Theoretically, the process of writing a constitution implies a state of accord between the constituents of society in order to successfully draft road maps for future generations. But, in reality, the process involves fierce political, social and moral struggles among political and societal forces that strive to put their mark on — and protect their interests through — the new constitution.
The greater the ideological and political divide that exists between political forces, the harder and more strenuous the process of drafting a constitution becomes. Therefore, mistaken is he who thinks that constitutions are mere generalized texts that emerge from nothing. In fact, they represent the pinnacle of political struggle between all forces.
Contrary to what some might believe, the battle to write constitutions is harsher and more complicated in democratic countries or in countries that have undergone popular revolutions — as was the case in the Arab world — as opposed to what occurs in authoritarian states, where constitutions merely reflect and serve to implement the will of the ruler, without any participation by the people.
Now that the Islamists have ascended to power in more than one Arab country, they have become instrumental parties in the drafting of constitutions in the post-Arab Spring era. This fact leads to many questions, not only to do with the content and wording of new Arab constitutions, but also the manner in which the process of drafting constitutions is managed.
The ensuing conflict seems the more pronounced when it comes to Egypt, the subject of this article, where a fierce battle rages between all participating and non-participating factions in the process of drafting the new constitution.
Away from the difficulties surrounding the process of forming the Constituent Assembly, which the Muslim Brotherhood and Salafists were accused of trying to dominate, a real battle is underway to decide the content and wording of the new constitution. Remarkably, the battle to write the Egyptian constitution is not confined to the Islamists on one end and the liberals and secularists on the other, but rages on within the Islamists’ ranks, between the Brotherhood and the Salafists, as part of the wider-ranging fight between the two factions that erupted at the onset of the revolution, and which has taken numerous forms and spread to affect society and the media, in both the public and the private arenas.
In general terms, four main issues affect the struggle between the Islamists and other political factions concerning the drafting of the new Egyptian constitution. The first of these issues is the state’s identity, which, to the Islamists — particularly the Salafists — represents a matter of life or death; for they, like other Islamists that came before them, entered the political arena for the purpose of “preserving the nation’s identity.” Many of their leaders and sheikhs justify their heavy involvement in politics with the pretext of protecting the country from the dangers posed by secularists and liberals. This contention does not fall under the purview of this article but reflects the central concern of the Salafists.
It is a battle that seems artificial and unrealistic for a multitude of reasons. On one hand, there is no real danger to the Egyptian state’s identity, which has remained well established for centuries, and which no faction, regardless of its size and influence, can manipulate or force to conform to that faction’s narrow ideological or partisan beliefs without risking future prospects and popular support.
On the other hand, many liberals and secularists acknowledge the Arabic and Islamic character of the Egyptian state; in fact, some of them express pride in belonging to this state, in a broad civilized sense, away from any form of religious and sectarian polarization. Here, we are not talking about the small extremist secularist minority which disassociates itself from its cultural context, or which espouses a narrow-minded and chauvinistic view of the national identity. We are, rather, talking about the wider liberal movement that encompasses factions and organizations that are proud of their national identity without subordinating or prostrating themselves to anyone. Paradoxically, the first Egyptian constitution of the modern era, drafted in 1923, established the Arab and Islamic identity of the country, and came into effect at a time when Islamist movements and parties were nonexistent. This occurrence repeated itself again when the 1954 and 1956 constitutions were drafted.
However, it is necessary to distinguish between the position of the Salafists and that of the Muslim Brotherhood concerning the question of identity. The Salafists believe that the issue of identity must be defined in the constitution in such a manner as to make any further discussion or interpretation moot. This means transforming the constitution from a general text that guides to one that deals with narrow details through the use of inflexible, centralized and unimaginative wording. The Salafists, for example, want to change the second article of the old constitution which states that the “principles” of Islamic Shariah law be used as the main source of legislation, wanting to either replace the world “principles” with the word “rulings” or completely delete the reference. This is justified by the Salafi leadership as necessary in order to prevent any form of interpretation of the word “principles,” which might be used by secularists or liberals to further their agendas. On the other hand, the Brotherhood has no qualms with the text remaining generalized, considering it sufficient to establish the role of Shariah law in legislation while ensuring that Christians and Jews maintain their right to resort to their own religious teachings in matters pertaining to personal status or family law.
The second issue pertains to the spirit of the constitution. Some Islamists, especially the Salafists, deal with the constitutional matter from an interest-driven standpoint — if not an opportunistic one — for this historic chance to change it might not repeat itself. In addition to tangential and sometimes cosmetic issues, the wording used to amend constitutional articles points to the fact that we are witnessing the drafting of an “Islamist” constitution in the narrow partisan sense and not in its broad civilized sense. This would mean that constitutional articles would become consistent with the ideological and political vision of the Islamists as a political faction.
The danger in that lies not only in the political vision of the Islamists — with which many would disagree — but also in the transition from the general to the narrow focus. Considering the level of rigidity in deciding major public matters which should have been easily agreed upon, what will happen when it comes time to discuss matters relating to personal and public freedoms, matters which led to the revolution of January 25?
While the Brotherhood seems less rigid than its Salafist brethren in this regard, its silence is caused by either its preoccupation with matters of the state following Mohammed Morsi’s win in the presidential elections or its desire not to be publicly attacked or ridiculed by the Salafists regarding their adherence to Islam, which might encourage the latter to proceed in their attempt to change the constitution in order to make it compatible with their religious ideologies.
The Salafists, for example, insisted that Al-Azhar religious authorities be considered the only acceptable reference in the interpretation of the second article of the constitution, which states that the principles of Shariah law be used as the main source for legislation, an idea which many intellectuals and political activists condemned and Al-Azhar authorities rejected, while the Brotherhood had no comment on it, despite being an idea that establishes a never before seen precedent in Egyptian constitutional history that might have negative future repercussions.
The third issue pertains to the form of the country’s political system and the president’s powers. The Islamists clearly prefer that a hybrid presidential system be adopted, wherein parliament and the presidency hold great powers concurrently. This idea goes against the wishes of many political activists who would rather see a traditional parliamentarian system where the people’s will is the real source of power and sovereignty.
In fact, there exists a difference of opinion between the Salafists and the Brotherhood regarding this issue. While the Salafists prefer to divide state powers between the president and parliament, the Brotherhood tends to prefer giving the president wider-ranging powers when it comes to the appointment of ministers and the right to dissolve the parliament and Shura Council, as well as the right to declare war and to amend the constitution, as was pointed out by the renowned Brotherhood lawyerSobhi Saleh in the media recently.
The fourth and final issue revolves around matters dealing with freedoms and public rights cited in the constitution, an issue that is supposed to be discussed soon. The Islamists will most probably want to restrict public and personal freedoms, or at least make them fall under the purview of religion, thus redefining their scope, definition and content in accordance with their own understanding and interpretation of their meaning.
This issue will raise a lot of problems and cause a great deal of anger among a wide swathe of intellectuals and political activists who view these freedoms as the only real guarantee that oppression and domination won’t be resurrected in Egypt, a country that suffered from such behavior throughout the past three decades. As such, the difference in opinion is great between those intellectuals and the Islamists, particularly the Salafists, when it comes to freedoms and their scope on a personal and public level. For, instead of being a way to reshape political and social relations within the framework of a balanced social contract, the process of drafting the new Egyptian constitution becomes, as a result of the narrow-minded vision of some Islamists, a cause of contention that preserves the state of ideological and political polarization among Egyptians.