Religion and state in the people’s constitutions

Samer Soliman , Sunday 10 Jul 2011

While secular forces are proposing how to balance the Islamic identity of Egypt in the new constitution, Islamist forces — including the Muslim Brotherhood — have not yet declared a position

Political debate in Egypt has recently begun to focus on how to write a constitution (through a founding society or parliament) as well as the content of the constitution. This was intensified when many groups and political personalities announced their versions of the constitution or the principles on which to build one. Mohamed ElBaradei, the potential presidential candidate, presented a “bill of political rights” that includes some principles that ElBaradei wants political forces to agree on and to make a cornerstone of the new constitution. Meanwhile, the National Council —the coordinating body between civic political groups —issued “The principles of the Egyptian constitution”. At the same time, the Popular Constitution Committee proposed an entire constitution, while there have been other suggestions here and there.

There have also been proposals to compose a constitution from the bottom up, meaning by having human rights activists and politicians hold extensive dialogue with popular bases to gauge their opinion on the content of the new constitution. For example, the “Let’s write our constitution” initiative sponsored by the Hisham Mubarak Law Centre.

These initiatives were mostly launched by civic or secular forces, and essentially reflect the concerns of these forces that the hegemony of religious powers will be reflected in the new constitution, laying the foundation for a religious state that limits personal and public freedoms, curtails religious freedoms and discriminates against minorities. These initiatives aim to mobilise public opinion to put pressure in the near future on the entity that will draft the new constitution and the interim authority to adhere to a civic state.

Although many civic and human rights forces opposed Article 2 of the previous constitution (which states Islam is the religion of the state and Islamic Sharia the main source of legislation), because it discriminates against non-Muslims and is used by conservative powers to establish religious powers, various versions of the new constitution maintain this article in place. It seems that civic forces are now convinced that the large majority of Egyptian Muslims want this article to remain in place since it reflects the Islamic identity of the people.

This realistic acceptance of Article 2 of the previous constitution does not mean that the authors of the proposed constitutions are not trying to prevent this article from being used to establish a full-fledged religious state. The Popular Committee attempted to dilute Article 2 by removing reference to Islam as the religion of the state, proposing instead that Islam is the religion of the majority of the Egyptian people. Where it says that the principles of Islamic Sharia are the main source of legislation, the Popular Committee asserted that the state is committed to the Universal Declaration of Human Rights.

Meanwhile, ElBaradei left Article 2 as is, but Article 11 of his “Declaration of Political Rights” stipulates that the rights guaranteed in the declaration —such as freedom of belief —cannot be amended or removed, and that violation of these rights or attempting to amend them is prohibited. Also, that citizens have the right to resort to legal prosecution to defend these rights. In other words, it delegates the judiciary to defend the civic character of the state in case a parliamentary majority in the future attempts to amend the constitution and establish an entirely religious state.

Like ElBaradei, the National Council has also kept Article 2 in place and added another article that prevents the creation of a religious state. Article 7 of the council’s proposal states: “The Armed Forces are charged with defending a civic democratic republic from any legislative violation which threatens the regime, after seeking the opinion of the Supreme Constitutional Court.” In that manner, the council not only gives the judiciary license to protect the civic state, as ElBaradei did, but it also made the armed forces the last frontier to safeguard the civic nature of the state.

Two months ago, ElBaradei said he was considering including a clause that would give the armed forces the right to intervene to protect the civic and democratic character of the state. But, as reflected in his Declaration of Political Rights, he changed his mind because adding this clause would take a political toll on any political player or potential presidential candidate. Granting the army the right to intervene in the political process is a violation of the principles of democracy that puts political responsibility in the hands of representatives elected by the people. At the same time, giving the military license to intervene in politics for a particular reason leaves the door wide open for the army to intervene for other reasons.

In drafting a constitution, civic forces have revealed their deep concern over Article 2 in the constitution. In reality, this article was a powerful tool for Islamist forces under Mubarak when many court verdicts and political restrictions on freedom of expression were based on this article. These include jail sentences against writers and bloggers, removing custody from Christian mothers whose husbands converted to Islam, based on the rule that Islam is the superior religion according to which children should be raised.

At a time when civic forces have disclosed their agenda regarding the relationship between state and religion, the position of Islamist forces remains relatively ambiguous. Of course, they all want to keep Article 2 in place, but it is unclear if they want it to remain exactly the same or if they want to revise it, such as rewriting the phrase “the principles of Islamic Sharia are the main source of legislation” into “the rulings of Islamic Sharia”. The difference is large, because “principles” is a general word that could be interpreted to mean truth, justice and equality, but “rulings” implies a set of legislative and legal rules.

Meanwhile, Islamic forces have not yet decided how to implement Article 2. Will they create a body of religious scholars to review laws and legislation issued by parliament to ensure that they comply with Islamic Sharia, as proposed by the Muslim Brotherhood years ago; or will they rely on the majority they expect to win in parliament to guarantee that all legislation complies with Islamic Sharia? Creating a body of religious scholars based on a constitutional clause paves the way for a theocracy in Egypt, since it gives an unelected religious entity authority over elected bodies, over which it would have veto power.

It is unlikely that Islamic forces will insist on creating an entity of religious scholars because it will be strongly opposed by the people, and it would be difficult to decide how to choose its members. It is more likely that Islamist forces will maintain Article 2 as it stands, but will reject clauses that give power to the army or judiciary to intervene to guarantee the civic character of the state. In such a case, we will return to where we were during the Mubarak era in terms of the relationship between state and religion, namely a quasi-civic state with religious overtones.

Under these conditions, the new constitution will not resolve the battle between civic and religious forces in Egypt but uphold the current balance. This conflict will play out in the next parliament, essentially through attempts by religious forces to pass laws and draft new policies in support of an Islamic state, while civic forces inside and outside parliament try to obstruct them. In other words, it is unlikely that the civic-religious conflict will be resolved in one blow but through a gradual process.

The writer is assistant professor of political economy at the American University in Cairo

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