Fatwa, the Constitution, and the Civil State: Who Holds the Right to Enforce? By Dr. Hossam Badrawi

In a time when politics intersects with religion, and the roles within religious and constitutional institutions are being reshaped, there is an urgent need to reaffirm the constitutional principles endorsed by the Egyptian people in the aftermath of their revolution.

The preamble to the Egyptian Constitution of 2014 states that “Egypt is a modern, democratic civil state.” This phrase is not merely linguistic construction; rather, it reflects a foundational vision affirming that the supreme authority in matters of governance and legislation is the Constitution and the law, not fatwas or religious jurisprudence, regardless of the stature of the issuing body.

Recent years have witnessed the reactivation of the role of the Al-Azhar Council of Senior Scholars, an institution with a prestigious historical and scholarly standing. However, recent legal amendments, which granted it advisory powers in regulating fatwas, and even in selecting the Grand Imam of Al-Azhar himself, raise questions about the balance between religious and constitutional authority in the state.

While the Council is appreciated as an academic authority that enriches religious discourse, its role must be understood within its natural framework: advisory and guiding, non-binding, unless its jurisprudential interpretations are transformed into laws through elected legislative institutions.

The Law Regulating Fatwas… And the Restriction of Ijtihad

The new law issued to regulate the process of issuing fatwas grants the Council of Senior Scholars the authority to control who may issue public fatwas and requires Al-Azhar’s approval for those granted a license to issue fatwas in the media. This raises a fundamental question: are we facing an official monopoly of religious knowledge? Or an attempt to control the chaos of fatwas that has swept the public sphere?

In both cases, we must remember that a fatwa is not constitutionally binding. The Egyptian citizen is not legally or religiously obligated to follow any fatwa, whether issued by Al-Azhar, Dar al-Ifta, or any other body. Rather, they are only bound by enforceable laws and legislations approved by Parliament and interpreted by the Supreme Constitutional Court.

The Authority of the Judiciary, Not Fatwa

The Egyptian Constitution, in its articles (Article 175), has settled the debate regarding the body authorized to interpret constitutional texts, explicitly stating that the Supreme Constitutional Court is the sole authority competent to interpret laws and texts. Therefore, no religious body, no matter how high its standing, may monopolize the interpretation of legislation or impose its jurisprudential vision as a binding rule.

This is not a diminishment of the scholars’ standing, but also a protection for them from politicization, and a guarantee to place religion in its elevated position: as a source of guidance, not an instrument of domination.

In a civil state, sovereignty belongs to the people, legislation to their representatives, and the authority is the law, not the fatwa. In this context, any attempt to reproduce a form of “Guardianship of the Jurist” under a new institutional cover would be a deviation from the constitutional contract and a regression from the gains of the modern state.

Civility does not mean hostility to religion; rather, it means the separation between the religious and the legislative, with full respect for the value of religion as a moral and cultural tributary, not as a tool for issuing or enforcing legislation.

Reviving the role of scholars in religious guidance is commendable, provided it remains within the boundaries drawn by the Constitution. No institution, religious or otherwise, may overstep its authority and impose its guardianship over the mind or the law.

Therefore, the true guarantor of the unity of legal authority in Egypt is adherence to the Constitution, respect for the role of the Constitutional Court, and a clear distinction between what is religion for God and what is governance for the people.

The Civil State

The civil state that we and the Constitution refer to, and upon which the country’s vision for the future is built, has a government that preserves and protects all members of society regardless of their national, religious, or intellectual affiliations.¹

There are several principles that² must be present in a civil state, and if any of them are lacking, the conditions for such a state are not met. The most important of these is that the state must be based on justice, peace, tolerance, acceptance of others, and equality in rights and duties, so that it guarantees the rights of all citizens,³ regardless of their religion.

One of the most important principles of a civil state is that no individual within it is subjected to a violation of their rights by another individual or party. There is always a supreme authority, which is the authority of the state, through effective legal mechanisms to which individuals resort when their rights are violated or threatened. The state is the one that applies the law and prevents parties from applying forms of punishment themselves.

Among the principles of a civil state is trust in various contracting and exchange processes. In a civil state, there is no arbitrary action or breach of contracts in favor of one group over another. The civil state is characterized by equal opportunities among citizens and institutions based on declared principles, as well as the belief and application of the principle of citizenship, which means that an individual is not defined by their profession, religion, region, wealth, or authority, but rather is legally and socially defined as a citizen, meaning they are a member of society with rights and duties. In this, they are equal with all citizens.

One of the most important principles of a civil state is that it is not founded by mixing religion with politics. It also does not antagonize or reject religion; rather, religion remains a factor in building morals and creating energy for work, achievement, and progress in a civil state. What the civil state rejects is the use of religion to achieve political goals, as this contradicts the principle of pluralism upon which the civil state is based. Furthermore, this matter may be considered one of the most important factors that turn religion into a contentious and debatable subject, leading it away from the realm of holiness and into the realm of narrow worldly interests.

As for why we want a civil rule, by the definition we mentioned in the vision for the future and in application of the Constitution’s philosophy, it is because the circulation of power, oversight of state institutions, and the balance of powers are the protectors of society as a whole and of the individuals and their rights mentioned therein. There is no rule in the name of God through intermediaries who place themselves as agents between man and his Lord, nor by any individual or group that places itself above periodic constitutional accountability and is subject to the circulation of power, so that it does not become tyrannical or domineering over society under any pretext.