Islam, Constitutional Law and Human Rights: Sexual Minorities And Freethinkers In Egypt And Tunisia

Description

This book focuses on Islamic constitutionalism, and in particular on the relation between religion and the protection of individual liberties potentially clashing with shariᶜa and the Islamic ethos. The analysis goes from general to particular, starting with a theoretical overview on constitutionalism, human rights and Islam, moving to the assessment of the post-Arab Spring Constitutions of Egypt and Tunisia, and concluding with a specific focus on the rights of sexual minorities and freethinkers. Part I provides a theoretical account of the conception of constitutionalism and human rights in Islam, compared and contrasted with Western constitutionalism. A set of issues where the tension between shariᶜa and human rights is accentuated is analysed against the backdrop of the main Islamic charters of rights. Part II conducts a similar assessment based on the Constitutions of Tunisia and Egypt – the two main epicentres of the Arab Spring. Part III moves to two specific rights in the same countries, from the twofold perspective of the Constitutions and international law: the freedom from interference in one’s intimate life, with particular regard to homosexuality; and the freedom of holding and expressing nonconventional beliefs, deemed unacceptable from the point of view of traditional Islam. These issues have been chosen as representative of the most controversial, still considered taboo in both legal and social terms, hence at the fringes of the debate on individual freedoms. Focusing on two overlooked and underexplored issues, the work thus pushes the boundaries of the human rights discourse in Muslim contexts. Cover Half Title Series Page Title Page Copyright Page Dedication Table of Contents Note on the transliteration Foreword Acknowledgements Introduction Background: what this book is about Why Egypt and Tunisia? Human rights and shari[sup(c)]a: a complicated relationship Sexual minorities and freethinkers: the pariahs of the human rights debate On ‘Islam and Human Rights’… again? A few methodological clarifications Book outline I Constitutionalism and Islam Background The Western concept of ‘constitution’ A brief historical overview of constitutionalism in Islam ‘Liberty’ in Islam Political freedom and good government ‘Right of resistance’? A theocratic state? More ‘Muslims’ than ‘citizens’ ‘Islamic democracy’? Final considerations on the inner tension between Islam and constitutionalism II The Islamic conception of individual liberties Introduction The Universal Islamic Declaration of Human Rights The Cairo Declaration on Human Rights in Islam The Arab Charter on Human Rights The Al-Azhar Constitutional Project Final Remarks III What ‘shari[sup(c)]a’ in a constitution concretely means: the case of Egypt Introduction Historical background The uncertain meaning of the ‘principles of shari[sup(c)]a’ as ‘the main source of the legislation’ Interpretation of article 2 by the Supreme Constitutional Court: non-retroactivity Interpretation of article 2 by the Supreme Constitutional Court: ‘absolute’ vs. ‘relative’ principles of shari[sup(c)]a A critique of the SCC’s interpretation of Article 2 Final considerations and open challenges IV Islamic law in post-Arab Spring Egyptian Constitutions Introduction Article 2, the untouchable The expansion of Article 2 How should ‘principles of shari[sup(c)]a’ be interpreted? The role of Al-Azhar Nulla poena sine lege… or maybe not? Civil, military or theocratic state? Contempt for the sacred Status of non-Muslim minorities Women’s rights Individual liberties vs. society’s will Final considerations V Compromises and ambiguities in the 2014 Tunisian Constitution Introduction Article 1: the role of Islam Article 2: The ‘civil state’, dawla madaniyya Article 6, sive ‘Le pot-pourri de la constitution tunisienne’ Women vs men: not equal, but ‘complementary’ Light and shadows of the 2014 Tunisian Constitution: The Code des Libertés as a crucial but unlikely step forward Introduction to the case studies VI (Il)legal persecution of freethinkers Introduction Tunisia Statutory provisions Ils ne sont pas Charlie: Muhammad’s cartoons as a threat to social peace Ni Allah Ni Maître, or ‘the crime of atheism’ Mounir Baatour and Emna Chargui: ‘blasphemous extremists’? Egypt Legislation criminalizing apostasy and blasphemy Patterns of persecution of atheists and blasphemers Islamists and (un)free speech Relevant case studies The ‘Abu Zayd case’: an unfortunate milestone The case of Alber Saber: An example of a revolution without freedom Blasphemy, heresy, atheism … even homosexuality: all sides of the same coin Final reflections on Egyptian and Tunisian freethinkers: public order and fitna VII (Il)legal persecution of sexual minorities Introduction Tunisia Relevant provisions Relevant case law on liwāṭ Non-conformist behaviours outside of the scope of Article 230 Strategies for decriminalization Abrogation of Article 230 Judgment of a prospective Constitutional Court Ban on the anal test Comprehensive revision of the penal code Egypt The witch-hunt against the ‘debauched’ Elements of evidence Religious grounds for prosecuting homosexuality Recent trends in persecution Strategies for decriminalization Final consideration on anti-gay laws in Egypt and Tunisia VIII Constitutional and international freedoms Constitutional obligation to abide by international law Non-discrimination Freedom of conscience and belief Freedom of expression Right to privacy Protection of human dignity, freedom from torture and inhuman treatments Legitimate restrictions of rights Final considerations IX Conclusions: constitutions and individual freedom: the unbreakable bond Bibliography Index