Egypt's beleaguered Constituent Assembly (CA) moves closer to completing the long-awaited draft constitution. The 100-strong panel, which was picked in June, is headed by senior judge Hossam el-Gheriany. Its constitutionality is currently being examined by a court. The CA has been harshly criticized for its large proportion of Islamist-leaning members and for its exclusion of Copts, women, Nubians, Bedouins and other minorities. They accuse the CA of throwing away the economic and social rights of Egyptians. Last June, a number of liberal members and representatives of non-religious parties initiated a mass walkout to protest what they saw as the assembly's unrepresentative character. Their stated reason for resigning from the assembly was to allow greater representation for women, young people and Coptic Christians, while also registering their objection to perceived "Islamist monopolization" of the constitution-writing committee.
There are those within the liberal/secular/non-religious camp who believe that the current constitution, even if it is approved in a popular referendum, will be a merely temporary document tied to the current Islamist political majority rather than a CONSTITUTION as the primary contract or “law of the land” by which the government of a nation or state is set out and organized, and to which all of government, citizens, corporate persons and other laws must defer in the event of any conflict.
The troubled assembly still faces the risk of dissolution by court order on grounds that it was drawn up by the now dissolved People's Assembly, the lower house of Egypt's parliament. In October, Egypt's Supreme Administrative Court is set to rule on the assembly's constitutionality, or lack thereof. There is a possibility that the CA can be dissolved by a court ruling sending the constitutional process back to square one. The Supreme Administrative Court, however, seems to give the time and the chance for the CA to conclude its work. There are those who believe that the Court will not intervene due to the difficult and messy political state of affairs in the country.
The opponents of Islamists as well as the legal commentators merely put much emphasis on the criticism of the composition of the CA and the draft of the new constitution infringing on freedoms, and it seems as if they do not realize the extent to which Qur’anic narratives are infused into the new constitution. There are a number of issues regarding the role of religion in the process of constitution building that will be discussed below and should be discussed within IDEA in so far as the constitution building in the WANA region is concerned. I am not aware if these issues were discussed earlier, especially in the Indonesian context. However, the issue of infusing Qur’anic notions and concepts into the constitutions of Egypt, Tunisia, Libya and elsewhere in the WANA region are worth to be illuminated and discussed.
THE CULTURE OF SELF-SUFFICIENCY
Egypt is known for having one of the earliest administrative and legislative codes in history. Throughout the history of this old country, formidable human cultures and civilizations were incepted and brought into being by offering the most advanced form of governance and management. Occasionally, this self-perception plays out against the need to learn from cross-cultural experiences from other countries that have gone through similar political transition.
Prominent legal experts and some CA members have voiced objection to seeking assistance from constitutional experts or politicians from other parts of the world. The process of writing a new constitution is a case in point. They voiced the often repeated dicta: Egypt has all what it needs to write its own constitution, since the Egyptian legal experts wrote or helped to write the constitutions of the region (i.e. Saddam Hussein’s Iraq, Yemen, Assad’s Syria, Kuwait, Gulf states, to mention only a few). For example, last week one political activist has been urging Egypt's secular camp to communicate with the European Parliament and the United Nations Human Rights Council. His call was not met with any enthusiasm even among his own peers on the secular camp!
THE ASCENDANCY OF QURA’NIC CONCEPTS AND DISCOURSE
At the heart of the controversy with writing the new constitution and the stalemate within the CA, Islamists that were swept into power by electoral landslide are tempted to think that “at last we can dictate our ultimate goal of envisioning the Islamic Umma”. The Islamists in the CA – from the Salafi Nour Party and the Muslim Brotherhood – are seeking a more comprehensive implementation of Sharia. It is not clear, however, on which premises or how it will be operationalized and integrated into a modern jurisprudence. It is important, therefore, that Islamic notion and concepts have to be operationalized into workable politics and precise legal framework. This seems not to be the case in the current draft of the new Egyptian constitution.
The text of the new constitution identifies the people who live in the country as those whose identity is primarily Islamic. The sovereignty of a clear defined territorial state and the people as the citizen/national of the state was relegated to a secondary importance. The most serious fallacy, though, with the new constitution is that it has been dominated by the imprecise Qur’anic concepts of politics and discursive formations of Umma, Sharia, and Shura and so on. Discursive formations here is taken to be the ways of establishing orders of truth, or what is accepted as 'reality' in a Muslim Umma/society. Let us discuss in some detail these three concepts for the sake of illumination.
First, the concept of “Umma” refers in the Muslim narrative to the community of believers that Prophet Mohamed had established in Medina between the years 622 to 632 AD. The concept is vague and even confusing politically and legally insofar as it contradicts the “universal” claim of Arab/Islamic Umma with the “local” call for nationalism in the sense of being “Egyptian”. This discourse maintains the fictive nature of the post-colonial Arab state that has been plagued by overlapping and, ultimately, confusing identity of religion, Arabism and ethnicity. To have a constitution that maintains these values instead of replacing them with clear conceptions of citizenry, equality and human rights, will constitute the blow for the aspiration to transition to democracy.
Second, Sharia law literally means the religion of Islam’s code of conduct. Islamic scholars refer to Sharia as the Islamic system of law and the totality of the way of life. To Islamists, Sharia law was founded on the words of Allah as revealed in the Quran, and traditions gathered from the life of the Prophet. It is the “law of Allah” and bound to be the best of all since it is derived from the Qur’an (Allah’s Words) and the Sunnah (the sayings and practices of the Prophet). Therefore, Sharia can very well guide all aspects of Muslim public and private life. Islamists believe that the Sharia law expresses the highest and best goals for all societies on Earth.
Sharia law has been adopted in various forms by many countries, ranging from a strict interpretation in Saudi Arabia, Iran, and northern states of Nigeria, Sudan, Taliban-ruled Afghanistan and al-Qaeda occupied Somalia, to a relatively liberal interpretation in much of Malaysia, Pakistan, Bahrain, Yemen and United Arab Emirates. There are utterly miserable experiences of practicing Sharia law in Muslim countries. Examples abound, whether by the Sudanese dictator like Jaafar Nimeiry or by a democratically elected politician like Zulfiqar Ali Bhutto in Pakistan. Family matters such as marriage and divorce are the most common aspects of Sharia law practiced in most Muslim nations. Even somehow democratically ruled Muslim nations such as Bangladesh, Pakistan, Indonesia, Turkey etc., family matters (inheritance, marriage, divorce, child custody etc.) are governed by Sharia law, till today.
Therefore, it is important to illuminate that the concept of Sharia (like that of Liberalism, Socialism, etc.,) can mean different things to different people. Modern experience from applying Sharia throughout the Muslim world confirms this view. Throughout history, people in different countries and in various local communities often do not distinguish clearly whether and to what extent their norms and practices are based on local tradition, tribal custom, or religion. Those who adhere to a confrontational view of Sharia tend to ascribe many undesirable practices to Sharia and religion overlooking custom and culture, even if high-ranking religious authorities have stated the opposite. Having followed the Islamists’, and especially the Salafis’, of Egypt, Libya and Tunisia, debate on adopting Sharia law in the post-revolutionary constitutions is the paragon of virtue.
Third, Vague Islamic “concept of Shura” is given a primary place, especially in the first Article. The word of Shura is mentioned three times in the Quran as an admirable pursuit, and is a concept to depict the ideal way from Muslim to organize their affairs. The Quran makes “Shura” or “participation with others in making a decision that concerns them,” subsequent to and a consequence of the faith in God. So while the concept of Shura might provide some support for democracy within the context of Islamic theology, by itself this argument is too simple. While some Islamists claim that Shura serious and effective participation in making a decision, there are no elaborations in how the principle can be put in a workable political framework.
On the other hand, Democracy as an ideology has survived as comprehensive intellectual tools for change. Democracy has maintained its common appeal to the modern human mind, at least with regards to its basic principles, in spite of the considerable criticism that it has been facing conceptually and practically. There is confusion between “democracy” and the concept of “Shura”, which per se is a vague idea, even in Islamic jurisprudence.
By the same token, in Article 9 there is proviso to protect the prophet of Islam and the messengers of the Abrahamic religions, which maintain the fact that Egypt has to be “a religious state” and more precisely Sunni – one that seriously undermines the concept of citizenship and equality between the people in a modern democracy.
WOMEN ARE TRAPPED BETWEEN LACK OF CULTURE OF ORGANIZING AND ISLAMISTS’ OUTLOOK
The new draft of constitution includes a paragraph that would limit the rights held by women to those compatible with the “rules” of Islamic jurisprudence. Every other aspect of the draft constitution is constrained merely by the “principles” of Islamic jurisprudence, a less arduous interpretation. The 1971 constitution, contained a paragraph that also constrained women’s rights according to the rules of Islamic jurisprudence, but in the current political landscape dominated by Islamists, there is a fear that the wording will maintain the underprivileged status bestowed for women’s rights.
This says it all: only seven women, most of whom share many of patriarchal and conservative values dominant within the Assembly, were chosen to participate in the CA. Despite protests from lawyers and women’s rights activists, the paragraphs on women’s rights seem to go the Islamists way. In a country with weak “culture of political organizing”, there are now connected, well-organized and inclusive grassroots women’s organizations in Egypt that could be able to dictate their rights in the new constitution. The same applies, more or less, to Libya and Tunisia. The political and societal organization of women is an area where International IDEA needs to work in the region for many years to come.
CAN AN OPEN POLITICAL SPERE RENDER ISAMISTS MORE DEMOCRATIC?
Islamists’ views on the politics of the region, including the writing of the new constitutions, are put forward with a kind of self-righteousness that most of their opponents are lacking. Indeed, Islamists have basically won the battle of public discourse, they have also spent decades systematically reshaping the public culture throughout the region. And why should Islamists, with no democratic culture to speak of, behave like good democrats who believe in pluralism? Islamists were thus naturally well positioned to take advantage of the new political atmosphere after the Arab revolts. By no means, the transitional process toward freedom and democracy could have avoided the reality of significant presence of Islamist in the region at all levels of society.
The Salafi influence on the drafting of the new constitution has triggered a deep sense of anxiety that would, ultimately threaten the transition to democracy and the aspiration for freedom and equality. The contradictions of ultraconservative religious aspiration clashed with day-to-day politics of the chaotic political landscape of Egypt. The Political Salafism that became prominent after the Egyptian Revolution is in fact the most dangerous product of the police state and the stagnant society of the authoritarian regimes that ruled Egypt since the early 1950s.
In the new political atmosphere after the Arab revolts we are witnessing an enormous political energy within these societies and the only way for the Islamists to remain at the center of political life is to adapt – it is a simple Shakespearian logic, be or not to be! The Islamists have always been reluctant to democratic values seemingly contradict their religious outlook. The Muslim Brothers as well as the Salafis are entering into a political arena that stamped by various restraints that will not only limit their presumed “ultimate goal” of envisioning an Islamist Umma, but also the open social and political sphere will push them toward more adaptation with Realpolitik and, ultimately, democracy.
The coherence of the Islamist organizations is dependent on the coherence of their political arms/parties, and so the weakness of the political arms would dismantle the Islamist organization by making them more fluid as they, ultimately, lose support from hesitant members, as was the case with the youth members of the MB during and after the revolution. Indeed the largest Salafi party, al- Nour who grabbed almost a quarter of the votes when civilian powers combined could not seize as many has shocked the Egyptian polity, is experiencing, as we write, a battle of life or death. The internal rift within the party comes as a natural cost for being politically active in the public sphere. Even the Muslim Brotherhood were not spared the internal conflict between different factions within the organization that spilled out publicly between President Morsy and those who oppose his policies within the MB, most notably the MB kingmaker, Khairat el-Shater. President Morsy has to show that he is the president of all Egyptians and not the Muslim Brotherhood’s president of Egypt. So far, President Morsy has a quite good approval rates, much better than his electoral mandate.
The religious-civilian polarization and all the sectarian publicity led by Salafis was in fact a project to stifle the dream of democratization that the young revolutionaries of Tahrir sought to achieve through sectarian incitement and fascist practices. The ball is now in the court of the secular, liberal and democratic powers that should provide a coherent alternative capable of mobilizing the public, not the least for the sake of reflecting the wide spectrum of the Egyptian society within the political institutions. In the open landscape of Egyptian politics, Islamists seem to go through the phase of self-discovery as they figure out their margin of maneuver and the ability to envision an Islamist Umma. However, the Egyptian open political landscape could possibly reveal the contradictions within the Islamist project and potentially its bankruptcy.
As was the case with the religious movement that went into politics in Europe, Latin America, India and more recently Indonesia, the liberal and secular movements can create the dialectic of political equilibrium. For the time being, comparing Islamists of the WANA region with other world regions (such as Latin America) are difficult, since WANA is the only place where the dominant opposition consists of strongly centralized and ideological parties with a religious agenda.
There are good examples elsewhere in the world that can be an inspiration to transform Islamists in the region of the state of self-discovery to honest players in the game of democratic politics. The Congress Party of India was able to coopt with the communalist ideology of Hindu nationalists, most notably Bharatia Janata Party (PJP) in the 1980s and, thereby, helped bring these religious/nationalist movements into the ideological mainstream. In the 1990s, through the game of democratic politics, the PJP went from almost political obscurity into a holder of state power. Another example is the case of the Greek, Spanish and Portuguese communist parties of the late 1970s: Like the Islamists of Egypt and Tunisia, they too benefited from a democratization process that they did not trigger. Yet the European communists never achieved the control over elected parliaments that Islamists now enjoy in WANA region. Whatever their agendas, the communist parties had no choice but to negotiate and play into Realpolitik.
Hamdi Hassan is a Senior Political Advisor, West Asia and North Africa Programme, International Institute for Democracy and Electoral Assistance
