Members of Egypt’s Constituent Assembly, the body tasked with drafting Egypt’s post-uprising constitution, are purportedly finished with drafting the chapter on the freedoms, rights and duties of citizens.
The assembly is largely seen as being dominated by Islamist forces, which have won large gains in legislative and presidential elections after the 2011 January Revolution.
Liberals and secularists have expressed concerns about the impact an Islamist-dominated drafting body will have on the character of the future charter, in particular in relation to key freedoms.
Article 8 of the draft constitution is at the heart of the debate, as it stipulates citizens’ religious freedoms. Religious rights and freedoms, and the issue of sectarian tensions between members of Egypt’s majority Muslim population and its Christian minority, remain controversial.
One of the many problems that Egypt’s Christian minority complains of are the difficulties of building and repairing churches, as both acts are subject to state control. A law was drafted in 2011 to address the problem but is yet to be put into effect.
Facing even graver difficulties than Christians are followers of the Bahai faith, a monotheistic religion established in the nineteenth century by the religion’s prophet Bahaaullah. The Egyptian state does not recognize the faith, leaving its Egyptian followers to face discrimination and difficulties in the most rudimentary aspects of civil life, such as registering marriages.
Article 8 is the constitutional article on freedom of belief and religious practice, the mother clause stipulating the freedoms and rights of all matters religious within the Egyptian state.
The article was recently revised, and its multiple revisions published on the official website of the constituent assembly for public scrutiny.
“In the current draft, the state is not tasked with protecting freedom of belief,” political researcher and director of the Arab Forum for Alternatives Mohamed El-Agati said. El-Agati contends that the Mubarak-era 1971 constitution fares better on this point.
Article 8 of the current draft starts by stating: "Freedom of belief is absolute, and religious rights are practiced if not in contradiction with public order."
El-Agati says that the article withdraws from the state the duty of protecting religious freedoms, which was required of it as stipulated in Article 46 of the 1971 constitution, which read that “the state shall guarantee the freedom of belief and the freedom of practice of religious rites.”
The new draft article adds the condition “if not in contradiction with the public order” to the practice of religious rites, said El-Agati, putting further limits compared to the last constitution.
In the Turkish constitution, the state restricts putting limits on worshiping and in Indonesia the constitution gives the state the duty to guarantee the freedom of practicing religion, said El-Agati. This won’t be the case if the current draft article is enshrined in Egypt’s constitution.
The problem didn’t exist in an earlier version of Article 8, written earlier in the drafting process and amended to its present form.
Human rights lawyer Ahmed Seif El-Islam, founder of the Cairo-based Hisham Mubarak Law Centre, points to the form of the previous version, which had stated that the freedom of belief and the freedom of practicing religion is granted.
“The freedom of belief and practicing religious rights is safeguarded,” the article had said before being amended.
Seif El-Islam criticised the amended phrasing, saying that it deals with freedom of belief only in a private, personal way, rendering it useless. "The freedom of belief must be followed by the freedom of practice, otherwise it loses its essence," Seif El-Islam said.
Nevertheless, Seif El-Islam sees a positive - albeit limited - development in the article’s current form, which stipulates that the state guarantees the freedom to construct places of worship for Abrahamic religions (Islam, Christianity and Judaism).
“This is a step forward for Christians and Shiites, yet not so much for members of other religions,” said Seif El-Islam. “A community of expatriate Chinese Buddhists for example wouldn’t be able to establish a temple,” said Seif El-Islam, adding that since Egypt doesn’t have large expat communities from other religions the problem remains only theoretical.
“In reality, it is members of the Bahai faith who would suffer under this article,” Seif El-Islam asserted.
El-Agati sees a further implication to the restriction of building places of worship to the 3 major religions by the article, related to Egyptian Muslims living abroad.
“The article weakens the positions of Muslims living in non-Muslim countries and suffering under certain forms of discrimination such as restrictions on building mosques,” says El-Agati.
“Egyptians wouldn’t be able to object to restrictions on building minarets in Switzerland, or wearing the veil in France,” he told Ahram Online.
El-Agati believes the article is generally detrimental to the concept of citizenship and opens the door for discrimination on the basis of religion.
Constitution vs. reality
Labib Iskandar, a Bahai professor of engineering at Cairo University, highlights what he says is a contradiction in the draft article - “how can you say freedom of belief is absolute and then only mention main religions?” he asked.
To Iskandar, however, it is not the constitution that matters but what happens in reality. The 1971 constitution hadn’t limited the religions which have the right to practice their rituals, and yet Bahais still struggled for recognition and rights.
Still, for Iskandar, what’s more important than the state recognizing the Bahai religion is to enjoy civil rights, which the state so far does not grant.
The state continues to pose many obstacles for Bahais, including not recognising their matrimonial contracts and thus refusing to give them a “married” status on their national IDs, as well as refusing to issue electronic copies of their death certificates, causing legal hurdles and risks for members of the faith.
“Implementing constitutional laws is key. In the 1971 charter freedom of religion was protected yet it is up to officials to interpret it, easily deciding that the Bahai faith is not a religion to begin with,” Iskandar explained.
Seif El-Islam took up this point, saying that “a state could have a wonderful constitution and shelve it,” a situation wherein practices on the ground would be in complete contradiction to the spirit of the constitution.
A good case in point is the position of Egypt’s Shiites, which contradictory sources say range from just over 10,000 to more then 1 million Egyptians. Many pundits don’t consider the constitutional article to be a threat to Shiites, since Shiism is a Muslim sect.
However, as Seif El-Islam points out, what is written on paper could differ by leagues from the case in reality, where the mainstream Sunni stance on Shiism isn’t favourable.
“There will never be a struggle between Sunnis and Shiites in Egypt,” El-Tarek El-Hashimi, a leading Egyptian Shiite told Ahram Online, saying Shiites are keen on preventing sectarian strife.
El-Hashimi stresses that Shiites follow the same school of Islamic theology, the Ashaarite theology, as does the leading Sunni institution of Al-Azhar, foreseeing no problem concerning freedom of belief and religious practice.
“Religious rights between both sects are the same,” argues El-Hashimi.
Despite El-Hashimi’s optimism, a Shiite was sentenced to a year in prison in September for allegedly starting a fight due to his mode of prayer - or “his actions that violate the Sunni sect” - in a village mosque.
The Egyptian Initiative for Personal Rights appealed the sentence of Mohamed Fahmy Asfour, the Azharite teacher, saying he was handed it due to his belonging to the Shiite faith and expressing its concern regarding attacks on freedom of belief and expression.
The court said some of Asfour’s practices during prayer which are different from Sunni’s “incited discomfort” among other worshipers, which caused the scuffle.
Constitution vs. law
Seif El-Islam raised yet another concern about the constitution, saying it doesn’t necessarily follow that laws are based on the constitution, explaining that a constitution could be drawn up but the legal structure preceding it could remain unchanged.
Seif El-Islam is wary that the laws would not respect the new constitution, saying it would be left for individuals on a case-by-case basis to change laws, as courts may decide the unconstitutionality of certain laws according to each case, a long and tedious process.
“As soon as the constitution is drafted, there should be a period of 5 years within which the process of amending laws to conform to the constitution should be institutionalised,” Seif El-Islam suggested.
Institutions such as the parliament, trade unions, NGOs and others should be tasked with this process, he said, allowing the country’s social forces to make sure their constitution is being followed. This is assuming the current draft would be viewed favourably by Egypt’s citizens.