance is defined as food, clothing, a dwelling and furniture.

In its annual “Global Gender Gap” report, released two weeks ago, the World Economic Forum (WEF) evaluated 135 countries for gaps between women and men in four key areas in 2012 – economic participation and opportunity, educational attainment, political empowerment and health and survival.

Of the 20 countries at the bottom of the scale, 17 are Muslim states, many of which have declared Islam to be the state religion. They are, from the bottom of the WEF list, Yemen, Pakistan, Chad, Syria, Saudi Arabia, Cote d’Ivoire, Morocco, Mali, Iran, Egypt, Oman, Turkey, Lebanon, Jordan, Algeria, Mauritania and Benin. (The three non-Muslim countries are Nepal, Ethiopia and Guatemala.)

‘Pledge to serve all Egyptians, including women and minorities’

Secretary of State Hillary Clinton has emphasized the importance of women as Egypt and other Arab countries move through political transition.

As Clinton traveled to Cairo last July, a senior State Department official accompanying her told reporters that feels strongly on the subject.

“It is something that she certainly worries about and wants to ensure that women and women’s rights and women’s opportunities are respected and protected in a new constitution and a new democratic order … that women come out of this democratic transition with the same rights and opportunities as men, the same chance to fulfill their political and economic aspirations,” the official said.

After meeting with Morsi, Clinton said she had “commended him on his pledge to serve all Egyptians, including women and minorities and to protect the rights of all Egyptians.”

In its statement Sunday outlining its position on the place of shari’a in the constitution, the Muslim Brotherhood said Islamic law is undoubtedly “the most important component of the Egyptian personality, and the most important determinant of the Egyptian identity.”

“Contrary to western rumors, shari’a is based on leniency rather than severity, putting public interest above the individual’s, favoring ‘averting evil’ over ‘bringing benefits’, and achieving balance between the rights of the individual and society,” it said.

The Muslim Brotherhood also said that Islamic law “safeguards the rights of non-Muslims, granting them the full right to practice rites of their faith and referring to their own religious rules for their personal and private affairs.”

The statement made no reference to apostasy and blasphemy laws enforced in some countries under shari’a. Critics say the laws target non-Muslim minorities, as well as Muslims not belonging to mainstream Islamic schools.