This article was originally published on Al Jazeera English on October 20, 2012.
Cairo — If all goes according to plan, the committee drafting Egypt’s new constitution will produce a final draft within the next few weeks, and it will go before the public for a vote.
But so far little about the process has run smoothly. The committee unveiled a preliminary draft last week, which says almost nothing about the structure of Egypt’s new government - the balance of powers, the role of the judiciary, and other key issues. Internal debate on those topics is largely deadlocked.
The debate has instead focused on cultural issues - on “how much sharia we should have,” as one source on the committee described it, referring to Islamic law.
Egypt’s liberal factions are angry with amendments about women’s rights and the role of religion in the state. Some have already walked off the 100-member constituent assembly which is drafting the constitution, only to return days later; others are threatening to boycott future meetings, or to vote “no” on the final draft.
Their political opposites, the salafists, are vocally pushing back from the opposite direction, arguing that the draft grants too many personal freedoms and fails to protect traditional social mores - as defined by the salafists.
And all of this could be for naught: The Cairo administrative court is due to rule next week on a lawsuit calling for the constituent assembly’s dismissal. It would be the second dissolution this year: An April ruling threw out the first assembly, which was appointed by the now-dismissed parliament and stacked with Islamists. Liberals walked off that committee, too, as did Christian members and even the representatives from Al-Azhar, a key centre of Sunni Islamic scholarship.
A favourable ruling would discard months of work, and it would empower president Mohamed Morsi to appoint a third assembly, likely deepening the fault lines between Islamists and their secular-leaning counterparts.
“There are two scenarios, and both are equally bleak. Either we’ll have a third cycle of the same... or something mediocre is going to be passed, and compromises will be made on important issues,” said Rabab al-Mahdi, a professor and political activist who was a member of the first assembly.
Controversial Articles
Article 2: Declares Islam the state religion and the "principles of sharia the main source of legislation.
Article 4: Regulates Al-Azhar.
Article 9: Stipulates that the state should "ensure the authentic character of the Egyptian family"; earlier versions also prohibited blasphemy.
Article 46: Citizens have the right to organize, as long as their associations "respect national sovereignty."
Article 68: Declares men and women equal, except where that contravenes "the rulings of sharia."
The assembly promised a transparent process, but much of its work has proceeded in secret, with occasional (often contradictory) leaks to the media. The preliminary draft released at a press conference on Wednesday was the public’s first look at their new constitution.
Speaking at a press conference in the gilded offices of the Shura Council, where they have spent the last few months debating, members of the assembly encouraged the public to comment on the draft on their website. Mohamed Beltagy, a senior member of the Muslim Brotherhood, urged people not to obsess over the cultural issues, arguing that last year’s revolution was about expanding rights and social justice.
“Some are trying to settle their own battles and achieve delusional victories through articles in the constitution, without realizing that the constitution was designed to regulate disagreement rather than resolve disputes or allow lawmakers to interpretsharia,” said Mohamed Mahsoub, another assembly member and a minister in Morsi’s government.
But those battles have become paramount, perhaps because so many other articles in the draft are bland, unobjectionable - and somewhat implausible - pronouncements. One article demands “justice, equality, freedom, mercy, social solidarity [and] camaraderie”; another calls for economic equality and a “decent life for every citizen”. Article 17 protects Egypt’s beaches. “Nobody is against social justice,” said Elijah Zarwan, a Cairo-based senior policy analyst at the European Council on Foreign Relations.
So the main arguments have been over items like article 2, which specifies that Islam is the state religion, Arabic the state language, and “the principles of sharia are the main basis for legislation.” That language is unchanged from the previous constitution, which was drafted in 1971.
Liberals are largely willing to accept this formulation, because there are no fixed “principles” of Islamic law. The salafists on the assembly, however, want to close that loophole, replacing the Arabic word for “principles” (mubaadi) with the word for “rulings” (ahkam). A few go even further, scrapping the qualifier altogether and making “the sharia” the basis of legislation.
“The salafis... see this as a fundamental identity battle. The liberals of course also see this as an identity battle,” said Heba Morayef, the Egypt director at Human Rights Watch, which has been critical of the drafting process. “The Brotherhood is somewhat in the middle, and their priority, I think, is just to make this work. They want this out of the way as soon as possible.”
Looking to avoid a liberal walkout, the Brotherhood seems to have deferred to them on article 2: The draft preserves the word “principles”. Salafists on the assembly say they recognise this as a losing battle, so they have turned their focus to a new provision, article 4, which regulates Al-Azhar.
It stipulates that Al-Azhar’s opinion “shall be taken in matters related to Islamicsharia”; salafists want to take this further, making Al-Azhar the sole source of jurisprudence. Many fear this clause will politicise the Sunni world’s most celebrated theological college, and would give an unelected body a sort of veto power over legislation.
The other main battleground so far has been women’s rights, particularly article 68 (previously article 36), which ensures the equality of the sexes provided “this does not conflict with the rulings of sharia”. It is the only article in the draft that uses the word “rulings,” a harder-line interpretation seen as a sop to salafists. It would give men unequal advantages in personal status issues - making it much easier for them to initiate divorce, for example.
“It opens the door to a whole set of very specific rulings that would be extremely problematic in terms of women’s rights.”
“It opens the door to a whole set of very specific rulings that would be extremely problematic in terms of women’s rights,” Morayef said. “The most realistic objective [for women’s rights] is replacement of the term ahkam, and that shows you how low the expectations are.”
“The ideology of the Muslim Brotherhood is, women’s rights are not seen as individual but as family rights,” said Sally Zohney, a women’s rights activist. “There’s no common ground between the secular, liberal vision of independent rights and their vision of her just serving her family.” Equally alarming to activists is the proposed article 9, which obliges the state to “protect the authentic values of the Egyptian family”. One activist described this as reducing the role of a woman to “little more than her husband’s slave”.
The language about values and traditions could also give constitutional protection to practices like female genital mutilation (FGM), which is widespread in Egypt despite being banned in 2007. Estimates vary, but most researchers believe more than 90 per cent of Egyptian women are subjected to FGM.
In a television interview last month, Younis Makhioun, a salafi member of the assembly, argued that girls should be allowed to marry as young as 9 or 10 - another “tradition” which could be shielded by the proposed language. Under pressure from salafi members, the committee removed language banning the trafficking of women and children, which could have helped end the long-standing practice of poor families marrying off young girls to wealthy men from the Gulf.
Decriminalizing FGM and lowering the marriage age are long-standing salafi goals; members of the movement tried and failed to implement them by introducing legislation in the short-lived parliament.
“Those proposals didn’t go very far. And so I think what the salafis have in mind is the need to use the constitution to revise all legislation on women’s rights that was passed in the era of the dictator,” Morayef said, referring to ousted president Hosni Mubarak.
Other topics that should be contentious - the balance of powers, and the structure of the government - have received almost no public debate.
Egypt has historically had a powerful president, and everyone on the assembly seems to agree that the constitution should weaken his powers and move the country to a “semi-presidential system”. But nobody seems able to define that term.
Gamal Gibril, who heads the assembly’s “political systems” sub-committee, told reporters earlier this month that the president would lose half of his powers under the new constitution. He couldn’t specify which ones.
There are a few positive items about governance - the draft would abolish military trials for civilians, for example, and it would impose a two-term limit on the president. But the drafters also scrapped a ban on torture, replacing it with vague language about "physical and psychological harm," and the amendment granting Egyptians the right to organise includes a potentially huge caveat about "respecting national sovereignty".
“The Muslim Brotherhood really doesn’t know what it wants,” said Dr Mohamed Aboul Ghar, the head of the Social Democratic Party and a member of the now-dissolved first assembly. “They’re not decided, not sure, whether it is an advantage for them if the president has strong powers or not... and they don’t know what the resistance from the judges will be.”
They got a glimpse of that resistance last week, after an Egyptian court acquitted all of the defendants accused of orchestrating the deadly “camel battle” during the revolution, including several high-ranking members of the old regime. The public was outraged at the verdict, and at Abdel Meguid Mahmoud, the public prosecutor, who was accused of botching the case and failing to introduce key evidence.
So Morsi tried to remove him, by installing Mahmoud as Egypt’s ambassador to the Vatican, only to provoke an outcry from the judiciary, which accused the president of trying to stack its ranks with Islamists. Judges staged a public protest and attacked the president in the media, and by the following day Morsi had reversed himself, denying that he ever intended to sack Mahmoud.
The judiciary, in other words, proved to be a powerful constituency, one that the Muslim Brotherhood has been reluctant to cross.
“By discussing the section on rights and freedoms for so long without touching judicial reform, or the balance of power, it has kept public opposition to the various drafts confined to a very weak constituency,” Zarwan said. “So some of the most important things in the constitution remain very unclear.”
Removing Mahmoud, a holdover from Mubarak’s regime, has long been a goal of Egypt’s revolutionaries, yet some actually criticised Morsi’s move because they feared an effort to stack the judiciary. Liberals would like to see the president lose some of his powers of appointment under the new constitution.
“We need parliamentary oversight over many things, like public media,” said Mohammed Naim, another member of the Social Democratic Party. “Their editors should not be appointed by the president.”
The irony of this process is that, for all of the public and private rancor, the constitution will almost certainly pass by a wide margin.
Two-thirds of the assembly needs to approve the final draft. The Muslim Brotherhood’s members will close ranks in support, and the group will almost certainly make enough concessions to either the salafists or the liberals to ensure their support. But in which direction will the Brotherhood lean?
“They have two main issues. The first is how they’re perceived in general, and internationally, and on that they have to move to the centre,” said Bassem Sabry, a writer and activist who talks regularly with members of the assembly.
“The more they’re capable of building their own bases and winning votes, then the Brotherhood will find itself forced to move to the right on certain issues.”
“But the other, it depends on al-Nour [the salafist party]. The more they’re capable of building their own bases and winning votes, then the Brotherhood will find itself forced to move to the right on certain issues,” Sabry said.
Two sources said that Beltagy, often presented as one of the Brotherhood’s moderate faces, has encouraged salafist members of the assembly not to compromise their stances on issues like the role of religion and women’s rights. But his intentions here are unclear: Is the Brotherhood planning to align itself with the salafists? Or is the group hoping to push the salafists to the far right and position itself as reasonable centrists by comparison? Several members of the Brotherhood did not respond to multiple requests for comment on this story.
Either way, the anecdote highlights the pivotal role of Egypt’s salafists on the constitutional assembly, and in politics more generally. They have recently upped their public criticism of the draft constitution, and are planning a mass protest on November 2 to demand stricter application of sharia.
Yasser Borhamy, an influential cleric, accused the Brotherhood of leaving out "agreed-upon language" that would ban individual rights and freedoms which "conflict with established social values." Borhamy - a reactionary figure who has argued that women and Christians are unfit to serve as president - warned that the draft constitution would lead to “devil worship.”
And Gamaa al-Islamiya, the once-banned militant group which is now asserting itself in politics, even threatened violence. “We will fight for the application of God’s law, even if that requires bloodshed,” said Mohamed Salah, a leader of the movement, last week.
“The key factor is the salafi element. It’s the biggest problem,” Sabry said. “No one counted on that, and they’re really sticking to their guns."
Their liberal opponents are divided, as ever. Several movements organised a protest against the constitution in Tahrir Square last Friday, but it was attacked by Brotherhood supporters and quickly devolved into a street battle (the Brotherhood later denied having any supporters in the square). Another rally is planned for November 9.
Manal al-Tibi, a human rights activist, withdrew from the assembly last month and condemned it in a scathing letter, in which she accused members of manipulating the process to create a religious state. Members of the assembly have threatened a mass walkout, but some see this strategy as merely weakening their already limited power.
“I know this is not effective. I personally believe that the decision of withdrawing... was not wise,” Naim said. “But the Muslim Brotherhood insisted on forming the assembly with two-thirds Islamists, so what would our involvement mean?”
The new constitution will be perhaps the longest-lasting result of the revolution. Presidents and parliaments come and go; this document could linger for decades. Some members of the assembly want to include an amendment making it impossible to change the constitution for the first five years.
Yet nobody seems satisfied with the process, and with just weeks to go before a final vote, the draft constitution says almost nothing about how it will fulfill the goals of the revolution and overturn a political system that enabled Mubarak’s 30-year dictatorship.
“It’s a reflection of the problems in the political society at large,” al-Mahdi said. “The focus since March 2011 has been divided along the lines of Islamists and non-Islamists... and this misses the bigger point. Nobody is telling us what they want in terms of a concrete political program.”