An Examination Of Egypt's Draft Constitution Part II

Part II: The Egyptian Media Debate Over Religion And State



 On December 1, 2012, Egyptian President Muhammad Mursi announced that Egypt's new constitution would be put to referendum on December 15. The previous report in this series reviewed Egypt's past constitutions and the events surrounding the establishment of the Constituent Assembly, and presented the articles of the draft constitution pertaining to the status of religion in Egypt.

The present report is a detailed review of the debate and controversy over each of these articles.

The Debate Regarding Article 1

Egypt – An "Egyptian Nation" Or "Part Of The Arab And Islamic Nation?"

In the 1971 constitution, Article 1 was phrased as follows: "The Arab Republic of Egypt is a state with a democratic system, based on citizenship, and the Egyptian people are a part of the Arab nation working toward achieving its comprehensive unity." This article was changed in the current draft constitution, and now reads: "The Arab Republic of Egypt is an independent sovereign state, united and indivisible, its system democratic. The Egyptian people are part of the Arab and Islamic nations, proud of belonging to the Nile Valley and Africa and of its Asian reach, a positive participant in human civilization."

This amendment is an intimation of the Islamization of the constitution. The proposal to change the wording to define the Egyptian people as part of the Islamic, and not merely the Arab, nation appears in an article written by Salafi Sheikh Yasser Burhami, one of the leaders and founders of the Al-Da'wa Al-Salafiyya movement. He wrote that this addition would "affirm the Egyptian people's belonging to both the Arab and the Islamic nation, which is enshrined in the hearts of all Egyptians since the Islamic conquest of Egypt and to this day..."

A dissenting opinion was heard in the public discourse, though not in the Constituent Assembly. In a series of articles published in the Egyptian daily Al-Ahram, columnist Taha 'Abd Al-'Alim called to define Egypt as an "Egyptian nation," not as Arab or Islamic: "Those who criticize the [notion] of upholding the national Egyptian identity are the ones who support Arab identity, pan-Arabism, and Arab unity... [and also] the ones who support Islamic identity, the Caliphate and Islamic unity, who would like [to restore] the Islamic Caliphate state... and those who support Westernization and globalization... In actuality, the Egyptian nation is an existing fact and a tangible reality, whereas... the call for Arab unity is a possible future enterprise... and the call for Islamic unity is a [utopian] Salafi enterprise striving to establish a global religious Caliphate state, which would subsume different and conflicting nationalities, languages, and interests."

"The Writing Of The Constitution"

Egypt – A "Civil State"?

The previous Egyptian constitutions did not define Egypt as a civil state. This amendment was the aspiration of liberal-secular circles and Copts, who view it as a guarantee that the Islamic shari'a will not be implemented, that religion will be separate from politics, and that religious minorities will enjoy equal rights. As early as August 2011, the Supreme Council of the Armed Forces (SCAF) attempted to ensure that Egypt's definition as a civil state would be anchored in the constitution, as evident in the "Document of Constitutional Principles" written by Dr. 'Ali Al-Silmi, then-deputy prime minister for political affairs and democratization. However, the document aroused great public opposition and sparked violent demonstrations, and it was shelved when the government was disbanded and a new government, headed by Kamal Al-Ganzouri, was established. With the establishment of a Constituent Assembly with an Islamic majority, the hopes of the liberals that Egypt would be defined as a civil state were shattered.

It should be stressed that although most Islamic streams use the term "civil state" in order to appear liberal in Western eyes, they express reservations about including it in the constitution. The Salafis are adamantly against the addition of the word "civil" per se to the constitution, owing to its liberal-secularist connotations. The Al-Nour Party even threatened not to vote for the constitution in the referendum if this word were included, making it clear that it would accept the addition only with an accompanying explanation that the word was used to mean "non-military." The spokesman of the Al-Gama'a Al-Islamiyya party said that his party would not object to the word "civil" if the constitution explicitly explained that it is taken to mean "non-theocratic."

The Muslim Brotherhood (MB) adopted a middle-of-the-road solution with regard to the issue of the civil state. For several years, they have espoused the slogan "a civil state with an Islamic source of authority," which also appears in the platform of their political party. Consequently, they could not object to the use of the concept in the constitution, but they expressed their reservations, saying that it had gained a bad reputation in public opinion because it had come to denote the secularization of the state and a war against religion, and that the concept of "civil" does not appear in any other constitution in the world.

Al-Azhar opposed the use of the word "civil" in the constitution because it could be interpreted in a myriad of ways, and added that the meaning of the term as they understand it is already expressed in the constitution, so there is no need to include the explicit term. A spokesman for Al-Azhar's representatives in the Constituent Assembly explained that Al-Azhar considers a civil state to mean "a national, constitutional, democratic, and modern state, which guarantees the Islamic shari'a and whose source of authority is Al-Azhar." It was reported in the Egyptian media that the Sheikh of Al-Azhar had reached a compromise with the Salafis, according to which the expression "Egypt as a civil state" would not appear in the constitution and the Salafis, in return, would abandon their demand to amend Article 2.

The Controversy Over Article 2

Article 2 of the constitution, which is considered the main article to define the status of religion in Egypt, remains as it was in the previous constitution: "Islam is the state religion [of Egypt] and Arabic is the official language. The principles of Islamic shari'a are the main source of legislation." The debate with regard to this article rocked the Constituent Assembly, and the decision to leave it unchanged, without deletion of the word "principles," as the Salafis had demanded, was the result of MB efforts to allay the fears of many – in Egypt and in the West – that the MB rule in Egypt would lead to the Islamization of the country. The controversy sharpened the differences between the liberal-secular and the Islamic streams in Egypt, and also among the different Islamic streams, with regard to the relation between religion and state.

The Minority Opinion: Abolish Article 2

Only a few called to abolish Article 2 altogether, and this demand did not come to the fore in the Constituent Assembly. The Copts and the liberals in the assembly preferred to concentrate their efforts on struggles more likely to succeed, such as the struggle to leave the article as it is and prevent it from being amended according to the wishes of the Islamic majority in the assembly.

However, calls to abolish the article were heard in the Egyptian media. Egyptian intellectual 'Abd Al-Mu'ti Higazi, for example, wrote: "The constitution [should] recognize only common rights, which pertain equally to all citizens... Article [2] is not a divine revelation, but bida' [a prohibited innovation that deviates from religious precepts], which is foreign to us and was not recognized in any of our constitutions, except for the patchwork constitution that we inherited from the days of Mubarak and Sadat... When [Islamic factions] say that the shari'a is the main source for legislation, they are bringing together two parallel threads that could never meet, for the shari'a pertains to Muslims alone, whereas legislation is the basic right of all Egyptians, since the people is the source of all authorities. How can an Egyptian who is not Muslim accept this article? In fact, how can any enlightened Egyptian [accept it], be he Muslim or non-Muslim?..." 

The coordinator of the Egyptians Against Religious Discrimination organization, Muhammad Mounir Mugahid, likewise called to abolish Article 2, as it appeared in the 1971 constitution, because it "provides constitutional sanction for discriminating between citizens on a religious basis." He proposed an alternative phrasing: "Egyptian society is founded upon citizen rights, upon honoring pluralism and dissimilarity, and upon equality between citizens. Arabic is the official language of the state and Islam is the religion of the majority of its people. The intentions of Islam stand alongside the values endorsed by humanity [at large]. The conventions on human rights are a main source of legislation..."

The Salafi Approach: Amending Article 2 To Mandate Full Implementation Of Shari'a Law, Including Koranic Punishments

The Salafi parties Al-Asala and Al-Nour, as well as the Al-Gama'a Al-Islamiyya movement, advocate the full and literal implementation of the laws of the Islamic shari'a, including Koranic punishments such as cutting off the hands of thieves, stoning adulterers, and flogging alcohol imbibers – a radical approach that contravenes the international conventions on human and citizen rights. The proponents of this approach made two main suggestions for amending Article 2:

The first suggestion, typical of Al-Gama'a Al-Islamiyya and Al-Asala, is to omit the word "principles" from the article, so that it reads: "The Islamic Sharia [rather than the principles of the Islamic shari'a] is the main source of legislation." Al-Asala chairman Dr. 'Adel Al-'Afifi even ruled that leaving the word "principles" in place would be an act of heresy. He wrote in the Egyptian Islamic daily Al-Misriyyoun: "Is it permissible to vote for a constitution that makes the shari'a only a main source of legislation – which means that there can be other sources of legislation alongside Allah's shari'a, with equal weight? Is it conceivable that some of the directives of the shari'a will be discarded, and replaced with other directives, anchored in man-made laws? Can we cheat in implementing the shari'a by adding the word 'principles'...? There is no disagreement among religious scholars that whoever adopts another legislator in addition to Allah the Almighty and [grants him the authority] to judge, alongside the shari'a of Allah the Almighty, is an infidel..."

The second Salafi suggestion, promoted by the Al-Nour party, was to replace the word "principles" with the word "directives," so that the article reads: "The directives [emphasis ours] of the Islamic Sharia [rather than the principles of the Islamic shari'a] are the main source of legislation." This means that not only the general spirit or the general principles of the shari'a will be respected, but that all of its directives will be implemented. Al-Nour party spokesman, Yusri Hammad, explained: "The Islamic shari'a includes the absolute principles and the shari'a directives pertaining to all public affairs and all aspects of life, without neglecting even the smallest detail, from the definition of the tenets of the Islamic faith and the essence of belief and worship, to laws pertaining to all aspects of life – from laws on [issues of] family, divorce, marriage, custody, childrearing and inheritance, to laws on governance, justice, shura and the handling of state affairs, and also laws on commerce, buying and selling, possession, and maintaining and developing capital. Moreover, [the shari'a] regulates the state's relations with other states – what is called international relations – and the rules of war and peace according to Islam. It also regulates the relations among the people within the state.

"Then there is the [shar'ic] penal code, which comes to protect society from misconduct by [some people], which undermines these [religious] principles... The punishment for stealing applies to the well-fed who intimidated simple folk who work hard all day to earn a few pennies to feed their families. The punishment for robbery applies to someone who took up a weapon... to rob peaceful passersby, mug women, or kill children in a peace-loving society that seeks security. The punishment for adultery applies to someone who seduces a young girl who could be your daughter or sister. The [shar'ic punishments] are a fence protecting all those living on Egyptian soil, and are not used against honorable and peaceful people who respect the public's safety, property and honor..."

The Middle Way: Leaving Article 2 Unchanged

This approach, which was insistently advocated by the Sheikh of Al-Azhar, Dr. Ahmad Al-Tayyeb, was the most common and dominant of the three. Al-Tayyeb explained his approach in a press conference: "[Article 2, in its existing form], is a message to the Egyptian legislator that he must base the Egyptian laws, in all branches of legislation, upon the laws of the Islamic shari'a and upon the familiar shar'ic schools of thought, or else base them upon the international traditions of legislation, as long as the latter do not contravene the shari'a and serve the public interest. The Supreme Constitutional Court is the only body authorized to assess whether laws are in keeping with the constitution and to abolish any legal clause that contravenes the Islamic shari'a..."

This wasati (middle way) approach aims to maintain the status quo and the delicate balance between the polarized sectors of Egyptian society, namely between those who call to abolish Article 2 altogether and the Salafis who wish to anchor the codification of the shari'a in the constitution. This compromise was endorsed not only by Al-Azhar but also by the Coptic Church and by the majority of liberal-secularists, who recognized the unlikelihood of abolishing the article altogether and preferred the option of leaving it as it is to the option of having it rephrased in more extremist terms. Among those who wished to leave the article unchanged was also the MB, on the grounds that changing it could lead to fitna (civil war) and that the controversy over it could tear the Constituent Assembly apart. In its present role as the ruling force in Egypt, the MB also preferred to leave Article 2 intact in order to calm the situation in the country and allay concerns worldwide regarding the possible Islamization of Egypt under its rule.

This approach was expressed in an article by Egyptian intellectual Fahmi Huweidi, who belongs to the wasati stream. He wrote: "[In drafting its new constitution, post-revolutionary Tunisia] made do with establishing Islam as the state religion, and steered clear of the question of the shari'a. The head of the Al-Nahda movement, Sheikh Rashed Al-Ghanoushi, explained that this phrasing was sufficient indication of the state's identity and religious affiliation. He added that the [Al-Nahda] movement sensed that the issue of the shari'a was a delicate one with [various Tunisian] elites, and therefore decided not to mention it [in the constitution], in order to avoid controversy and maintain national unity.

"Al-Ghanoushi was reasonable and responsible in taking this political [decision]. He read the reality well, and gave priority to the unity of the homeland. In contrast, our brothers [in Egypt] who insist on removing the word 'principles' [from Article 2] and replacing it with the word 'directives' [namely the Salafis] are thinking like preachers who are living in the past and have lost touch with reality and with the homeland. The difference between the two approaches is the difference between open-mindedness and intelligence [on the one hand] and blind narrow-mindedness [on the other]. Practically speaking, the principles [of shari'a], in the sense of its overarching intentions, are more important than its 'directives,' in the sense of its details... Closed-minded secularism is no different from its equivalent in the Islamic camp... There is no difference between one who insists on imposing the directives of the shari'a and one who insists on erasing [Egypt's] Islamic identity."   

The MB, which advocated leaving Article 2 unchanged, and opposed the November 2012 protests held by Salafis in demand to implement the shari'a, was accused by many of abandoning the shari'a. The movement defended its stance in a communiqué posted on its official website: "For us, the shari'a is a complete way of life... The penal code of the shari'a is just and precise, for punishments are [only] applied after all the conditions for proving [the perpetrator's guilt] are met. [However,] society must first of all be prepared for understanding and accepting the shari'a, and must be led gradually to its practical implementation. [We] must [first] implement the general intentions [of the shari'a], which society is in need of, [by] observing religion and protecting life, reason, capital and property, so as to ensure the material and mental security of society."

The communiqué clarifies the MB's understanding of the expression 'principles of the shari'a': "The shari'a is based on a system of fundamental principles that are unique to it, in contrast to all man-made laws: leniency rather than severity; removing [the threat of] injustice and harm from individuals and society; placing the public good above the good of the individual and the avoidance of harm over the making of profit; a balance between the rights of the individual and of society; and other well-known shar'ic principles. Basing the laws [of the state on these principles] guarantees the security, welfare, and stability of society... The Islamic shari'a is the most important issue we deal with and aim to inculcate in society. Our brothers sacrificed their lives and suffered in jail and detention for many decades for the sake of this [goal], so we cannot conceivably give up the demand for this glorious shari'a... The MB always strove to grant the shari'a its rightful status in the constitution, so as to enable parliament to codify the laws of the Islamic shari'a, with Allah's help..." 

Woman carrying a placard saying: "The Shari'a Is Our Constitution"

Article 219: An Opening For The Implementation Of Shari'a

Article 219 was added to the constitution as a clarification of Article 2 in order to satisfy the Salafis. It states: "[The expression] 'principles of Islamic shari'a' refers to the general methods of juridical argumentation, to fundamental juridical rules and principles, and to the [written] sources recognized by the Sunni juridical schools." The purpose of this article is to avoid narrow interpretations of Article 2, such as the liberal interpretation, according to which the principles of shari'a are synonymous with universal principles of freedom, justice, and equality, or the interpretation given to it by the Supreme Constitutional Court in 1996, according to which future (but not existing) legislation must conform only to the parts of shari'a whose validity is absolute and that are not disputed among different schools in Islam. Article 219, in contrast, gives Article 2 a broader reading, which would enable the implementation of a larger part of the shari'a and requiring legislation to conform to the principles of Sunni law – although it is unclear how broad the interpretation will actually be. The MB clarified that the Article 219 refers to "everything stated in the Koran and proper Sunna" and "the foundations stemming from all the methods of juridical argumentation that are undisputed and fulfill the intentions of the shari'a," and that the expression "sources" refers to "the Koran, Sunna, ijma', and qiyas."

Article 219 is meant to enable the MB to counter the Salafi claim that it forewent the implementation of the shari'a by objecting to amending Article 2, since Article 219 opens the door to the codification of the shari'a. Out of consideration for liberal circles, this article was placed toward the end of the constitution, and not immediately following Article 2, in order to indicate that it is of lesser importance. Therefore, it is still unclear how this article will influence legislation in practice.

The addition of this article was acceptable to the Al-Nour party, which is represented in the Constituent Assembly, but it did not satisfy all the Salafis. Thousands took to Al-Tahrir Square in protests organized by Al-Gama'a Al-Islamiyya and the Salafi Front on three Fridays in November 2012, protesting against Article 2 and demanding to implement the shari'a.

Article 219 was also criticized by liberals, Copts and Shi'ites, who see it as an opening for discrimination against all those who are not Sunni Muslims. For example, recently elected Coptic Patriarch Tawadros II said that, while he accepted Article 2, Article 219 is "a catastrophe that transforms Egypt from a civil state to the complete opposite." Dr. Khaled Fahmi, head of the History Department at the American University in Cairo, wrote on his Facebook page that Article 219 discriminates against the Shi'ite school of Islam and therefore violates the rights of Egypt's Shi'ite citizens.

Muhammad Al-Sayyed Salim, a political science lecturer at the University of Cairo, wrote in Al-Ahram: "It is unclear why the two articles [2 and 219] were not placed together... Was the idea to hide Article 219 by putting it at the end? We know that there is deep controversy among religious scholars of the various Sunni streams and schools of thought... regarding those fundamental juridical principles and sources [mentioned in Article 219], especially when it comes to political matters, chief among them the system of government. Can we [really] know what the 'fundamental juridical rules and principles' and the 'general methods of juridical argumentation' [say] about [the issues of] shura or the status of women and non-Muslims in the political sphere or about the international relations of an Islamic state? There are deep disagreements between [different] juridical schools of thought about these issues, and deciding [issues] based on controversial [opinions] opens the door to interpretations by [Al-Azhar's] Supreme Council of Clerics [a body disbanded by Gamal 'Abd Al-Nasser in the 1960s and reestablished after the 2011 revolution], establishing them as the rulers of society, like the Rule of the Jurisprudent [in Iran]..."

It must be noted that Article 222 of the draft constitution states that laws legislated in the past will stay in effect, but can be amended to conform to the new constitution. This means that the Islamic camp may demand the revision of existing laws in accordance with Article 219.

Article 3: Religious Tolerance Towards Members Of The Monotheistic Faiths

Article 3 states: "The canon principles of Egyptian Christians and Jews are the main source of legislation for their personal status laws, their religious affairs, and the selection of their spiritual leaders." Most Salafi streams objected to the addition of this article, on grounds that the Islamic shari'a guarantees minority rights anyway, and therefore, since the shari'a is defined as the main source of legislation, there is no need for a separate clause ensuring their rights. Some even objected to the mention of the word "Jews" in the constitution, claiming it might lead to an increase in the number of Jews in Egypt and to espionage.

The MB and Al-Azhar, on the other hand, were willing to accept the addition, provided that it would apply only to monotheistic religions and not to non-Muslims in general, so as to exclude groups they consider deviant, such as the Baha'is, Buddhists, Qadianis, and Quranists. This article was meant to create the impression of tolerance and to appease Copts who claim that Article 2 could serve as a basis for their discrimination.

The Coptic Church indeed accepted the article, but within the Coptic community in Egypt there were those who objected to it, on the grounds that it is a trap meant to get Copts to agree to Article 2 while enabling the Muslims to boast of their tolerance towards the Copts. They added that Article 3 would not really end the suffering of Copts so long as there was no equality in rights and duties among all citizens, due to the status of Islam as the state religion and of the shari'a as the primary source of legislation. Some in the Coptic community also explained that they did not want separate cultural rights, but only to be equal citizens and equal in the eyes of the law. Another argument was that Church laws are even more restrictive than Islamic law, especially in the domains of inheritance, as well as the law banning divorce, except in cases of adultery.



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