The drafting of the new Egyptian constitution has been making headlines since the ouster of Muslim Brotherhood rule. Several articles in the 2012 constitution are currently the subject of controversy, particularly those pertaining to the Islamic identity of Egypt, even though the representation of Islamists in the new constituent assembly has been drastically reduced in favor of liberal forces.
Articles that mention the relationship between Islam and Egypt go back to 1923, the year Egyptians had their first real constitution. Article 149 of this constitution stated: “Islam is the religion of the state and Arabic is its official language.” The insertion of this article was unanimously approved by all members of the assembly in charge of the drafting the constitution, including Christians.
This still raises eyebrows, with a heated debate about how far the article could be regarded as detrimental to the rights of religious minorities. The consensus over Article 149, however, could be best understood in relation to the context in which the constitution was written, which was entirely different from the one in which the current constitution is being drafted.
At a time when they were struggling to end British occupation, Egyptians did not want to be distracted by squabbles that would serve the interests of the occupying power and undermine their national cause. They were attempting “to solidify Egypt’s identity, which the British occupation had tried desperately to efface,” wrote Mohamed Abdelaal, lecturer of constitutional and administrative law at Alexandria University.
A major constitutional change
Constitutions that followed, in 1930 and 1956, retained the article. However, the one written in 1958 upon the establishment of the United Arab Republic - which saw the unification of Egypt and Syria that year until 1961 - omitted the article, which was retrieved in the 1964 constitution.
It was only in 1971 that Article 149 underwent a major change. That was also when it became Article 2, and has remained so to the present day. One year into his presidency, Anwar Sadat embarked on an expansive campaign to eliminate leftists and reverse the policies of his predecessor Gamal Abdel Nasser.
This necessitated currying favor with Islamists and, for him, amending the constitution in a way that addressed their ambitions regarding the establishment of a religious state. Thus Article 2 of the 1971 constitution read: “Islam is the religion of the state, Arabic is its official language, and the principles of Islamic law are a primary source of legislation.”
In 1980, Article 2 was amended once more. Sadat wanted to amend Article 77 that limited the presidency to two six-year terms. In order to garner Islamist support, Sadat proposed replacing the “a” of Article 2 with “the,” so that “principles of Islamic law are the primary source of legislation.” Through this “cunning move,” as Abdelaal calls it, Sadat was able to pass both amendments.
Article 2 had rarely stirred controversy since, especially as Egypt got more and more entangled in a variety of other more pressing problems pertaining to democracy, human rights and social justice. The 2011 revolution, which ousted Hosni Mubarak’s semi-secular regime, brought the issue to the forefront once more.
All about ‘principles’
With Islamists subsequently dominating parliament, the presidency, and the assembly that was drafting the post-revolution constitution, and with liberals and secularists struggling against the establishment of a religious state, a heated debate ensued. The crux of it was the extent to which Article 2 preserves the identity of Egypt, and how it can be amended to reach that end.
Ultraconservative Islamists wanted the word “principles” removed to ensure the strictest application of Islamic rulings, which may have included imposing penalties such as stoning, flogging, and amputation for crimes such as adultery, murder and theft. Some even suggested inserting the word “rulings.”
After the fall of Islamist rule, removing from the constitution articles that promoted the establishment of a theocracy became a priority.Sonia Farid
With strong resistance to the proposed amendments, Islamists gave up on changing Article 2, but managed to add Article 219, which aims at elucidating the meaning of the word “principles.” According to Article 219, “the principles of Islamic law include the general evidence, fundamental and jurisprudence rules, and recognized sources as acknowledged by the Sunni school of thought.”
The article, therefore, is likely to “disenfranchise Shia Muslims, whose legal traditions differ in some ways,” Anthony F Lang Jr, director of the Scotland-based Centre for Global Constitutionalism, points out in his study “From Revolutions to Constitutions: The Case of Egypt.”
In other words, this article not only assumes that Egypt is strictly Islamic, but also Sunni Muslim, thus introducing a Sunni-Shiite divide that was shortly translated into verbal and physical attacks on Egyptian Shiites by ultraconservative Sunnis.
A more liberal constitutional assembly
After the fall of Islamist rule, removing from the constitution articles that promoted the establishment of a theocracy became a priority. While Article 2 is said to remain untouched in the post-Brotherhood constitution that is being drafted - possibly for the same reasons that led to its inception in 1923 - Article 219 has become a major source of controversy.
While the assembly in charge of drafting the constitution is predominantly liberal - unlike the one formed following the revolution that ousted Mubarak - debates about the link between Islam-related articles and Egyptian identity persist.
The 50-member assembly includes five Islamists - three from al-Azhar (regarded as representative of moderate Islam), a former Brotherhood member who is now one of the group’s staunchest critics, and a member of the Salafist al-Nour party that advocates an ultraconservative version of Islam and insists on keeping Article 219. Deleting it will be viewed by many as “a move against the Islamic identity of Egypt,” which “nobody wants,” said the party’s official spokesman Sherif Taha.
The objection to Article 219 by liberal forces has earned them the title “enemies of Islam,” and escalated the battle over the identity of Egypt. Hussein Abdel Razek, a leading member of the leftist al-Tagammu party, argues that the article “tries to impose a certain medieval interpretation of Islam, not to mention that several Islamist factions have their own interpretations of Sharia and each considers itself the most righteous.”
Abdel Razek supports the elimination of all articles about Islamic laws, including Article 2, in an attempt to “get rid of Sadat’s legacy, which led to the proliferation of radical religious forces.”
For Saad al-Din al-Hilali, professor of Islamic jurisprudence at al-Azhar University, Article 2 should suffice, while Article 219 is likely to spread “religious dogmatism” in Egyptian society. While Hilali still ties Article 2 to Egyptian identity, he prefers to steer clear of any text that might later be accountable for sectarian clashes.
Abdel Razek’s stance, however, could be seen as doing more justice to non-Muslim minorities, thus transcending the controversy about identity to more vital issues that constitute the crux of the modern state, such as citizenship.
On the other hand, some experts are calling for broadening the concept of Egyptian identity to include the African continent. Helmi Shaarawi, professor of African studies, stresses the necessity of highlighting the African identity of Egypt, and warns of the risks of not doing so on the future of Egyptian politics. The same would apply to the Arab identity of the country, other experts argue.
Some resolve the entire problem by stressing that Egypt’s identity is not confined to the advent of Islam. “The talk about Egypt’s identity makes it seems like a new state, and not one that is 7,000 years old,” said Judge Mahmoud al-Khodieri. The camp to which Khodieri belongs does not, however, clarify how this approach can be reflected in the constitution.
Sonia Farid, Ph.D., is an Assistant Professor of English Literature at Cairo University. She is a translator, editor, and political activist. Her social work focuses on political awareness and women’s rights and her writing interests include society, politics, and security in Egypt. She took part in a number of local and international conferences and published several academic papers. She can be reached at [email protected]
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