Egypt's New Constitution: Laying the Basis for an Islamist, Sharia State

This article is published on PJMedia.

By Barry Rubin

 On November 30, a Constituent Assembly consisting almost 100 percent of Islamists voted to approve the draft of Egypt’s new Constitution. The next day, President Muhammad Mursi ordered that a referendum be held on December 15. In other words, Egypt’s population will be given two weeks to consider the main law, which has 230 articles, that will govern their lives for decades to come.

Most of the non-Islamists had walked out of the Assembly because they objected to the proposed Constitution and it seems as if the remaining opposition members did not even attend the vote. So great is the outrage that Egypt's judges--who supervise elections and were explicitly asked by Mursi to oversee the forthcoming referendum--have refused to do so.

Yusuf al-Qaradawi, the Muslim Brotherhood’s chief spiritual guide. raved about how great the Constitution is and then responded to the walk-out with a phrase that might serve as the slogan for the new democracy in Egypt and other Arabic-speaking countries:

"You should not have withdrawn. It's your right to express your opinions freely."

Yes, they could say what they thought and then be outvoted. Now that, indeed, is democracy. But what if you can already see that the democratic procedure will produce a dictatorial result? For example, Mursi was democratically elected president. He then issued a decree that said no court could countermand anything he decides. Isn’t that democratic, at least in the broader sense? Well, no it isn’t.

The competing street demonstrations of regime supporters and anti-Islamist oppositionists have now coalesced around two slogans. Pro-Islamists chant, "The people want the implementation of God's law." The opposition chants, "The people want to bring down the regime."

But this time, unlike 2011, it is the regime that enjoys the support of the armed forces and Western governments, being buttressed also with almost $10 billion in aid. “The people” aren’t going to bring down this regime and the new rulers are going to implement their interpretation of “God’s law.” That is the new meaning of democracy in Egypt.

I draw here from the analysis in the Egypt Independent newspaper. For a BBC comparison of this with the previous Egyptian constitution see here. And here's the full text. Keep in mind that neither we nor Mursi knows for sure what will happen to the parliament already elected. The Islamists have 75 percent of the seats in that body (Muslim Brotherhood, 50 percent; Salafist party, 25 percent) but the high court has ruled the lower house's election to have been unconstitutional. If this decision stands new elections will be necessary next year. In the presidential election, the Brotherhood's vote was only 52 percent. 

While this lower vote could be due to extraneous factors--the abstention of many Salafist supporters for partisan reasons; some Islamists preferring someone other than Mursi in the first round presidential balloting and not switching to support him in the second--Mursi doesn't know how well the Brotherhood will do if there is a new parliamentary election. Consequently, he needs to find a way to either overrule the court's decision (hence, his decree letting him overturn what the judges say) or prepare for rule with a parliament less favorable to the Brotherhood. Hence, the constitutional provisions creating a strong presidency are very much in his interest and frighten the non-Islamist opposition.  

--Islamic Sharia law is the main source of Egypt’s laws. While this has been in previous constitutions, the problem is interpreting how strictly Sharia will be interpreted and how widely it will be applied. What that passage means for Egypt is going to be a lot more significant under a Muslim Brotherhood government with major input from even more radical Salafists than it did under President Husni Mubarak’s relatively secular-style regime.

--A basic principle of the Constitution (Article 4) is to consult al-Azhar, the country’s influential Islamic university on any issue when Sharia is concerned, which potentially means on every issue. That elevates al-Azhar above all other non-governmental institutions. Al-Azhar is not (yet?) in Muslim Brotherhood hands but its leaders, who know which way the wind blows, can be expected to back a tough interpretation of Sharia law.

--To further ensure that Egypt will be a Sharia state, another provision (Article 219) states that the principles of Sharia are to be found in the four Sunni schools of thought, ruling out any reformist possibilities.

--The state must preserve the “genuine nature” of the Egyptian family and its moral values (Article 10) and has the power (Article 11) “to safeguard ethics” and morality. In other words, the government can do just about anything to determine how people should live and any aspect of their existence it chooses. This is repeated in other articles which limit rights to those that do not contradict what the state might not allow as unacceptable (Article 81) and lets the police arrest people for such crimes (Article 199).

--Islam, Christianity, and Judaism are the only legal religions in Egypt (Article 43). This is in accord with the general interpretation of Islamic law that only these three “people of the book” religions are legitimate. Of course, the face of Christian property will be in the hands of an Islamist government that is unlikely, for example, to approve the construction—or possibly even the renovation—of churches, again in accord with Sharia. Many of these things were also done by the Mubarak regime but one can expect an even tougher approach now.

--It is against the law to insult a prophet (Article 44). This might seem only to be a bother for those who would burn Korans or Bibles or make deliberately provocative videos. But it is important to remember that Islamists have charged that academic research has crossed this line and also the novels of Naguib Mahfouz, Egypt’s Nobel Prize-winning author as well as a tweet from the main backer of the leading non-Islamist party. Islamist groups will be able to bring law suits against anyone whose writing or statements or tweets they don’t like.

--Freedom of expression is limited (Article 48) by the principles of state and society, national security, and others things. That means that any television station or newspaper that says anything that can be deemed contrary to Sharia or Islamic morality as interpreted by a Muslim Brotherhood government can be shut down.  A National Media Council (Article 215) will be responsible for preserving “societal principles and constructive values,” which presumably means it can order publications and television channels to be closed down.

--There can be only one trade union for each profession (Article 53). This has hidden implications since in the past the state has controlled the sole such organization in each area. In addition, though, suppose doctors, journalists, engineers, or members of other professions are tired of being in associations that are controlled by the Brotherhood. They cannot form their own separate groups.

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--The president can force parliament to meet in secret rather than public session (Article 93). In that case, the legislators would have no say in the decision. This makes observers suspicious about how much the president will dominate parliament, since Egypt has been a country ruled by a single man for six decades in which parliament was a rubber stamp. In addition, anything critical of the regime can be kept secret.

--This concern is furthered by another provision (Article 104) only allowing parliament to overturn a presidential veto on laws by a two-thirds’ majority. This is, of course, also in the U.S. Constitution but, again, Egypt is a country that has long seen a dictator who rules and a parliament which has no significant influence.

--There is no maximum number of members for parliament set (Article 114 and 128), raising suspicions that the president and the Brotherhood’s political party can add more people if needed to maintain control.

--If the lower house of Parliament does not approve the government platform set by the president (Article 139) he can dissolve it. Since members of parliament don’t like to be forced to run for reelection and possibly lose their seats, this pressures them to accept the president’s policies. This provision is also found in other parliamentary democracies but again there are suspicions given Egypt’s history and the regime’s ideology.

--A provision intended to make the army accept Muslim Brotherhood rule (Article 197) establishes a National Defense Council, with a majority of officers, to set the military budget. This had been a major demand of the armed forces.  Another thing that will make the army happy (Article 198) lets civilians be tried by military courts for crimes that “harm” the armed forces.

--The president has the power to appoint the heads of many public institutions (Article 202).

--Two provisions (Article 231 and 232) are explicitly designed to reverse the Supreme Constitutional Court’s ruling that parliament was elected on the basis of an unconstitutional the elections law. Thus, approval of the Constitution at the referendum would lead to Mursi arguing that a parliament with two-thirds Islamist membership would be legitimate, rather than facing new elections in which the Islamists might lose seats.

Probably the provision most bruited in the Western media will be the taking out of a provision that explicitly said women’s equality would be subject to revision based on Sharia (removed from Article 68). Another article (Article 30) states that citizens are equal before the law and equal in rights and obligations without discrimination.

Presumably, however, this changes nothing since conformity with Sharia law is already mandated in the Constitution.  But that last point is a good symbol of the Constitution’s meaning. It enshrines Sharia rule without rubbing people’s faces in it. Thus, the Western media and governments can cheer the Constitution as democratic and proof that Islamists are now moderate even though that document opens the door for dictatorial rule.

 Barry Rubin is director of the Global Research in International Affairs (GLORIA) Center and editor of the Middle East Review of International Affairs (MERIA) Journal. His latest book, Israel: An Introduction, has just been published by Yale University Press. Other recent books include The Israel-Arab Reader (seventh edition), The Long War for Freedom: The Arab Struggle for Democracy in the Middle East (Wiley), and The Truth About Syria (Palgrave-Macmillan). The website of the GLORIA Center  and of his blog, Rubin Reports. His original articles are published at PJMedia.