The nuances of writing a constitution

14-12-2013 11:37 AM

Nader Shukry

The second week of next January is expected to see Egypt’s Draft Constitution put up for a public referendum. Until then the draft is being thoroughly scrutinised, dissected, and assessed by Egyptians in readiness for the vote.

 Watani approached Anba Pola, Bishop of Tanta, who represented the Coptic Orthodox Church in the Committee of the Fifty which wrote the Draft Constitution, to sound him on the charter and the predicaments of its drafting.
There has been recent debate over claims made by a number of members of the Committee of the Fifty that the wording of the Preamble of the Draft Constitution underwent a last minute change before printing the draft, thus changing the wording approved by the committee. It was claimed that “civil rule” was changed into “civil government”. How does this affect the draft?
First, we should not turn a wedding into a funeral because of one word. We are all celebrating; why call the bride ugly? This whole issue has been overblown by the media. 
The explicit mention of Egypt as a ‘civil State’ was never made in previous constitutions because this was then an implicit given. Once Egypt experienced a year [from June 2012 to June 2013] under Islamist rule by the Muslim Brothers (MB), which Egyptians overthrew last July, the fact that the country might come under the power of non-civil forces became all too real. It became obvious then that the Constitution must stipulate the civil nature of Egypt. Since the Islamists in the committee objected to that, discussion of the issue was pushed—together with a few other highly controversial issues—to the last minute in order to avoid a climate of conflict. 
It was finally decided to mention “civil rule” in the Preamble, and also to define sharia, Islamic law which the Constitution stipulates as the main source of legislation, to be the historically proved, unambiguous interpretations of sharia. We also decided that it was the responsibility of the Supreme Constitutional Court, not any religious authority, to define shariain the legal system. The Church and the seculars were adamant that sharia should not be left to questionable interpretations, and we succeeded in that.
Since national interest and inclusion of all Egyptian sectors is our top priority, we were at one point willing to forego the mention of “civil State” in the Preamble, since the Constitution in its entirety secures the civil nature of the State. However, the Mufti suggested the phrase “civil rule” to which everyone agreed.
On voting day the head of the committee, Amr Moussa, read the text as “civil government” and explained that it meant civil rule. This brought about murmurs among the members, but they voted for it. When the final draft was printed after the vote, the phrase read “civil government”. Mr Moussa was under pressure to edit the phrase, but he decided to leave it as is.
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Where does Mr Moussa stand after that change?
Mr Moussa understands the situation and his patriotic intentions are beyond doubt. He made a sincere effort to reach consensus, so I see that the change of phrase might have been to achieve balance. I would prefer the original phrase, but if it leads to problems we can skip the whole issue because of the Constitution’s many positive aspects. We have written a constitution that takes into account all Egyptians; it was completed by consensus. 
But the 30 June Revolution slogan was all about recovering Egypt as a civil State?
The civil State provisions are enshrined in all the articles, even if not so unambiguously in the Preamble. 
The Salafis have said they are content with the Draft Constitution, even though they opposed much of it before. How do you see the change in the Salafi position?
The Salafis see things in the perspective of their own interests, which is perfectly normal. What matters is the final result, and they have supported the Draft Constitution.
I respect the representatives of the Salafis, although they are religiously extreme and hold an opinion about Christianity that does not regard Christians as equal. I respect them because they are not double-faced. They are opposite of the MB.  They don’t stand up for the national anthem or for a minute of silence to mourn the death of anyone, but this is their belief. 

Was there conflict between the Church and al-Azhar?
Al-Azhar is a venerable Islamic institution of international standing and renown. It leads Muslims just as the Church leads Christians. Despite our differences, we—the Church and al-Azhar—agree on everything that helps rebuild Egypt and doesn’t negatively affect any of us.
The conflict was about considering al-Azhar the reference to interpret the principles of sharia law, because that should be the job of the Constitutional Court. After negotiations we decided to make al-Azhar the “reference for Islamic affairs” which the Sheikh of al-Azhar said denotes matters that relate to religion and al-Azhar.
The third article says that ‘Christians and Jews’—as opposed to ‘non-Muslims’ in general—have the right to apply their own doctrines to their family laws and choice of their religious leaders? This aroused much debate.
Our first proposal was to cite ‘non-Muslims’ in their entirety not only Christians and Jews. Al-Azhar, however, insisted on rejecting this on account of religious reasons, and when al-Azhar objects this means that so will all Muslims. So we discussed the issue again and agreed to “Christians and Jews”.
How can the word ‘civil State’ be real when the second article in the Constitution sets Islam as the State religion, Arabic its language, and Islamic ++sharia++ as the main source of legislation?
We have to look to the Constitution as a whole. The Preamble states that Egypt “embraced the Holy Virgin Mary and her Son”, and that Egyptians “offered thousands of martyrs to defend the Church of Jesus Christ”. This is a first for an Egyptian Constitution, the first acknowledgement of Christian martyrs and of ‘Jesus Christ’ not His Islamic denotation as Eissa the son of Mariam. It also includes Pope Shenouda’s famous quote: “Egypt is not a country we live in, but a country that lives in us.” In reference to the 30 June Revolution, it states: “…with the blessing of al-Azhar and the national Church.” So the Constitution speaks of Christians as an original part of this country.
There are also articles which criminalise discrimination, stipulate absolute freedom of belief, and specify legislating a modern law for building churches.
If we say that the Constitution is for all Egyptians, where does it stand on non-Muslim, non-Christian, and non-Jewish Egyptians, as Baha’is for instance?
Baha’is in Egypt have already gained some benefits including the right to legal papers that leave the religious box vacant instead of citing them as Muslim. But they still face countless problems, mainly on the social level. This can only be dealt with through better public awareness, education, and acceptance of the other.
How do you see the Islamist threats of violence once the Constitution is put to the vote?
A Christian doesn’t fear. He stood with his Muslim fellow citizen to defend the country during and after the 30 June Revolution. Copts were brutally attacked by the Islamists, and their homes, businesses, property and churches looted and burnt. The Islamist threats can’t defeat the Constitution.
Does the positive discrimination for marginalised sectors cited in the Constitution guarantee Copts a quota in parliament?
From Day One we have rejected a quota for Copts. Just look at Lebanon for an example of what may happen if the community is sectorised. But we also reject ignoring or marginalising Copts, or women and young people. We also rejected the practice of the appointment of Coptic MPs by the president of the republic, because the number of appointees was in all cases non-representative of the volume of Copts in general, and because an appointed MP doesn’t have full authority. Besides, the appointed member is loyal to whoever appoints him, not to the people. 
So how can positive discrimination be applied?
There are many ways. If we speak about the individual system in elections, constituencies could be smaller, and a seat may be allocated for the marginalised sectors. With the slate system, the chances are even better, because the lists may be made to include a Copt, a woman, and a peasant for instance.
How about positive discrimination in jobs?
In this regard we need equality and anti-discrimination measures not positive discrimination. 
The Constitution allows for presidential elections ahead of parliamentary elections. This contradicts the Roadmap for Egypt’s future drawn by the country’s civilian and military leaders last July. What do you think of that?
I had been strongly against tampering with the Roadmap. But now that the security situation in Egypt is far from stable, I think that it is better to hold the presidential elections first. Presidential elections include a limited number of nominees, but parliamentary elections involve thousands of candidates. We need a president first.
Watani International
15 December 2013
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