A Funny Thing Happened on the Way to the Democratic Transition

        

        

         There is a paradigm nobody talks about much any more in regard to Egypt: the democratic transition.  The problem with the idea of democratic transition, dearly beloved by both the Obama Administration, most of my colleagues in political science, and the Muslim Brotherhood was that it presumed the institutions of the state would be passed, intact, from the old regime to the new.  Through elections, constitutions, and the circulation of new elites popular sovereignty and democratic practice would re-invigorate the barren institutions of the old order.  Where necessary, new ones would be created.

         What, we are impelled to ask, went wrong in Egypt?  What made it, one analyst is reported to have said, the stupidest transition ever or the revolution that never was?  Or did the fault lie not in our Egypt but our selves?  Not least in our inability to recognize that the complicated and confusing period, lasting a decade or more, between the first observation of revolutionary upheaval and its conclusion, is both more important and more uncertain than we feel comfortable with.

         I want to begin at the point where theories of failed revolution and failed democratic transition diverge:  the institutions of the old order.  Theorists of failed revolution tell us that too many Egypt’s old institutions and old elites survived the 2011 upheaval:  the Armed Forces, the judiciary, the bureaucracy, and the old elites.  Theorists of failed transition might seem to believe that not enough of the old institutions survived but on closer inspection they have a different concern:  given free elections and the doctrine of popular sovereignty not enough Egyptians seem to have taken the outcome of elections with sufficient seriousness.  Specifically the winners of the parliamentary and presidential elections, the Muslim Brothers, have not been accorded the legitimacy of a freely and popularly elected government.

         This is puzzling.  Free and fair elections are the tonic of transition.   All theorists of transition recognize that free elections are not “enough” as they put it to ensure democracy but free elections, by definition, they are the way in which the people express their will.  Once elections have been held it is up to the new government to do its work and for the people to wait a decent interval before judging its performance at the ballot box rather than through ongoing and defiant street demonstrations and conflict.  This is even more puzzling because it is a little difficult to argue that this has something to do with Islam since the Islamist parties won and they have no problem with asserting the doctrines of popular sovereignty and electoral legitimacy.

         The dominant concern in Egypt today is the high, and increasing, level of polarization.  It seems to be common in the US and Europe to describe this a conflict between the country’s minority urban secular middle-class and its religious (Islamic) majority.  That Egypt has become increasingly polarized is apparent but it is doubtful that the polarization that paralyzes the country is between the secular middle-class and the rest of Egypt.   Much of the violence in the streets today is occurring outside of Cairo in the Canal Zone and the provincial cities of the Delta, places not known for their large, secular middle-classes.   The violence is often specifically between the Muslim Brotherhood, its direct supporters and its occasional allies on specific issues, and the restive lower middle and working classes in these cities.  Socially we can speak of polarization on many dimensions.  There is a marked rural/urban dimension to what we see; there is also a clear aspect of educational attainment; in terms of religion there is also an obvious Christian/Muslim dimension, but within the Muslim community there may also be an antagonism based on how the Brotherhood understands Islam in the modern world (of which more below).    Lastly there is a rather widespread dissatisfaction with what many Egyptians perceive as the Brotherhood’s own internal lack of transparency and democracy and aggrandizing organizational ambitions.  These, in turn, provide both local and national elites with the basis through which they have opposed the Brotherhood but over which they have very little direct influence.

         It is possible to use electoral maps to see a geographic dimension to this increased polarization. Egypt has had two constitutional referenda, parliamentary elections (and run-offs) for two chambers, as well as a presidential election and runoff.  The elections are not strictly speaking comparable but what we see is a decline over time in turnout, relative support for the Muslim Brotherhood, and an increasing polarization centered on the Delta.  Specifically three quite different provinces—Gharbiyya, Cairo, and Minoufia—have emerged as localized centers of opposition to the Brotherhood.  All three of these provinces, which voted no in the December 2012 constitutional referendum had voted yes in the March 2011 referendum.  They also voted against Morsi in both the initial and runoff stages of the presidential election.  Gharbiyya is the province in which the textile center of Mahallah is located whose 2006 strikes are often referred to as the origin of the collapse of the Mubarak regime.  Tanta, however, also a textile center is even more strongly opposed to the MB; what may differentiate the two is the presence of the headquarters of an important Sufi order, the Badawiyya, which is located there and to which there is an annual pilgrimage.  Cairo is the most urban of the governorates and, of course, has the largest concentration of the socalled secular middle class.  Minufia is quite unlike both Cairo and Gharbiyya and the best anyone can come up with to explain its behavior is that it was the home of both Sadat and Mubarak, but this seems like weak tea.

         Given recent events it might now be possible to add the Canal cities of Suez, Pt. Said, and Ismailiya to the list of anti-MB strongholds.  There are some specific grievances in each of these three cities of which the most well-known stems from the deaths of 79 people at the Port Said soccer stadium on February 1, 2012 during a match between the local team, Al-Masri, and the Cairene Ahli team.  The death sentences handed down to 21 defendants in Port Said on January 26, 2013 led to demonstrations and riots in Port Said and demonstrations in support of the verdicts in Cairo.  The next day, itself the anniversary of the uprising that toppled Mubarak, massive riots broke out in Pt. Said and the other Canal cities as well as Alexandria.  In response President Morsi declared a state of emergency and curfew which the demonstrators promptly and publicly broke by announcing street demonstrations to begin at the same hour as the curfew.  The army refused to enforce the curfew with force and Morsi was left to slowly withdraw it and then allow it fade away.

         One of the peculiarities then of the last two years is that the authority of the executive and the legislative branches of government  have, for the time being, diminished while the authority of judicial branch and the Armed Forces (especially in the months since it relinquished power to President Morsi in August 2012) has increased.  The Armed Forces have become more independent, constitutionally and even practically, from the executive branch than at any other time in recent history and the judiciary has intervened in politics with remarkable independence over the past two years.  Sometimes, as when they dissolved Mubarak’s National Democratic party, the courts gained universal praise.  At other times, as when the Supreme Constitutional Court proclaimed the first post-Mubarak parliament elected in violation of the constitution, less so.   The courts in Egypt, as elsewhere, are a counter-majoritarian institution; their role may seem to be hard to explain in the context of the Arab world generally where such an independent court system that asserts such broad powers of review is anomalous.  It is, in fact, anomalous within the context of the French jurisprudential system from which Egypt’s judicial system springs.  Briefly what we are seeing is the result of two trends.  One is the culmination of at least a hundred years of judicial culture in Egypt based on asserting the necessity of the rule of law as a way for the ordinary courts to control the executive and asserting claims of constitutional interpretive power.  The other is the reality that, of the three branches of government, the courts have been the one to which ordinary Egyptians have resorted most frequently and with most success over the past 100 years.  The courts can be arbitrary, corrupt, and unresponsive but they have proven to be more useful than the other branches.

         It is I think for this reason that there has been, in the years since 2011, so little popular response to calls for the establishment of revolutionary tribunals.  Egyptian experience with exceptional tribunals, whether revolutionary or military, has not been positive.

         Looking forward then we can see two institutional forces with significant legitimacy: the Armed Forces and the courts.  And we can see two institutions, paradoxically based on liberal notions of legitimacy—an elected presidency and legislature—which are having the most trouble establishing broad acceptance.  One problem for the president is that he tries to wield the power of his office in ways consonant with a regime that is dead (the old republic) or with a regime that has not yet been born. 

Let us recall his attempts to deploy the power of the presidency in the interregnum between the old constitution and the new one.  SCAF had dissolved the lower house after the Supreme Court ruled it had been elected unconstitutionally.  On assuming the presidency Morsi tried to issue his own constitutional declaration ordering the lower house back into session.  The courts, the SCAF, and significant portion of public opinion rebuffed his attempt.   I have already noted that his recent attempt to create a state of emergency in the Canal provinces failed.  In November he issued a constitutional declaration that allowed him to replace the Public Prosecutor and also shielded the work of the committee writing the constitution from judicial oversight.  Massive demonstrations, including attacks on the Presidential palace, forced Morsi to rescind the declaration although not its effects and the committee wrapped up its work in record time so that a referendum could be held thereby putting the threat of judicial review behind it. 

         So, going forward politics in Egypt appears to be bounded by four forces:  the judiciary, the army, the elected legislature and presidency likely controlled by the MB, and the mass public protest.  Mass public protests, rare between 1952 and 2011, have often had the effect of forcing the executive to back down on policies and the last two years, in which they have become common, are no exception.  Unfortunately these protests have, over the past year, increasingly turned into street battles between the MB and their opponents, especially in the provincial towns.  Even casual viewers of Egyptian television recognize that the Canal cities and other towns of the interior are now the scenes of pitched battles in which people—clearly not the secular westernized intelligentsia—are determined to attack and destroy the MB’s local offices and headquarters.  The most obvious example occurred in early December 2012 when the national headquarters of the MB in Muqattam (Cairo) was torched.  Generally the police do nothing as they do nothing in most street fighting unless they themselves have been attacked.  But there are also indications in many provincial cities that MB militias and those based partly on soccer clubs now engage in routine street battles with each other.

         It may come as a surprise then to realize that the Morsi government has been able to carry out some of its responsibilities even if it has chosen to do so in ways that maximize the influence of MB’s political wing, the FJP, in politics.  The government has recently managed to pass a law allowing it to issue Islamic bonds over the opposition, not of the secular liberals who play almost no role in the Shura Council (the upper house) but over the opposition of the Azhar and the Salafi parties.  The government has been able to negotiate with the International Monetary Fund and the absence of an agreement has more to do with the IMF’s concern about Egypt’s unstable politics than with the incapacity of the government to reach an agreement with the international body.  The government does not, it is clear, have much control over the police but the opposition leadership does not have much control over the demonstrators.  If the opposition leadership often appears weak and divided it is equally clear that its base, especially in the industrial cities, is unwilling to tie its future to the National Salvation Front.  In other words, the broad outlines of power are far from settled in the country.

         New parliamentary elections will be held beginning in April.  The opposition has, for the moment, decided to boycott the elections.  Not to participate is to allow the MB and other Islamists to dominate the parliament completely which, given the new constitution, will allow them fairly wide power over society.  Whether that will come with the ability to solve the country’s pressing economic problems and increasing polarization is far from clear.  Obviously the MB hope to ride out the storm but if they do there is every reason to believe that their preference will be to impose.

         And indeed neither they nor any other government will have much time given the rapid decline of Egypt’s foreign exchange reserves, the evident lack of competitiveness in the export of manufacturing or agricultural products, and the country’s declining tourism (itself in part subject to competitive pressures since the primary tourist destination is the country’s beaches not its Pyramids). 

         Egypt is by no means a country engaged in a democratic transition.  It is a country in the midst of a revolution. For better or worse, however, unlike the classic revolutionary situations Egypt has a functioning and still respected court system (not true of France, Russia or China) and a functioning Armed Forces which will intervene to prevent the collapse of the state but not much more. 

Egypt is also a country whose urban population has been mobilized as never before and which has stayed ready to take to the streets long after most people had written that possibility off.  It is primarily the pressure of the streets that have pushed the political situation forward, but at some point the political leadership of the country must take up its real responsibility.   Egypt is now in a situation reminiscent of what, in 1975, Michel Crozier, Samuel Huntington, and Joji Watanuki called the crisis of democracy.  What they meant was that the levels of mass mobilization had undermined traditional (that is, previously existing) relations of authority within the state, the religious institutions, and elsewhere.  The masses were too eager to participate and thus, through an excess of democratic aspirations and activity, threatened democracy itself at least as Crozier, Huntington and Watanuki (and the Trilateral Commission) understood it.   The decline of authority, or haibat al-dawlah as the Arabic equivalent employed in Egypt today has it, was a moral as well as a political crisis in the minds of these three distinguished conservative intellectuals.  They could hardly imagine how such a chaotic situation would end well.   The world of the advanced industrial societies differs today from the one that existed in the first two-thirds of the twentieth century and probably also from the one that the authors of the report might have preferred.   The revolutionary democratic impulse that they feared was contained for many reasons, not least of which was the adjustment of institutions and elites to new ways of governing.   To paraphrase Lenin, revolutionary situations occur when elites can no longer govern in the old way and large numbers of people want to live in some as yet unspecified new way.  

What might this mean for Egypt?  For the MB this may mean that winning elections is no longer anywhere near sufficient as a goal.  To succeed they will need to find a different way of governing.  Today’s polarizing conflicts in Egypt are far from limited to differences between the MB and a secular, middle class (or Facebook) opposition.  It is possible that, for example, many of the young people who showed up to dance the “Harlem Shake” in front of the Muslim Brothers’ national headquarters were engaged in middle class mockery.  If that were the opposition with which the MB had to contend they would be in a very different situation than they find themselves.  The dock workers who have several times shut down the port at Ain Sokhna  (most recently in mid-February 2013) were interested neither in embarrassing the MB nor in line dancing.  Nor are industrialists like Magdi Tolba dancing for joy:  the weakened pound is causing nearly as many problems as it solves for textile exporters like him.

The National Salvation Front faces its own problems.  Frequently derided as feckless and irresponsible, they have the opposite problem of the MB: a political coalition that is sufficiently broad and whose institutional connection to its possible electoral base is sufficiently tenuous that they cannot find a way to compete coherently in the electoral process.     Whether the boycott strips the elections of legitimacy or locks the opposition into the political wilderness remains to be seen.

Even a large electoral majority in parliamentary elections may not, for the foreseeable future, translate into viable governance as popular demands continue to be expressed in ways that are both democratic and disruptive and as the political leadership of the country finds it difficult to agree on a common path forward.

        

        

        

        

Drafting a Constitution: Part II

            Constitutions define and set out relationships between the primary institutions of the state.  They also suggest some of the compromises and agreements between powerful political forces that have been necessary to create these institutions and it gives us some hints about what the drafters think political life will look like. 

On balance it looks as if, through whatever compromises they have made, the drafters of the Egyptian constitution envisage a civil state based on a very powerful executive authority rooted in but not directly managed by an elected president.   Educated professionals will play a dominant role in administration and legislation. The new state will have obligations to the sixty percent of Egyptians who are poor or illiterate but they will have no role in its institutions and relatively little in its politics. The political elite will engage in competitive elections over power and the military and the judiciary will function with significant levels of autonomy.   The military, however, will continue to be a self-contained hierarchy whereas the judiciary will, more than in the past, be institutionally divided.  Coupled with the role I discussed in an earlier post on the constitution, the constitution lays out what might be called an Islamic rechtstaat.

The draft of the constitution does not stand completely alone.  It clearly borrows quite a bit from the language of the 1971 constitution.  Perhaps strangely for a constituent assembly largely made up of supporters of political Islam it also appears to be a family resemblance to the constitution of the French Fifth Republic.  What makes this peculiar is that many of the drafters claim they want to replace statutory law borrowed from the French civil code with Islamic sharia and yet the constitution nods clearly to Paris. 

Most surprising of all, however, are the similarities between this draft and the 1923 constitution.   You could almost say this document has created an elected constitutional monarch who presides over a parliamentary system that unequally but directly apportions political power on the basis of wealth and status.  Indeed the new constitution has abandoned the language of the 1971 constitution to describe the legislative branches in favor of that of 1923.  Thus Egypt no longer will have a People’s Assembly and a Consultative Assembly; it will henceforth have (as it did in the past) a Chamber of Deputies and a Senate.

The most important relationship the constitution establishes is between the president and legislature.  At the beginning of the revolution, the Muslim Brothers had expressed their support for a parliamentary system of government.  They began to back away from that position fairly quickly and have suggested that what they want is a mixed system.  What the constitution envisages is relatively far from a mixed system.  It seems to envisage something much closer to the monarchical system that characterized what Afaf Marsot called “Egypt’s liberal age.”  Because the constitution retains an elected republican form of government it might be best called a limited elected monarchy. 

The new constitution clearly limits the power of the president relative to that of the 1956 and 1971 Egyptian constitutions. Sometimes it does so by borrowing language directly from the 1923 constitution; sometimes it does so by reference to the constitution of the French Fifth Republic. However, the limitation on the power of the presidency is not achieved by a corresponding increase in the power of the lower house, the Chamber of Deputies.  It is achieved by increasing the constitutional power of the Prime Minister even as it increases the independence of that office from the parliament.  The draft has created a strong president whose goals are accomplished through an unelected Prime Minister subject to a vote of confidence by an elected parliament.

            The simplest way to grasp the underlying dynamics for Americans is to imagine that President Obama could not directly choose his own cabinet.  Rather he would choose a General Secretary who would then choose the secretaries of the existing departments (State, Treasury, Education and so forth) and the General Secretary rather than the president would be responsible for the administration of government and would also usually chair cabinet meetings. It would not be particularly surprising to Americans to learn that Congressmen who joined the government would resign their seats. The feature that would be unfamiliar would be that although Congress could force the president to choose a new General Secretary it could not solely for political reasons force the president from office.

            The details are worth looking at a bit more closely if only to understand how the drafters have deployed language from the constitution of the monarchy to achieve their ends.

           

            Article 48 of the 1923 constitution stated that the king exercised his authority through his ministers and Article 155 of the current draft uses the same language to describe how the president exercises his. This language about the executive was absent from earlier Egyptian republican constitutions. Until now Egyptian presidents, like those in France and the US, exercised their extensive powers directly. The current draft reduces the range of presidential authority and (by adopting the language of the 1923 constitution) attempts to place a barrier between the president and the direct exercise of many of the powers of the executive branch. In so doing, of course, it creates the possibility of a potential clash between an elected president and parliament that could play out in the selection of a prime minister. This suggests that the drafters, at least, clearly envisage that the mechanisms they have put in place in the constitution to supervise free and fair elections will work and that Egypt will, henceforth, have real political pluralism. 

This present commitment is enhanced by Article 129, which makes it difficult for the president to dissolve parliament routinely.  Unfortunately the one situation in which the president is most likely to wish to dissolve parliament is not covered by Article 129, as I discuss below, which likely vitiates its importance.

Article 49 of the 1923 Constitution gave the king the absolute right to choose and dismiss ministers.  The present constitution also gives the president the unlimited right to appoint the prime minister but, as noted above, Article 129 makes it much more difficult for him to dismiss an appointed minister who has acquired parliamentary support. 

            The 1923 constitution emerged from massive demonstrations that paralyzed the old order no less than did those of early 2011. It was written by a much smaller committee whose members certainly understood at least as well as those of the present one issues of Islamic law, constitutional jurisprudence, and the historic importance of their work.  Writing as it did in the shadow of British military predominance, a profoundly conservative landed elite anchored in the royal family, and a powerful nationalist movement it wrote a document that distributed real but unequal power across the country’s institutions. There was, in 1923, no requirement that the ministers be chosen from the majority party but neither was there any prohibition on parliamentary members serving as ministers. Article 65 gave parliament the right (but not the duty) to issue a vote of non-confidence in the ministry. It was then obliged to resign.

This draft appears to be the first Egyptian constitution in which the president’s ministers (as in the French Fifth Republic) cannot be sitting parliamentarians. Deputies who join the government leave their seats. Parliament has significant influence over the president but the relationship is ultimately one-sided. Under Article 145 the president names the prime minister who then forms a government and presents its and its program to parliament. If the lower house does not reject this by a majority within thirty days then the government takes office. If the new government is rejected the president is given a second chance. If his second attempt is rejected, the president is then directed to form a government based on parliament’s proposal. If this is not accomplished within thirty days then the president dissolves parliament and new elections are held. Presumably the president can simply delay rather than appointing a ministry he or she opposes so as to call for new elections. This is the one situation in which the president not only can, but also must, dissolve the government without presenting either a justification or holding a referendum (as required in Article 129); it therefore provides the president with tremendous power in regard to a refractory sitting parliament.  The president ultimately not only can, but also must dissolve parliament; parliament can dislodge a prime minister but not a president.

This provision is evidently designed to avoid the possibility of “cohabitation” as occurred in France where the president also appoints the prime minister who must then seek parliamentary approval. On several occasions since the 1980s the president was from one party and the majority in the chamber of deputies was from another. Thus a Socialist president had to appoint right-wing ministries and once a right-wing president was forced to accept a Socialist ministry. Because the Egyptian president, unlike the French one, rules through his minister cohabitation might seem to be more dangerous. 

The draft also limits the president’s direct power in other ways. According to Article 149 the president appoints and dismisses military officials (muazzafun askariyun) and political representatives (mumaththalun siyasiyun) but not civil servants (muazzafun madaniyun) who are, according to article 164, appointed and dismissed by the prime minister.  This is clearly an attempt to re-establish the integrity of the civil service, but its implementation will depend on the probity of future prime ministers as well as additional legislation and ultimately litigation before the constitutional and administrative courts. The meaning of “political representatives” is not specified in the constitution and will probably require legislation and adjudication to define. Judging by article 13 of the French constitution, which contains similar language, it will include provincial governors, and diplomats.

Unlike the French president (Article 9 of the French constitution), the Egyptian president is not supposed to routinely preside over meetings of the council of ministers. He may call the ministers into session for important occasions and he presides over meetings he attends (Article 158). The Egyptian president neither signs nor issues the decisions of the Council of Ministers (as does the French president) which further emphasizes the degree to which the drafters, at least, envisage the ministry as independent of the presidency as well as the parliament once appointed.

The Egyptian president does give an account, at the annual inaugural joint session of the two chambers of parliament of the government’s general policy (Article 146). This largely resembles the speech from the throne in the 1923 constitution (Article 42) although the houses are not given the right of written reply they enjoyed in 1923. This address differs from the address (Article 145) that the Prime Minister is to give of his program.

The president has a variety of other powers, including the declaration of war and states of emergency subject to the approval of the legislature as well as plebiscite in the case of the latter. The president (and the legislature) may request amendments to the constitution. The president issues legislation (but not administrative regulations) and has the right to a veto.

The Prime Minister has a more significant role in many ways than the president.  The government (as opposed to “the state”) is composed of the Prime Minister, his deputies, the various ministers and their deputies and it is the prime minister who oversees the work of the other ministers and who is responsible for public security. The prime minister appoints and dismisses civil servants (Article 164) and issues regulations necessary to enforce legislation (Article 165), issue administrative and regulatory decrees as well as develop draft laws and relevant budgets to be presented to the legislature (Article 171).  The Chamber of Deputies must approve the budget initiated by the Prime Minister and may modify it but may only increase expenditures if it finds additional resources (Article 117). 

The legislature has rather limited powers:  it can propose legislation but for the most part responds to the executive. It must overcome a presidential veto with majority votes in each chamber—not an unusual requirement in strong presidential system.

If the Prime Minister controls the government there is one area in which his power and that of the president are limited: the military. The President is the supreme commander of the armed force (Article 152) and clearly makes appointments within the military. However, as outlined above it is the Prime Minister who appoints the Defense Minister and the Defense Minister is the “general commander” of the armed forces. The Defense Minister must, under Article 198, be a member of the officer’s corps and the budget of the armed forces will be provided to the legislature as a single number by a National Defense Council headed by the President but made up primarily of military and intelligence officials (Article 197). 

            Articles 197 and 198 throw significant light on the ease with which President Mohamed Morsi was able to place Generals Sami Enan and Mohamed Hussein Tantawi on retirement in August and to end the period of direct military rule. Any fears within the general staff that a return to civilian rule would imply significant civilian oversight have been assuaged. A civilian president with no previous ties to the army is now nominally in charge of the armed forces, but they have managed, for the first time in Egyptian history, to constitutionally oblige the executive to choose an officer as minister of defense and to limit legislative oversight of their budget.  When the uproar in fall 2011 over the proposal by then Vice Prime Minister Ali al-Selmi erupted it was in part because he proposed just such an article for the forthcoming constitution. The armed forces, having given way, has effectively gained what it sought then in terms of control over its own budget and a say in whether the country goes to war (which it must be admitted no government would launch against the express advice or wishes of its military commanders).

With the exception of the armed forces, the limits on legislative authority are largely in line with much European practice over the last century. What is striking is the limitation on who can serve in the legislature. One of the most contentious issues of the last two years was the insistence in Nasserist constitutions that fifty percent of parliamentarians be workers or farmers. These mandates were abused by Egyptian governments from their inception to provide a convenient cover for blatant manipulation. The present constitution has gone in the reverse direction, in ways that depart dramatically from democratic theory and Egyptian constitutional norms over much of the last century.

A fundamental feature of modern democracy is that the electorate constitutes, at least in theory, the pool for elected officials. Obviously in most representative democracies, elected officials are drawn from a relatively small subset of the electorate as a whole: the poor and poorly educated are rarely elected and women and members of minority communities are also under-represented.  The fiction (or, more kindly, the ideal) that anyone in society can serve in elected office is a basic principle of contemporary democracies. Where there are express limitations on who can serve even if everyone can vote, we are more skeptical about claims to democracy.

To serve in the Chamber of Deputies a candidate must be twenty-five years old and have completed primary education. If we simply took published illiteracy rates as a proxy for primary education (which they are likely to be because it is much easier for the government to measure school completion rates than substantive literacy) it would suggest that something like seventeen percent of the male population and thirty-five percent of the female population is ineligible to serve in the Chamber of Deputies. Reported initial enrolment rates in primary education are much higher, but, of course, these students are too young to serve in the Chamber and I have not found good recent information on measured levels of completion (although I do suspect that they are what “literacy levels” actually are measuring).

The Senate is a completely different situation. With the exception of fiscal oversight, the Senate shares legislative authority with the Chamber of Deputies. Its vote is also necessary to overcome a presidential veto. In addition, should the Chamber be dissolved, the Senate temporarily assumes its legislative functions. Its members serve a six-year term, which gives it significant greater staying capacity than either the president or the Chamber.

The president chooses twenty-five percent of the 150 members of the Senate and the rest are elected (Article 130). This is in line with the 1971 constitution in which the president chose one-third of the Consultative Council’s 132 members. As with the People’s Assembly, the Consultative Council was required to have half its members be workers and farmers. 

The language of the constitution in regard to the new Senate resurrects the language of the 1923 constitution.  The president must choose members of the Senate (Article 130) from among the country’s highest educational and political elite: former ministers and their deputies, former legislative leaders, scientists, religious figures, judges, retired military officers, and high-level civil servants. In addition, former presidents (elected after 25 January 2011) are automatically life-members of the Senate on leaving the presidency. This is remarkably similar to Article 78 of the 1923 constitution with one revealing exception. In 1923, both appointed and elected Senators were drawn from a pool with similar qualifications. In 1923, however, in addition to former officials those who owned significant amounts of property (defined by its tax) were also eligible. In 2013 elected Senators need not be drawn from the ranks of former officials nor must they own property with a minimum taxable value, but they must have completed higher (university) education. Where once physical capital was a requirement for membership in one of the legislative chambers today it has become intellectual capital but the restriction remains quite real.

It is not necessary to have a romantic view of the poor and the illiterate to believe that these restrictions are anti-democratic. Nor is it necessary to believe that Egypt should retain the Nasserist prescriptions. Relatively few workers and farmers enter legislatures anywhere; most legislators are attorneys by education. But it is profoundly undemocratic to restrict the right of the poor and the illiterate to contest. When Supreme Court Justice Tahany El-Gabali suggested unequal voting rights for the educated and the illiterate in 2011 she was pilloried, but few people seem to have noticed that the Constitutional Committee has made a very similar move. That she was a woman and the committee is largely male may have something to do with it.

The last section of the draft I address before concluding are the articles dealing with the judiciary.   There are two quite positive changes in the draft relative to the 1971 constitution.  First, the old section on state security courts has been removed. For now they no longer exist and lack direct constitutional sanction.  Second, military courts may now only try cases involving military personnel and civilians may not be tried in military courts (Article 200 and Article 62).  One of the major demands of the last two years has been to end civilian trials before exceptional or military courts and these articles together would seem to be the embodiment of that demand.  In the context of recent Egyptian history this is a very welcome development and it will also provide an immediate test of how seriously the new government takes its own constitutional obligations.

Two sections of the draft deal with the State Council and the Supreme Constitutional Court independently.  The State Council is explicitly made the sole court to decide administrative disputes, thus reinforcing its role as the guardian of the European conception of the rule of law, usually referred to as the “rechtsstaat” (Article 181). The Supreme Constitutional Court is given the task of deciding the constitutionality of legislation and deciding cases that involve disagreement between judicial bodies (Article 182).  The SCC retains its right to determine constitutionality after laws have come into effect with one exception: it must decide on the constitutionality of draft laws governing elections at any level within 15 days of their being presented by the president or the Chamber of Deputies.  Once the court has made its prior determination on draft electoral laws it loses the right to determine constitutionality under Article 182 (Article 184). 

The history of the SCC and Egyptian election law is too complex to go into here, but the drafters have stripped the SCC of its power to declare elections (and elected parliaments) invalid.  When the court did this during the Mubarak era they were hailed as champions by the Muslim Brothers who now decry them for invalidating the 2011 elections on the basis of the same jurisprudence.  Nominations for appointment to the court will also now be made by a much broader group of jurists than previously which will give the president significantly greater latitude in choosing members of the court. 

The obvious question to ask in concluding is why a committee made up largely of Islamists who decry the role of European law in Egypt directly or indirectly have chosen to write a constitution that is modeled in part on the French constitution.  That much of the language is borrowed from a constitution written under British guns is even more peculiar.

            A satisfying answer would take another essay but there are two general areas that are worth considering.  The first is simply that the present drafters, like those in 1923, face a profound and contradictory challenge.  They must find a way to make an abstract commitment to equality and democratic participation conform to their substantive preferences to maintain particular kinds of inequality.  The absence of a monarchy and the presence of a deeply-rooted (even if flawed) court system makes the challenge of writing a constitution much more complicated than in the past.  Under the 1923 constitution Egyptians did not have either “the rule of law” or a rechtsstaat in the sense that legal scholars (including Egyptian jurists) today or then understood the term.  The Mixed Courts provided foreigners with legal remedies for government abuse of power but Egyptian citizens could not use them and the National Courts did not have similar authority.  Since the creation of the State Council in 1946 and the Supreme Court in 1971, Egyptians have acquired the rule of law and it has become a deeply rooted part of their relationship to the state.  Because many of the drafters are themselves prominent jurists and because the rule of law has now become a part of the Egyptian political landscape, this constitution must deal with its existence and the significant jurisprudence it has created over the last six decades.  The constitution appears to be an attempt to create new channels of contact and legal discourse through institutional innovation and the introduction of potentially constraining Islamic language.  It certainly does not transform the ulama into powerful political actors but it will give significant support to political parties and movements whose discourse couched in terms of Islam has hitherto stood outside the framework of the rule of law in Egypt.

The 1923 constitution was written by the generation associated with the Nahda, a movement that proclaimed its role to be the revival of Arab culture, religion and politics.  The Muslim Brothers have claimed an affiliation with the Nahda.   What they and the Salafi parties share with many of the elites of the early 20^th century (including the British) is a sense of their tutelary mission over a morally deficient society.  This is clear not only from their political language but from much of the draft itself which takes care to position the state as the defender of those who require help because they are easily victimized (such as widows, orphans, and the disabled).  The constitution from which they have borrowed so heavily provides a method for maintaining inequality through the institutions of a tutelary regime in which moral authority is presented as the basis for political power.

A draft constitution claiming to defend the rights of the disabled and to reinforce the role of the Arab-Islamic heritage appears to be one that the most celebrated intellectual of the Nahda in Egypt, Taha Hussein, would have disapproved.   

                       

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.

           

           

           

           

                       

           

The End of Innocence

            What have we learned from “The Innocence of Muslims”?  As so often, too much and too little.  We’ve learned that Muslims get enraged when Muhammad is ridiculed, but they don’t get too enraged even though their rage is justified.  Just not so much by the ridicule of the Prophet of Islam as by the terrible economic and political conditions in which they live or possibly by American policies of bombing, one-sidedly supporting Israel, or using drones to kill suspected terrorists.  Or possibly Western Islamophobia. It's a little hard to follow everything we've learned.

            We’ve also learned that the movie is highly offensive, semi-pornographic, and has very poor production values.   Also that, until two weeks ago, the total number of people who had ever seen it numbered less than 100.  Oh, and that it wasn’t made by Israeli or American Jews but by five American and Egyptian Christians. 

            One thing we haven’t heard very much about, at least in the US and Europe, is the context within which the attack on the US Embassy occurred.  Or its possible implications for the future of political life.  And with good reason:  if we heard more about the context and the implications we’d also have to dispense with “the Muslims”, “the Arabs”, and “the West” and focus a bit more sharply on particular people, groups, and interests.  And surprisingly enough despite decades of intense discussion about Orientalism, essentialism, and the need for specificity as soon as there’s violence, the default mode is airy generalities and broad simplifications.  I’m going to write about Egypt, not Libya.  Some day I’ll explain why this limitation is an important theoretical position, but this isn’t the day.

            So, how exactly did it come to pass that a movie of whose very existence the world was innocent until three weeks ago became the cause of an attack on the US Embassy in Egypt (as well as more tragic events in Libya which—as I said—I’m not in a position to discuss)?  Unlike Salman Rushdie’s novel “The Satanic Verses”, this wasn’t the arrival of a widely anticipated piece of artistic expression and unlike the Danish cartoons it didn’t appear in broad daylight, unbidden perhaps, on the doorstep or at the local tobacconist’s shop.  No, you really had to go out of your way to search for this.  Far out of your way.  Google is of course very helpful and if you do search for “Muhammad” and “child molester” it will return something like 85,000 items but it probably wouldn’t have returned this film before two weeks ago.  

            So who appears to have gone out of their way?  An Egyptian Islamist preacher, Khalid Abdallah who brought it up on his television channel “al-Nas” is one. Abdallah hails from the far reaches of the Salafi world which expresses more than the common prejudice against Christians that many Egyptian Muslims share without thinking about it very much.  In Abdallah’s world Christians, a minority of about 10 percent in Egypt, are a threat to the Muslim majority:  if not kept in their place they will uproot Islam itself.  Abdallah was not alone in exploiting the existence of the previously unknown trailer.  Within days other television shaykhs had joined in.  Wagdi Ghoneim devoted an hour to the film which is available on You-Tube after its connection to a handful of Egyptian and American Christians had become clear.  Beginning with an invocation to “the pigs of the Coptic diaspora” his intervention rapidly descended further downhill.  Another religious personality,

            For Ghoneim, as for most Egyptians, the revolution has been at once liberating and threatening.  It’s liberating because it gave them the possibility of voicing their thoughts without anywhere near as much censorship as in the past.  But it’s also threatening  because other people also now have the same possibilities.  And one of the areas that Egyptians have been thinking about a lot and will be thinking about more in the days to come is very broadly described as the role of Islam and politics.  Very specifically how will the new constitution define the role of Islam in relation to law, what institutions (if any) will it endow with the right of defining Islam for the state, and what kinds of policies will governments adopt as they must implement what will also be a constitutional provision mandating the equality of Egyptians regardless of religion (among other enumerated categories)?

           

            And this brings us back to Ghoneim’s fears.  Since January 2011 Egypt’s Christians have been remarkably assertive.  Many individuals either ignored or broke with their own church hierarchy to demonstrate in the early days.  In May there were some large, sustained and public demonstrations by Christians in Maspero, a neighborhood just to the north of Tahrir Square demanding equality.  In October, an armored personnel carrier deployed to break up a protest in that same locale crushed a young activist and a Christian, Mina Daniel, to death.  Many younger Muslim activists who had known Daniel from the demonstrations in Tahrir were not only appalled but were adamant that he, as much as Khaled Said, was a martyr of the revolution.  Significant media coverage, moreover, attended a meeting between the mother of Khaled Said and of Mina Daniel that was arranged after his death.  Innocent (that word again!) as such a claim might seem, it is extremely contentious.  For people like Ghoneim, it threatens their control over the meaning of a very basic and highly charged concept.  If Daniel, Said, and other victims of repression were all martyrs—without regard to their faith—then the word assumes a markedly secular and political meaning rather than a religious one. 

There have also been some terrifying and spectacular acts of violence against Christian communities since January 2011.  The most recent one occurred at the beginning of August in the village of Dahshur when a fight between a Christian tailor and one of his Muslim clients escalated into communal violence and the entire Christian community fled.   It is not clear exactly what the impact of these acts of mass violence is on the larger Egyptian political landscape.   For many (including President Morsi whose comments on the events echoed what former President Hosny Mubarak said about earlier outbreaks of violence in the past) they are simply individual conflicts that spiral out of control.  For others they reflect the powerful emotions of the poor, the illiterate, and the rural or semi-rural population.  But for some people (Muslims as well as Christians) they are disturbing on their own account and for what they show about the inability of the Egyptian government to promote or even understand what real equality of citizenship will mean.  They have also drawn the attention of the outside world in a powerful and unpleasant way to one aspect of contemporary Egyptian reality that its leaders would prefer to avoid.

            Also in the background of the conflict over “The Innocence of Muslims” is an ongoing debate in Egypt about movies, movie stars, and the arts more generally.   As in the US, politicians associated with religious and conservative causes view the film industry and the arts generally as a socially and politically liberal elite. Just as the demonstrations over the trailer were beginning, Shaykh Amgad Ghanim published an article in which he denounced artists as people who think of themselves as above the law and who face no restraint or censorship whatsoever.  This will, of course,  come as a shock to authors, directors, and others whose works have been prevented from appearing.   This would include the late Nobel-prize winning novelist Naguib Mahfouz whose “Children of Gebelawi” was serialized in 1959 but then banned from publication in book form (although an imported Lebanese printing was sold).

Artists, including authors and film-makers, are themselves concerned that a government dominated by the Muslim Brothers will be more inclined to censor or otherwise restrict creative activity than the late-stage Mubarak regime.  A recent unsatisfactory meeting between President Morsi and a group of artists did not assuage feelings on either side and their have been some pointed attacks on movie-makers recently.  These include an earlier campaign against Basma, a popular actress associated with the left whose maternal grandfather, Youssef Darwish, was a well-known communist leader and a Jewish convert to Islam and who recently married the professor and liberal politician, Amr Hamzawi.  The popular comedic actor, Adel Imam, was charged with insulting religion although ultimately vindicated on appeal and there is currently a series of attacks on Ilham Shahine, a popular actress.  Because both Shahine and Imam supported Mubarak against the protests in early 2011 they face significant political criticism but the legal proceedings against Imam and the assaults on Shahine’s reputation are of a very different character.

Even if we were to accept, as I shall shortly argue we should not, that all Muslim Egyptians were enraged to the point of violence not by the film but by mere knowledge that it existed, why should Abdellah and Ghoneim have spent so much time bringing the matter to their attention now? 

The answer, I think, lies in another extremely contentious issue that is about to be brought up for public debate and decision:  the language of the new constitution.  A committee of 100, of whom a majority politically are from the MB and various Salafi political but which includes judges, legal scholars and a handful of well-known political figures, is about to present the draft of a new constitution.  The new constitution will define the powers of the various branches of government, the rights of citizens, and the principles of governance of the second republic.  The Salafi and MB delegates are committed to writing their particular (and not completely identical) visions of Islam into the constitution. 

While drafts of various portions of the new constitution have been leaked on occasion, the committee has refrained either from publicizing its working document or the discussions that its members are having with each other or with members of the public they invite to various sub-committee meetings.  Thus, no one now knows what the language of the new document will be nor does the committee have any idea what a broad range of Egyptians might think about it.  What the committee intends obviously is to present the Egyptian people with a document that can be briefly discussed (perhaps for 6 weeks) but which will then be voted up or down in a referendum.  As a consequence the constitution itself will not emerge from a national public dialogue but in all likelihood will simply be accepted as given. 

Although it is common to think that the major concern of the Islamists is the language of the second article of the old constitution, making the principles of Islamic sharia the source of legislation, their understanding of Islam, the nature of governance, and the relationship between society and the state affects many articles of the new constitution.  One such issue is the legitimacy of religious pluralism in Egypt beyond Sunni Islam, Christianity and a nod in the direction of Judaism.  It is quite possible that the new constitution will eliminate the possibility of public sites for worship for Bahai’s, Shi’i Muslims, and any who are not monotheists.  A related issue is whether the new constitution will more clearly define the personal status of Egyptians (marriage, divorce, inheritance) as a matter of religious law.  Another issue is whether the new constitution will assert the primacy of family obligations for women.  

Another important issue will be freedom of speech.  Insulting the president is, for example, a crime.  President Morsi recently and to widespread acclaim eliminated preventive detention in this area but he did not de-criminalize it.  Anyone convicted of insulting the president can still be imprisoned.  Egyptian law also criminalizes a variety of other forms of expression, including several vaguely defined acts such as “maligning religion” and “inciting religious disorder” (which need not include violence).  These laws are not equally applied so that Khaled Abdellah’s destruction of a Bible in front of the US Embassy did not provoke the same legal (or political or social) response as would the destruction of a Quran.  That Abdellah has recently been charged with the crime of religious defamation may at least have the virtue of proposing equality of treatment but it still leaves open how restrictive the constitutional and statutory language about speech will be.

It is hard to avoid noticing that the protests have had a significant impact on Egypt itself.  The draft language of the constitution leaked in mid-August had considerably stronger limitations on censorship and restriction of publication than the drafts that appeared in mid-September after the protests.

But these laws themselves, which are enabled by self-limiting language of the relevant constitutional provisions, are also political tools.  One could argue endlessly their relationship to the Islamic sharia of the past, but their connection to political censorship in the present and the use of the legal system to threaten opponents of the Islamist current are more clear.

The Islamist movements have often claimed that Islam is under threat in Egypt.  One way they have sought to reinforce their vision of Islam in society is empowering the Azhar.  Islamist movements, including the MB and the Salafis, have proposed freeing the Azhar from state control, and allowing its senior religious professors to elect the head of the vast religious and educational establishment that is also “the Azhar.”  This has gone hand in hand with proposals floating around since 2007 to make the religious leaders of the Azhar equivalent, at least symbolically if not practically, to the Supreme Constitutional Court.  The MB, for many reasons, has begun to back away from this proposal but the Salafi movements (who also impact a significant section of the MB leaders and members) have not.  Basically they believe they could either win or at least powerfully affect such elections. 

Lastly, of course, because the language of the new constitution is so clearly associated with the political influence of the MB and the Salafi parties, they will be as anxious to win an endorsement as overwhelming as the 77% they achieved in the March 2011 constitutional referendum or the large majority of seats they won in the parliamentary elections.  One thing they will want to avoid is the slim (51%) margin of victory that brought Morsi himself to the presidency. 

Electoral politics clearly requires compromise and coalition but it also requires rallying the base.  And one lesson of the last two years in Egypt is that among the hottest of buttons is the claim that Islam is under threat.  A significant portion of the “yes” vote in the March 2011 referendum was based on the claim that a “no” vote would allow the secularists, atheists and Christians to eliminate Article 2 and, along with it, the role of Islam in public life.  Similar claims were certainly made in the parliamentary elections.  During the presidential election it was harder to deploy this argument because it risked alienating other voters who Morsi needed to court.  But the “The Innocence of Muslims” provided the possibility of deploying the discourse of anger and fear. 

For all these reasons and more it is a mistake to see the protests around the US Embassy as the untrammeled and spontaneous emanation of mass anger. 

This becomes more clear when, most surprising of all the MB and their political party, the FJP, backed off two weeks ago at the possibility of broadening and deepening the demonstrations.  At one point it looked as if they were going to call for a massive Friday march (a “millioniyya”) but in the end they didn’t.  And indeed with their unwillingness to underwrite institutionally the protests they—unlike the massive marches of February 2011—subsided.  Some observers believe this was evidence of the moderation of the MB; others perhaps that President Barack Obama’s stern warning to President Morsi as well as his comment that Egypt was no longer an ally, at least made for a responsible decision.  Morsi is subject to many pressures and both of these explanations may get at a part of the truth.

I want to propose a slightly different possibility, however.  There are a set of politically influential preachers such as Abdallah and Ghoneim who cannot influence Egyptian politics through their role in parties.  They have discovered, as have ideological leaders elsewhere in the world, that their influence is manifest by mobilizing even small numbers of activists for direct confrontation.  This may involve physical violence but it may also be primarily symbolic violence (blockades of abortion clinics in the US come immediately to mind).  

Some political leaders welcome this kind of support but others realize that it limits their own freedom of action in the formal political realm.  What I want to suggest is that the MB/FJP and President Morsi realized a massive demonstration against the film and the American embassy would probably escape their control.  It would have allowed a vocal and undisciplined group of activists on the institutional fringes of politics to dominate the public discourse.  And that, in turn, would make it difficult both to deal with the US but also to bring home whatever compromises over the constitution the committee writing it has made.  The constitution will include an article mandating the equality of all Egyptians with regard to religion and it appears that it will allow Christians greater freedom to build houses of worship.  Passing the political initiative to Ghoneim, Abdellah, and others like them is not going to make that easier.

Sober reflection may also have suggested to the MB that allowing riots to shape the direction of politics will not be in their long-term interest.  Students of Indian politics, such as my former colleague Paul Brass, have noted that riots there are not spontaneous affairs.  They can be murderously destructive and politically divisive but when they happen it is because an entire apparatus to deploy them has been activated by government officials or political leaders.   Egyptian social and political life is likely to be difficult enough without encouraging the growth of regularly constituted mechanisms for rioting.  The events in the wake of film were suggestive that there are those who would be pleased to establish such mechanisms.  That a group of distinctively Salafi-bearded police officers showed up in uniform to demonstrate at the embassy against the film was indicative of how these kinds of protests can further undermine the already-eroded institutions of public order.

If I have insisted on the relatively small number of demonstrators at the US Embassy, it is not to diminish the degree to which most Egyptians and especially Egyptian Muslims were angered by the film trailer, whether they saw it or not.  The film was designed to be offensive by people who have a fairly clear idea of what Muslims would find offensive.  And so it was. 

Yet, if most Egyptians found the film offensive, it is worth noting how many other protests occurred at the same time that had nothing to do with the film and whose leaders appeared to have very little inclination to join it.  Students at Nile University, on the outskirts of Greater Cairo, were also protesting during that week. Baton-wielding police broke up their protest, unlike the one at the US Embassy.   Transport workers in Cairo were on strike and in Asyut demonstrators cut the train line to Cairo for five hours.  There were, in short, a multitude of other strikes, protests and demonstrations at the same time as the fracas at the US Embassy. 

The point about other protests is not that the events at the Embassy didn’t matter or that it was a side-show while the real politics of economic interest or local conflict were overshadowed.  Quite the contrary.  In Egypt today, and for a very long time to come, there is intense conflict over the national political agenda, over the nature of public discourse, and to define the basic institutions of the state.

These are all challenges that President Morsi, his party, and his movement must face.  The generals of the armed forces who he shouldered aside must be pleased that they no longer do.