Drafting a Constitution: Part I of II

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            Constitutions, like revolutions, have an aura.  We like to think they are written in a refined atmosphere of principle.  Nothing of the mundane and shabby pursuit of power attends them.  Frequently as the years roll away from the moment they are drafted it is not only possible but indeed necessary to view them in such a light.   Unfortunately real constitutions, especially those that work, must command sufficient assent to function and that requires unpleasant political compromise about the messy details of power at a given time and place along with principles that will last for an age if not necessarily for all time.  Americans have a tendency to forget that the same constitution that forbade Congress to limit freedom of expression also required states and individuals to deliver fugitive slaves to their masters.  It took a civil war to make a constitution we can more comfortably read today in place of the one that was originally written.

            So, too, the draft of the Egyptian constitution is the product of a committee representing many points of view.  As with any document produced by a committee, the new document is not fully coherent.  No part of it is quite as bad as that third clause of the second section of the fourth article of the US constitution.   But then nobody is actually living in the 18^th century anymore.  This is not a document likely to cause a civil war but it may prove not to be more successful than most constitutions.  Constitution writing, after all, is hard to do:  over a couple of centuries Bolivia has had 17; France has had 16. 

            Because the Egyptian constitution is a long and complex document whose many articles will have significant repercussions on public life I have found it impossible to write one entry.  What I plan therefore is to write several entries.  This, the first, will address some of the problems attendant on how the draft has chosen to address the issue, obviously dear to many of the drafters, of making Islamic law and values more centrally located in the Egyptian government.  My concern here is not with how Islam and government might be connected in the abstract but with some of the particular ways, institutional and legal, that the writers of the current draft have chosen to address them and what their implications could be.

           

            The draft constitution is based on a communitarian view of politics in which national decision-making is vested primarily in the executive.  I will write in another entry about the presidential system the draft envisages. The main role of the state is to protect a particular understanding of society as a moral community that the president and the legislature have very broad latitude to define.  While the most basic underpinning of this vision in the constitution is of a moral community founded in Islam, the document itself (like the Sadat constitution but unlike that of 1923 constitution) occasionally espouses narrower and occasionally broader views of the community.  In addition to the three branches of government the draft also foresees the creation of several other autonomous bodies whose relationship to governance is only vaguely defined and whose legal implications for the state could become extraordinarily complex.

            The relationship of the Egyptian state and the Egyptian people to Islam is spread across many different articles.  The most controversial of these is Article 68 mandating the Egyptian state to establish women’s equality with men insofar as this does not conflict with the rulings of Islamic law.  Although it is clear that this article would profoundly affect divorce and inheritance rights of Muslim women, its full impact will be clearer after a discussion of the other articles.

Article 1 of the constitution defines the Egyptian people as part of both the Arab and the Islamic communities (ummas).   This is one of many sections of the constitution that define a relationship between the Egyptian people as a whole, not all of whom are Muslim, Islamic community and the foundational discourse of that community.  No previous Egyptian constitution has gone to such lengths to enunciate such a definition and it may prove to be a cause for regret for many people, including the Islamist political figures engaged in drafting this document.   Constitutions create rights and they also create discursive frameworks.  The 1971 constitution defined the Egyptian people as part of the Arab people but indicated they did not form a single political body.  This language is considerably more ambiguous.  It confers neither citizenship nor the right to a political role on non-Egyptians but it also clearly does, as later articles suggest, open a formal role for non-citizens that many Egyptians would find troubling.  At some point it will also raise the question of what role non-Muslims could play in the interpretation of Islamic shariah. 

To the degree that a community is defined by its commitment to a legal discourse (that is, that an umma is defined by its shariah) the first article creates ambiguity about the relationship of the Egyptian state to the various communities it might represent.  This obviously creates a problem for Christians who are certainly Egyptians under the constitution but who would not be considered part of the Islamic umma.  The drafters may, like some intellectuals in the Islamic current, see Egyptian Christians sharing a culture saturated with Islam but this is not the language of the article itself.   The problem, as I have noted previously, is that to make Islamic law foundational for Egyptian law and to make all Egyptians equal in rights and responsibilities (as this document does) is to pose the question of whether all Egyptians are equally capable of invoking or deploying the language of Islamic shariah in arguments about law and policy.  In many ways, this constitution poses the question more sharply than ever before in recent history and also attempts to foreclose who can engage in its resolution.

Article 3 provides that the principles of Jewish, Christian and Islamic shariahs will govern the personal status laws, religious affairs and leadership choices of those communities respectively.  Since there is no longer a Jewish community in Egypt, this really refers only to Christians and Muslims both of whom will be governed by principles drawn from their own religion in personal areas of life but who will also be governed by Islamic foundational principles elsewhere.  This, of course, is what poses so sharply the question of who can discuss what the foundational principles are and how they are to be interpreted.

Article 2 makes Islam the religion of the state and the principles of Islamic shariah the basis of Egypt’s laws.   This disputed article reproduces the language of the 1971 constitution as amended in 1980.  Article 2 does not stand alone, however.  It must read in conjunction with Article 4 that makes the Azhar (Egypt’s pre-eminent Islamic religious center) an independent Islamic institution with an undetermined mission in regard to the global Islamic community for which the state provides material and financial support.  The manner of choosing the Shaykh al-Azhar will be determined by law but once chosen he cannot be removed.   In any matter regarding Islamic shariah the opinion of the Council of Higher Ulama (as a body rather than through the medium of the Shaykh al-Azhar) must be taken into account but is not determinative.  Taken together these two articles move the Azhar and its most prominent scholars (ulama) more directly into a constitutional and political role than has been the case for decades if not centuries. 

There is no constitutional provision, incidentally, that the Shaykh or members of the Higher Council be Egyptian so it is possible to imagine a day when someone who is not a citizen, but is a member of the community that includes Egyptians, can voice an authoritative opinion on Egyptian law.  The Muslim Brothers and the leaders of the various Salafi movements have demanded increased independence and autonomy for the Azhar.  In many ways this article is a response to that demand but it remains to be seen how independent of the state the Azhar will become.  Ayatollah Ali al-Sistani, the most prominent Shi’i authority in Iraq, was born in Iran; Mahmoud Shahroudi, the head of Iran’s judiciary, was born in Iraq.  

Recent decisions by the Supreme Constitutional Court limited the scope of specific rulings from within the corpus of Islamic jurisprudence.  The language of this constitution appears to be designed to expand that scope.  The general phrase “principles of Islamic law” provided earlier governments with significant latitude. The meaning of the phrase “principles of Islamic shariah” is more fully developed in the concluding sections of the constitution, in Article 221.  The rather vague language from the earlier constitution is there given a fuller definition: it includes demonstrations, decisions and legal rules (often referred to as fiqh) of the four Sunni schools of law. 

The expansion of the field from which principles can be obtained coupled with the restriction of the domain of what is to be considered Islamic in Egypt (which now excludes elements that could be characterized as Shi’i) will enhance the role of the Azhar and its religious officials.  Again, substantively it is hard to know in advance if this will make for worse policies but it will certainly make for a more complicated legal system, a more problematic process of writing laws, and ultimately to the increased politicization and bureaucratization of the religious hierarchy which will now have many more points of contact with the political and administrative systems.  Again, it is hard to know whether the drafters believed themselves to be writing anodyne texts, but this language reinforces a still small but nevertheless increasing paranoia in some circles of Egyptian society about Shi’i Islam.  If the government of the country is to be run in accord with Islamic principles those principles are themselves increasingly narrowly defined in the constitution. 

            Egypt is repeatedly defined as a democratic country which itself is described by shura, multi-party competition and the peaceful alternation of power.  Shura, generally taken to mean consultation, appears three times in the Qur’an.  It has come to be a term used in Islamist discourse as an equivalent to democracy but its general use as a constitutional term is undefined. 

            If Egypt is to be part of the community of Muslims the constitution also asserts that besides Islam there are distinctly Egyptian values.  The constitution thus describes the country as a moral community to which the state and society have a constitutional obligation: defense of its basic (but largely undefined) values  (Article 10).  These include the defense of the unity of Egypt as a culture, civilization and language area and of its core or basic values in regard to the family, which the constitution defines as the basic element of society (Article 9).  The schools acquire in this constitution an obligation to teach religion and morals as well as to employ Arabic.  While no one can seriously argue that schools should be devoid of ethics or that the use of national language is not a good idea, it seems useful to wonder if the constitutional mandate in Article 52, to teach religion in the schools and ethics in the universities, is required.  It also seems useful to wonder what will happen to schools which, by teaching in languages other than Arabic, might be deemed to violate the constitutional rights of the students.  As in other parts of the constitution, it is not so much that those who have drafted this language necessarily desire such an outcome but the unexpected ways in which constitutional texts are litigated.

            The constitution guarantees freedom of belief but it only guarantees the right to construct houses of worship to Jews, Christians and Muslims (the so-called Heavenly Religions, Article 37).  Although Article 39 guarantees Egyptians the right to express their thoughts and ideas, Article 38 explicitly forbids expression that is injurious to prophets or messengers of God generally.  This is the first time that an Egyptian constitution has itself forbidden expression (until now only statutory law has done so).   Even those who believe that Egyptians ought to place more stringent limits on freedom of expression than does American law might want to consider the danger of having such limitations placed in the constitution. 

            One extremely contentious issue has been Article 68 which requires the state to advocate for women’s equality as long as it does not contravene explicit judgments of Islam.  This language is more far-reaching than in the 1971 constitution. Women’s rights advocates have correctly noted that the word judgments (ahkam in Arabic) is more far-reaching and more restrictive than “principles” mentioned in Article 2.  Article 2, coupled with Article 221 certainly provides a very wide range of objections to equality.  The point here is not whether Islam inherently treats women equally.  It is that this language provides more points to dispute future statutory language that would further women’s rights in a decidedly unequal society.  Given the role proposed for the Azhar it is also not clear to what extent “Islamic judgments” refer to the vast range of past statements and to what extent they would be prospective. 

            That the language of the constitutional article is designed to limit women’s equality is fairly clear (regardless of what one thinks of the relevant rulings, principles, or arguments).  Deploying the language of Islam here provides a way, otherwise unavailable within the constitution, to limit a commitment to the equality of citizens.   There are other limits on the equal treatment of citizens but they are constructed in very different ways.

What is also clear is that the use of the language of Islam and its principles has so far impeded but not fully prevented women from gaining rights in Egypt.  The mobilization and political activities of activists (primarily but not entirely women) has affected Egypt, Egyptian law, and the Azhari elite. This is a slender reed but it is notable that, for example, twenty years ago the then Shaykh al-Azhar believed that Islamic law necessitated female circumcision (or genital mutilation).  In the last decade more recent occupants of that position have come to state that such procedures are not required and that outlawing them is acceptable.   

            The drafters are clearly undertaking to bring the Azhar and the Islamic religious establishment (but not the Christian establishment) more generally into the process of law-making and adjudication.  Whether this will prove to be a very good thing for the Azhar itself and the religious establishment as well as for Egypt and its moral fiber is a completely different question.   

            It is unclear what will happen to the Azhar as its Shaykh and higher ulama are drawn into everyday legislative decisions.  Clearly no decisions about family law or the status of women can be made without eliciting an explicit opinion from the Azhar.  Opinions on women’s issues or others as well (which may or may not be formal fatwas) will no longer have the quality of individual judgment but will become institutional statements in larger political and administrative conflicts.  Those who have found the Azhar politicized in the recent past will soon discover that it becomes even more so.  If the Shaykh of the Azhar is indeed to be elected by the higher ulama from within their own ranks then it will probably return to the highly politicized environment that dominated in the 1930s and 1940s when the King, the conservative parties, and the Wafd all attempted to control the position.  The bitter battles between Shaykhs Maraghi, Zawahiri, and Abd al-Raziq for control of the Azhar left deep scars on the institution and on the politics of the country.

            Other sections of the constitution are likely to impact the state in regard to Islamic law and history.  Article 18 requires the state to protect not only private and communal property but also “waqf.”  Article 24 requires the state to revive the institution of “waqf khairi” and to encourage it and mandates the promulgation of statutory language for this purpose.  Article 214 creates a “Supreme Waqf Institution” to oversee the organization of private and public waqfs.

            Waqf refers to a kind of trust or endowment of property in Islamic law.  Egyptian jurists in the 1930s and 1940s, notably Abderrazzak Sanhouri (the author of the civil code of 1948) had long sought to extinguish the institution.  In 1952 the Free Officers’ government abolished private waqfs and nationalized public ones.  Reviving waqf may seem like a move to enhance the role of charitable giving or it may appear to the constitution’s authors to be a step in the direction of creating a self-directed Islamic society.  Charitable institutions are certainly good things, but there are questions of whether the constitution is the appropriate mechanism to institute a particular set of public policies that will require significant statutory innovation.  This is especially so because the writing of the new statutory language will necessarily require the opinion of the Azhari ulama as will the staffing of this body.

            The independent institution for safeguarding the Egyptian heritage (turath) would appear to raise similar issues.  Again, the creation of institutions to safeguard Egypt’s long, rich and deep cultural heritage that includes pre-historic, Pharaonic, Greco-Roman and many varied Islamic aspects is reasonable.  Many already exist and perhaps there is a need for more, but what is less obvious is why this should be a constitutional mandate.  Nor is it clear that the debate and statutes creating such an institution will do anything other than exacerbate existing conflicts precisely because they are now constitutionalized.  Given the importance placed by earlier articles on safeguarding Egyptian culture or basic values these initiatives seem likely to create new resources for contentions over the nature of the Egyptian state and its relationship to society.    

            The draft of the Egyptian constitution makes very real and important changes in the institutional and political structures of the country.  Because most of those writing the new document are part of the Islamist trend in Egyptian politics they have sought to make Islam, as they understand it, more central to the governing institutions of the country.  They have done this by strengthening certain existing institutions, creating new ones, insisting on some statutory innovations, and further defining previously less clearly defined constitutional language.  This is obviously the work of secular politics.  The Muslim Brothers and the Salafis both believe that they will have significant influence over the choice of the Shaykh of the Azhar and the members of its ruling council as they also believe they will have influence over the composition of the new institutions mandated in the constitution.

            What is open to question is how good an idea it is for Egypt to create new layers of administration and new resources for a relatively limited portion of the population in a document that is as profoundly committed to the executive power.  There is much to be said for Egyptians generally and Egyptian Muslims to debate openly about the nature of the ethical concerns and the principles that should animate legislation and regulation in their society.  No doubt such a debate would be animated largely by language from within the tradition of Muslim religious thought. Whether this particular constitutional language accomplishes that is an open question.  To me it seems doubtful.  One might think that there would be other forms of discussion as well in a country which has played such a long role in the history of human society and in which a large Christian minority continues to live.  The draft does not completely foreclose such discussions but it certainly is very far from encouraging them.