The Document That May Define the New Egypt: Why the Constitution Matters

Secularists warn that Islamists have hijacked the drafting process and may give the country over to religious authorities who will determine how Shari‘a affects the law of the land

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XINHUA / LANDOV / Amru Salahuddien

Salafis protest against the new Egyptian constitutional draft in Tahrir Square, Cairo, on Nov. 2, 2012

The words of a document are likely to determine what the new Egypt looks like — more than demonstrations in Tahrir Square. And now, the drama over the drafting of the country’s new constitution is approaching its endgame. A final version is expected to be presented soon, and a confusing partial draft is already circulating widely. The impending final stages of this saga promise to dominate the public debate and could further destabilize a country that has struggled to find a degree of public calm and consensus in the year and a half since Hosni Mubarak was ousted from power. The contentiousness has, of course, resulted in conflict in the most visible arena of public debate in postdictatorship Cairo: the streets, which have witnessed clashes between Islamists and secularists.

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At the heart of the controversy is the Constituent Assembly, a 100-member body formed earlier this year by the since-disbanded Egyptian parliament. The assembly’s work has been fraught with drama from the very start. Secularist members staged an almost immediate walkout claiming the assembly — like the parliament that formed it — was dominated by Islamists. A second, more diverse assembly was formed but the same core issues have held sway. Once again, most secularist voices have boycotted meetings, and the small handful that remain (like former Foreign Minister and failed presidential candidate Amr Moussa) are facing accusations that they’re only lending legitimacy to an unfair process. At this point, it seems impossible to imagine that the document that emerges will reflect any sort of widespread societal consensus.

Human-rights activist Manal al-Tibi, who didn’t join the original secularist walkout, subsequently resigned from the body in late September and claimed that Islamists — a mixture of Muslim Brothers (and Sisters) and ultraconservative Salafis — were using their numbers advantage to ram through a constitution that served only their interests. “I have reached a final conviction that there is no use in continuing to be a member,” al-Tibi wrote in a public resignation letter. “It became clear that the constitution was being prepared to serve one particular group.”

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Not surprisingly, much of the controversy has centered around the role of religion in public life. Critics have objected to a clause that enshrines equality between women and men, “as long as it doesn’t contradict the principles of Shari‘a.” Another proposed clause would allegedly give al-Azhar University, the most prominent seat of religious education in Sunni Islam, the final say on whether a proposed piece of legislation was compliant with Shari‘a. Critics charge that these and other proposed clauses essentially amount to the stealth creation of the Islamic Republic of Egypt — with unelected religious scholars holding sway over elected politicians and Shari‘a trumping fundamental rights. “A single political faction has monopolized the constitutional writing, while the rest of Egypt was excluded from the process,” the National Front for Justice and Democracy recently announced in a public attack on the assembly’s work.

Secularist activists seem to be approaching these final stages of the process with a mixture of mounting rage and frustrated fatalism. They don’t have the numbers inside the Constituent Assembly to prevent anything from going into the constitutional draft. And they strongly suspect they won’t be able to marshal enough public support to reject the draft in a national referendum. “It’s going to be framed as stability vs. chaos. The stability rhetoric will prevail over everything else,” says Ziad Akl, a senior researcher at the al-Ahram Center for Political and Strategic Studies and a member of the Social Democratic Party — which backed the withdrawal of its members from the Constituent Assembly. “You’re talking about a people who are exhausted by political uncertainty and a state media that’s going to be heavily biased [toward a yes vote].”

Representatives of the Brotherhood’s Freedom and Justice Party (FJP) have launched an ongoing public information campaign, claiming they want an inclusive and transparent drafting process that incorporates all societal perspectives. “It’s very important to take input right now,” says Amr Darrag, the secretary general of the Constituent Assembly and an FJP official. “We’ve been very keen to ensure that everything we do is presented to the public, even if it is controversial and even if it is incomplete.”

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Last month, the assembly released a partial draft for public discussion. But the move ended up stirring more controversy and confusion. Hot-button clauses like the one on al-Azhar’s authority were not included; other clauses had sections blanked out or in brackets indicating the issues in question were still under debate. “This is like a wiki constitution. You’re not sure who’s writing it and where it’s coming from,” says Nathan Brown, a political-science professor at George Washington University who has closely tracked the drafting process.

Brown says he understands the rationale of the committee releasing an early draft for public debate. But he says the draft they put forward was simply too rough and confusing for public consumption — basically a little too much transparency. “It’s like a student coming up to me halfway through an exam and saying, ‘Here’s what I’ve got so far,’” Brown says.

The secularists are desperately pinning their hopes on unlikely scenarios. Akl says one of the only remaining ways to derail the current constitutional locomotive is if the Salafis “somehow deem the final draft to be not Islamic enough for their tastes” and turn on the process. There is also slim chance the assembly could be disbanded by court order. A legal challenge charging that the assembly’s makeup is unrepresentative of Egyptian society has been referred to the country’s Supreme Constitutional Court — which isn’t expected to rule until some time in December. But both Akl and Brown say it is unlikely a court would take such a politically incendiary step.

But even an internal collapse of the assembly, or its court-ordered dissolution, doesn’t necessarily bring any comfort or optimism to secular forces. In the event of a failure on that scale, the entire issue would revert back to President Mohamed Morsy — a lifelong Muslim Brotherhood official — who would be tasked with naming a new Constituent Assembly. That authority was originally claimed by the Supreme Council of the Armed Forces (SCAF). But when Morsy won his power struggle over the SCAF in August it reverted to him — essentially creating a closed constitutional loop from which secularists can see no plausible means of escape.

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Darrag recently spoke before a gathering sponsored by the American Chamber of Commerce in Egypt, where he received a decidedly mixed reception. When an audience member asked about women’s rights and Shari‘a, Darrag nearly lost the room with a hair-splitting monologue about the distinction between “provisions” and “principles” of Shari‘a in the constitutional text. At least one woman in the room began interrupting and arguing with him.

In the end, Darrag concluded with what came across as a veiled reminder to his wealthy and Westernized audience that their values probably represent an extreme minority in Egyptian culture. “Don’t forget,” he said, “that there are a lot of different views in our society.”

Ashraf Khalil is a Cairo-based journalist and author of Liberation Square: Inside the Egyptian Revolution and the Rebirth of a Nation.

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