On October 14, the Egyptian government published a draft of the new constitution that clearly reflects the current State of political affairs in Egypt. A careful look at the Egyptian political landscape reveals that the drawbacks of Mubarak’s era are as present as ever, with further disadvantages brought about by religious extremism and the prospects of a religious State. The draft followed suit, not only did it fail to remedy the drawbacks of the 1971 Constitution; it also included the detrimental characteristics of a religious State. The same critical defect that undermined the 1971 Constitution had found its way to this draft, as constitutional principles were consigned to be regulated by law in 59 instances, making them basically pointless.
Since it would be difficult to examine the Constitution’s defects, pitfalls and contradictions in the course of one or even several articles, this article will only focus on the features and attributes of a religious State, as formulated in the Constitution draft. The First Article States that Egypt is part of the Arab and Islamic nations!! However, when it comes to its ties to Africa and the Nile basin, Egypt is only said to be “proud” to belong to both of them. The opposite should be true: Egypt is part of Africa and the Nile Basin and not an integral part of Pakistan, Afghanistan, Malaysia, Somalia and Indonesia. The Second Article empowers the notion of a religious State, using the exact text of the 1971 Constitution, clearly stating: “Islam is the State religion, and the Arabic language the official language, and the principles of Islamic Sharia are the primary source of legislation.” Moreover, two catastrophic articles have been added: Article (221), which considers the entire Islamic Jurisprudence and tradition to be the source of legislation; and Article (4), which entrusts the interpretation of this jurisprudence and tradition to the body of senior scholars at Al-Azhar, following in the footsteps of Iran and its Council of Discernment (Majlis Tashkis Maslahat al-Nizam). Thus, this Constitution has managed to feature the worst of the Iranian constitution, the Pakistani constitution and the Saudi Wahhabi Bedouin doctrine, all together. Article (3) applies the Islamic concept of dhimmitude [i], thus granting the Christians and Jews certain rights in matters of marriage, divorce and the selection of spiritual leadership – which are established rights since Islam first spread to Egypt – while withholding them from other faiths!! Article (4), which deals with Al-Azhar institution, granted Al-Azhar the right to obtain funding from the State budget in order to spread Islam worldwide, and, given that Al-Azhar’s body of senior scholars will be in charge of interpreting all Sharia-related matters to the three other authorities, it is all but considered a superior authority that rises above all three. So, not only will the legislator be restricted by Al-Azhar’s vision, which is dangerous enough, but the Egyptian Judiciary may morph into a religious judicial system as the judges await Al-Azhar’s opinion in the majority of cases presented to them. Article (6) takes away from the meaning of democracy by limiting it to the Islamic concept of Shura [ii], as well as granting legitimacy to religious parties. Article (9) states that religion and moral values are the sound foundation of the family, which is nothing more than empty religious rhetoric. Article (10) talks about the State acting to safeguard morality, public decency, and religious and nationalist values. The State as “a guardian of religion” is the trademark of a religious State, and it gets even worse as the article imposes restrictions on freedoms and rights. Article (11) involves one of the repercussions of a religious State which aims to raise the status of the Arabic language, to a potentially disastrous extent, through the Arabization of Science. Article (37) states that “freedom of belief is protected.” To start with, there is a big difference between religious freedoms and freedom of worship; furthermore, the Article states that “The State shall guarantee the freedom of worship to the three monotheistic religions as regulated by law.” This strange text restricts the right of belief to what is known as the Heavenly Religions as recognized by Islam. Extremists may even try to take a stab at Judaism and Christianity, under the allegation that they have been misrepresented or distorted. As for letting laws define the freedom to build mosques and churches, this will only maintain the status quo. No law will ever grant equal treatment to mosques and churches, thus they the archaic Hatt-i-humayn[iii] decree and the ten unjust conditions will be maintained, while the out-of- control construction of mosques continues unhampered.
Article (38) warns against any “attack against or insult to the prophets,” which is specifically directed at the Copts, since Christianity and Judaism are subject to daily insults that go unpunished, while Coptic citizens are the only ones who are put on trial if they happen to criticize Islam and defend their religion. Article (52) reflects another characteristic of the religious State as it makes religious education a required main subject in pre-university education. Article (67) adds another dimension to the religious State by mandating the spiritual development of the child.
Article (68) destroys equality between men and women since women’s rights are restricted by the rulings of Islamic law. Article (209) talks about the so-called Economic and Social Council, which is in fact an Islamic Shura council, and as Stated in the Article, the executive and legislative authorities are obliged to seek the opinion of this Council before formulating any laws or policies. The picture looks even more foreboding if we consider two articles that were deviously formulated to delineate a religious State’s identity, namely Articles (222) and (223). The first one allows moving the capital from Cairo to an alternative city, most likely on account of a future Caliphate State that would require moving the capital to Istanbul or to Jerusalem, according to a suggestion made by Imam Safwat Hegazi. The second article divests the Constitution of the right to determine the identity of the State, handing it to the parliamentary majority, along with the right to determine the national flag, slogans, seal and national anthem, i.e. all the symbols representing the identity of the State, leaving them in the hands of the anticipated Islamic parliamentary majority… Ultimately, the pieces come together to form a clear picture of a design to establish a religious State, with an identity, laws, judiciary, religious censorship, capital and culture that reflect its nature.
It is even more alarming that the entire Constitution draft is markedly free of any mention of the Civil State, and is completely devoid of any reference to the UN/regional international human rights instruments as the international authority on rights and freedoms. All articles referring to rights and freedoms have been restricted either by Islamic law, or by consigning the constitutional rights to be regulated by law, which subjects them to the restrictions imposed by said law.
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The writer is an Egyptian intellectual, human rights activist, and Executive Director of the Middle East Freedom Forum in Cairo & Washington
[i] The word “dhimmitude” is a historical concept that describes the legal and social conditions of Jews and Christians (People of the Book) subjected to Islamic rule. The word “dhimmitude” comes from dhimmi, an Arabic word meaning “protected”. Dhimmi was the name applied by the Arab-Muslim conquerors to indigenous non-Muslim populations who surrendered by a treaty (dhimma) to Muslim domination.