Friday,16 November, 2018
Current issue | Issue 1122, 15 - 21 November 2012
Friday,16 November, 2018
Issue 1122, 15 - 21 November 2012

Ahram Weekly

The danger of the draft constitution

Islamists want to use the constitution as a legal mandate to impose their rules on society. But this will only create conflict and will not serve the imperative of national development, writes
Nabil Abdel-Fattah

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Al-Ahram Weekly

The conflict over the new Egyptian constitution is one of the most salient manifestations of the current political and religious divides in Egyptian society. It is another face of the conflict over the state. Is this state to be theocratic or “secular”, a term which is vague to some and often misinterpreted, but which actually means democratic, constitutional and modern. A central aspect of this conflict entails the nature of the legal system of the state and the extent to which it is “Islamicised”, which is to say turned away from a positivist system of law that subscribes to contemporary legal values and criteria while simultaneously observing the general and all-embracing principles of Islamic law, and hence our national values, customs and traditions in all their geographic, religious and ethnic diversity. This has been the legislative philosophy and practice of Egyptian lawmakers since they first began to borrow Western positivist law and adapt it through experiences from the Mixed Court system through the national judicial system to efforts to develop our legal and judicial system today.
Throughout this period, Egyptian legislators, judges and jurists have played a central role in domesticating Western law so as to render it applicable to our social, cultural and religious environment. Therefore, the current conflict appears to be more of a struggle over the historical, social and cultural body of this unique and exceptional experience, which is akin to that of India which, too, evolved outside of the world of Latin and Anglo-American law as it modified and adapted Western legal engineering to completely different socio-political, religious and cultural environments and contexts.
In the following discussion, I will address some aspects of the conflict over the constitution, the state and national identity as perceived by Islamist groups and movements, such as the Muslim Brotherhood, the Salafis and Al-Gamaa Al-Islamiya, and their political wings. I will first register some brief observations and after which proceed to the heart of the question as to whether this is a conflict over identity or over the state and freedoms.

GENERAL OBSERVATIONS: From a preliminary examination of the political and religious discourse over the constitution among political forces, constitutional law specialists and other legal professionals, one can draw the following conclusions:
- The draft constitution reflects a general lack vision when compared with what we might term the mother constitutions of the US and Europe, or those of other classical democracies, or even those that were part of the Third World or the global South, such as India.
- There was no scholastic study of the political, social and political-cultural developments that propelled towards constitutional systems in those countries that made the successful transition from authoritarian or totalitarian cultures and inclinations to democratic systems and cultures, as was the case with the countries of Eastern Europe and some countries of Latin America, such as Brazil, Argentina and Chile, or of the technical and institutional and socio-political ramifications involved in this transitional process.
- The general level of debate and discussion in Egypt on comparative jurisprudence in its constitutional, political and historical dimensions was very poor compared to the much more sophisticated debates and discussions that took place in Egypt during the preparation of the constitutions in the quasi-liberal era and even in the phases of the authoritarian republic. Naturally, this impacted negatively on the production of the two draft constitutions and the deliberations over them, whether among the members of the Constituent Assembly or in the general public. In addition, the level of the technical composition of the constitutional provisions is heavily flawed. Insufficient attention was paid to precision and consistency, as a result of which much of the wording is loose and vague, and the style discursive and even needlessly frilly. Clearly, the constitutional preparation and drafting committees failed to discriminate between writing a constitution, which requires clarity and succinctness in wording and an appropriate level of generalisation, and writing laws or administrative regulations, which are heavy in minutiae and small print.
- The standard of the provisions pertaining to public and personal freedoms has declined considerably in comparison to previous Egyptian constitutions. Most often, drafters sought to circumvent securing rights and freedoms by subjecting them to vague and ambiguous conditions that can ultimately be invoked to restrict them. One is the potentially sweeping check that says that the determination and application of constitutional rights may not violate the rules of Islamic law. Another technique is to add to any rights provision the formula “as stipulated by law”. Such wording can ultimately strip the rights of their constitutional substance and render them prey to the ruling authority through a vote by a parliamentary majority or a presidential decree or other such devices.
- The technical and linguistic formulas vary considerably from one section to the next in both draft constitutions, as a result of which there is a lack of stylistic unity and consistency. If this reflects the many tongues that spoke the same Arabic language during the drafting of the constitution, the linguistic and stylistic quality of the product remains generally poor and sometimes awkward and crude.
- The composition of both the first and second Constituent Assembly was heavily skewed in favour of the Islamists and their supporters, which reflects the majority that the Muslim Brothers and Salafis had in a parliament that has since been dissolved by the Supreme Constitutional Court. In addition, some of the members of these assemblies have become a part of the current cabinet or high government officials.
- Some, if not most, of the members of the first and second Constituent Assembly were deficient, at best, in the necessary constitutional and political expertise. More ominously, they lacked the educational formation and political erudition commensurate with the task they were faced with, let alone knowledge of the evolution of constitutional, legal and political systems in Egypt and abroad. Inevitably this was reflected in the poor level of debate within their chambers and, subsequently, in the poor technical and political standard of what they produced.
- Differences emerged between some of the provisions that had been agreed upon in the preparatory committees and what subsequently appeared in the drafts, as they appeared in the press. In fact, some observers believe that there are actually three draft texts that have been produced by the System of Government Committee and the Drafting Committee regarding the powers of the president, and that certain parties are pushing, in this manner, for a presidential system as opposed to a hybrid presidential-parliamentary system. In addition, some Salafis have rejected provisions that they regard as contrary to the identity of the state. For this reason, Salafist forces staged a “million-man march” in defence of Sharia law and in opposition to the Muslim Brotherhood and “liberal” and “secular” forces. Their ulterior aim is to mobilise the public on the basis of religious affiliation preparatory to the referendum on the constitution and, in particular, the next parliamentary elections. Their strategy is twofold. By mobilising society along religious lines and on the basis of defending Sharia, they are generating a rift that sets Islamists against “secularists” and, simultaneously, a rift within the Islamist camp that enhances their prospects against their foremost opponents, the Muslim Brotherhood, against whom they are battling over the same claim to religious legitimacy.
- The Muslim Brotherhood and Salafist members of the Constituent Assembly repeatedly floated proposals to test the pulse of other political forces and public opinion. Those that caused an outcry would be hastily withdrawn and officials of the Muslim Brotherhood and Freedom and Justice Party (FJP) would then release statements denying responsibility for them. This tactic is typical of the manoeuvrings and political jockeying over the constitution and its spirit. More importantly, it reflects the inconsistency and lack of resolve within the Muslim Brotherhood and its FJP with respect to their stated commitment to the modern, civil democratic constitutional state, a commitment reiterated in many pledges and statements by President Mohamed Morsi. Behind the Muslim Brotherhood’s wavering there appears to be a desperate urge to introduce constitutional provisions that they can later use to alter the nature of the political and legal systems of the country, so as to “Brotherhoodise” them as the current political jargon puts it. In all events, there is no doubt that the Muslim Brothers, the Salafis and other Islamist groups and parties are determined to push for the introduction of constitutional provisions of a religious nature in order to facilitate their drive to Islamise the state and impose restrictions on a gamut of personal and public freedoms in the name of their interpretations of the term and substance of Islamic law and its various sources.
- The Drafting Committee was extremely hasty, largely because its members felt they were racing against the possibility that the Constituent Assembly would be dissolved again, even after the law regarding its formation had been brought before the Supreme Constitutional Court. Given the heavy Islamist dominance in the assembly, this haste was further proof of their unrelenting determination to push for a constitution that served their own narrow interests, instead of one that reflected the balances between diverse political and social interest groups in the nation. It is equally obvious that the Muslim Brothers, Salafis and Al-Gamaa Al-Islamiya and their political parties are determined to circumvent the necessary bases of constitutional and legal legitimacy for their work by pre-empting the rulings of the constitutional and administrative courts.
- The Muslim Brothers and Salafis have constantly touted their parliamentary majority as justification for the type of constitution they are pushing for, in spite of the fact that the parliament in which they formed this majority had been dissolved by the Supreme Constitutional Court on the grounds of the unconstitutionality of the electoral law that governed its election. Their “majority rule” logic is consummately anti-constitutional; not only because that majority has been dissolved formally, but also because the function of constitutions is to protect minorities by establishing guaranteed rights and liberties. At the same time, it ignores the moral wound inflicted by a People’s Assembly that has been declared illegitimate and that, together with the Shura Council, can no longer be said to represent the will of the nation.
- That the 1971 constitution together with its three amendments was used as the frame of reference for the new constitution also affected the consistency and coherence of both draft constitutions. More significantly, it kept the committees captive to the type of thinking and attitudes that forged the provisions of what was essentially an authoritarian constitution. Therefore, in spite of their efforts to mend some provisions and patch some others, the authoritarian spirit of the 1971 constitution continues to prevail throughout the drafts and even some articles retain the original authoritarian substance of the old constitution.
In light of the foregoing, it is important to take a closer look at the constitutional bill in its three draft versions, in which regard we note the following:
- Structurally and stylistically it is marred by the confusion between constitutional technique and language and law and regulation writing. Many of the provisions of the second draft of the constitution are more in the nature of detailed and convoluted laws and lack that combination of clarity and universality that should characterise a constitutional text. In addition, the writers were strongly inclined to unnecessary wordiness and rhetorical flares, which is yet another structural flaw in the artistic and linguistic construction of the constitution as well as in its philosophy and engineering.
- Identity discourse and criteria were directly and indirectly brought to bear to formulate a set of restrictions on public and personal liberties, generally in the name of religion and, specifically, Islamic Sharia, and under the umbrella of loose and ambiguous terms, such as customs and traditions, and family, social or religious values. The very ambiguity of these terms offer political authorities broad scope to interpret them at whim and introduce laws or regulations that restrict the very personal and public freedoms that the constitution is ostensibly meant to guarantee. This device underscores the ultraconservative religious and political tendencies of the majority of the Islamist groups and parties and the authoritarian bents of the Muslim Brotherhood, Salafis, Al-Gamaa Al-Islamiya and the Egyptian Jihad and their respective political parties. The only possible reason why such groups would deploy such rubric in the constitution is so that they could use it later to clamp down on freedoms, whether through the agencies of the state in a capacity of moral guardian, or in groups and individuals acting on a similar pretext. It is easy to imagine, for example, these agencies constantly turning to the device of hisba and other forms of moral policing to persecute intellectuals, artists and writers in the name of the defence of “customs and traditions”, “religious and social values”, “national identity”, and the like.
Consider Article 10, which states: “The state and society shall be committed to supervising and protecting public ethics and morals, to the empowerment of authentic Egyptian traditions, to safeguarding a high standard of patriotic religious education and values, scientific facts, Arab culture, and the historic and civilisational heritage of the people, in accordance with the regulations of law.”
This consummately pliable text establishes the state as the nation’s moral and ethical guardian. Its terms are general and vague, and relative and mutable from one period of history to another and, within contemporary society, from one region to the next and from one class or segment of society to the other. Morals are inherently relative. Yet we note that the architects of this article want to protect public ethics and morals and, simultaneously, promote authentic Egyptian traditions, the definition and ramifications of which few scholars or intellectuals would agree on. What are the criteria of the “authenticity” that merits empowerment and protection by state and society? Does not the commitment to supervising the morals of society furnish certain groups the excuse to act as self-appointed morality squads that take it upon themselves to coerce people through various forms of intimidation and violence into behaving in conformity with their particular definition of public morals and ethics? And what of the “Arab culture” and “historical and civilisational heritage” that the state is assigned to protect? “Arab culture” virtually defies definition, yet the drafters of the text use the term as though it were a single, distinct, uniform entity with clear and unalterable boundaries. Then, what phase of our historical and civilisational heritage are they talking about?
- The second draft of the constitution is inconsistent and contradictory. For example, in one part there are provisions for such liberties as the freedoms of opinion, expression and creativity and the freedoms of religion and belief. Then, further along we come across passages that offer legislators the keys to restricting those freedoms. A prime example of this is Article 38, which prohibits “offence or attacks against all the prophets and messengers”. Undoubtedly this article can be invoked to repress any scholastic opinions on the divinely revealed religions, which would make scholars think twice before conducting research into any aspect of the doctrinal, ritual, ethical or historical aspects of these faiths. One can easily foresee the court system clogged by a flood of hisba or “religious accountability” suits as well as the spread of other forms of intimidation against academic and even religious scholastic communities interested in conducting objective scientific studies on certain questions and issues. Already Egypt has a law that prohibits the defamation of religions, which the Salafis and Muslim Brothers would like to see incorporated into the constitution to further theocratise it.
- As mentioned earlier, many of the provisions in the second part of the draft constitution, which pertains to rights and freedoms, are qualified by such phrases as “as determined by the law”, which gives legislators considerable leeway to effectively sap the stipulated rights of any substance.
- In like manner, terms such as national security, extraordinary circumstances, emergencies or war were cited as possible causes for restricting the right of access to information or to impose a limited censorship on the press. As Egyptians are acutely aware, in authoritarian systems of government, extraordinary circumstances are a boon for executive authorities and their security apparatuses, offering very easy and convenient ways to promote the political and economic interests of a ruling clique and its acolytes. Such caveats that can be invoked to restrict freedoms of the press and opinion are particularly worrisome in light of vehement criticisms being hurled against the press and the media by the Muslim Brotherhood, Salafis and Al-Gamaa Al-Islamiya, and by the current government and the president.

THE BATTLE OF THE STATE, IDENTITY AND FREEDOMS: Many of the flaws in the constitutional engineering of the two draft constitutions appear to be the product of the hold that a range of vague and general concepts has over the imagination of the Islamist majority that makes up the skewed Constituent Assembly. Some of the notions, such as “identity” and the “provisions of Islamic Sharia”, are common currency in the political and religious market. The meanings of the terms may seem clear and unequivocal to the writers of the drafts, and the Brotherhood and Salafist groups that inspire them, but closer inspection reveals them to be conceptual derivatives of that particularly ambiguous notion of “cultural specificity” that peppers much of the common political rhetoric these days.
The notion of “cultural specificity”, as conceived by the majority of Islamists and Islamist groups and parties, is a particularly rigid and static one. In their lexicon it commonly refers to a certain set of cultural traits and characteristics manifested in particular values and beliefs, customs and traditions, and modes of behaviour or symbols all of which are perceived to be intrinsically associated with Sunni Islam and the community of the faithful. At the same time, the pundits of political Islam, from the Muslim Brotherhood, Salafist, Jihad and Al-Gamaa Al-Islamiya groups, posit that “Islamic cultural specificity” is synonymous with the “Egyptian cultural specificity” they claim is being marginalised. Whether deliberately or not, they overlook Egypt’s historical and current cultural plurality as well as its regional, ethnic, religious and doctrinal plurality, all of which, in all its diversity, dynamism and relativism, has been subsumed and submerged beneath their nebulous and quasi-absolutist notion of Islamic cultural specificity which, in turn, has become their frame of reference for the ideas and discourse on identity.
But why do the majority of politicians and thinkers across the Islamist spectrum resort so heavily to concepts of (Islamic) cultural specificity or identity, which they reduce to support for the rule of Islamic law, as their avenue for imposing their views and opinions on the constitution?
For one, such notions together with the symbolic and emotive weight they carry are powerful tools for mobilising the rank and file of their groups and their groups’ supporters and sympathisers. They are also handy instruments to sideline “liberal”, left-wing and Nasserist political forces whom they cast as unrepresentative of this Islamic cultural specificity which, in some cases, they reduce to the rubric, “The people want Islamic law” and, accordingly, they can brand non-Islamists or political trends they refer to as “secularist” as irreligious or worse.
In addition, they draw on this frame of reference to press for the insertion of such expressions as “identity”, “Sharia”, “customs and traditions”, and “Islamic and national values and morals” into the constitutional text to serve as the caveats that they can invoke in order to justify restrictions on public and personal freedoms and, simultaneously, as the framework upon which they would eventually legitimise legislation aimed at imposing their perceptions with regard to the interpretation and implementation of Sharia law and geared to promoting their political, economic, social and cultural interests.
But certainly the central aim of their form of identity politics is to establish a constitutional foundation for reengineering the concepts, principles and traditions of the modern nation state, which accumulated and evolved from the era of Mohamed Ali Pasha and the Khedive Ismail, through the quasi-liberal period of the first half of the 20th century and then the authoritarian era that followed the July 1952 Revolution. For the majority of Islamists, the constitutional provisions that invoke identity and Sharia as principles or caveats are the keys to eventually theocraticising the constitution and the state, or more accurately, Islamising them in accordance with their particular interpretations of Sharia law.
This leads us to the next question, which is: What are the identity-related passages in the draft constitution that are the subject of controversy between the Muslim Brothers, Salafis and other political forces and some civil society organisations? Where do Islamist forces, themselves, stand with respect to these controversies and why are some of them at odds over some of the articles?
Certainly, the identity-related texts are pivotal in the current political, constitutional and judicial conflict, since the political actors are acutely aware that their passage in the way they want them worded means a victory for one side and a defeat for the other.
As we proceed to examine the texts, it is important to bear in mind the following considerations:
- These articles entail a theory regarding the sources and frame of reference for legislation. For example, is Sharia to be a major source or the sole source of legislation? What precisely is meant by “source” here? Does it refer to the objective or concrete, or the historical; are we speaking of the laws of Sharia or the principles?
- How do these provisions stand with respect to women’s rights and international conventions and agreements regarding the rights of women and children, and to the notion of identity as based upon attitudes towards women?
Now, let’s turn to some of the controversial articles:
Islam, Sharia, Al-Azhar and the religious authority:
Article 2: In its current wording, this article states: “Islam is the religion of the state, Arabic is its official language and the principles of the Islamic Sharia are the main source of legislation.” The Salafis are pressing to replace the word “principles” with “provisions” or to incorporate a definition of the word “principles”, which, in fact, we find in Article 221, in Chapter V, General Provisions. It states: “The principles of the Islamic Sharia include its general sources (Quran, Prophet’s Sunna/sayings and actions, consensus, reasoning from analogy), the principles and maxims of its theoretical and practical jurisprudence, and its reliable and authoritative sources in Sunni legal and theological reasoning.”
Article 4: “Al-Azhar is an independent Islamic institution and it is the sole competent authority to undertake all its affairs. Its domain is the Islamic nation, and the whole world. It shall be responsible for spreading the Islamic call and religious scholarship. The state shall ensure all the sufficient financial allocations for the achievement of its objectives and the law shall determine the method for the selection of the rector of Al-Azhar, who shall be independent and impeachable. The Council of Al-Azhar’s Senior Scholars shall be consulted on issues related to Islamic Sharia.”
The foregoing is from the second draft. It introduced some significant changes to the first, which had originally stated that Al-Azhar was “the sole and final authority in the interpretation of the principles of Islamic Sharia.” To compensate, a provision was added in Chapter V, “Transitional Provisions”, explaining the meaning of “the principles of Islamic law”. This is the abovementioned Article 221, which the Islamists inserted as an interpretive guideline, in spite of the fact that controversy over this subject has not been settled.
Rights, freedoms and public duties: Article 40 in the draft constitution has also stirred heated controversy. It “prohibits any offence or attacks against all prophets and messengers”.
In part the source of the dispute is that this provision tries to address a problem that is not Egyptian but rather connected with the Sunni-Shia conflict in Saudi Arabia and the Gulf, and the tensions between these countries and Iran. However, it appears that some Salafis and Muslim Brothers want to make it an Egyptian one.
Certain changes were made to this provision by the time of the second draft. The first draft also prohibited offence against the Divine Self as well as against the mothers of the faithful. Further up, the text retained the wording of the 1971 constitution, which vested sovereignty in the people. The Salafis had wanted to delete this and replace it with “Sovereignty is to God”. Eventually they grasped the reasoning of the argument that held that to include this formula in the constitution implied that man was granting a gift to God and that anyone who can grant can just as easily take away. In addition, the “sovereignty of God” does not need to be stated in the constitution since it is self-evident given that Islam is the religion of the state.
Not surprisingly, Article 36 stirred difficulties. It says: “The state is committed to taking all measures to establish equality between women and men in political, cultural, economic, social and other fields of life, without prejudice to the provisions of Islamic Sharia.” Many, rightfully, see the insertion of the concluding phrase as a thinly disguised attempt to restrict the very principle of equality that this provision calls for and, moreover, shackle it in the bonds of ultraconservative Islamist juristic interpretations which are reputed for their excessive rigidity and consummate misogyny and far from reflective of the tolerant spirit of Sharia and the lofty humanitarian principles of Islam. Islamists and Salafis, in particular, having been pushing to insert the caveat, “without prejudice to the provisions of Islamic Sharia”, in as many articles as possible in the constitution, determined as these forces are to restrict human and individual rights and ultimately pave the way for a transformation of the nature of the state. Their designs are patently evident from their drive against the current wording of Article 2.
The intransigence of Salafist forces on this and other constitutional articles is part of the conflict between them and the Muslim Brotherhood and between these Islamist forces and other political forces. The mass demonstration Salafis held on Friday to champion Sharia was aimed against “secularists” and “liberals” but its tactical purpose was to pressure the Muslim Brotherhood and advance their own political ends. But with a draft constitution that is brimming with restrictions on freedoms, possible threats to effective separations of power, and the potential to expand the powers of the president, there is plenty of scope for the lines of battle to shift to other divides.
The conflicts are manifold. Some of them are consummately artificial; particularly those fabricated in the name of “identity”, which in reality is not a static entity but a dynamic concept shaped by the trends and currents in society and by its social, political, intellectual, cultural and scientific output. But ultimately, the conflict is over the state and the ability to determine its nature, and here the conflict is unfolding at a time when Islamist forces are scrambling to seize a moment that they see as a “historical” opportunity that is unlikely to repeat itself soon.
What is the point of inserting caveats into the constitution in the name of Islamic Sharia? Why impose public and individual freedoms on the basis of Salafist ideological criteria regarding the “rules” of Islamic Sharia?
The purpose of this drive to restrict the source of legislation to Sharia law is to grant the fundamentalist, Salafist, Jihadist/Salafist and the Muslim Brotherhood political forces a moral, political and legal mandate over the state and its institutions. It also offers powerful key to mobilising masses to pressure parliament into passing laws that conform to Salafist interpretations of Sharia, and considerable leverage for pressuring the government and society to march in step with Salafist ideology and ideological codes. To the Salafis and likeminded forces, it is the ace that trumps the cards of the Muslim Brotherhood and drives liberals, leftists and nationalists into the corner.
The Salafis are campaigning to break with the legacy of legislative and juristic practice in Egypt, which had long sought to reconcile the rules and conventions of positivist law and Islamic law and social realities, a process that fostered an evolutionary dynamic for our legislative and judicial bodies. Their drive to alter the theoretical foundations of law-making is certain to precipitate legislative and judicial upheaval which, in turn, will threaten political and social stability in the country, especially since the more the legal system of the country is theocracised, the more this will broaden social rifts between the people and the greater the gulf will become between our state and society and the modern state and its society.
The conflict over the national constitution is healthy in that it represents a revival of interest in crucial political questions and in political involvement after a long period of authoritarian rule in which constitutional life and politics had been defunct. But the question now is whether authoritarianism will live on in a religious guise or whether the people of this nation can united around a new constitution that embraces components of this society in all their political, social, religious and ethnic diversity. This is the crucial question regarding the current political/religious struggle in Egypt. Only the latter alternative — the path away from authoritarianism and towards complete democracy in our system of government, culture and values — offers a way out of our chronic cycles of underdevelopment, economic straits and socio-political crises.

The writer is director of Al-Ahram Centre for Social and Historic Studies.

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