The requirement in Egypt's new constitution for the state to protect "public morality" is facing its first test with a lawsuit filed by a former member of parliament.

Hamdy al-Fakhrany – who was an independent member of the People's Assembly before it was dissolved – has launched a case against President Mursi, the prime minister and the local government minister demanding that they close liquor stores and nightclubs.

Fakhrany's motives are unclear but, since he is no friend of the Muslim Brotherhood, it seems likely he is less interested in banning alcohol than in highlighting some of the issues created by the constitution which was approved last month in a controversial referendum.

Acceding to Fakhramy's demands on alcohol would be politically difficult for the government – Egypt has the largest Christian minority in the Middle East and its economy depends heavily on foreign tourism – so it will probably have to look for ways to wriggle out of the obligations it imposed on itself in the constitution.

The Egypt Independent says:

"In his lawsuit, Fakhrany referred to Article 2 of Egypt's new constitution, which states that Islam is the state religion and the principles of Islamic Sharia are the main sources of legislation, and to Article 10, which says the state and society must protect morality."

A major practical problem with this is that the "principles" of Sharia are not formally codified and religious scholars differ as to what they are. Article 219 of the constitution offers a vague and extremely broad definition which looks certain to generate more heat than light:

"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."

Article 4 also says that senior scholars at al-Azhar are to be "consulted" in matters pertaining to Islamic law (though it does not explicitly state that their advice must be followed).

Writing for the Arabist blog, Issandr el Amrani wonders how Articles 2, 4 and 219 "will together change the way Sharia impacts the legal system and how they might be used by Islamist activist lawyers to force Azhar and the government to adopt retrograde measures".

He gives, as an example, the question of whether Egypt can have a woman president. The new constitution is silent on the president's gender. On the other hand, there is a hadith from a widely-accepted source saying: "A nation led by a woman will be led to its perdition."

It is far from clear how a dispute along those lines could be resolved, Amrani says:

"The practice of the last two decades of hesbalawsuits and activist Islamist lawyers certainly suggests that many will try to use this vagueness to impose their views, including in ways this hastily drafted constitution might have avoided if it had been more precise in its wording."

Al-Azhar's consultational role came into play earlier this week over a finance ministry proposal for "Islamic bonds". Al-Azhar's Islamic Research Academy rejected the plan on the grounds that it "violates Islamic Sharia and endangers the state's sovereignty."

The exact nature of al-Azhar's religious objections is unclear, and it is difficult to see how questions of national sovereignty can be regarded as a Sharia matter.

In a column for The National, Hassan Hassan argues that using al-Azhar in such a way will ultimately damage this venerable institution:

"The newly approved Egyptian constitution has granted al-Azhar a codified independence and consultative powers. But, ironically, these provisions will prove to be to the detriment of al-Azhar's religious influence by dragging it into local political and religious bickering. Religious groups will seek to take over the centre and impose their own ideologies to bolster their political and religious standing."

He concludes:

"What makes the eclipse of al-Azhar a deeply worrying possibility is that it is part of a wider trend, along with the rise of religious extremists. Mecca and Madina used to be places where Muslims exercised tolerance and coexistence through tutoring circles that represented all schools of thought; they are now exclusively Wahhabi requiring strict compliance with that definition of pure Islam.

"A similar transformation has occurred in Najaf, Qom, Damascus and other learning centres. Jerusalem once was a centre where Muslims from across the spectrum worshipped together, with members of other faiths. These centres have now retreated to their locales and are subject to local politicking and narrow religious understandings.

"This trend of provincialism among Islamic institutions has created a profound religious crisis that is likely to deepen if the institutions continue to lose their global reach. And yet little has been done to prevent or compensate for their demise."

Posted by Brian Whitaker, 4 January 2013.