Fears that Egypt’s constitution will be used to inhibit freedoms and enhance the powers of the Islamists in power have already proven to be well founded. The new constitution makes the entire governance system subject to the strictures of Islamic jurisprudence, argues Mariz Tadros
Egyptian society is deeply divided over the new constitution, the process by which it was produced, and the referendum through which it was passed. This has been a golden opportunity for the Muslim Brotherhood in power, and the Salafis who yield enormous powers in society, to allay the fears held by the opposition that the constitution would open up a Pandora's box of rights-limiting policies, interventions and schemes. This has not happened.
The instatement of theocratic constitutionalism
The two most contentious articles of the constitution that now threaten to turn Egypt into a theocratic constitutional state are articles 219 and 4.
Article 2 of the dissolved 1971 constitution stipulated that the principles of the Shariah are the principal source of legislation. None of the non-Islamist members of the constituent assembly proposed any change to the article. However, the Islamists argued that so far, article 2 of the constitution had not been adequately applied to ensure full compliance with Shariah in legislation, and therefore added article 219 which introduces Islamic jurisprudence as the basis of legislation. Since article 2 of the constitution referred only to the “principles of the Shariah” and not the entire body of jurisprudence pertaining to Islamic law, in practice this meant that court rulings were informed only by those Shariah-based rulings around which there was consensus. The introduction of article 219 can potentially open up a wide array of possibilities concerning the ways in which legislation can be made to conform with Islamic jurisprudence. The diversity of stances, justifications, laws and opinions and sources in Islamic jurisprudence ,and their variability through time and contexts means that interpretations can become hostages to political will. Jurists’ stances may vary from the ultra-reactionary and conservative to the more progressive. Given the strength of Salafi thinking not only within the Salafi movement but also within the Muslim Brotherhood, it is reasonable to assume that progressive stances may not prevail.
Article 219 was accorded a special place in the Egyptian constitution, representing one of the organizing principles in the section pertaining to “state and society matters”. In essence, many of the freedoms enshrined in the constitution became qualified by the proviso “so long as they do not violate the principles [of the section] regulating state and society”, which in practice refers to article 219. This wording means that no rights or freedoms are absolute, that all are contingent upon the interpretation of article 219, as I will demonstrate.
The application of article 219 undermines the concept of the rule of law, since matters can be adjudicated according to stances, views and positions expressed in the wide body of Islamic jurisprudence even if they do not exist in the country’s statutory laws. The elevation of Al-Azhar as the “gatekeeper” through which all matters to do with the Shariah must be scrutinized, inspected and vetted, meant in essence the negation of the role of the judiciary in enforcing article 2 of the constitution concerning the role of Shariah. In the old constitution, there was no article pertaining to the role of Al-Azhar University. Article 4 of the new constitution states that “Al-Azhar is an independent and a comprehensive entity. It takes the task of preaching Islam in Egypt and in the whole world. The opinion of the committee of senior Scholars of al-Azhar is to be taken in all matters related to Sharia."
Some members of the constituent assembly had proposed an article recognizing Al-Azhar and its head, Sheikh al Azhar’s full autonomy. They rejected Al-Azhar’s role in overseeing Shariah compliance on the basis that it inevitably transforms it into a political actor, since it is being tasked with assuming the role of overseeing both the executive and judicial branches of the state. However, the Islamists insisted on maintaining the article, which empowers them not only to manage state affairs but oversee society as well since “all matters related to the Sharia” encompasses all public and private affairs.
Article 219 in effect serves as a carte blanche for the Islamization of all kinds of state policy. A process of Islamizing the educational curriculum is underway by the Muslim Brotherhood-led Ministry of Education. In the civic education books (tarbeya wataniyya) for secondary school, a picture of one of Egypt’s leading feminist thinkers and activists of the 20th Century, Doria Shafik, who mobilized for universal suffrage, was removed because she was not veiled! Mohamed Sharif one of the advisors involved in reforming the syllabi told the Arabic language independent Al Tahrir newspaper (4/1/12) that her image was removed after the objection of some of the Islamist television satellite stations to the image of her without the veil. Sharif added that all syllabi will be subject to revision to ensure their compatibility with the views of Al Azhar and the Islamic Research Authority. It is not difficult to imagine that any objection to such revisions to the curricula will be met with arguments that such revisions are compatible with article 2 and 219 of Egypt’ new constitution.
and freedoms with strings attached
Many of the articles associated with rights and freedoms in the constitution have a brief addendum which in practice threatens to render them almost null and void. For example, article 81 states, “The rights and freedoms of citizens are exercisable as long as they are not incompatible with the principles stipulated in the state and society section of the constitution”. (author's italics). Since article 219 belongs to the section on state and society, possibilities for restricting personal rights and freedoms are limitless. For example the right to mobility may be restricted for women if they wish to travel without their husbands’ or fathers’ permission in compliance with some jurists’ stance on this matter A death penalty may be instated for Muslims accused of apostasy through the application of hisba. In the past two years, there have been several instances where Christians have been arrested on charges of insulting Islam on the basis of accusations made by members of their communities. If certain jurists’ views were to prevail , they could face imprisonment and possibly death.
Article 48 of the constitution also has the same qualifier which will, in practice, require conformity with article 219. It stipulates that “the freedom of printing, publishing and all forms of media is guaranteed as it undertakes its mission, in freedom and independence, to serve society and to express public opinion and contribute to its formation within the frame of the fundamental principles of state and society [section of the constitution] (author's italics ). In practice, political will to circumscribe freedom of the press and media can be plausibly backed through the application of article 219, since some jurists could argue that the criticism of a Muslim ruler creates fitna (strife) and is therefore to be prohibited and condemned.
The same provisos apply to Article 10 which stipulates, “The family is the foundation of society, it is regulated by state and society. The state and society is responsible for safeguarding the true nature of the Egyptian family its cohesion and stability as will be stipulated in the laws. The state provides free services for motherhood and childhood and responsibility for reconciling a woman’s duties towards her family and work in public. The state is required to provide special care and protection for female headed households, divorced women and widows”. The right to regulate families may provide the legal basis for the establishment of the morality police to oversee that no gendered interactions on the streets of Egypt undermine the cohesion of the family. In essence, it can also mean that under the rubric of preserving the stability of the family, no legislation criminalizing domestic violence will ever see the light of day.
Islamist groups in civil society have already been emboldened by the new “Islamist” constitution to claim their right to regulate society’s behaviour. The daily independent Arabic newspaper Al Watan ( 2/1/13 ) featured an interview with the founder of the virtue and vice police, a non-governmental group formed of ultra-radical Islamists who have pledged to regulate women and men’s attire and behaviour in public. In essence they would like to establish a sister organization to the morality police in Saudi Arabia. In the interview, Hesham Ashour, the founder of the virtue and vice police, insisted that once his organization becomes active, all women will have to wear the veil in public spaces. When asked about non-Muslim women, he said that they too would be compelled to wear the veil even if it runs against their convictions. Ashour argued that in the initial phase they will compel all women to wear the veil, in the second instance, they will press to have legislation passed, so that it would be enforceable by law. In the same interview, Ashour said that the virtue and vice police will assume a proselytisation campaign targeting Christians, to call them to Islam by distributing pamphlets and publications in front of churches, as “we do not want them to embrace a religion that makes them go to hellfire…”. For those who contest Ashour’s rhetoric as inflammatory, incompatible with human rights and promoting sectarian violence, one can envisage the counter argument that article 10 of the constitution empowers society to protect family values, and as per article 219, these are tied to compliance with Islamic jurisprudence.
A tailored constitution?
There has been much tinkering with the constitution, not only to deepen the consolidation of an Islamic state, but also to place the Islamist parties at a political advantage. A clear example of developing a bespoke constitution to fit the current Islamist configuration of power is article 230, which suggests that the Shura Council is empowered to undertake the legislative function of parliament until the latter is elected (This upper house is currently dominated by an Islamist majority). The Shura Council was initially set up only as a consultative body, and its members were elected into office for that explicit purpose. Since the passing of the new constitution the Shura Council has taken over the role of drafting and issuing legislation. It is currently devising the new electoral law, which many fear will be tailored to put the Islamists in an advantage in the forthcoming parliamentary elections.
The previous constitutions of Egypt categorically prohibited the formation of political parties on religious grounds ( based on faith). Some members of the constituent assembly had proposed that the formation of political parties on religious grounds be prohibited in a clause that states, “it is prohibited to establish political parties on a religious or geographic basis or to form civic associations whose activities are clandestine or of a paramilitary [nature] or whose reference contravenes the principle rights and freedoms enshrined in the constitution.” The proposal was rejected. Some members of the constituent assembly had also proposed in the section of the constitution on elections that a clause be inserted prohibiting the use of places of worship for political campaigning or political party events. This was dropped. It is not difficult to see why: many of Egypt’s mosques have been transformed in this recent political crisis into platforms for promoting the Islamists’ agenda and denigrating their opponents as the enemies of Islam. The instrumentalisation of religion through the mosques has contributed to the political polarization of society and incitement against the country’s religious minorities. This was particularly manifest in the most recent constitutional referendum in which many of Egypt’s mosques became platforms for distributing sugar, oil and other foodstuffs in a bid to encourage people to vote “yes”. Many of the mosques raised huge banners in front of their buildings calling upon people to vote "yes", while many of the imams used the pulpits to vilify those who would vote “no” as infidels, Christians and amoral people.
The constitution positively limits the President’s tenure to two terms. However, the position of vice-president has disappeared, which raises questions as to whether this will encourage excessive concentration of powers all over again. Ahmed Mekki, a judge who was appointed as the vice-president of Egypt, resigned before the promulgation of Egypt’s new constitution, raising the question of whether the underlying motive behind his self-ejection was his knowledge that there is no place for him in the new constitution
The Islamist majority constituent assembly also inserted a new article in the constitution which is perhaps indicative of the strength of its relationship with the military. The article states that "It is not allowed to try civilians before military tribunals except in cases of crimes that damage the armed forces." (author's italics). This represents a real slap in the face for the revolutionaries, some of whom had voted for Morsi as president precisely to avoid giving the military special privileges. The record of the military in trying civilians while in power was so damaging that citizens organized a campaign dubbed “no to military trials”.
Not only what went in, but what was left out
It was not only the added articles and qualifiers that spurred disagreement within the constituent assembly, although these were the principal sources of objection, but also what was kept out of the constitutional document. While constitutions are supposed to be overarching frameworks rather than detailed roadmaps, nevertheless, the nature of the rights and freedoms which were left out of the constitution generated speculation as to whether these omissions were driven by a political agenda.
For example, some members of the constituent assembly had suggested that in view of the prevalence of violence against women, the following article should be adopted, “The state is required to protect a woman from violence in all its forms and guarantees her right to inheritance and guarantees social and economic support for female headed households, divorcees and widows and others from among women who are most needy, so that it can secure a dignified life for them”. The Islamists rejected it, and it was dropped.
Children’s rights enshrined in the constitution also leave much to be desired, not because of the existing content, but again because of what is omitted. Article 70 of the proposed constitution stipulates: “Each child, upon his birth is entitled to a suitable name, family care, basic nutrition, refuge, health services and religious existential development and [access to] knowledge”. So far so good. But critical rights of children were dropped. Some members of the assembly had suggested that the article also clearly articulates that ”the state is committed to implementing the principles of non-discrimination between children, [ensure] children’s participation, the advancement of their welfare, and equipping them with the necessary knowledge in order for them to exercise their rights and duties” . They insisted that a clause be added on “the prohibition of the marriage of children under the age of 18”. Both articles were removed. The insistence on not stating a minimum age of marriage in Egypt opens the way for underage marriages, a matter to be taken seriously in view of the statements made by some highly influential Islamist political figures suggesting that the child law be changed to allow girls to marry at 14.
When the wording of some of the articles on rights are compared with the same articles in the previous constitution, it becomes apparent that there is regression– at least on paper. Article 33 of the new constitution states that “citizens are equal before the law, equal in general rights and duties”. Yet the original article had made explicit the kinds of forms of discriminatory practices that would not be tolerated: “no discrimination between them on the basis of sex, race, ethnicity, colour, language, religion, creed, opinion, social status, wealth or disability”.Critics of the constitution have questioned the motives of the Islamists in removing this clause of the article. A careful reading of the new constitution would suggest that its removal opens the way to making these rights conditional upon their compliance with article 219 on Islamic jurisprudence, which would sanction discrimination in the case of women and religious minorities.
Similarly, article 73 which is new to the constitution, elicited much debate, not because of what it stipulated but of what it left out. Article 73 stipulates that: "Coerced employment, slavery and sex trade are deemed acts punishable by law." Some members of the constituent assembly insisted on a clear ban on human trafficking or some reference to an obligation to adhere to international conventions. Both were dropped under the premise that human trafficking is non-existent in Egypt.
There were also high expectations, in particular on the part of political parties and unions concerned with citizens’ socio-economic rights, that the new constitution would enshrine new entitlements. Article 66 does endorse the right to appropriate shelter, clean water and healthy food, however, once again it fails to clearly stipulate that these rights are to be underwritten by the state, through its own provision of services and infrastructure. This wording was dropped.
Likewise, a new article addressing non-Muslims was inserted which did not exist in the previous constitution, Article 3 stipulates that, "The principles of the jurisprudence of Christian and Jewish Egyptians are the main source of legislation that organises their personal status affairs, their religious affairs and the selection of their leaders". The article, in itself, may suggest a positive recognition of the rights of minorities. However, this article must be read in the light of the dropping of the “citizenship” clause which existed in the previous constitution and which enshrined the principle that all are equal as citizens. This clause serves to reinforce the notion that individuals are engaged with primarily as members of religious groups, where confessional affiliation mediates the bundle of rights that can be claimed. It also fails to mention the rights of other non-Muslim minorities, such as Baha’is, Shias and others. Article 43 further reinforces this concern because it stipulates that, "The state shall guarantee the freedom of faith and the freedom of practice of religious rites and the right to establish worshipping places for monotheistic religions based on law" (author's italics)
A new article which never existed in the previous constitutions, Article 44, states that, "Insulting prophets and messengers is forbidden"; While the article talks in broad terms about prophets and messengers, in essence it is likely to turn into a blasphemy law that targets Christians and Muslims with heterodox views.
Members of the Islamic parties argue that the opposition is assuming ill will on their part in their alleged use of the constitution to constrain freedoms. The mistrust towards the intentions of the constitution being used to deepen Islamist rule in a way that circumscribes freedoms and enforces the current configuration of power, has regrettably already proven to be well founded.
The deepening of an Islamist state is also evident with the ulama of Al-Azhar assuming supremacy in overseeing not only the executive, legislative and judicial branches of the state, but matters of public and private life as well. It is likely that in the near future the Muslim Brotherhood will make moves to “Brotherhoodize” Al-Azhar by appointing them in key positions. Article 219 will serve as a qualifier to all stipulated rights and freedoms, making them subject to will of the ulama and the vagaries of their interpretations. So far, it has only been the realm of Personal Status Laws that has been subject to Islamic jurisprudence. This new constitution makes the entire governance system subject to the strictures of Islamic jurisprudence. In essence this is not a civil state with an Islamic reference, as the Brothers have maintained, but an Islamic state with a very thin veneer of civility. This process has already begun, as is evident from the changes we have already seen in place in less than two weeks since the passing of the constitution.