Egypt has entered the battle of holding a referendum on a draft constitution that the Muslim Brotherhood had prepared and insisted on ratifying despite popular opposition, a judges’ boycott to monitor the referendum, and insufficient time to discuss the draft’s articles and aspects. The draft has many shortcomings affecting individual freedoms, equality among Egyptians without regard to sex or religion, and social justice, which were important goals of the Egyptian revolution. Although many Egyptians have written about the above shortcomings, an important aspect that has been ignored was that the draft constitution sets the foundations of a Sunni Waliyat al-Faqih [rule of the religious jurist] under the Muslim Brotherhood.
“Shariah principles” and the three major values
Egypt has never been a secular state in the absolute sense of the word since Islam is part of society and of the legislative structure whereby Shariah principles are a basic source of legislation. Over the past decades, no political group has objected to Shariah being the main source of legislation because the various Egyptian political currents have never been in confrontation with religion. In addition, the general meaning of the phrase “the principles of Islamic Shariah” has always been embodied in the three major values of freedom, equality and justice, which are the founding values of most religions. Therefore, whenever a constitutional provision (which are mostly copied from French laws while taking into account Egyptian beliefs and specifics) is interpreted in a way that conflicts with the three main values embodied in Shariah, it would automatically be rendered inapplicable. This is what happened under the liberal 1923 constitution, Nasserite Egypt’s 1956 constitution, the United Arab Republic’s (1958-1961) constitution, and Egypt’s 1964 constitution after unity with Syria ended.
When President Anwar Sadat came to power he wanted to pursue different policies than his predecessor and portray himself as the “believer president” — Sadat’s favorite title. So he made Shariah principles to be “the main source of legislation,” as opposed to being one source among many. But despite that, the Egyptian legislative structure remained pretty much the same. Jihadist groups issued a religious edict calling for the killing of President Sadat because “he did not rule by God’s law.”
In the 2005 constitutional amendments, President Mubarak maintained Shariah principles as “the main source of legislation.” Egyptian lawyers have always distinguished “Shariah principles” from “Shariah law.” The first is considered to contain general principles that are not controversial and that can be interpreted in a civil context, which allowed coexistence between tradition and modernity.
The Sunni Waliyat al-Faqih’s first pillar
The new draft constitution tried to gain the Egyptians’ support by keeping Article 2 very similar to that of the 1971 constitution. However, the draft constitution interpreted Article 2 via Article 219, which presented a completely different interpretation than when it was linked to the three main values. Article 219 was deliberately not placed next to Article 2. Article 219 stipulates, “The principles of Islamic Shariah are found in the general evidence, foundational rules, rules of jurisprudence and credible sources accepted in Sunni doctrine and that of the Jama’ah.” So the Muslim Brotherhood found a clever solution to the issue of deleting the word “principles” from Article 2. They added a new constitutional text that, in effect, gives the same result.
Article 219 does not directly mention the word “principles” but practically interprets it as “Islamic Shariah,” thus opening the door to stringent interpretations of Shariah, and supporting that by a constitutional and legal structure. The Muslim Brotherhood did not do that only too woo its Salafist ally, which insisted on deleting the word “principles” in Article 2. The Brotherhood’s objective goes much further than that. The objective is to impart on the Egyptians a new constitutional identity, which is markedly different than what was stated in all of Egypt’s constitutions in the 20th century. The new constitution, in effect, establishes a Sunni Velat-e Faqih.
The Sunni Waliyat al-Faqih’s second pillar
The second pillar of the Sunni Waliyat al-Faqih that the Muslim Brotherhood wants is the dominance of an unelected religious group (Al-Azhar’s senior scholars) that can examine, study and repeal laws passed by parliament. Just as laws passed by Iran’s parliament are sent to the Guardian Council of the Constitution for approval or rejection, laws passed by Egypt’s parliament are to be sent to Al-Azhar’s senior scholars for approval or rejection, as stipulated in Article 4.
For Iran’s Guardian Council, half its members are appointed by the Supreme Guide and half by parliament. But in Egypt, Article 4 of the new constitution stipulates that all members — whose number is not specified in the article — of Azhar’s senior scholars' authority are to be Islamic jurists. This would open the way for the Brotherhood to penetrate that body and affect its composition.
Article 4 of the draft constitution reads, “Al-Azhar is an encompassing independent Islamic institution, with exclusive autonomy over its own affairs, responsible for preaching Islam, theology and the Arabic language in Egypt and the world. Al-Azhar senior scholars are to be consulted in matters of Islamic law. The state shall ensure sufficient funds for Al-Azhar to achieve its objectives. The post of Al-Azhar Grand Sheikh is independent and cannot be dismissed. The method of appointing the Grand Sheikh from among members of the senior scholars is to be determined by law. All of the above is subject to law regulations.” The Brotherhood’s intentions are made clear by the last two sentences where the article refers the details of the procedures to law regulations, which, in effect, refers to the head of the executive branch, President Mohamed Morsi.
The Sunni and Shiite Waliyat al-Faqihs compared
The Muslim Brotherhood forgot that they did not lead Egypt’s revolution, as did late Imam Khomeini in Iran as part of a broad political alliance. They also forgot that Khomeini rejected all compromise during the turmoil of the revolution. He insisted on bringing down the Shah and rejected all reforms made by Prime Minister Shahpour Bakhtiar before the revolution achieved victory.
On the other hand, the Muslim Brotherhood negotiated and coordinated with Mubarak’s regime for years. The last time was on Feb. 2 and Feb 10 of 2011, which was one day before Mubarak fell (this is according to writings and speeches by former senior Muslim Brotherhood leaders, from Mohammed Habib to Abdul Moneim Aboul Fotouh).
Iranian political currents, including the Islamic movement, suffered many martyrs during the revolution. But the Muslim Brotherhood did not have a single martyr among the more than 800 Egyptians who were martyred during the glorious Egyptian uprising that took place between Jan. 25 and Feb. 11, 2011.
While Imam Khomeini sidelined the Iranian army from the start, the Muslim Brotherhood negotiated and allied itself with the Egyptian army throughout the period between the fall of Mubarak and the election of Morsi. And the Brotherhood-army alliance is still in force. In fact, it was codified in Articles 194, 195 and 196 of the new constitution. Those articles give the military powers and privileges that it never had in any other Egyptian constitution.
Finally, the Iranian revolution had no regional or international support. So it owed no financial, moral or political debt to anyone. On the other hand, the international and regional support for the Brotherhood in Egypt will make it more likely to be indebted to those forces for many years to come.
The draft constitution under referendum in Egypt is an attempt to rewrite history so that the Brotherhood would reap the fruit without sowing the seeds. The Brotherhood did not pay a revolutionary or political price for its rule. We have rejected a Shiite Waliyat al-Faqih, and we will reject a Sunni one, which the Muslim Brotherhood surreptitiously imposed on all Egyptians.