Egypt at a crossroad

Other competencies shall be defined by law. Its members share immunities, securities, rights and duties assigned to other members of the judiciary.' Although this institution is related to the judicial branch of government, on the face it, it has the characteristics of the independent institution of the Ombudsman, so necessary for administrative governance and the rule of law in a nascent democracy.

Article 219 enters into the heart of the matters that have been debated recently: '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.' The Constitutional view of what constitutes principles of Islamic sharia is a broad, all encompassing and inclusive one. Article 4 clearly states who the legal authorities are to be: ' Al-Azhar Senior Scholars are to be consulted in matters pertaining to Islamic law.'

Both of these articles have implications for Article 2: 'principles of Islamic sharia are the principle source of legislation'. The implications of placing the judiciary and legislative branches on reliance of a third institution for matters of consultation and/or interpretation are yet to unfold.

From a scholarly perspective sharia are technically definitive ordinances of the Quran which are expounded in positive legal terms, whereas Islamic law is far broader and includes rules and laws that have been derived using sources and methodologies for deriving law as sanctioned by classical Islamic jurisprudence, combined with quasi-Islamic laws in existence. The Constitutional definition thus fuses both the terms "Islamic law" and "sharia". The term principle itself is still relatively vague. The Constitutional references to Al-Azhar scholars are important for another reason.

As the seat of traditional Islamic discourse through Al-Azhar university and an exporter of legal codes through the joint work of Professors Lambert and Sanhuri, as well as an exporter of judges and lawyers throughout the MENA, Egyptian interpretations of legal matters and the impact of sharia on legal interpretation have an impact on the region as a whole. Thus, the combination of all of these changes with the terms "principles of Islamic sharia" is intended to be all encompassing on one hand by combining all recognised sources of Islamic jurisprudence, but also restrictive by limiting it to Egyptian sources of authority in terms of scholars from Al-Azhar. In the past, with respect to the matter of interest, or riba, Egypt has had one of the most liberal policies in comparison to other MENA countries, with the Grand Mufti of Egypt (1899–1905) stating the interest is allowed; it is not prohibited if the money is borrowed for production and not consumption.

This liberal view has bearing on international commercial arbitrations entered into by Egypt which are of a commercial nature and thus fall under the realm of production. Egypt's liberal policy goes one step further in recognising interest as a legal right.

What needs to be strongly emphasised here is that the concept of an independent judiciary is not alien to Islamic jurisprudence, it is in fact, a requirement. According to Islamic philosophy, the sharia is independent of political control and ought to be that way. In the past, the Caliph was accountable to the sharia and proscribed to obey and protect it. The implication of this is technically, no modern executive can act against the sharia, and this means that they are prohibited by Islamic law to encroach upon the judiciary in any manner whatsoever. In fact, the implication of this argument is that Islamic law has an inherently built in system of checks and balances, much like that of the United States. Accordingly, the judiciary was originally intended to be and by its nature is separate from the executive and legislative powers.

The concept of an independent and powerful judiciary emerged in classical Islam under the reign of Harun al Rashid who formalised their political station. This political role of the qadi gained in importance under the Mu'tazilite caliphs. Qadi is the Arabic word for judge. Even in the Middle Ages, which are outside of the period examined here, it was the chief qadi, and not the vizier, who defined the ideological norms of the Islamic polity. In these definitions, he served both as an independent tool of the administration and an independent ideological power- the only lawful representative of the sharia.

Historically, the qadi was also the head of the office of caliph's guard, which is the police force. Interestingly, in early stages of Islam, it was the qadi who was the representative of the law, not the executive or the 'legislative' elements of government. Thus, if Al-Azhar scholars follow these precedents, the independence of the judiciary will have further protection. An independent judiciary is absolutely crucial to the rule of law, and a democratic system based on pluralism.

On a more modern note, the Japan International Cooperation Agency (JICA) has agreed to support Egypt's energy sector with $300 million for a new electricity network project and a $100 million loan for sustainable energy projects; including the development of low-voltage solar cells technology, and an additional $50 million loan to expand the Dairut aquaduct station. Egypt as an emerging economy has signed a deal with Algeria's General Petroleum Corporation involving four agreements to increase butane and liquefied gas to 1 million metric tonnes currently and 1.5 in 2014.

The Investment Act was amended to allow adjustment of old contracts so that they are not affected by changes since the revolution. Egypt intends to decrease its budget deficit from the current 11% of the GDP to 8.5% by June 2014 through more efficient subsidies and a broader tax base. These, and similar cross-border agreements and improvements to the commercial framework will attract international trade and interest far into future decades.

The overall, long-term implications of all of these changes and movements will help to stabilise and embed Egypt's legal and business climate within longstanding principles of an independent judiciary, healthy pluralism, the rule of law, democratic processes, attractive investment packages, an ethos of commerce and a stronger and more stable legal climate and economy.

This has positive ramifications for international trade and international arbitration, which depends on the friendly support and general non-interference of courts and a stable environment conducive to long-standing cross-border contracts. Certainly investor confidence as reflected in the stock market increases of LE 8 billion in profit following the news of the judges supervising the referendum is justified and rightly so.