From my recent article at Arab West Report, continuing a series on the formation of Egypt’s constitution:
By self-description, Mus’ad Abū al-Fajr really wasn’t that important. In almost every categorization he was in the minority. But he also counts himself a ‘son of the revolution’ and fully worthy. And as a Bedouin, his participation in Egypt’s constitutional Committee of Fifty was itself one of its greatest accomplishments.
Selected as a ‘general personality’ independent of any institution, Abū al-Fajr isn’t sure why he was chosen. But he is confident it is linked to his status as a revolutionary from Sinai, active in protest in public squares since 2004. From 2007-2010 he was jailed on charges of ‘inciting riots’, and was released only a few months before the January 25 revolution. He immediately joined in on the National Movement for Change, found himself active in Tahrir Square, eventually became part of the National Salvation Front, and then worked on behalf of Tamarod to depose Muhammad Mursī.
But there were many revolutionary candidates to choose from for inclusion in the Committee of Fifty, so it was his status as a Bedouin that stood out. Therefore from the moment of his inclusion Abū al-Fajr considered that the region of Sinai was going to win at least a minimum of its rights. He knew that if he would withdraw from the committee – along with Hajāj Udūl of Nubia, with whom he cooperated extensively – it would cost the project much credibility and the symbolic vote of their regions. The task, then, was to achieve more, not just for the Sinai but for the people, for whom Abū Fajr described himself as continually defending.
Here is the gain:
His primary achievement, Article 236, represented the minimum. Treating Sinai along with the underdeveloped border areas of Nubia, Matrouh, and Upper Egypt, it promises a ‘comprehensive economic and urban development’ with ‘participation of the residents’. These are promised the ‘priority in benefiting from them’ in a manner that takes into account ‘the cultural and environmental patterns’ of each area. Ten years is given as the limit, with the law to spell out the particulars.
And here is why it wasn’t more:
But in fact, Sinai was to be mentioned more frequently. It was to be in the preamble, in the articles on cultural diversity, and those preventing discrimination based on geography. It was not the writing committee that played the chief role in removing it, he says, but direct pressure from the military seeking support for its own controversial article.
Abū al-Fajr described this as Article 204 on the military trial of civilians. He says he could have achieved more for Sinai had he simply agreed to it. He judges this from his experience in the work and discussions of the committee, but stood against it nonetheless. Besides himself, only five others voted to reject the article in the end.
Most of those interviewed described a few setbacks here and there, but were very positive about the document as a whole. Abul Fagr’s reaction is unique:
And the end result is a constitution he is happy with, recognizes a few flaws, but yet does not consider a revolutionary document, and is ultimately not worthy of Egypt. He does not even believe it will last.
Please click here to read the full article at Arab West Report.
From my recent article at Arab West Report, continuing a series on the committee which rewrote Egypt’s constitution:
The quip often attributed to Otto van Bismarck may apply to Egypt’s constitution: Laws are like sausages, it is better not to see them made. Recent articles in this series attempt to do just that; peel back the layers to watch how certain articles came to be.
But the quip does not apply as well to the preamble of the constitution, for this was largely the work of one man. Sayyid Hijāb, the esteemed Egyptian poet and winner of the 2013 State Appreciation Award in Literature, described the process.
Hegab describes his oppositional past as a possible reason he was chosen for membership in the Committee of Fifty, and then how he came to be given the preamble:
Eventually the committee agreed to authorize Hijāb and Fadl to write alternate preambles, though Hijāb consulted also with Salmāwi and Bishop Antonius, who represented the Coptic Catholic Church. After about a month both submitted their drafts, and Fadl’s was roundly dismissed. It read too much like an employee report, Hijāb described, while he purposed his to carry the vision of the revolution.
But tinkering with his draft went on throughout, up until the last minute. Hijāb faithfully continued in his subcommittee responsibilities, he said, working on the preamble from home. But while the end product differed from his original text due to negotiating the concerns of some—and the manipulation of others—he is pleased it carries forward the vision.
These concerns and manipulations were largely over religious matters of varying importance:
Most of this description was easily accepted, however. He modified language about ancient Egypt and its early discovery of monotheism, as his original text violated the sensibilities of some religious members. There was some objection to describing the early Christians as ‘martyrs’, he said, but this passed when they witnessed his suitable description of Islam. No Christians complained about describing the ‘light’ of Islam, but non-Orthodox questioned his initial description of the Christian martyrs defending the ‘true doctrine’ of the church of the Messiah. Seeking consensus, he pulled the phrase.
All Christians were pleased, though, by his unsourced reference to Pope Shenouda about Egypt being a homeland that lives in us. No one objected to this phrase either; perhaps some did not know where it came from, he surmised.
But the modern era ruffled some feathers, as he described it as a time of ‘enlightenment’ in which ‘humanity became mature’. Once again, the religiously conservative objected, seeing maturity in the message of the prophets. Hijāb had one conversation in particular with the Grand Mufti, in which he assured him the terms were common in the social sciences as descriptions of the developing world. The mufti was satisfied enough in the end, and the language stayed.
Hijāb proved flexible when he originally intended to describe the ‘sharī‘ahs’ of human rights documents, amending this only to state the constitution was consistent with UN Declaration of Human Rights. But he held ground over the objections of Salafis toward language describing the Egyptian people as ‘the sole source of authority’. These references came in Hijāb’s second section of the preamble in which he described the principles of the revolution and the basics of political vision.
Salafis view God alone as possessing authority, but they received a different goal in the end. After long discussions about defining the role of sharī‘ah within the body of the constitution, they won its mention in the preamble, defining interpretation according to the collected rulings of the Supreme Constitutional Court. Here the poetic vision of Hijāb’s text is broken, for this reference even contains a footnote, saying these rulings are to be deposited in the official minutes. Hijāb did not intend for sharī‘ah to be mentioned in the preamble at all, finding its place in Article 2 to be sufficient.
But perhaps the Salafis received a bit more, though for whose benefit cannot be said securely. The reference to sharī‘ah was won through negotiation, but Hijāb believes a second late change came through manipulation. Salafis were strong, though not alone, in arguing against reference of Egypt as a civil state. In the end a compromise was won to declare Egypt had civil governance, and this is reflected in the official draft Hijāb submitted for the final vote. But at its reading, ‘Amr Mūsa spoke ‘civil government’ in its place, and Hijāb believes it was deliberate. In any case, though he and Bishop Antonius objected, it entered the record as the preamble was voted on and approved unanimously.
Please click here to read the preamble (and constitution) in its entirety, and here to read the full article at Arab West Report.
From my recent article at Arab West Report, in the series on Egypt’s constitution. This text opens with a consideration of Salafi participation in both the 2012 and 2014 charters, and proceeds then to examine their chief triumph:
This article [219 in the 2012 constitution] was quickly scrapped by the new committee, but the [Salafi] Nūr Party representative continued to press. His lone leverage was in the desire of the transitional government to frame its discourse as anti-Muslim Brotherhood, in response to a popular revolution, rather than as anti-Islamist per se, and certainly not as anti-Islam. The presence of Nūr legitimized greatly.
For their troubles, they received a small reference in the preamble of the constitution. It was agreed upon at the very close of proceedings, and states:
‘We are drafting a Constitution that affirms that the principles of Islamic Sharī‘ah are the principal source of legislation, and that the reference for the interpretation of such principles lies in the body of the relevant Supreme Constitutional Court Rulings.’
But what does this mean for future legal interpretation? Is it only a means for them to save face, or will it have real impact on future constitutional rulings? A partial answer is to examine one of these relevant rulings, from 1996, and see what it says. Two girls were expelled from school for wearing the niqab, a garment that covers all but the eyes. The court ruled against them, as they appealed to sharia law and freedom of religion:
Sharī‘ah establishes the necessity of morality, the judge argued, even quoting the Qur’an. But sharī‘ah nowhere establishes that a woman must wear a niqab. On the contrary, and in dismissive wording, it compared such a woman as kept from interacting with society and going around as a covered ghost.
The constitutional guarantees of belief and individual freedom, the judge explained, are to follow and practice a religion in the manner the religion instructs. Since scholars differ about the nature of a woman’s dress, there is no firm principle on this matter in sharī‘ah. Therefore, the government is within its rights to establish a dress code as it sees fit, while staying within the principle of modesty as is clearly required by Islam.
Sharī‘ah, the judge wrote, is principally about truth and justice, and is naturally progressive to change with the time and place. This guarantees it flexibility and vitality, so as to guard its purposes (maqāsid) in preserving religion, life, reason, honor, and property. No one scholar’s view should be made holy over another’s, and even the Companions of the Prophet made their rulings based on the benefit of the people. There is no reason to either consider or cancel them, but to judge independently based on the benefit of today.
Salafis originally wanted to tie sharia interpretation to traditional rulings, not just purposes, as interpreted by senior scholars from the Azhar. These provisions were written into the 2012 constitution but lost in its 2014 amendments. Seeing such a ruling as this, it is clear they do not trust the court.
But maybe they got what they wanted, through the court, even in what evaded them in 2012:
In order to replace the sharī‘ah-escaping word ‘principles’, the Nūr Party sought to change it in Article 2 with the more strict ‘rulings’ (ahkām). They did not gain consensus, and even in Article 219 the words translated as ‘rulings’ do not reflect the strictures of the Arabic ahkām.
But the SCC states in its May 18 judgment that Article 2 is based on the ahkām of sharī‘ah, in its foundations and general principles, using language reminiscent of Article 219. Furthermore, these ahkām may not be violated where they are maqtū’ bi thubūtiha au bi dallālitiha. This phrase means that the rulings are clear and proven, either by the Qur’an directly (thubūt) or through jurisprudential reasoning (dallālah).
But this is not restricted only to hukm qata’i, where there is one accepted meaning only. It includes also hukm zanni, where many meanings and interpretations have been suggested. The point is that sharī‘ah encompasses the historic work of scholarship, and legislation must not transgress its bounds. Within this sharī‘ah heritage, no voice is sacred and new voices may emerge with the times. But as the parliament creates law, the judiciary judges within the hedge of sharī‘ah. This is not the language of a judge seeking to ignore it.
But perhaps this is all legal semantics, and what really matters is who is in charge. From the conclusion:
It may not be the language of the constitution that is of paramount importance, but who writes it. The 2012 constitution signaled a transition to a new Islamist order; the 2014 signaled a reversal. The reversal, however, includes preamble language authored by the Salafis, and the terms of debate bound by Article 2.
If correct, this interpretation suggests the forces of reversal remain in control, and less-than-Islamist rulings are likely to issue from the SCC. But it also suggests that Salafis have a place at the table, and may through this constitutional nod win either legislation or rulings that reflect conservative religion.
In this sense, does their defense of sharī‘ah mean also the defense of their existence? It is too early to tell, but it has resulted, at least, in a public constitutional reminder that sharī‘ah remains the basis of legislation.
That this reminder can be interpreted flexibly fits well the overall ambiguity of the political situation, Nūr included.
Please click here to read the full article at Arab West Report.
From my recentarticle at Arab West Report, continuing a series on the people who wrote the constitution:
Sa’d al-Dīn al-Hilālī is a professor of comparative jurisprudence at Azhar University, where he is acknowledged as an expert in both sharī‘ah and international legal systems. Perhaps for this acumen he was selected as a member of the Committee of Fifty tasked to amend the Egyptian constitution. But he does not know, because he was not one of the three members chosen to represent the Azhar officially as an institution. Instead he was picked in the category of ‘general personalities’, learned of his selection via the television, and has never received an explanation why. He is quite happy not knowing, as he can express his appreciation to God alone.
The Azhar is the premier religious institution in Egypt, perhaps in the Arab world. Many consider it to be a ‘moderate’ body; if so, Hilali is a radical in the opposite direction:
Though Hilālī preferred not to characterize the internal workings behind either the disagreements or consensus, he spoke frankly about how he communicated to his colleagues on the topic of sharī‘ah. Most accepted what will be described below, he said. Some, who prefer to rule the street by claiming they ‘protect’ sharī‘ah, taking advantage of illiterates in doing so, were less pleased.
Article 2, for example, was previously inserted in the constitution only to satisfy these illiterates. They believe such a clause is necessary for them to go to heaven, and all the while they are laughed at by those who exploit them in pursuit of power. What does it mean that Islam is the religion of the state? Nothing. What are the principles of sharī‘ah that must be the main source of legislation? Only the concepts of mercy, justice, and equality, over which no one disagrees. If the United States were to draft sharī‘ah into its constitution, would that make everyone a Muslim? If Egypt were to make Christianity the religion of the state, would he become one? No, these are personal matters between the individual and God, each of whom interprets religion in his own way.
If this sounds like the general understanding of religion in the West, read on:
Fair enough, perhaps, but does not Islam as a religion demand some measure of public enforcement, based on the will of God? Muslims are tasked with the role of ‘commanding right and forbidding wrong’, so what is involved in doing so?
Correct interpretation, Hilālī argued, is that right and wrong are calculated for all, not by the individual, and can be equated well with the principles of sharī‘ah as the constitution states. He listed as examples helping parents and neighbors, working rather than unemployment, and refusing terrorism and killing, and said the rest is to be worked out by the judiciary and the police. As for the famous hadith that instructs the Muslim to correct a wrong with his hand if he is able, with his tongue if he is not, and with his heart as the least requirement of faith, Hilālī accepted it. The hand is the hand of the state, the tongue is the voice of the preachers giving enlightenment, and heart is for everyone else outside of these contexts. In this he is in line with much historic interpretation of sharī‘ah, but not all.
But this is fine, he might say. After all, sharī‘ah is meant for guidance and knowledge. Once its details are sought to be enforced in the public square one Muslim will clash with another over what is allowed and what is forbidden. This is in fact what happened to Egypt, and remains in the current struggle. Europe eventually rid itself of religious authority, he said, and this was Egypt’s trial now. America has achieved this light in its constitution, he believed, but now seeks (through support for the Brotherhood) to deny it to us.
Please click here to read the full article at Arab West Report.
From my recent article at Arab West Report, continuing a series of interviews with members of the Committee of Fifty which wrote the constitution:
Seeking to represent all sectors of Egyptian society, the Egyptian Committee of Fifty to amend the constitution of 2012 was light on political parties. Only four seats were assigned, two for liberals and two for Islamists. This was in contrast to the Committee of One Hundred that wrote the 2012 constitution, which was heavily populated by political figures from the Islamist Freedom and Justice and Nour Parties.
After the fall of Morsi, however, few Islamists remained on the formal political scene. The Nour Party was the most prominent, representing the Salafi trend. One seat went to them, but who could represent the Brotherhood trend, with the Brotherhood boycotting the process? Announced as a representative of the Islamist trend was Kamal Hilbāwī, a former Brotherhood member who resigned in 2012 in protest of the group’s decision to field a candidate for president.
Helbawi was a member of the drafting subcommittee which was responsible to merge all articles into one contiguous text. To do so they changed articles according to language and syntax, but did not hesitate to also adapt the meanings.
But one of the most interesting points of his testimony concerns the negotiations with the Nour Party that resulted in the former Article 219, defining the principles of the sharia, moved in essence into the preamble and made subject to the Supreme Constitutional Court:
But in a compromise agreement the definition of the principles of sharī‘ah was moved to the preamble, with the term of reference being the collected rulings of the Supreme Constitutional Court. These are about 4-5 cases, he estimated, involving sharī‘ah interpretation issued by the highest court in the land since 1985. Having a definition makes sense, Hilbāwī believed, for someone might want to know what the principles of sharī‘ah are. These cases were entered into the official transcript of the constitutional proceedings, and the preamble of the constitution has equal weight with its articles, according to Article 227.
But reference to the rulings of the SCC raised the issue of why Article 219 was necessary in the first place, if the court already defined the principles of sharī‘ah. Perhaps the legislature did not adhere adequately to these rulings, but if the legal basis was there, what was the big deal? And in any case, if the language of 219 was in the SCC rulings, does this explain why the Nour Party was satisfied?
Hilbāwī dismissed the criticism by liberals of Article 219 that it would have opened up the entire corpus of sharī‘ah legal history to implementation in legislation or in court rulings. But in referring to the charge of Safwat al-Bayādī, confirmed in his testimony of the response of Sa’d al-Dīn al-Hilālī, that the testimony of Christians might not be given equal weight to Muslims, as was once in Islamic history, Hilbāwī said ‘perhaps’, in recognition of Hilālī’s rejection of 219 and his status as a very good scholar. There are still shaykhs in Egypt, mentioning Abū Islām and Mahmūd Shabān in particular, who advocate very retrograde rulings. But given the firm guarantees on equality present throughout the constitution, Hilbāwī does not expect any sharī‘ah-based impingement on general freedom.
The article also contains a first effort to understand what the religious language of sharia interpretation means. Please click here to read this and the whole article at Arab West Report.
From my recent article at Arab West Report, continuing a series on the composition of Egypt’s constitution. Nadia Mostafa is the former director of the Program for Dialogue and Civilizational Studies at Cairo University. She is also an Islamist, though not a formal supporter of the Muslim Brotherhood. But she is a severe critic of the events which removed him from power.
She did not want to even discuss the content of the constitution, unfortunately, deeming it illegal. But she was very willing to express her displeasure with several contributing forces:
Chief among them are the very Salafis the Brotherhood cooperated with, in error. In supporting their demand for Article 4, giving the Azhar a role in legislation, and Article 219, defining the principles of sharī‘ah, the Brotherhood gave into unnecessary, non-historical, and ultimately fear-inducing intimations of a religious state. But when the Salafis sided with the coup leaders, Mustafá notes, look how quickly they dropped these two articles. All the Nour Party desired, it seems, is to take the place of the Brotherhood in the political spectrum.
Next she takes aim at the liberals:
Early in the transitional period these same liberals bemoaned the extremism of the Salafis and the interference of their Saudi Arabian backers. Now, they speak of the Salafis as possessing political acumen and of the Saudis as important financial backers for Egypt.
Similarly, liberals rejected the constitution of 2012 because it was an unrepresentative document crafted by an Islamist majority. But this did not prevent them from orchestrating an unrepresentative majority of their own, which all but excludes political Islamists, except for those who play by the measure of the coup. And as for their rhetoric saying the Muslim Brotherhood was invited but refused, what sort of invitation can be accepted when the president and his aides are held incommunicado, and the organization brandished as terrorists? Their goal, Mustafá believes, is to eliminate political Islam, or at the least any political Islam that has leverage.
Finally, she criticizes the church:
Excited by the possibility of gains in the constitution, some Coptic groups threatened to boycott or urge a ‘no’ vote if they did not win a special parliamentary quota. But when this failed to materialize, Pope Tawadros stepped in to support a ‘yes’ vote in the referendum. Christians, Mustafá believes, are not seeking their rights but to limit the rights of political Islamists, allied with seculars against the Islamic identity of the country.
But she also has critical words for the Brotherhood:
She and others of similar mind advised the presidency that Mursī was leaning too heavily on the support of Salafis rather than maintaining unity with liberals and other moderates. She believes there should be a separation between the preaching of a religious organization and the rhetoric of its political spinoff. A civil system must allow for religion in the public square, but politicians should not play with religion for political gain. When many call for the leadership of the Brotherhood to leave, she agrees, provided the same be true for current leadership across the board. The old guard, everywhere, must yield to the youth.
Please click here to read the full article at Arab West Report.
From my recent article at Arab West Report, continuing a series on the development of Egypt’s constitution:
Following the passage of the 2012 Egyptian constitution in a disputed and divisive referendum, Muslim Brotherhood leader Muhammad al-Biltājī praised the text and tried to assuage opponents of any flaws it might contain.
Calling it a human effort, and therefore not without errors, he said, “I hope we all seek to implement what is good for the people of this homeland. Certainly, we will amend whatever future days will prove needs amendment.”
Shortly before passage of the 2014 Egyptian constitution in a largely uncontested referendum due to opposing boycotts, supporters praised the text and tried to assuage those unconvinced due to a few controversial articles.
Lamīs al-Hadīdī, a prominent television news anchor, rallied for a yes vote and said, “This is not a divine document, and by the way, this document can be amended. If you are fine with 80 percent of the constitution, or even 60 percent, then you have to go and vote yes.”
Apart from their propagandist intent, these statements beg the question: What is the process for amending the constitution? Both documents are remarkably similar, drawing on the 1971 constitution, but with one key difference added in 2014.
The article seeks to describe the procedure, but this excerpt from the conclusion will simplify and describe the difference in question, the key difference in both 2012 and 2014 from the 1971 text, and why both might be there:
To summarize, then, with basic context, it appears the authors of the two constitutions following the January 25 revolution recognized the necessity of giving hope to popular opposition to certain articles in their proposed charters. By lowering the initiation process from one-third to one-fifth, both constitutions allowed a minority presence in the parliament to stimulate constitutional change.
It is unclear why two discussion periods of debate are necessary, but in preserving the general process of constitutional amendment, the authors of both texts maintained the overall difficulty of securing an amendment, as is reasonable.
On the other hand, without an established tradition of a balanced parliament it may be argued that passing an amendment is a relatively easy process. Given the dominant Islamist makeup of the first post-revolution parliament, perhaps they intended the ability to further Islamize the constitution beyond what was negotiated among political forces. Similarly, given the popular turn against the Muslim Brotherhood, perhaps civil forces anticipated reducing further the tinge of religion negotiated with the Islamist Nour Party. In either case, no public referendum in Egypt has ever been defeated [and requires only 50 percent approval].
Any discussion of intentions is purely speculative, but it appears the authors of the 2014 constitution were cognizant of the possibility of Nour Party or old regime electoral domination, either of which might chip away at their constitutional text. Perhaps aware of their own to-date failings to mobilize politically, these liberal authors added the clause to prevent any circumscribing of freedom and equality. It is unclear, however, the manner in which this clause will be interpreted.
Analysis aside, the process of amending the Egyptian constitution remains remarkably consistent over time. Securing the stability of the constitutional order will require the development of a diverse parliament, from which all future changes will need to find substantial cross-party agreement. This assessment, however, may be overly optimistic given that neither post-revolutionary constitution was passed with widespread societal consensus.
Please click here to read the whole article at Arab West Report.
From my recent article at Arab West Report, continuing a series of interviews with members of the Committee of Fifty which wrote the constitution. Hagag Oddoul is a novelist of Nubian origin, and an advocate for their cause. The article describes his background as well as that of his people, and this excerpt defines that cause as it became defined in the constitution:
Article 236, however, was his crowning achievement, and he did not have to play the withdrawal card to win it. It specifically refers to Nubia as a geographical area:
The state shall develop and implement a plan for the comprehensive economic and urban development of border and underprivileged areas, including Upper Egypt, Sinai, Matrouh, and Nubia. This is to be achieved by the participation of the residents of these areas in the development projects and the priority in benefiting from them, taking into account the cultural and environmental patterns of the local community, within ten years from the date that this Constitution comes into effect, in the manner organized by law.
The state works on developing and implementing projects to bring back the residents of Nubia to their original areas and develop them within 10 years in the manner organized by law.
It should be noted the term ‘right of return’ does not appear in this article, and that is fine with Udūl. He recognized this expression was charged with connections to the Palestinian issue, which would only serve to distract the discussion. It is the concept he advocated for, and he faced little opposition from his colleagues.
Recognition that the border areas of Egypt needed development that involved local residents was easily achieved, the language of which pleased Udūl as a great achievement. But there was some discussion about how to term the responsibility of the state in returning the residents of Nubia to their original areas. He personally wanted the state to be ‘obligated’, while a lesser wording ‘to secure’ was also rejected. In the end he was satisfied with ‘works’, because it was accompanied by a timeframe of ten years. Being measurable, it must happen.
Oddoul also describes the negotiations over anti-discrimination articles and those pertaining to culture. Please click here to read the rest of the article at Arab West Report.
From my recent article at Arab West Report, focusing on the critique of Dr. Wolfram Reiss, professor of historical and comparative studies of religions at the University of Vienna, and the response of Bishop Antonios of the Coptic Catholic Church:
Reiss believes that the post-Mursī constitution of 2014 removed the worst features of the 2012 charter, in particular the role given to the Azhar in review of legislation in Article 3, and the definition of sharī‘ah along traditional lines of jurisprudence in Article 219.
Yet despite the amendment and removal of certain articles, Reiss finds that the constitution of 2014 does not provide a sufficiently new basis for any of the urgent questions which have long prompted interreligious debate. The question of the building and repair of churches is postponed, religious freedom is guaranteed only for already recognized groups, the question of apostasy is not addressed, and the mention of political representation for Christians is very vague.
“I do not see any progress concerning religious freedom and the status of the Christians in Egypt,” he wrote in an email to Cornelis Hulsman. “So I see the ‘new’ constitution as a preservation of the status quo only. I would be grateful if you (or H.G. Anba Antonius) could convince me that I am wrong.”
The article elaborates his concerns and adds Hulsman’s description of background context. Reiss had read the full transcript of an earlier interview with Bishop Antonios, and responds:
As for the articles specifically discussed concerning religious freedom, Bishop Antonios both agreed and disagreed with the comments of Reiss. “Anything in the world might not be done correctly and could go wrong,” he said. “There has to be a public will for the constitution to be applied.”
This was his comment specifically about Article 53 on discrimination, but it concerns also the issues of apostasy and the rights of non-monotheistic religious adherents. The constitution states that freedom of belief is ‘absolute’, improving and strengthening the language of earlier versions. Of course this means one has the right to change religions. Concerning Baha’is in particular, Article 6 on citizenship states that obtaining official papers proving his personal data is a right, so how can the religion field be recorded incorrectly? But, he understood, the reality for both could be different.
Reality also dictated the acceptance of Articles 2 and 3, as well as 235 on church building. His personal opinion is with Reiss, that it would be better if the language of the constitution did not differentiate by religion. This even included Article 244 on Copts in parliament. Bishop Antonios is against quotas of any kind.
On this article he agreed with Reiss that the language was vague, but that this provided flexibility. It may be preferable to have a certain system to promote Copts in parliament given current realities about the lack of familiarity with democracy, but the law on this matter can change year by year as the reality changes. Ongoing political dialogue, as well as the will of the public, will determine implementation.
Please click here to read the full article at Arab West Report.
Bishop Antonious Aziz of the Coptic Catholic Church served as his church’s representative on the Committee of Fifty which rewrote Egypt’s constitution. He agreed to an interview with Arab West Report on December 10, 2013, shortly after the final text was approved by the committee and just over one month before ratification by the Egyptian people in a referendum on January 14-15. In the interview he provided clear and frank insight into the inner workings of the committee.
Arab West Report has provided a full transcript of the interview, available here. To summarize, Bishop Antonious described the process of his selection by the president and church, and the subcommittees on which he served. Each member assigned himself a place in one or more of five groupings: Basic Components of the State, Rights and Freedoms, System of Governance, Listening, and Drafting.
The bishop worked in the first and last of these subcommittees, making him uniquely qualified to comment on the passage of the key religious articles, from start to finish.
The listening committee received proposals from hundreds of citizens, forwarding these to members of the appropriate group. The group would interact with these alongside their own proposals, taking internal votes to forward their consensus text to the drafting committee. The drafting committee would then amend both wording and content as they saw fit, sending the article back to the subcommittee to produce a consolidated text. This text would then be debated by the full Committee of Fifty, which after agreement would enter a final, non-binding review by the Committee of Ten. These ten were constitutional experts who provided the Committee of Fifty the initial amended copy of the 2012 constitution, from which to work. Finally, every article required a 75 percent vote of approval to merit placement in the constitution, and the majority of articles passed without difficulty.
Getting to the place of passage, however, often entailed much difficulty. This was nowhere more evident than the religious identity articles which lead the constitutional text. Because of the difficulty, these were postponed until the end.
Bishop Antonious described the interaction between the church, Azhar, and Salafi Nour Party representatives. In Article 1, should Egypt be part of the Muslim nation (ummah)? Should Article 2, making sharī’ah the primary source of legislation, remain in the constitution? Should it be further interpreted, as done in Article 219 of the 2012 constitution?
Should Article 3, giving rights in personal status and religious organization to Christians and Jews, be extended to non-Muslims in general? Should Article 7 maintain language from 2012 giving the Azhar a role in the process of legislation? In all these articles and more, Bishop Antonious provided insight into the manner of discussion which eventually produced agreement. He also describes the personal interaction and attitudes experienced along the way.
Not everything in the final text met with Bishop Antonious’ agreement, and he is frank about some of these areas. But even so, the end result is a constitution with which he is deeply satisfied. Please click here to read the full transcript of the interview at Arab West Report.
Education in Egypt has long been criticized, a fact recognized by the authors of the new constitution. Articles 19, 21, and 23 oblige the government to spend four percent of its gross national product on public education, two percent on higher education, and one percent on scientific research. These targets must be met, according to Article 228, by the school budget of 2016 and gradually increase thereafter until meeting international norms.
The constitutional referendum was approved on January 15, as high school students were readying to complete their exams before winter break. Their return to school was scheduled for February 9 but has now been postponed twice. The official reason is due to the 38 deaths from the H1N1 virus, though some suspect political instability plays a role. Regardless, students are now due to return on March 9, creating a near month-and-a-half long vacation. Elementary students, meanwhile, have been out of school since early January.
Constitutional solutions, if implemented, will take time to fix the system. But to see the extent to which Egyptian education is broken requires a first-hand profile. Ibrahim Awad is a 22-year-old resident of Helwan, though he prefers not to use his real name. He illustrates the degree to which a culture of education is lacking both in many schools and many citizens.
Ibrahim is delightful, though depressing. One small illustrative excerpt:
“I would go to school, but do nothing. Students smoked in class, and the teacher wouldn’t even show up,” Ibrahim said. He was similarly truant, and no one held him accountable. “Teachers considered that we were failing students and not worth their effort.”
The only reason he graduated was the culture of bribing the teacher with Pepsi and cigarettes. More than eager to shuffle the students through, the teacher looked the other way when Ibrahim helped his illiterate colleague by writing answers on both their tests.
Please click here to read the full article at Egypt Source.
From my recent article at Arab West Report, in a series of interviews about the composition of Egypt’s constitution. Adel Maged is the vice-president of the Court of Cassation, and has recently written a draft law on ensuring a process of transitional justice in Egypt. Its details are in the article, but here is an excerpt describing his effort to enshrine the concept in the new constitution:
Mājid’s law can come into existence through a simple presidential decree. He sought, however, to ground the concept of transitional justice more fully by inclusion in the 2013 amendments to the Egyptian constitution. Early on during the period of listening sessions, with Suzi Nāshid, a Coptic professor of economics at Alexandra University, who previously was selected to serve on the Shūrá Council, he presented his vision to the official dialogue committee in the fifty member constitutional assembly.
But so did representatives of Counselor Muhammad Amīn al-Mahdī, the head of the recently established Ministry of Transitional Justice. It also proposed the creation of a commission, but insisted that the ministry be included in it.
According to Mājid’s interpretation, this would ruin the most important characteristic of the commission: its independent standing. The ministry is an official arm of the executive branch, which could potentially threaten the necessary neutrality of the process. How can the government investigate itself?
Mājid believed the members of the constitutional assembly recognized the need for independence in transitional justice, but succumbed to the pressure of the ministry and failed to issue a decisive judgment on the matter. He declined to speculate on their reasoning, but suggested we speak with ‘Azzah al-‘Ashmāwī, the representative of the National Council for Childhood and Motherhood, who served on the listening committee. But the end result was the inclusion of an open-ended Article 214 into the constitutional text, which states:
In its first session after the enforcement of this constitution, the House of Representatives commits to issuing a transitional justice law that ensures revealing the truth, accountability, proposing frameworks for national reconciliation, and compensating victims, in accordance with international standards.
Basically, the committee enshrined the principle of transitional justice, but left the hard decisions of definition, composition, and methodology to the coming parliament. Fair enough, believed Mājid, but he would have preferred a stronger guarantee that his vision – based on extensive study of international models – would become a reality.
Please click here to read the full article at Arab West Report.
From my recent article at Arab West Report, continuing a series of interviews with members of the committee that wrote the constitution. Mohamed Abd al-Salam is a judge and the legal adviser to the Grand Sheikh of al-Azhar, Ahmed al-Tayyib. He discussed a number of religious articles briefly, and gave insight into the controversy whether Egypt should have a civil state, a civil governance, or the expression eventually adopted – controversially – a civil government:
The Azhar did play an active role on a different controversial issue, however, that of the identity of the state. Salām stated that some members wanted to define Egypt as a ‘civil state’, but the Azhar, the Nour Party, and other members expressed caution. In their opinion the great majority of Egyptian equate the term ‘civil’ with ‘secular’, and Salām rejected that Egypt was a secular state for Islam was its official religion. But neither is Egypt a religious state – in the sense of the Western, theocratic understanding – nor is it military. In fact, Salām did not oppose the term outright, but preferred to see the idea expressed within the constitutional text, rather than as a description of the state itself.
Again, the Azhar returned to studying the issue, and it was the Grand Mufti, Shawkī ‘Allām, who proposed what would become the compromising solution. In his description, Salām stated both words around which a controversy would develop. Civil ‘governance / government’ was an acceptable substitute for a civil state. He believed the majority opinion in law held that ‘government’ was a more precise word, but that the Azhar had no objection to either phrasing. Some committee members objected, saying that ‘governance’ was the agreed upon terminology. ‘Amr Mūsa, however, announced ‘government’ from the podium – twice – and it was voted upon in consensus, said Salām.
Please click here to read the rest of the article at Arab West Report.
From my recent article in Arab West Report, continuing a series of interviews with members of the committee which wrote the constitution. Abadir is a founding member of the Free Egyptians Party, and was selected to participate as a stand-by member in case of possible resignations. But he was far more active than that:
Within his own subcommittee, Abādīr related he was free to influence the discussions, lobby, and explain his viewpoints. He never felt like a second class citizen. He was present at the internal voting of the subcommittee, and witness to the early contentious debates on Egypt’s identity issues.
‘Early’ debates, because midway through the process the reserve members were sent home. He complained to no avail, but provided insight as to the process of these contentious debates, which were eventually decided long after he left:
Abādīr explained that this liberal majority did not want Egypt defined in light of religion. They desired a civil state that had nothing to do with religion, dealing with citizens irrespective of their beliefs. They tried to insert this word ‘civil’ into Article 1, but met stiff resistance from the Azhar representatives and the Nour Party. Ten were in favor and only four against, but the word was removed. Later on it was attempted to be put into the preamble, but again the Azhar and Nour Party objected, so it was substituted for ‘civil government’, rather than a ‘civil state’. This was done in conjunction with removing language that placed Egypt as part of the Islamic ummah, which has ideas pointing toward a caliphate, and instead listing it as part of the Islamic ‘world’.
In Article 2 Abādīr stated his group wanted to make sharī‘ah ‘a’ source of legislation, removing the word ‘the’ that had been changed by President Sadat in 1980. ‘Everyone’, he said, thought this article should be phrased differently, but they decided to leave it unchanged. ‘Responsibly so,’ he commented, for in the charged atmosphere Egypt is in any adjustment would cause more trouble than it was worth.
So when the internal subcommittee vote proceeded, Abādīr expected it to pass unanimously among all fourteen members present. It did not. Zarqā’ of the Nour Party objected, and said he would support it only in conjunction with Article 219, which in the 2012 constitution provided a specific interpretation of the principles of sharī‘ah. This was somewhat out of order, Abādīr said, because their subcommittee was only tasked with discussing the first fifty or so articles of the 2012 text. But having brought it in, the committee immediately threw it out. Eventually the committee would semi-compromise in the preamble by leaving the interpretation of sharī‘ah bound by the collected rulings of the Supreme Constitutional Court. These, Abādīr said, rely on the sharī‘ah only where no scholars disagree, leaving the principles of sharī‘ah to equal the broad principles of humanity.
But the earlier resistance to Article 219 prompted Zarqā’ to leave the committee entirely – on health grounds, as reported in the press. The Nour Party did not withdraw from the committee, but substituted Ibrahim Mansour in his place. But Abādīr had a different take on these ‘health’ reasons. He stated that Zarqā’ said when he saw us he felt he wanted to throw up, that we were nauseating, and these were the exact words of his declaration. He felt that we were insulting all his beliefs. Mansour, he said, was more diplomatic in his listening, though their opinions were the same.
But in his absence the subcommittee discussed Article 3. Previously this article gave Christians and Jews the right to refer to their own ‘sharī‘ah’ in matters of personal affairs, religious rites, and leadership selection. Abādīr said liberals wanted to change it to state ‘non-Muslims’, but the Azhar representatives would not accept this, as it would open up rights for religions not recognized in Islam. Though the internal vote was ten to three, above the target threshold of 75 percent, they failed.
Article 4 of the 2012 constitution dealt with the Azhar, which became Article 7 in the new charter. Here there was unanimity with the Azhar, for all wanted to remove the previous stipulation stating the opinion of the institution had to be taken in all matters of legislation that might concern sharī‘ah. Otherwise, Egypt might find itself in the Iranian model in which the mullahs have a say in every law.
In most of the other articles discussed in the subcommittee, Abādīr stated, there was general consensus. Only on these first four did contention arise, prompting Mūsa to take them away and basically ignore the work and the votes of the subcommittee.
Please click here to read the full article at Arab West Report.
From my recent article on Arab West Report, in a series of interviews with members of the committee which wrote the new constitution. Hosam al-Massah is afflicted with cerebral palsy, yet works as a lawyer in the Ministry of Finance. He represented Egypt’s disabled community through the National Council for Persons with Disabilities:
He certainly believes the constitution supports his community. The first article to tackle was the hardest, he said, because the idea of adding clauses specifically mentioning the disabled was a new concept for many. This was Article 53, establishing equality and non-discrimination, and the disabled are mentioned alongside factors of religion, belief, sex, origin, race, color, language, social class, and political or geographical affiliation.
Massah was even able to mention ‘dwarfs’ specifically in the constitutional text. But his biggest triumph, explained in detail, was how he ensured ‘adequate representation’ for the disabled in parliament:
He did not attempt like some groups, however, to argue early on for a quota. He calculated he would not have the influence to push it through, and did not want to appear weak and spoil the effort at the beginning.
Instead, Massāh took advantage of the controversy that emerged over Articles 243 and 244 together. Article 243 concerned giving ‘appropriate representation’ to workers and farmers, who earlier had a longstanding 50 percent parliament quota removed. There was no real objection to 243, but members were aware of opposition to 244 and preemptively voted against 243 in order to force their hand. 33 members voted in favor, but 13 said no, he tallied in his notes. In turn, and lacking any mention of the disabled at this point, Article 244 also failed to reach the 75 percent threshold, with 27 in favor and 15 against.
Committee rules stipulated that if an article passed with less than 75 percent, it be discussed again. ‘Amr Mūsa as committee head called the members into private chamber, and it is here Massāh took advantage of his opportunity. He found three or four allies, and said he would not vote for Article 243 unless people with disabilities were added to the text of Article 244. In the end, both articles passed, with 46 and 44 votes respectively. Celebrating his achievement and responding to my marveling at his acumen, he smiled wryly. “I am a lawyer,” he remarked.
Massah comments also on military articles and the system of taxation, and the article seeks also to convey the color of his exuberant personality. Please click here to read the rest at Arab West Report.
From my recent article at Arab West Report, continuing a series of interviews with members of Egypt’s constitutional Committee of Fifty. Safwat al-Baiady is the head of the Protestant Churches of Egypt, and lent his experience in how the committee’s religious members came to agreement on contentious articles. Here is his perspective on Article 3, giving Christians and Jews the right to refer to their religious laws in personal affairs and religious organization:
But one part of society that was not represented by the committee, Bayādī stated, were the Baha’īs. He personally argued that Article 3, guaranteeing Christians and Jews the right to govern themselves according to their own religious laws, should be phrased instead for ‘non-Muslims’. This wording won the majority in the ‘fundamentals of the state’ subcommittee on which he served, with ten votes for and only four against – the representatives of the Azhar and the Salafi Nour Party.
But when the subcommittee sent the article to the writing committee, it came back changed. Bayādī said the Azhar’s Muhammad Abd al-Salam, consultant for the Grand Imam Ahmad al-Tayyib, led the charge against this wording. Bayādī said he was very mad, and told the committee their job was in wording, not to change the meaning of the article and throw the majority outside. They responded they were also members of the full committee and had the right to their own ideas. In the end, Bayādī admitted that perhaps the change was wise, as it would not be good to upset the religious elements in society who look to the Azhar and Salafi scholars. After all, they want people to vote for the constitution.
In the committee, Bayādī said, everyone had to compromise, getting something and leaving something. This is the way to resolve differences, and he described an article the church left behind. Having already received a number of useful articles, which will be described below, Bishop Antonious of the Coptic Catholic Church proposed an article granting approval and independence to the Egyptian Council of Churches. Formed after the revolution, the council had been operating but had no official recognition. Majority approval was easy in the subcommittee, but after submission to the writing committee it was removed. Bayādī said that no one opposed early on because it did not concern them as non-Christians. But upon further deliberation committee members felt they had already received enough attention in the constitution. ‘Amr Mūsa pledged his help to get the president to give his official approval, which pleased Bayādī. But what the president gives he can take away, and if in the constitution it would be harder to revoke.
Baiady also described the battle to remove the old Article 219 interpreting sharia law, as well as the article assigning a specific age of childhood. He gives a grammar lesson in Article 64 on establishing places of worship, and describes the shenanigans over securing ‘appropriate representation’ for Christians in the coming parliament. Here is an excerpt on the fight over the term ‘civil’, and to what it should apply:
The final controversy Bayādī described came at the time of the vote itself. The preamble of the constitution declared Egypt to be a modern democratic state with civil governance. This last phrase – civil governance – was very difficult to achieve, and even Bishop Bula, to Bayādī’s surprise and anger, said he did not care for the word ‘civil’. The Salafīs in chief opposed this designation, and the Grand Mufti found the proper compromise when he supported ‘civil governance’. Everyone clapped, and the matter was over.
Or so it seemed. At the final vote Mūsá read ‘civil government’. Muna Dhū al-Fukkār, who was elected as his assistant, spoke out to correct and help him. But the vote took place and passed. According to the official transcript, of which he showed a copy, Mūsá afterwards stated that he misspoke and meant ‘governance’. But the next day, at a dinner function with the army, they received the official copy of the constitution with the words ‘civil government’. Bishop Antonious especially was very upset, saying the text was changed. Some say it doesn’t matter, Bayādī related, for government can mean the whole system of government and not just the ministers. In any case, he does not want to spoil the whole bouquet because of the insertion of one thorn, but he does believe it was meant to be changed, and not simply a mistake, due to opposition to what the mufti proposed.
For this and more, please click here to read the full report at Arab West Report.
From my recent article in Arab West Report, continuing a series of interviews with members of the constitutional committee. Mervat al-Tallawi is the head of the National Council for Women. She described that strengthening of articles concerning women’s rights was not difficult, setting right the Islamist tinge from 2012. But Tellawi felt these protections were not enough, given the realities of Egyptian society:
So the text of Article 11 makes clear that women have the right to serve in high government and judicial positions, which actually did meet quite a bit of opposition in the committee – from a surprising source. The Salafī representative objected in clear and straightforward manner, as expected, and the Azhar did not speak either in favor or against. But otherwise liberal members protested, naming Diā’ Rashwān of the journalist syndicate specifically, the head of the lawyers’ syndicate (Sāmih Ashūr), the head of the doctors’ syndicate (Khayrī ‘Abd al-Dā’im), and the head of a university (not specified, either Jābir Nassār of Cairo University or Ahmad Muhammadīn of Suez Canal University). She anticipated religious representatives might oppose her efforts, but was taken aback by these educated and liberal figures.
Article 11 also spoke against violence against women, which was passed unopposed. But it also called for ‘appropriate representation’ for women in parliament, which also proved controversial. Originally, Tallāwī asked for ‘just and balanced’ to be the phrasing on this issue, but Sayyid Badawī of the Wafd Party objected, saying this meant she wanted fifty percent. No, she replied, but if specification is needed let us officially propose a one-third parliament representation for women. The others mentioned above joined in what became a three hour fight, the end result of which was the wording of ‘appropriate’. This only postpones the battle, Tallāwī stated, until the drafting of the electoral law which will define what appropriate means, but there are several acceptable modalities. Perhaps the law will oblige parties to place women high on their voting lists; perhaps each governorate will assign three seats to be contested by women only. Other options can be discussed.
Tellawi also addressed the much overlooked, but vital sphere of local governance, and ensured women would have a place therein:
If social conservatives, though, had objection to appropriate women’s representation in the parliament, they did not object to a full quota in the local councils. Article 180 stipulates women must receive one quarter of elected positions, with one quarter to youth, and half to workers and farmers, with undefined appropriate representation for Copts and the handicapped. The only issue raised against the women’s representation here was if there were a sufficient number of women capable of serving administratively. Without a doubt, Tallāwī assured, giving specific names and stating the National Council for Women had 20,000 rural women who helped communicate between the council and illiterate women in the villages. But people are not aware of this, and men tend to only see men as qualified. But the members of the committee did not treat this issue with the same importance given to parliament.
She comments also on the controversial articles concerning the military and civil governance versus civil government. Please click here to read the full article at Arab West Report.
From my recent article at Arab West Report, the first in a series of interviews of members of the committee which wrote Egypt’s constitution. Mohamed Abla is an internationally acclaimed Egyptian artist and was a leading figure in the protests against the appointment of an Islamist head to the Ministry of Culture. As such, protection of culture became a constitutional necessity:
One area that was mostly uncontroversial, but dear to his heart, was the inclusion of several articles promoting culture. Articles 47-50 oblige the state to foster cultural development and protect its cultural heritage, but this section was strange to many only in that it was new. In the end, only Salafīs opposed.
Most of the interview dealt with controversial elements, however. One area in question was the decision of the committee to yield the decision on electoral order and system to the president. Some have wondered if this was cooked in advance to make way for Sisi’s presidential campaign:
‘Ablah said this was completely absent from their negotiations. Some members favored presidential elections first, other parliamentary. Some favored a parliament elected by individual candidacy, some by party list or something in-between. As they debated, positions shifted. In the end, the Committee of Fifty decided two things. First, they were unable to come to an agreement. Second, they were unequipped to come to an agreement. Technical matters such as these require data that would take a long period to study judiciously. Given their sixty day timeframe, proper determinations were not feasible. The president, however, will be able to summon all the tools of state to engage in social dialogue, gather pertinent data, and make a decision in the best interests of the country. Beside, ‘Ablah stated, such matters should not be made permanent in the constitution. Members desired flexibility in the political system; if an individual candidacy is preferred now, perhaps party list will be better in ten years when political life is stronger.
‘Ablah admits he was an anomaly in the committee, as he is not connected to the government. But as such he may have been ignored in any backroom political machinations. He saw very little, however, that even approached the idea of trading votes for certain articles. “These issues were not postponed for anyone’s interests.”
Please click here to read the rest of the article at Arab West Report.
The referendum passed, decisively. Turnout was strong, comparatively. The meaning is debated, heatedly. And here the prayers are needed.
A few dispute the turnout, which was the key indicator. Supporters of Morsi have claimed only about ten percent of the electorate voted, while unofficial figures of both participation and affirmation supersede the results for the 2012 constitution.
Unless massive fraud is demonstrated, the people have ratified Morsi’s removal, the crackdown on the Muslim Brotherhood, the constitution itself, and perhaps, the presidential candidacy of General Sisi.
In this choice, God, bless Egypt. Bless her for the virtues displayed, for the wisdom exhibited, and in spite of the manipulations present. Whether this choice honors or dishonors your will, God, bless the nation moving forward.
For there was manipulation, God, and herein lies the arguing. State and media vigorously campaigned for a yes vote. The few campaigning for no were arrested. The boycotting opposition was either in jail or in the streets – and even here there is argument. Are the Brotherhood terrorists in label or in reality? Were their protests disrupted, or were they disruptive?
In these questions, God, bless Egypt. Make clear the status of those accused, that they may be tried and judged, sentenced or acquitted, justly and transparently. Make both their supporters and their condemners simultaneously resolute and compassionate. And protect the safety of the streets, for both traverse and protest. Too much traffic has been halted, far too much blood has been spilt.
But as Egyptians and analysts alike argue over the meaning of the referendum, sift the virtue from the vice like the wheat from the chaff. Do results indicate the sovereignty of the people or the authoritarianism of the state?
In this dichotomy, God, bless Egypt. If a mixed bag, then refine them both. Strengthen and encourage a necessary hard hand in difficult times. But rebuke and hold accountable that which violates the law, certainly, but also your standards of righteousness. In your time, God, unmix this bag that Egypt may move forward in full confidence of its cause.
And if it is not mixed at all, bless Egypt tenfold for the offense to which she is subjected, from whichever faction is in the wrong.
Harness the passion in these arguments, God, and marshal it for Egypt’s good. Then cool these fires, so that differing opinion might mutually benefit, educate, and reform. Give meaning to this struggle, and have the nation emerge clean.
Bless Egypt with her new constitution. May consensus come, and with it peace.