The murky constitution drafting process, which has long been criticized by secularists for being hijacked by Islamists, is today the site of a new tug of war: a mostly inter-Islamist one.
Ultraconservative Salafi groups are standing against the more moderate Muslim Brotherhood, slamming the first draft of the constitution for not fully implementing Sharia.
With multiple opposition fronts, the Brotherhood’s political arm, the Freedom and Justice Party, and President Mohamed Morsy, who hails from the group, are struggling to strike a consensus to salvage the constitution from imminent failure.
Morsy said Sunday that he would form another constituent assembly if the current one does not finalize the new constitution within six months of its formation, a right that is allocated to him through the March 2011 interim constitution.
“We have always tried to mediate and find common ground between different political powers to reach a consensus over the new constitution,” says Sobhi Saleh, Constituent Assembly member and leading member of the FJP.
But as well-intentioned as he may be, his group’s efforts do not seem to be paying off. “Muslims have been defeated in the Constituent Assembly,” Adel Afify, head of the Salafi Asala Party, tells Egypt Independent.
Principles or provisions?
Ongoing contentions surround the position of Sharia in the new constitution and the level of its centrality to the legislation process.
The most controversial part is Article 2, which states that “principles of Islamic Sharia are the main source of legislation.” Salafi groups argue that the word “principles” should be replaced with “provisions” to allow a stricter and broader implementation of Islamic rules, rather than merely principles.
“Article 2 is very vague and open to interpretation,” Afify says, adding that Al-Azhar should be the reference for resolving any legal disputes based on the article.
There was a debate in the Constituent Assembly about adding an article on Al-Azhar’s role in interpreting Article 2. However, liberal and leftist forces in the Constituent Assembly and Al-Azhar itself rejected the proposal.
The main criticism is that Al-Azhar’s leaders are not elected and hence cannot assume such a responsibility in legislation.
The Constituent Assembly settled on including Article 4, which states that the board of Al-Azhar senior scholars should be consulted on affairs relating to Sharia.
Article 221 offers an interpretation of the word “principles,” stating that Sharia principles are to be deduced from its fundamental rules and its Sunni sources.
Jama’a al-Islamiya leader Tarek al-Zomor says Article 221 would suffice if it was included in the final draft of the constitution.
“But they keep amending the draft of the constitution and scraping articles,” Zomor tells Egypt Independent.
However, Afify thinks Article 2 should be the first article in the constitution instead of the second to stress Egypt’s Islamic identity. Afify and Zomor also slammed articles in the freedoms and rights chapter, saying it should be restricted by Islamic jurisprudence.
Another point of contention lies in Article 68 regarding women’s rights. It stipulates that the state should take all precautions to ensure equality between men and women “without violating the provisions of Islamic Sharia.”
The article is the same as Article 11 in the 1971 Constitution. However, liberal powers have demanded the removal of the sentence referring to Sharia, saying it could restrict women’s freedoms, including their right to travel without their spouse’s consent and their right to equal inheritance.
Saleh explains that Article 68 was meant to guarantee that international treaties regarding women’s rights signed by Egypt would not curtail the country’s abiding by Sharia.
Meanwhile, the Salafi Nour Party, which is considered the most politicized among Salafi groups, has chosen a compromise.
“We are part of a society that includes diverse people with different inclinations. We can’t have everything we want,” says Younis Makhyoun, a Constituent Assembly member and leading Nour Party member.
Makhyoun points out that the party wasn’t completely happy with the implementation of Sharia in the new constitution. However, they were willing to compromise to reach a consensus.
“We are going through a difficult transitional period, and reality dictates that the constitution is based on teamwork and consensus. … We can’t force our opinion on the rest of society,” he says.
Saleh downplays criticism of the draft constitution, describing it as “perfect,” adding that it guarantees all people’s rights.
Salafi powers have postponed calls for protests against the first draft of the constitution on to 9 November instead of 2 November. Zomor says they postponed the protests until the final draft of the constitution is issued.
Afify argues that Islamic powers needed more time to garner large numbers of supporters to pressure members of the Constituent Assembly to amend it according to Sharia.
“If we protest with 200 or 300 people, we will have no effect whatsoever,” he says.
The Nour Party said it wouldn’t participate in the protests because discussions over disputed articles were under way and a consensus would be reached soon.
Besides mounting Islamist discontent over the draft constitution, liberal and leftist parties have held a few protests against the Brotherhood’s domination of the process.
Clashes that took place on 12 October between anti-Morsy protesters and Brotherhood supporters in Tahrir Square left more than 100 injured and heightened tensions between the FJP and liberal groups.
Mediation attempts
FJP representatives in the Constituent Assembly are rushing to issue the new constitution and have it approved by the people in a public referendum, before the Supreme Constitutional Court issues a final verdict on dissolving the Constituent Assembly.
The case — based on complaints stipulating that the Constituent Assembly is dominated by political parties and MPs, and doesn’t represent all Egypt’s factions — was referred to the SCC on 23 October.
FJP leader and member of the Constituent Assembly Mohamed al-Beltagy has said the Constituent Assembly would approve the final draft of the constitution by 12 December. However, skeptics think the constitution will not be finalized anytime soon, amid the wave of disapproval surrounding it.
In the last couple of weeks, the FJP has made several calls for unity and consensus among political powers after mounting dissent against the constitution and the party from opposition forces.
“At times, political forces complained not because of the decision, but because they were not part of the decision-making process. We will set out to change this,” recently elected FJP chief Saad al-Katatny told Reuters on 19 October.
Last Wednesday, several liberals and leftists boycotted a meeting with Morsy because they didn’t think a real dialogue was going to take place.
The meeting was also criticized for including figures affiliated with the former regime and former defendants who were acquitted in the Battle of the Camel trial, in which former President Hosni Mubarak’s aides were accused of attacking protesters in Tahrir Square on 2 and 3 February last year, leaving 11 dead and thousands injured.
Yasser al-Hawary, member of the liberal Constitution Party’s media committee, doubts the Brothers’ attempt to resolve the problem. “This meeting was a sham to show a fake consensus between political powers and smile in front of the cameras,” he says.
Ashraf El-Sherif, political science professor at the American University in Cairo and an expert on Islamist movements, says that this reach out to political groups was just for “show,” and the FJP will refuse to compromise on any decision that would diminish its power or dominance over the political scene.
“All political powers are against the first draft of the constitution, so the Brotherhood needs to keep appearances and show that it’s attempting to reach a consensus,” he says, adding that they won’t make any real changes to heed the opposition’s demands.
Political calculations
Meanwhile, Sherif argues that the resilience of the FJP’s members on the Constituent Assembly when it comes to implementing Sharia doesn’t stem from their quest to strike a real consensus, but from their preference for power politics over identity politics.
“The Brotherhood cares about the system of government and succession in the new constitution more than it cares about implementing Islamic Sharia,” he says, indicating that the group is eyeing the consolidation of their power following Morsy’s election, after decades of systematic crackdowns under former regimes.
He says the Brotherhood strategy has been to maintain political power and succession first and then gradually implement Sharia after garnering wide support from the people. This contradicts Salafis’ ambition to see Sharia implemented right away.
However, FJP leaders’ statements indicate otherwise, comforting their supporters that they haven’t forgotten about implementing Sharia. On 19 October, Katatny said in his victory speech that his party would seek good governance through the application of Sharia.
“The constitution could be swayed toward the strongest political faction or the court could dissolve the Constituent Assembly; everything is possible … nothing is concrete,” Sherif says.
This article appears in this week's Egypt Independent print edition.
