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Egypt's draft constitution: Neither theocratic nor secular

Nael Shama, Sara Labib , Monday 13 Jan 2014
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Egyptians are summoned to vote on the country's draft constitution -- which, technically, introduces “amendments” to the suspended 2012 constitution -- on 14 and 15 January. The draft charter expands the privileges of the military and the judiciary, is more explicit about human rights, freedoms and gender equality, and leaves undecided the sequence of parliamentary and presidential elections. Compared to the 2012 constitution, the outcome of Islam and identity articles is mixed; some articles have been kept, others removed or modified.   

Politics without the Muslim Brotherhood      

The new constitutional document has reflected the balance of power in the constituent assembly and in the post-Morsi political system at large. Unlike the assembly that drafted Egypt's 2012 constitution, which was largely dominated by Islamists, the 50-member assembly that produced this draft constitution included no members of the Muslim Brotherhood, only one member from the Salafist (ultra-orthodox) Nour Party and one independent Islamist member.

Since 1952, Egyptian politics has been dominated by the Egyptian state, an octopus-like edifice with multiple arms and agents, vast networks of vested interests and a formidable security apparatus -- the so-called “deep state.” This state has maintained its supremacy despite the political upheaval of the past three years, including the one-year rule of the Brotherhood. Indeed, the political order that emerged after the removal of president Morsi is predominantly dominated by the military and, to a lesser extent, the security agencies and the judiciary. It is also backed by the secular forces that participated in last summer’s mass protests which paved the way for Morsi’s ouster.  

The current exclusion of the Brotherhood from the political process is a product of both the group’s own reluctance to acknowledge the post-Morsi regime (and the roadmap it adopted) and the regime’s effort to sideline, repress and outlaw the Brotherhood. The two parties are currently embroiled in a vicious, seemingly endless cycle of escalation, seen by both as a zero-sum game. As a result of this setting, the new constitution came into being by a compromise between the military, the seculars and the Nour Party.

In spite of its religious foundation and rhetoric, many of the Nour Party’s strategic decisions since its inception in 2011 were guided by pragmatism. It was the only Islamist party that backed the ouster of Morsi and took part in the subsequent constitution-writing process. Outnumbered in the constituent assembly by the seculars, and concerned about its ability to survive in the new order (amid a harsh media frenzy against Islamist parties), it accepted -- out of necessity, not ideological conviction -- a constitutional document that is certainly less vocal about the role of religion in society and polity than the one produced in 2012. In fact, Article 74, which bans the creation of political parties on religious basis, can even jeopardise the legal existence of the party. 

The leaders of the party calculated that its strength stems from its ability to legitimise/delegitimise the process. The party threatened more than once to pull out of the assembly, exerted pressure to retain some of the identity articles introduced in 2012, but in the end it exhibited willingness to reach the best possible compromise in light of the set of opportunities and constraints with which it was faced. The Nour Party has also taken part in the post-Morsi political process with an eye on the upcoming parliamentary elections. The exclusion of the Brotherhood means that the Nour Party is likely geared to harvest the majority of Islamists' votes. On the other hand, the political coalition that ousted Morsi and took control of the latest phase of Egypt's long and turbulent transition period has been keen to keep the Nour Party in the alliance in order to undermine the Brotherhood and refute its propaganda.  

Compromising Identity

The biggest change in the new draft regarding the role of religion in the state has been, perhaps, the removal of the controversial Article 219, which stipulated that: “The principles of the Islamic Sharia include its general sources, the principles and maxims of its theoretical and practical jurisprudence, and its reliable and authoritative sources in Sunni legal and theological reasoning.”[1] Article 219 was introduced in 2012 with the intention of eliminating any ambiguity concerning the meaning and implications of Article 2 (first introduced in 1971, then modified in 1980 and kept in 2012 and 2013) which states that “the principles of Islamic Sharia are the main source of legislation.”

In 2012, it was essentially the Salafist bloc in the constituent assembly that advocated that the word “principles” should either be removed from that article (leaving “the Sharia” in its totality as “the main source of legislation”), or explained in detail. This stance originated from the Salafists' belief that a stricter definition of Article 2 was needed for religious law to be properly applied. Salafist scholars and politicians argued that the interpretation provided by the Supreme Constitutional Court (SCC) -- that the “principles of Sharia” refer only to the rulings of Islam that are “of definite proof and meaning” -- was not clear enough. Indeed, this unrestricted definition had in the past left the SCC judges with considerable latitude in interpreting Islam, often applying modernist understandings of Sharia.[2]

With the changing balance of power following the overthrow of Morsi, the Nour Party acquiesced to the removal of Article 219 in return for a reference in the constitution’s preamble to the SCC’s understanding of the “principles of Sharia.” Although far below their ambitions, this mention has provided a more explicit reference to Sharia than did the largely abstract Article 2, something that has allowed the Nour Party to defend the constitution to its followers on religious grounds. Indeed, the party’s spokesperson, Nader Bakkar, said that the pillars of Sharia are sufficiently and clearly defined in the preamble.[3]

Another compromise was reached between the seculars and the Salafists on the controversial issue of the nature of the Egyptian state. The seculars strove for a specific reference to Egypt as a “civil state” and, indeed, in the pre-final versions of the draft constitution, a sentence in the preamble described Egypt as a state with “a civil system of rule.” However, this sentence was modified in the final version into “a state with a civil government,” seemingly as a result of a last-minute backdoor agreement between the military, some secular members of the constituent assembly and the representative of the Nour Party.

Aside from these two partial victories, Salafists have lost many of the gains they made in 2012. For example, the draft constitution removed the clause which granted Al-Azhar, the 1,000-year-old centre of Islamic learning, the right to be consulted on religious matters. Although this article did not obligate legislators and judges to follow the opinion of Al-Azhar’s Supreme Clerical Committee, Egypt's seculars worried that, if strictly implemented, it would lay the first stone of a theocratic state. Also, Article 5, which describes the country’s political system, no longer mentions the Islamic concept of shura (consultation) as the 2012 constitution did.

Unlike the 2012 constitution, the draft constitution does not bound personal rights by religious prohibitions. For instance, Article 81 of the suspended constitution contained a limitation on the exercise of rights and freedoms, namely that they are safeguarded “as long as they do not contradict with the elements mentioned in the section of state and society.” This section included Article 2, which, according to the 2012 constitution, was explained by Article 219 and interpreted by Al-Azhar’s senior scholars. This limitation has been eliminated in the new document. Furthermore, Article 44 of the 2012 constitution, which prohibited the insult of all religious messengers and prophets, thereby placing a limit on freedom of expression [4] and opening the door for lawsuits based on “insult of religion,” was also dropped.[5] In the same vein, freedom of belief in the new charter is “absolute” (Article 64), and not just “guaranteed” as in 2012.

Additionally, many of the references to conservative family values have either been dropped or mitigated in the new constitutional document. For example, Article 10 mentions that the cohesion and stability of the family is protected by the state only; the role of “society” in doing that has been taken out. Against the wishes of Islamists, the new document also states that anyone who has not reached the age of 18 is considered to be a child, setting a rule that may lead to prohibiting marriage under that age. In addition, Article 11 of the 2012 document, which placed the state as the guardian of ethics, morality and public order, has been deleted.

Compared to the 2012 constitution, the draft charter gives more rights to Egypt’s Coptic minority. For example, it stipulates that Copts should be “appropriately” represented in local municipalities (Article 180), and forces the new parliament to write a new law on the building and restoration of churches that will “guarantee the freedom to practice religious rites” (Article 235). However, the denial of the rights of other religious minorities, such as Shias and Baha'is, persists. For instance, Article 64, which restricts freedom of worship to the followers of “heavenly religions,” and Article 3, which offers only Christians and Jews the right to follow their own personal status law, were both kept.

It is not clear whether Egypt’s new constitution, if it gets passed, will bring stability to the country whose transition to democracy has been marred with skewed planning, disastrous mismanagement and unprecedented violence. When it comes to the role of identity in politics, the constitution perpetuated the tradition adopted over the past decades by Egypt’s presidents: securing a place for Islam in legislation, but keeping it at bay in practice. Certainly, much will depend on how the constitution is reflected in and interpreted by future legislation, but the result will most likely be a state that is not theocratic, but not secular either.      


[1] Democracy Reporting International, Unofficial Translation of the 2012 Constitution, http://www.democracy-reporting.org/files/egypt_draft_constitution_unofficial_translation_dri.pdf

[2] Clark Lombardi and Nathan Brown, “Islam in Egypt's New Constitution,” Foreign Policy, 19 December 2012, http://mideastafrica.foreignpolicy.com/posts/2012/12/13/islam_in_egypts_new_constitution#sthash.MEJo8GWu.dpbs.  

[3] Nada Hussein Rashwan, “Inside Egypt’s Draft Constitution: Role of Sharia Redefined,” AhramOnline, 12 December 2013, http://english.ahram.org.eg/NewsContent/1/64/88632/Egypt/Politics-/Inside-Egypts-draft-constitution-Role-of-sharia-re.aspx.

[4]Amnesty International, “Egypt’s New Constitution Limits Fundamental Freedoms and Ignores the Rights of Women,” 30 November 2012, http://www.amnesty.org/en/news/egypt-s-new-constitution-limits-fundamental-freedoms-and-ignores-rights-women-2012-11-30.

[5] Kristen Chick, “‘Insulting Religion’: Balsphemy Sentence in Egypt Sends a Chill,” Christian Science Monitor, 12 December 2012, http://www.csmonitor.com/World/Middle-East/2012/1212/Insulting-religion-Blasphemy-sentence-in-Egypt-sends-a-chill.

 

Nael Shama is a political researcher and writer living in Cairo, Egypt. He is the author of Egyptian Foreign Policy from Mubarak to Morsi (Routledge, 2013). He can be reached at nael_shama@yahoo.com.

Sara Labib is an Egyptian lawyer and writer who blogs at tabulasara.blogspot.com. She can be reached at: saralabib1@gmail.com   

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