“The divisive articles”. This is the denomination earned by those controversial articles of Egypt’s draft constitution, currently in writing by the Constituent Assembly, and over which the assembly members are divided.
The assembly has decided to embark upon broader discussions of these “divisive articles” since, according to the head of the Constituent Assembly Judge Hussam al-Ghiryani, an agreement on them has to be reached in order to resolve other constitutional articles which strongly rely on how these will be resolved. Thus, he said, taking the divisive articles for discussion out of the special committees and into the general assembly marks an important step along the road to the new constitution.
Among the articles that await resolution, he said, are those which concern Egypt’s parliament: Should MPs be elected individually or through a slate system? Should the 50 per cent parliamentary quota allotted by the 1971 Constitution to peasants and workers remains in place? And should the Shura Council, the upper house of Egypt’s parliament, be abolished?
The Islamists vs the seculars
The divisions among the assembly members arise mainly between the seculars and the Islamists who insist on imposing their views, claiming that: “this [Islamism] is what the people want”. The general feeling among the Egyptian public is that there are adamant efforts to Islamise the constitution.
The representatives of the three major Churches in the assembly, the Coptic Orthodox, Coptic Catholic, and the Evangelical, met at the premises of the Coptic Orthodox Church in Cairo last weekend to coordinate their joint stance vis-à-vis articles that link religion and the State. They agreed to reject the proposed constitutional articles on the sovereignty of Allah, al-Azhar (the Cairo-based topmost Sunni Islam institution in the world) as a religious reference, and zakat (Islamic alms).
‘Principles’ or ‘rules’ of Islamic sharia
The second article of the constitution is a major bone of contention. In Egypt’s last constitution, the 1971 constitution which was annulled in the wake of the January 2011 Revolution, Article 2 stipulated that Islam was the State’s religion, Arabic its language, and the principles of Islamic sharia (Islamic law) the main sources of legislation.
In the constituent assembly, the Salafi streams insisted on replacing the “principles of sharia” with the “rules of sharia”, a proposal which was met by wide criticism from seculars and moderate Islamists alike.
According to Hassan al-Shafei, head of the Arabic Language Academy and al-Azhar’s representative in the constituent assembly, the ‘principles’ of Islamic sharia are the general, comprehensive Islamic fundamentals, and are binding to individuals, groups and the State. But ‘rules’, Dr Shafei says, are the detailed juristic judgements reached by Islamic scholars and closely pertaining to specific historical instances, meaning they may not be valid in other instances.
Dr Shafei said that in 1991, the Supreme Constitutional Court (SCC) ruled that no text that contradicts sharia may be invoked, indicating an implicit endorsement of sharia. Those who insist on literally applying sharia through the early Qur’anic texts ignore 14 centuries of scholastic interpretation effort, he said. Al-Azhar, he said, does not wish to get involved in interpreting constitutional texts, which is the prime responsibility of the SCC, and so there would be no legislative conflict.
Al-Azhar, Dr Shafei said, should be consulted on matters pertaining to Islamic sharia and, as dictated by sharia, it is bound by honour to preserve the rights of all Egyptians, including non-Muslims.
Again: sharia
Rev. Safwat al-Bayadi, the head of the Evangelical Community and member of the Constituent Assembly, rejected the proposal to add a new article that would ban the passing of any laws which contradict sharia. In Bayadi’s opinion, the innovated article would conflict with the second article of the constitution which states that the principles of sharia are the main source of legislation. He refused mixing religion with politics because religion is fixed whereas politics is dynamic. “If articles are drafted in this manner,” he said, “the constitution would be sacred and hence unamendable. In fact, constitutions are constantly amended according to the will of the people, so it is better to stop playing with words.” Bayadi thinks it is better to keep the second article of the constitution unchanged. The only addition he suggested is a new clause which would give non-Muslims the right to resort to their family laws.
Building places of worship
Article 8 in the chapter on rights and freedoms in the draft constitution stipulates that: “The freedom of belief and practising religious rites is maintained. The State secures the freedom of building places of worship to practise the rites of the heavenly religions, as stipulated by the law, and in what does not violate public order”. Judge Edward Ghaleb, the rapporteur of the rights and freedoms’ committee, strongly denounced the text, to the point of demanding to withdraw from his post as rapporteur. His objection centred on the phrase “in what does not violate public order” which, he said, was an elastic phrase that could potentially challenge the freedom of faith and building places of worship.
Sovereignty to Allah
According to constitutional expert Mohamed Nour Farahat, “no constitution in the world includes an article attributing sovereignty to Allah”. Sovereignty is a term that carries political and legal significance; attributing sovereignty to Allah in the constitution opens the door to turning Egypt from a civil to a religious State. Using this expression would give any ruler the right to claim that he is governing in the name of Allah—meaning he has absolute and uncontested authority—whereas governance usually involves controversy, disagreement and constant change of vision. Farahat called for sparing Allah the hassles of political conflicts.
Mr Farahat demanded that expressions which would carry religious overtones should not be used in the constitution of a civil State. The expression “sovereignty to the people”, he said, makes the ruler as well as the executive, legislative and judicial authorities accountable to the people.
Taxation vs zakat
Anba Pola, bishop of Tanta and member of the Constituent Assembly, presented a formal objection to the new article under the chapter of the Social Fundamentals concerning the foundation of an establishment for zakat (alms) “to care for the poor and needy”. Anba Pola’s objection centred on zakat being an Islamic religious obligation, whereas the constitution involves the entire people of Egypt regardless of their religion. It is unacceptable to impose a religious obligation on followers of another faith, he said. And, assuming that this article is applied to Muslims, would a parallel article be drafted for Christians? Would it be applied to the establishments owned by Christians where employees are both Christian and Muslim? If the article is passed, will the outcome of zakat be equally distributed to all Egyptians or only to the Muslim poor?
Underage marriages
Salafi members of the Constituent Assembly insisted on annulling the Article 29 of the previous constitution—an article which banned forced labour and slavery for children, the trafficking in women and children, and sex trade. The article had been approved by the rights and freedoms committee of the Constituent Assembly before the Islamists challenged it.
Those members who opposed Article 29 argued that even though this article conforms to international treaties of which Egypt is signatory, they violate Islamic sharia which sets no minimum age for marriage. They rejected the implied link between underage marriage and the trafficking in women and children.
The Shura Council
The Shura Council as it is today has very minor legislative authority, mainly to approve the bills passed by the People’s Assembly (PA); hence, many proposals were raised asking for its abolition. Judge Maged Shabita, member of the System of Governance committee, stated that despite the marginal role which the Shura Council plays as a legislative authority, the main trend in the Constituent Assembly favours its remaining in place. Two proposals were presented to the Constituent Assembly to restructure the ailing council. The first is to transform it into a full legislative body with the same jurisdictions and prerogatives of the PA. This proposal faces opposition within the Constituent Assembly as it is irrational to grant legislative authority to two different councils and could actually cripple the passing of new laws. The second proposal is that Shura Council (Senate) should assist and complement the PA (House of Representatives) without being granted the right to block the passing of laws. Senators would be granted the authorities of administrative control and the appointment of high State officials.
Transitional laws
The System of Governance committee in the Constituent Assembly completed voting on some of the articles defining the rules governing the transitional period. Major among them is an article stating that the presidential term of the current president is to end four years from the date of his appointment as President of the Republic.
Several political streams considered this article the death of democracy. Ahmed Bahaa’ Eddin Shaaban, secretary general of the Egyptian Socialist Party and member of the Revolutionary Democratic Coalition, said that following the drafting of a new constitution, international democratic tradition usually call for new elections in all State institutions, including the presidency and the upper and lower houses of parliament. He criticised what he called “the tailoring of a text in the constitution to suit the size of a specific president or group”.
Dr Farahat, however, said that President Mursi was elected under a constitutional text which allowed for him to keep his four-year presidential term even after the drafting of the new constitution. If the new constitution wishes to reduce the presidential term or end it, an article must be written concerning this matter.
WATANI International
30 September 2012