Egypt’s “Brotherly” Constitution

The article analyzes the provisions of the new Constitution of Egypt, and its perception by the liberal opposition. The author argues that, despite all the flaws and controversial aspects of the Constitution, Egypt will follow the path of moderate Islamism and its relations with Israel, the U.S., the EU and Russia are unlikely to undergo substantial changes.

The article analyzes the provisions of the new Constitution of Egypt, and its perception by the liberal opposition. The author argues that, despite all the flaws and controversial aspects of the Constitution, Egypt will follow the path of moderate Islamism and its relations with Israel, the U.S., the EU and Russia are unlikely to undergo substantial changes.

Following the revolution that ousted President Hosni Mubarak in February 2011, the Islamists found themselves at the forefront of the political movement and managed to win the parliamentary elections in March 2012. The Freedom and Justice Party, the political arm of the Muslim Brotherhood movement, won the largest number of seats (42 percent). Then came the al-Nour Party (Party of Light), representing the Salafi movement. The association of liberal democratic and leftist parties received fewer seats [1]. In June 2012, the Muslim Brotherhood candidate Mohamed Morsi won Egypt's tough presidential runoff against secular movement candidate Ahmed Shafik, the last prime minister under deposed leader Hosni Mubarak.

Early on in his time in office, Morsi forced the leaders of the Supreme Council of the Armed Forces to resign. It had been headed by Field Marshal Mohamad Hussein Tantawi, de facto head of state from February 2011 to June 2012.

Having removed the military command from political decision-making, Morsi faced no apparent obstacles on his way to adopting the Constitution, imposing the strict Islamic practices of Shariah and Islamic Jurisprudence (or fiqh). Since the days of Muslim Brotherhood founders Hassan al-Banna (1906-1949) and Sayyid Qutb (1906-1966), the movement’s members have advocated the idea of a Muslim state built exclusively on Shariah law [2]. They argue, that “Islam is a comprehensive coherent system,” and that there is no need to look for the foundation of social order in European values, since they are all already incorporated in the universal book of the Quran [3].

It is not surprising that, despite the difficulties faced by the second Constituent Assembly, massive protests and violence across Egypt as well as the judges’ demarche following the publication of the November 21, 2012 Constitutional Declaration, Mohamed Morsi signed into law a new constitution on December 25, that had been passed in a referendum held December 15–22, 2012 [4].

Photo: alarabiya.net
Mohammed Mursi

It seems logical for Article 2 of the new Constitution to reiterate verbatim Article 2 of the 1971 Constitution (Islam is the religion of the state and Arabic its official language. Principles of Islamic Sharia are the principal source of legislation) [5]. This provision requires the judges to find solutions to conflicts not in European-style Positive law, but in Shariah law, which is based on the Quran and Sunnah [6]. That is, they must act in accordance with what one of the leaders of Muslim Brotherhood al-Hadibi said 60 years ago: “... any legislation in our country that touches on our life should be guided by the principles of the Quran. Speaking about the Quran, of course, I am referring to the Sunnah of the Prophet (Peace Be Upon Him) because a commandment of the Sunnah is the commandment of Allah ... [Quran and Sunnah] should be the source for any legislation.”

But these provisions are rejected by the secular opposition – the supporters of Hizb el-Dostour (The Constitution Party), founded by the former Director General of the International Atomic Energy Agency (IAEA) Mohammad El-Baradei, and the Egyptian Congress Party, led by former Secretary General of the Arab League Amr Moussa. In addition, the haste with which the Constitution was drawn up and adopted, alongside a lack of engagement with protests over the Constitutional Declaration’s immunizing President’s actions from any legal challenge, will not only exacerbate unrest in the country in the near future, but could also lay the foundations for the further consolidation of the opposition.

Mohamed Morsi’s opponents disagree with the following provisions of the new Constitution:

• Since according to Article 2 of the Constitution the legal code stems from the principles of Islamic law, Article 168 forces the judges to apply the classical Muslim law in legal proceedings which may result in a collision between Positive law principles (equality before the law, protection against insults, etc.) and the Muslim doctrine.
• The unprecedented powers granted to Islamic scholars at Al-Azhar University – the oldest theological institution known for its conservative stand [7]. Under Article 4 of the new Constitution, Senior Scholars at Al-Azhar are to be consulted in matters pertaining to Islamic law. This endangers the whole system of Egyptian law in view of the document produced by Al-Azhar Islamic University in 1972 and entitled “Proposal for the Islamic constitution” [8], which put forward the idea of restoring the Imamate and living in complete accord with provisions of Shariah.
• Interference in private life “to preserve the genuine character of the Egyptian family, its cohesion and stability, and to protect its moral values” (Article 10).
• “Reconciliation between the duties of a woman toward her family and her work” (Article 10), disregarding the equality before the law of all citizens and their equal public rights and duties without discrimination, stated by Article 33 [9].
• The Constitution guarantees freedom of expression and restricts detention, but only as long as they do not “insult or abuse religious messengers and prophets” (Article 44).
• The Constitution only expressly guarantees the protection of Egyptian Christians and Jews (Article 3), naturally causing concern over the potential persecution of other religious groups, chiefly Coptic Christians.
• Under Article 194 of the Constitution, the Armed Forces “belong” to the people. Under Article 197 of the Constitution, the President of the Republic presides over the National Defense Council, but the Minister of Defense is the Commander in Chief of the Armed Forces, appointed from among its officers (Article 195). The military retain the ability to try civilians in military courts (Article 198). This provision replicates the situation that Hosni Mubarak’s regime found itself in, when the military courts, formed under the law 25 of 1966, enjoyed carte blanche to prosecute their opponents, as all the judges were military officers appointed by the Minster of Defense and the President for a two-year term with the right of reassignment, while the right to legal defense, appeals and publicity was absent [10].

Photo: ideastream.org / Gianluigi Guercia

The results of the two-round constitutional referendum held on December 15 and 22 (64 percent of voters backed the charter [11]) testify to a serious split in the Egyptian society between those who see the future of Egypt as a Shariah-ruled country, and those who favor secular democratic development. In addition, in view of the upcoming parliamentary elections in two months’ time (the exact date is not known), the opposition rallies around a slogan saying that the new constitution does not guarantee individual rights and freedoms of women and ethnic and religious minorities.

State of Emergency Provisions

The state of emergency, as a mechanism, is defined in Article 148 of the Constitution, according to which the President of the Republic declares a state of emergency after consulting the Cabinet. Such a proclamation must be submitted to the upper house of Egypt’s Parliament the House of Representatives within the following seven days. This order differs from the mechanism stipulated by Article 146 of the 1971 Constitution that existed previously. In the past, enacting a state of emergency did not require consultation with the Cabinet of Ministers and the Parliament was to be duly advised within 15 days [12].

Moreover, the new Constitution sets out the rule that a state of emergency may be imposed only for a specified period not exceeding six months, which can only be extended by another similar period upon the people’s approval in a public referendum. The 1971 Constitution contained no six-month time limit and allowed the President to extend the state of emergency provided the People's Assembly had passed a corresponding resolution. Thus, the new order of imposing a state of emergency is more liberal: decision-making on the issue involves not only the head of state and parliament, but also the citizens expressing popular will. The separation of powers is guaranteed by the provision that the House of Representatives cannot be dissolved while a state of emergency is in place.

Constitution and International Relations

The coming to power in Egypt of the Muslim Brotherhood fits with a general trend of Islamization in countries of the Middle East. This process involves states which have long been regarded as secular and applied Positive law similar to regulations in European countries such as urkey, Tunisia, and Libya [13].

Article 145 states that no international treaty can be signed by the President and ratified by the Parliament, if its provisions are contrary to the Constitution. This rather controversial norm could lead to the unilateral denunciation of existing bilateral and multilateral agreements and conventions, already ratified by Egypt, which is a scenario fraught with dire consequences for the country and could entail their ousting from the realms of international law.

Relations between Egypt and Israel will remain unchanged in the near term, since during the election campaign the Freedom and Justice Party pledged to retain the peace treaty with Israel. In Israel, despite the rhetoric of the nationalist bloc comprising two right-wing parties Likud and Israel Our Home, which won the elections to the Knesset in late January, a deterioration in relations with Egypt or increased tensions on the border between the two countries in the Gaza Strip is in no one’s interests.

Relations with the United States after the Constitution is adopted will, most likely, also remain unchanged. If the U.S. allowed Mohamed Morsi to dismiss many army officers on August 12, 2012, including Field Marshal Mohamad Hussein Tantawi and chief of staff Sami Hafez Anan, whom Washington considered “trustworthy partners,” then Egypt’s new president enjoys sufficient support in the United States. At the same time, some U.S.-based observers note that Morsi, on the one hand relying on American financial assistance, is, on the other hand, trying to dissociate himself from the United States, as he is well aware of the Islamists’ criticism of Mubarak for being too close to America. Therefore, the U.S. Congress is worried that the Islamists’ demonstrative rejection of the West will aggravate tensions between Israel and Egypt, and impact on the rights of minorities and women, as well as liberal freedoms in that country [14].

The chairman of the European Council Herman Van Rompuy, during a visit to Cairo on January 13, 2013 said: "The European Union and associated financial institutions offered more than 6.5 billion dollars in the form of grants, soft loans and loans for the period 2012-2013 to support the transition to democracy in Egypt" [15]. This statement may be taken as indicating, first, that the EU views the adoption of the Constitution as a positive factor that will contribute to the development of democratic institutions, and secondly, that the EU is interested in the development of bilateral relations.

Photo: Council of the European Union
Herman Van Rompuy's visit to Egypt
January 13, 2013

The European Commission document issued on May 15, 2012 revealed various development scenarios for Egypt after January 2011, and their possible impact on relations between Egypt and the EU [16]. According to the document, Egypt remains one of the EU’s main partners in the Middle East, and the EU intends to support “deep and sustainable democracy,” civil society and NGOs in the region. The document also dwells on the issue of migration in relation to the comprehensive program Dialogue on Mobility, Migration and Security [17]. It is true that the EU has virtually no experience of dealing with Islamists at the political level, but the role played by the Muslim Brotherhood in negotiations with Hamas on the prisoner swap that included the Israeli soldier Gilat Shalit, demonstrate a certain capacity for working with the Islamist leadership of Egypt. This position is reflected in the EU’s official documents [18].

Russia, as a rule, supports the current regimes [19]. After the legitimate coming to power of Mohamed Morsi, relations with Egypt are likely to develop along similar lines, and the adoption of the Constitution will have no impact on this process.

***

The sections of the Constitution that are conservative or Islamic in nature will, for some time, remain an irritant for Egyptian society, and even may impact the outcome of the upcoming parliamentary elections. The confrontation between the Islamists and the opposition will continue, but, most likely, will move to the field of parliamentary debates and litigations. It should be noted, that, at present, the current government (51.7 percent of Egyptians cast their ballots for Morsi, while 48.3 percent backed Ahmed Shafik [20]) has numerous supporters, but Egyptian society is split and still a long way from consensus. It would be reasonable to assume the judicial group that recently opposed the current regime’s attempts to change the balance of political forces in favor of strengthening presidential power, is likely to undergo certain changes. New judges will be more receptive to the will of the national leader and will also be more prepared to make decisions in accordance with the principles of Islamic law.

The primacy of the Constitution over all international treaties may result in the revision of numerous international documents that Egypt has already adopted. But it will have little effect on Egypt's relations with key partners – the United States, the EU and Russia. Anti-Western Islamist rhetoric notwithstanding, Mohamed Morsi has an interest in attracting foreign investment and developing economic relations. The West has realized that it is better to carry on a dialogue with Islamists who came to power legally than to deal with separate uncontrollable groups.

Relations with Israel will depend on the latter’s approach to negotiating with Fatah, the situation with the Gaza Strip, and on the position of Hamas, which controls the Gaza Strip.

It would be reasonable to assume that, due to the conflicting nature of the return to tradition and European values that is enshrined in the Constitution, the application of respective provisions is bound to cause a great deal of controversy and debate. Therefore, the courts that now display little sympathy with the politics of the Muslim Brotherhood on the one hand, and the latter’s flexibility in the dialog with the liberal opposition on the other, are two factors that seem bound to play a major role in the process.

1. Egypt’s Islamist Parties Wins Election to Parliament // BBC News. 21 January 2012.

2. It should be noted that the 1956 Constitution and the 1964 Interim Constitution stated only that the state religion in Egypt is Islam. See more: Hachim F.I. Constitutional Rights in the Middle East. Moscow, 2001. P. 34. However, the 1971 Constitution refers to Islamic legal norms, and the 1980 Amendment proclaims the principles of Islamic Shariah the main source of legislation (Article 2 of the Constitution). Lombardi C. “Islamic Law as a source of Constitutional Law in Egypt: the Constitutionalization of Shariah in Modern Arab State,” Columbia Journal of Transnational Law 37 (1989), P.74-120.

3. See more: Qutb S. The Milestones on the Road. New Delhi, 1981. A classic work on the Muslim Brotherhood is Mitchell R. The Society of the Muslim Brothers. Oxford, 1969. More recent work: Lia B. The Society of the Muslim Brothers in Egypt: The Rise of an Islamic Mass Movement 1928-1942, London, 1998.

4. It is necessary to point out the positive role of Human Right Watch report of October 8, 2012, which analyzed one constitution draft. Thanks to this report, the final version of the Constitution included provisions on freedom of conscience and prohibition of torture. For the Letter to Members of the Egyptian Constituent Assembly see: http://www.hrw.org/node/110667. In January 2012 Human Rights Watch released a “road map” for a new draft constitution: The Road ahead: The Human Rights Agenda for Egypt’s New Parliament.

5. https://www.dropbox.com/s/w6c5jebknvjkcl7/Egypt%20Constitution%20Final%20236.pdf. For an unofficial translation into English see.

6.For more on how Shariah law is applied in Pakistan, see: Tahir Wasti. The Application of Islamic Criminal Law in Pakistan. Shariah in Practice. Brill. 2009.

7. On Al-Azhar University see “Religion and Politics in Egypt: The Ulema of Al-Azhar, Radical Islam and the State”, International Journal of Middle East Studies 31(1999) – p.111

8. For more details see: Asha An-Naim, Towards Islamic Reformation. M.1992. P.111-113.

9. However, Article 11 of the 1971 Constitution was worded similarly. See Constitutions of Asian states: v.1. / Ed. T.Ya.Habrieva. M. NORMA, 2010, p. 65.

10. Moustafa T. Law and Resistance in Authoritarian States: The Judicialization on Politics in Egypt // Ginsburg T., Moustafa T. (eds.). Rule by Law: The Politics of Courts in Authoritarian Regimes. Cambridge, 2008. P. 153.

11. Egyptian Constitution “approved” in referendum // BBC News, December 23, 2012.

12. Constitutions of Asian states: v.1. / Ed. T.Ya.Habrieva. M. NORMA, 2010, p. 85.

13. D. Primakov “Systematization of civil legislation of Egypt of late 19th - mid-20th centuries.” // Pravovedeniye. 2008. 5. P.86-92. Yavaz M. H. Secularism and Muslim Democracy in Turkey. Cambridge, 2009. P. 145

14. Jeremy M. Sharp. Egypt: Background and U.S. Relations / Congressional Research Service. December 6, 2012. P..5-6.

15. EU says Egypt to receive $6.5 billion in grants and loans” // Reuters. 13 January 2013.

16. EU-COMMISSION 2012b. Implementation of the European Neighborhood Policy in Egypt. Progress in 2011 and recommendations for action. Delivering on a new European Neighborhood Policy. Brussels: EU-Commission

17. EU-COMMISSION 2012b. Implementation of the European Neighborhood Policy in Egypt. Progress in 2011 and recommendations for action. Delivering on a new European Neighborhood Policy. Brussels: EU-Commission. P. 12

18. EU-COMMISSION 2012b. Implementation of the European Neighborhood Policy in Egypt. Progress in 2011 and recommendations for action. Delivering on a new European Neighborhood Policy. Brussels: EU-Commission., P. 6.

19. See the position of Russia on Yemen, Tunisia, Syria and even Libya.

20. Megan L. O’Sullivian. “Egyptian Constitution Needs an Expiration Date” // Council on Foreign Affairs. 13 December 2012.