Constitutional highway to theocracy

Egypt's constitutional draft should be rejected, the draft contains many dangers regarding private property, the separation of powers and judicial independence for instance. It is important to understand the actual hazards of the constitutional draft and its possible consequences.

It is no secret that the Egyptian Islamists (most importantly represented in the Constitional Assembly by the Muslim Brotherhood and the Da'awa Salafiya) who, together with clear sympathizers, took more than half the seats in the Constitutional Assembly, all want a religious state, a theocracy of sorts, a system where purely religious rules are enforced using state power.

This demand has been at the heart of their protest chants, their parties' political programmes and their members' words whenever they appear in the media. In fact, during the discussions in the Constitutional Assembly, some members of that group wanted to remove the word 'democratic' from the draft altogether, because it would imply putting the people's will above that of God (cf. infra).

In this article, I shall discuss some of the constitutional loopholes and well-laid mines through which the drafters wished to implement their plans of having the government play a big, intrusive role in the lives of citizens by invoking religion. Let it be clear that this article does not aim to belittle the role of religion in both private and public life in any way: nor is the point to discuss a particular religion. I simply mean to clarify what the draft constitution entails and how it will be interpreted, so as to counter claims by some so-called experts claiming it is not very controversial or that protests against it are exaggerated. That is why I would like to take up some of the implications of Dr. Yasser el Borhamy's words (AR), as published on "Ana El Salafy" (I, the Salafi)*, a famous Salafi website. After having finished the constitutional draft, El Borhamy, who is a prominent Salafi member of the Constitutional Assembly, is seen in the video defending and explaining the draft to fellow Salafi sheikhs, among whom is included the prominent Sheikh Mohammed Hassan. The reason for this was that there were some attacks on the draft from within the Islamist front itself.

El Borhamy starts off by stating the importance of article 2 of the constitution which proclaims that Islam is the religion of the state and the principles of Islamic law (Shariah) are the main source of legislation. It is important to note that Salafis believe that this article, as it has been interpreted in the past by the Supreme Consitutional Court (SCC), had too narrow a range for their liking.

El Borhamy then clarifies that although only 50% of the Assembly were Islamists (while mentioning that Islamists should have had more than 70% but agreed to 50% in the end in order to avoid problems with SCAF and the SCC), many members from the 'non-Islamist' group were in fact also 'religious' and supported the 'Islamist project'. He concludes that there was thus a majority for Islamists in the end.

He continues by saying that they wished to replace the word "democratic" in article 1 of the draft with the word "shura". The word "citizenship" was also considered a problem by some Islamists, because, just like "democracy", it was suspected of being unislamic. However, since the SCC had interpreted "citizenship" to mean that citizens feel they belong to one nation and that their interests are interlinked, El Borhamy explains that it contains nothing that goes against religion per se. In the end, they decided to keep the word "democratic" in the first article, but define it by adding "shura" to its explanation in article 6. The reason for this addition was to make clear that democracy in Egypt would have a "ceiling", that there would be primacy for God's law (of course, always as interpreted by humans) over the will of the people.

The next article discussed is the controversial article 2. According to Salafis, the article had always been void of meaning and was merely "decor" in the past. Therefore, they wished to rewrite the article to considerably broaden its range. In the end and after much discussion, the Islamists suggested adding article 219 which defines the words "principles of shariah". It is this article, which is contained in the final draft, which the Salafis consider a "red line" as they feel it is the article that defines the entire constitution. El Borhamy even stated that adding article 219 is better than cancelling the word "principles" in article 2 (which was a previous Islamist demand) so that it becomes, "Shariah (and not just its principles) is the main source of legislation".

Afterwards El Borhamy addresses some complaints he has heard about article 43 which guarantees freedom of belief. He points out that article 81 which concludes the chapter about "Rights and Freedoms" in the draft is the solution to the problem. This article stipulates that the exercise of rights and freedoms contained in the constitution must be in accordance with basic principles laid down in the chapter about "State and Society", which, as he explains, entail the principles of shariah contained in article 2 and explained in article 219. He mentions that Christians had objected to adding that article, but that it passed despite that. He exclaims that Anba Bola (the church representative) had the audacity to object to the article just because it refers to the shariah. An important assertion made by El Borhamy that I'd like to make the reader aware of has him saying, " This constitution has restrictions [on rights and freedoms] that have never been included in any Egyptian constitution before."

When it comes to Bahai's, El Borhamy mentions that they will be able to legally exclude them from the application of the constitutional articles related to rights and freedoms.

Another essential point of discussion was an article El Borhamy found to be a most objectionable article, namely article 76. The wording of this article in the old constitution is one most jurists in the world are familiar with, "nullum crimen, nulla poena sine lege" or "no crime and no punishment without a law". These words are considered fundamental safeguards of freedom and rule of law and are included in most constitutions in the world. El Borhamy explains that this article is dangerous because it would mean that consensual adultery, bank interests and sodomy wouldn't be considered crimes.

Because all jurists in the Assembly were adamant on including that article in the constitution, according to El Borhamy, they were forced to include it. However, with the help of Dr. Selim El Awa (a former candidate for the presidency), they managed to change the wording. The altered article states "no crime, no punishment without a provision in the law or the constitution". El Borhamy explains that this alteration will enable them to include article 2 of the constitution and its explanation in article 219 as grounds for incrimination, making it possible to try and punish citizens for crimes not expressly mentioned in the law!

Finally, El Borhamy repeats something he had said quite a few times before, namely that article 219 which explains the meaning of the "principles of shariah" as mentioned in article 2, is a "red line", not open to discussion. He adds that this article was accepted by the "Committee for Senior Scholars".

I would like to point out that the "Committe for Senior Scholars" which is part of Al Azhar, is mentioned in an article El Borhamy didn't address in the video. Article 4 stipulates that it is obligatory to ask the opinion of the "Committee for Senior Scholars" in Al Azhar in all things related to the shariah. The importance of this article cannot be overestimated. If a judge is presented with a case in which someone is tried for an act which isn't punishable by law, but which (according to the altered article 76) may be punishable by purely religious rules, a judge would be forced to ask the opinion of the Committee. Now, although article 4 doesn't expressly say that the opinion of the Committee is binding, it will be so de facto since it is unimaginable that many judges would go against the decision of a body of Al Azhar (considered one of the most respected religious institutions in the Arab world) when it comes to religious matters. This is merely one example of the possible effects of this article.

This constitution places the power to interpret things relating to the shariah in the hands of the "Committe for Senior Scholars" thereby putting them not only above the courts, but also above the legislator. A group of religious men from Al Azhar will have a say in how the country is run and how laws are applied and those who claim to be for the independence of Al Azhar must be aware that no such thing can exist when they are so close to power. So both religious texts (including human interpretations thereof, obviously) and certain religious scholars are intentionally placed above the law and the constitution. Now, call me alarmist for saying that this constitution paves the way forwards to a theocracy...

This article doesn't contain all the reasons why this constitutional draft should be rejected, the draft contains many dangers in other chapters about private property, the separation of powers and judicial independence for instance. However, I hope it does give a clearer view on the actual meaning of this draft and its possible consequences. It may also be necessary to note that, in this context, it might not be those protesting the draft and the referendum who are against democracy.

About the author

Sara Labib is an Egyptian blogger and commentator on Egyptian politics. She is currently pursuing her Master's degree in Law in Europe. Her work can be found on tabulasara.blogspot.com and she can be followed on Twitter @SaraLabib

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