It would be naïve to ignore the fact that constitutions are based on civilizations derived from religious sources. However, to establish a constitution based on religious dicta, which would transform it into an absolutist document, would be by its nature discriminatory.
The majority of Egypt’s population are Muslims, but this fact does not and should not translate into using the Shari’a as a prime source in formulating the next constitution. Fortunately or unfortunately, as the case may be, the Egyptians, in recent days, have seen at close quarters what an Islamist theocracy would look like. Understandably, the majority said no, but no thanks.
As a source of jurisprudence the Shari’a has inapplicable rules and regulations in this day and age. While it might have served in the Middle Ages and in locales which virtually don’t exist anymore, it has to be disqualified from absolute inclusion in the framing of this nascent constitution. This does not mean that it cannot be referred to for guidance on specific issues. However, the inequities in it, particularly in dealings in male/female relationships and the restrictive, choking elements of arbitration on non-Muslims have to go by the wayside.
Our learned scholars framing the new constitution are more than capable of choosing viable elements from myriads of other jurisdictions which would suit our times. The democratic principles of the ancient Greeks, the Code of Hammurabi, the laws of the Medes and Persians that changeth not, the Magna Carta, the US Constitution, the Napoleonic Law and many others are examples of sources which were tried and found true.
The basic foundation stone of the new constitution has to be fairness. If this is adhered to, everything else would fall neatly in place. An unfair constitution would be internally divisive and would become a barrier in our dealings with other free and democratic nations.
The members of the ‘body of fifty’ have been chosen. There will be dissent, deliberations but hopefully no division. Anyone who does not ascribe to the secular nature of the country and finds that divine law is supreme and cannot be supplanted by civilized humanity has to be disqualified from joining this august body.
Framing of a constitution is an onerous task, time consuming and as such should not be rushed. It is all-inclusive and defines the road the nation will tread for years to come.
Egypt is in a state of turmoil and facing innumerable challenges from many directions. Yet, the will of the people has survived these challenges. An interim government does not mean a flail, indecisive government. Far from it. So far following the historic July 3rd., 2013 declarations and the map drawn to pursue has been successful. There is no need to be forced out of this track. Let the constitution address the elements of the government and then follow it. Meanwhile, the country is functioning through the largess of friend and despite of foes.
While referenda are, by and large, an acceptable way of polling the populous on major issues, in many cases they have certain drawbacks. Given the high rate of illiteracy in Egypt and the blind religious inculcation by the Muslim Brotherhood (MB), not all the eligible voters can understand the nuances and intricacies of a complicated legal document as a constitution. I submit that the current electorate cannot provide a seal of approval on the constitution. The argument against this opinion is that by the time it reaches this final phase it is in a state of fait accompli. Then, it is an exercise in futility, just rubber-stamping.
Onward Egypt towards democracy and a civil society fit for its glamorous past.
________________________________
Saba E. Demian, M.D.