In a democratic state, a constitution is supposed to express in words the basic values of its citizens and state the foundational principles that will guide the conduct of the government in a way that reflects the values that most of the citizens believe in, led by the value of freedom. The constitution is intended to limit the powers of government and to defend the citizen from the whims of those in positions of power.
Even in dictatorial states there are laws, however they are mostly not effective; they do not defend the citizen from the power of the government, and the recent situation in Syria is a convincing proof of this fact. In dictatorial states the constitution is the tool that is used to carry out the will of the dictator, as well as his intentions and sometimes even his excesses, while he shuts the mouths of his opposition with the usual claim that everything he’s doing is in accordance with the constitution and the laws that are based on it.
Egypt, after the revolution of January 25th 2011, is a state that has freed itself from the burden of a dictator, Husni Mubarak, who, together with his cronies and predecessors, the officers, ruled Egypt since July 1952 in accordance with a constitution that served as a fig leaf to cover up the fact that the government was entirely in his hands, and the whole country revolved around him as if he were a god.
Now the Egyptians want a different constitution, a “democratic” one, which on one hand will promise that the government will not become a dictatorship again, and on the other hand will express the basic values of the society and defend them. This is the reason that Egypt needs a new constitution, because the previous one was nothing more than a tool to serve Mubarak.
The reality of recent days is that certain groups are not pleased by the way that President Muhammad Morsi is trying to secure the constitution by referendum, so they go out into the streets to express their opinion with demonstrations that sometimes deteriorate into acts of mass violence, injuries and deaths. In order to simplify the discussion for the purpose of this article, we will say that the population in Egypt is divided into three main groups: the Secular, the Muslim Brotherhood and the Salafis.
The secular group wants to turn Egypt into a modern, liberal, open, Western style state, that is neither religious nor traditional in character, where the status of citizenship is equal for everyone, and takes the place of all of the other ethnic, tribal, religious, and sectarian affiliations.
The Muslim Brotherhood wants a religious state, in which Shari’a rules but does not prevent the state from adopting modern tools that exist in the world. They are in favor of women’s participation in public activities, with limitations for modesty, and believe that it is important to integrate the Coptic citizens – who are Christians – into the society, economy and the various governmental systems. But equality among citizens is seen as problematic, because according to Islam a Muslim and a Christian can never be equal, since the Christian is a “ward of the state” (dhimmi) who, according to the Qur’an (Sura 9, Verse 29) must exist in the shadow of Islam and under humiliating conditions. The statement that women are equal to men is problematic for them too, because of traditional concepts that say that “the men are responsible for the women” (Sura 4, Verse 34).
The Salafis want to see the implementation of Islamic Shari’a in all areas of life, and do not accept the adoption of any Western, modern characteristic. They insist on regarding Copts as class B citizens, and do not accept the idea that women should have public positions. They take literally the saying attributed to Muhammad, the prophet of Islam: “The best hijab for a woman is her home.”
The main problem with the constitution in Egypt today is that every one of these three sectors sees the revolution as his own revolution, defines “democracy” according to his own concepts and values, and if the new constitution goes in a different direction then he will claim that “they stole the revolution,” he will go out to the streets and will raise hell. The only common factor to all of the sectors is their avowed refusal to allow a dictator to take control of the state, even though each one of them would agree that whoever represents their world view should rule with broad powers. In other words: each sector would agree to a “soft dictator” if he would represent that particular sector’s world view.
Below, we will examine some of the articles of the proposed constitution from the point of view of each one of the sectors, which, as noted above, are divided broadly into three groups. The reality is far more complex, because each one of the three sectors is composed of sub-sectors, who disagree with each other on most matters.
We will preface this discussion by saying that there are more than a few Salafis who view the constitution in a negative light as a matter of principle, because the constitution is a human creation, while the true and only constitution of a Muslim is the Qur’an, of heavenly creation. According to this approach, the law of a Muslim state must be the Islamic Shari’a; therefore all laws that are legislated by any human legislative body are null and void in principle. The legislator must be a religious figure who acts with religious, not civil authority: These Salafis are not considered to be participants in the argument over the constitution, because from their point of view it cannot exist.
The first article of the constitution wins universal approval of the delegates: “The Arab Republic of Egypt is an independent and sovereign state, unified and indivisible, whose regime is democratic. Also winning general approval of the legislators is the statement that the Egyptian people is a part of two nations: the Arab and the Islamic, and it is proud to be part of the Nile Valley and the continent of Africa, and its Asiatic continuation, and of its positive contribution to human culture.”
The problems begin in article two: “Islam is the religion of the state, Arabic is the official language and the principles of Islamic Shari’a are the main source of legislation.” There are a few explosive issues in this article. The first is that Islam is the religion of the state. According to the religious perspective, this statement is essential, but it is in contradiction with subsequent clauses of the constitution that state that every citizen of Egypt is equal to every other, because according to Islam, a Christian does not have equal rights to those of a Muslim, and a woman does not have equal rights to those of a man. A second explosive issue is the statement that the basis of legislation is “the principles of Shari’a” and not Shari’a itself. The word “principles” is a general word, not well defined, and there is disagreement as to its meaning. “Principles of Shari’a” is not religious law, and therefore they are merely vague assumptions. According to the Salafi perspective, the use of the term “principles” is intended to limit the practical influence of religious Islamic law to matters of personal status, mainly marriage and divorce.
The statement that “Arabic is the official language” of Egypt excludes the Nubian minority in south central Egypt, who do not speak Arabic.
The third article: “For Christian and Jewish Egyptians, the principles of their religious law are the main source of legislation for managing private, religious matters, as well as the method of choosing their spiritual and religious leaders.” This article is problematic in the eyes of the religious Muslims, because it grants legal validity to Jewish and Christian religious law, while Islam sees these religions as “din al-Batil” – “invalid religions” or “false religions.”
The fourth article is also problematic because it states that the (institution) of al-Azhar is an independent and all-encompassing Islamic authority (there are no other bodies with religious authority), manages its own affairs (no one can appeal its rulings), and its role is to spread the call to Islam, religious studies and the Arabic language in Egypt and the world. The opinion of the Committee of Religious Scholars in al-Azhar will be taken into account in all matters that are connected with Islamic religious law. The sheikh of al-Azhar is independent and cannot be removed, and the law states how he will be chosen from among the Committee of Scholars. The state will fund the expenses of al-Azhar in such a way that will enable it to achieve its goals, and all of this will be settled by law.
The main problem with this article is that the ruling on all matters of religion, including those that deal with administration of public and state matters, are subject to the consideration of al-Azhar. This means that al-Azhar has the authority to interfere in matters of state, and this is not acceptable to the secular sectors. The Salafis do not see al-Azhar as the beacon which guides their steps either, because they feel that al-Azhar collaborates with the regime. It was also true in the days of Mubarak and his predecessors when the role of al-Azhar was to create religious rulings that were suitable to the agenda of the regime, and not to true Islam. The salaries of the al-Azhar people are paid from the state, meaning the coffers of the regime, so there is the suspicion that the religious rulings they issue reflect the opinion of the regime. The exclusive religious authority that the constitution grants to al-Azhar contradicts the view held by many Salafis, who accept only their own rulings.
The fifth article has a general statement that is acceptable to everyone: “Sovereignty belongs to the people, who act accordingly, and defend it; the people preserves its patriotic unity, and is the source of authority, as is annotated in the constitution.”
The sixth article, on the other hand, is full of potentially explosive material: “The political system is built on principles of democracy and dialogue, equality of citizenship for all citizens, with equal rights and civic responsibilities, pluralism for political views and parties, orderly transfer of power, division and balance of powers, sovereignty of the law and honoring human rights and freedoms. All of this as annotated in the constitution. It is illegal for a party to be founded on the basis of discrimination between citizens, because of differences in gender, ethnicity or religion.”
The many problems in this clause relate to Islam: “Dialogue” – in Arabic “Shura” – stems from the statement in the Qur’an (Sura 42, Verse 38) that “the kingdom of the Almighty is dialogue among people,” a sort of “the voice of the masses is like the voice of G-d” in Judaism. This sort of pronouncement angers the secular people. The expression “citizenship is equal for all citizens” means that a Muslim is equal to a Christian, and this angers the religious. The “division of authorities” is not acceptable to the religious either, because the Creator of the world is the law-maker, He is the executive and He is the judge, so how is it possible to divide the powers into three different, separate authorities, which may disagree with each other?
The prohibition in this clause “to establish a political party on the basis of discrimination between citizens because of differences in religion” creates a potential threat to the Salafi parties, who therefore see it as a tool that the Muslim Brotherhood will use to close down the Salafi parties, which nibble at the support of the Brotherhood.
Article 10 touches on family matters: “The family is the basis of society, and it is founded on religion, morality and nationalism. The state and the society will adhere strictly to the original character of the Egyptian family…” The statement saying that the family is based on religion is interpreted by secular groups as a prohibition on civil marriages, which are common today in the cities of Egypt, and a prohibition of relations between men and women outside the framework of the traditional family. The secular people see this clause as severe religious coercion of the individual.
The religious character of the constitution is evident in article 11 as well: “The state will monitor morality, appropriateness of behavior, and public order, it will assure a high level of education, religious and patriotic values, respect scientific facts and preserve Arab culture and the historical and cultural legacy of the people…” The state monitoring of morality is perceived by the secular people as the” modesty police,” which will punish adult men and women for behavior that Morsi and the Muslim Brotherhood view as immoral.
State monitoring of “scientific facts” is seen as an Islamic threat to scientific research, because Islam does not accept such theories as Darwinism, does not agree to many historical statements such as – for example – that Jerusalem was the capital of the Jews, and especially does not accept scientific analysis of the Qur’an and the hadith, the oral tradition of Islam.
On the other hand, Salafis see the remnants of Pharaonic culture that are located throughout public areas and in museums in Egypt as something that is totally negative, because the Pharaohs were infidels and idol worshipers, so if the state oversees the “historical and cultural legacy of the people” and preserves it, it actually would be acting against Islam.
Article 24 deals with education: “Religious education and Egyptian history are two basic subjects that will be included in the educational system of all types, and until university.” Religious education? For secular students?
Later in the constitution, in Chapter 3, the authorities of the president are spelled out. One of them is “The president of the republic, with the agreement of the government, will declare an emergency situation only in the way that the law prescribes.” Since the president controls the government, this clause grants him authority, in effect exclusive authority, to declare a national emergency, in which the civil rights of individuals, groups and political parties will be cancelled, and the president will actually have the ability to shut down free political life and turn himself into a dictator, all with the sanction of law.
Another article relating to the president states that only a majority of two thirds of the members of the parliament can remove a president from office. With the present state of affairs, in which the Muslim Brotherhood has about one half of the seats of parliament, a statement such as this means that there is no possibility of the parliament removing the president from office, even if it has the legal right to do so.
Thus, by weaving this fine fabric, President Morsi is about to present the Egyptian people with a constitution that is custom made for him, for the shoulders of a leader of the Muslim Brotherhood, who set for himself the objective of imposing Islam on all of the circles of the country. Therefore it is no miracle that the youth of the revolution of the 25th of January 2011, who removed the secular dictator Mubarak and his corrupt cronies with their own bodies, stream once more in great numbers into al-Tahrir Square, to protest against the takeover by another sort of dictator, this time a religious one. They hated Mubarak, and they fear Morsi.
The Muslim Brotherhood, who are in accord with the ways of president Morsi, claim that the majority of the population supports them and their way, and therefore they have the right to impose their agenda on the whole country. Otherwise, why did the Almighty bring them to power, in the parliament as well as the presidency? Is there greater proof than this for their right, and even their duty, to impose Shari’a on Egypt?
The Salafis see the constitution as something totally unacceptable, and there are those among them who work – even if very cautiously – against accepting the constitution, but since they are still a minority, they are careful not to anger the president and the Muslim Brotherhood gangs who feel that they are in charge, and go around in the streets of the cities searching for people who disagree with their opinion. No one would want to meet up with them when they are angry.
Since there is a lack of societal mechanisms for conflict management, a situation is created in which people turn to the use of force as a first choice, and from here it is a short distance to total chaos that might sink Egypt in a swamp of fire, blood and tears. The citizens of Egypt, who were miserable under the rule of Mubarak, at least could eat the little that they could acquire, while today, almost two years after the revolution, they live in much more acute misery, with the plague of hunger threatening the country that in the past was “the bread basket of the Middle East.”
The peoples and the rulers of the Middle East are absorbed by the obsession to live according to a constitution: they expect the constitution to defend them from dictatorship, and the rulers expect that the constitution will justify their undesired, unaccepted and illegitimate rule. The obsession stems from a concept called the state, which has become an invalid entity because most states in the Middle East are artificial states that were created by colonialism and for the good of colonialism only, and therefore include ethnic, tribal, religious, and sectarian groups that differ from one another and hate each other. Therefore, the elite class that controls them needs the document called a constitution, to act in accordance with it, to have it be accepted in the hearts of the various groups and to use it to justify their illegitimate regime.
The public – which is aware of the strange role that the constitution plays – objects to it, as we see these days in the streets of Egypt and its public squares.
In contrast, Israel has no constitution, but it is a stable and strong state because of its legitimacy in the eyes of most of the citizens as a political framework and governmental system. Arab states have a constitution, but they are not stable because these states lack legitimacy as a framework for ruling . The constitution, as important as it may be, is not a cure for the genetic illnesses of the states of the Middle East. Stability and serenity will come to the area only when the borders that colonialism demarcated are erased and on the ruins of the present failed states, smaller states will arise but with homogeneous populations in each. These states will be legitimate in the eyes of their citizens and therefore also politically stable and economically successful, and redemption will come to the Middle East.
Originally published December 7th, 2012 at Middle East and Terrorism.Dr. Mordechai Kedar
About the Author: Dr. Mordechai Kedar (Ph.D. Bar-Ilan U.) Served for 25 years in IDF Military Intelligence specializing in Arab political discourse, Arab mass media, Islamic groups and the Syrian domestic arena. A lecturer in Arabic at Bar-Ilan U., he is also an expert on Israeli Arabs.
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