Up until very recently the Salafi parties were planning to vote no on the constitutional draft that is being called to referendum in two weeks, on the basis that it’s not Islamist enough. The Salafi Parties wanted a strict implementation of Sharia, including Sharia judgments, in the constitution, and yet there is no clear article that states this in the proposed constitution. However, upon closer scrutiny, one find it hidden, in two unassuming words in article # 76 in the constitutional draft.
Article 76 states the following:
Penalty shall be personalized. There shall be no crime or penalty except by virtue of a constitutional text or of the law. No penalty shall be inflicted except by a judicial sentence. Penalty shall be inflicted only for acts committed subsequent to the promulgation of the law prescribing it.
Now please pay attention to the words “by the virtue of a constitutional text” here. The constitution doesn’t include penalties for crimes, that’s the law’s job. Even crimes that are listed in the constitution do not have the punishments in them as much as a reference to the law that regulates such punishment. So, if it was simply the law, why would anyone put in the words “constitutional text” instead of referring directly to a crime punishable by an existing law? The only reference is then for punishments for crimes that don’t exist in the law. So, how would that work exactly?
Simple, really: In this case, the search for a legislation that doesn’t exist in civil law will refer directly to article 2 , which states that “Principles of Islamic Sharia are the principal source of legislation” . Those Principles of Islamic Sharia are in turn explained by article 219 “The principles of Islamic Sharia include general evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community” , which means that if there is any Sharia-based judgment that exists in the 1600 years of Islamic jurisprudence or stated by a “credible source”, then it shall be found to be in accordance of this constitution. This includes anything from the famous punishments for theft , adultery, idolatry or murder (cutting hands, whipping, stoning to death, paying your way out, respectively) to less famous ones that include social crimes that no functioning moderate Muslim today knows to be crimes. It is the constitutional equivalent of allowing the punishment for witchcraft set by the Catholic Church in the middle ages, since it is part of historic Catholic jurisprudence.
If this Constitution is passed, Cairo will truly become Kendhar, with the blessing of the Egyptian President and the Muslim Brotherhood. Hope that Gaza cease-fire was worth it, dear President Obama.