28 November, 2020

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A Tricky Moral Dilemma: Egypt’s Hastily Drafted Constitution

By Kumar David

Prof Kumar David

The power struggle in Egypt is moving at the speed of greased lightening. A draft constitution has been rushed through by a Muslim Brotherhood dominated, elected, Constitutional Assembly (boycotted by others) to beat a move by the Constitutional Court, dominated by Mubarak era judges, to dissolve it. President Mohamed Morsi issued a decree, a few days previously, assuming powers to override the Court in case it attempted to intervene. That is, he protected the Assembly and prevented disruption of constitution writing. Nevertheless, the Court may have ignored the decree and ordered termination, thus creating a constitutional crisis between itself, the President and the Assembly. Hence the rush to draft in extreme haste and pose a fait accompli. Morsi promptly called a referendum on 15 December to ratify the draft.

The Court was forced to climb down because it dared not prevent a referendum by the people, but in pique it has refused to monitor the referendum. My hunch is that the referendum will say ‘yes’. Compared to the Mubarak era, this albeit imperfect instrument, is a great advance. I will select the most important features and explore whether supporting its adoption is proper.

Consider first the complexity of the political universe. The Arab Spring has had the expected outcome, but its processes have been thoroughly unpredictable. Everywhere old dictators have tumbled and in Syria in death throes. This outcome is like fixed and immovable stars, everywhere, Tunisia, Egypt, Libya, Yemen and soon Syria. In contrast, ground events could not have been more different and unpredictable from case to case. Contrast Tunisia with Libya, Egypt with Syria, or any one with another; the pathways have been incredibly different; Egypt has been the most complex, with surprising twists and turns. A revolution saw off Mubarak, Morsi sent the army back to the barracks. Now the streets, as lively as a carnival, denounce Morsi as a new Pharaoh.

The crucial change in Egypt is not in the structure of the state, which is still fluid and open-ended, but the rise of street power. Gone is fear, the gene is out of the bottle; no one can intimidate or cow down post-revolutionary Egypt. Splendid, but it makes consensus, compromise and agreement on a constitution difficult in a nation so divided. Recall the political kaleidoscope; Morsi polled 51.8% to Ahmed Shafiq’s 48.2% in the June 2012 runoff; in the first round in May, Morsi and Shafiq polled 25% each, while a multitude of radical candidates collected 50% between them.

Schizophrenia Egyptian style

It is the most modern of times; it is the most backward of times. The cities, the educated classes, and the culture of modern Egypt, are Westernised and avant-garde. The rural backwaters, where the majority live, are in the grip of old Islam and the Muslim Brotherhood. Everywhere in the third world it is similar, most stark in modernising Muslim countries of the Middle East. So whose side should we take? Ok the oppressed. But does one do so by aligning with a modernism that has passed them by, or by sympathising with antiquated ideals which have kept them in chains for centuries? However difficult the choice, we must stand on the side of historical progress.

Does the Brotherhood have deep roots only because of the religious backwardness of the rural masses? Why do the revolutionary modernists have such shallow roots outside the cities? And crucially, how should we judge the draft constitution, granting that it cannot but be imperfect and transitional? Transitional, because it will be often modified over the coming years. Hardly had the referendum been announced than Egyptian media spoke of amendments that could be included even before the referendum; frankly I don’t see how, procedurally, this can be done.

The Brotherhood is committed to Islam, but it has earned its place for three reasons; yes Islam of course, secondly the network of social programmes that it has administered among the poor since its foundation, and finally it was the best fighter against dictatorship over the years. Radicals and revolutionaries in Tahrir Square are just new kids on the block.

The Brotherhood’s determination not to permit the dissolution of the Constituent Assembly is to push for an Islamic twist. But Egypt is a modern state, intellectuals, middle classes and bourgeoisie cannot be expected to cohabit within a primitive ethos. The military, having suffered in the revolution and at Morsi’s hand, is licking its wounds, biding its time and waiting for others to play themselves out. Power is finely balanced; secular radicals and Christians on one side, and the Brotherhood on the other, must work out a constitutional compromise or Egypt will descend into chaos.

I will now deal with some provisions in the draft and recap justifications that the drafters have provided. I am not yet ready to take an overall stand, but I hear myself saying: “It does not seem to be so bad”. Of course it cannot be disputed that the rushed procedure and absence of consultation with the opposition and religious minorities is a grievously flawed modus operandi. But then, as I have explained, could anything else have been done in the circumstances? What if it had all ended up in anarchy with no constitution at all?

Debated Articles

Article 2 says that Sharia Law will be the source of legislation and the principles of Islam must not be contradicted. When confronted the drafters add: “This is not new; it’s been the case since 1923; it was explicit in the 1971 Constitution too. Don’t worry; nothing drastic will happen”. To the question whether the clergy will hold veto powers in interpreting which laws violate the principles of Islam, Amr Darrag, Secretary General of the Constitutional Assembly replies; “The role of the council of clerics is only consultative; the power to adjudicate on the constitutionality of any law is vested in the Constitutional Court”. OK, let’s get real, not ask for the moon and the atheist’s megaphone. In fairness, it seems to me that the drafters have navigated hazardous waters shrewdly.

Article 30 is a commitment to equality of all Egyptians irrespective of gender, religion or ethnicity and an advance on previous constitutions. Then Article 68 provides for equality between men and women, so long as it does not contradict the principles of Islam. This has raised concerns; what rights of women does Article 68 curtail? The drafters say personal law (inheritance, marriage, divorce) in Islam may sometimes favour men and sometimes women (inheritance is influenced by degree of kinship – mother, wife, sister) so women do not necessarily lose out. Some say women are better protected. Article 68 has now been deleted as it is covered by Article 30 anyway; why keep it, if it gives rise to suspicion, the drafters say. It seems to me the Brotherhood wants the external trappings of Islam to better sell the deal to its followers; actuality it is bending over to win the support of others.

Article 40 says you can’t insult the Prophet. Oh come on, when in many European countries I can’t deny that the Holocaust happened (I think it did, but if some nut says it didn’t, it takes another nut to drag him off to jail), I can get by fine without blaspheming the Prophet. To the more pointed question whether the freedom to profess and practice other religions is absolute and guaranteed, the drafters swear it is. I don’t know if I am naïve, but it seems sincere.

Article 40 guarantees freedom of assembly and speech; it is a big advance on Mubrak times. If practice conforms to promise, future Egyptians will be better off than current Sri Lankans. Egypt is in ferment, its people out in their millions, in Lanka the people cringe in cowardly fear. Egypt is escaping dictatorship, Lanka regressing into it. If freedom is your yardstick, Egypt’s future looks brighter than ours. Still, one must remain alert to Brotherhood stratagems.

Article 144 deals with the balance of power. If the president presents a cabinet name list to parliament twice, and if rejected both times, the third try has to be in consultation with parliament. If there is an impasse, the matter goes to a referendum; if the referendum favours president, parliament stands dissolved; if it favours parliament, the president must resign. This exemplifies over complex arrangements perhaps, but the purpose of many articles is to get a design that stands half way between a presidential and a parliamentary system.

Finally, I will touch on the tricky relationship between military and civilian. Secretary General Darrag is frank: “Remember we are coming from decades of military rule. There has to be a transitional period; a country with Egypt’s past needs time to transfer to full civilian control”. He is honest in admitting: “Moving too fast may upset the army and the applecart”. Still, the draft is light years ahead of the Mubarak era. President Morsi rescinded the Supreme Council’s decree placing the army above civilian power, and he has dismissed the head of the armed forces and 70 generals; the balance of power has been irreversibly altered. The draft says that the military will not be allowed to interfere in civilian economic activity without parliamentary oversight; a huge step for a nation where for decades the military controlled and ran the economy for its own benefit.

However the strictly military side of the budget will be prepared by a commission, half civilian half military, chaired by the president. It will not be subject to parliamentary scrutiny. Furthermore, the defence minister must be an officer. Both undesirable, but clearly the drafters thought these were necessary concessions.

The draft constitution is open-ended; Egypt’s future can go, depending on the balance of power in the streets and the councils, in either direction – more Islamic or more modernist. The opposition has not documented and properly articulated its views, the drafters have. Therefore I cannot provide a balanced analysis here; nevertheless I trust this piece will be informative for readers outside Egypt.

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Latest comments

  • 0
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    When the “Elected” president turns dictator and stops the courts from issuing verdicts on the legality of the constitutional assembly, or the Shura council, and also submits himself above judicial authority, That basically means he’s ignoring the will of a good majority of the people.

    The Egyptian Elections were pretty evenly contested and Morsi won by a majority of 52% against 48%. In the first round he garnered only 25%. So he lacks overwhelming popular support to push through a pro sharia constitution. By assuming dictatorial powers he is trying to push through this Islmic agenda by force which is being resisted by the people.

    Egypt is a Muslim country with 90% muslim population but with a large number of modern educated intellectuals. Many of them want a secular form of government and do not favour sharia rule. So the resistance to the imposition of sharia by the minority muslim brotherhood. A good lesson for us in Sri Lanka.

  • 0
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    For democracy all three pillars must exist. The real problem started when the Mubarak era judges dissolved the democratically elected parliament the exact day before Morsi in the office.
    Note the point that Morsi did not remove judges but only the Mubarak era chief prosecutor after the mild prosecution on Killers of 2010 January 18 day revolution.

  • 0
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    Breaking news is that Morsi has rescinded his decree. At least the Egyptians have more sense than our set of idiots and buffoons.

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