The Arab Constitutions 2012: Chaos and Strategy

by Nathaniel Greenberg

Reads: Know Your Constitution

The sudden vote on a new Constitution in Egypt has done little to stem tension in Egypt following the decree of President Mohamed Morsi to grant himself unilateral powers in driving the legislative agenda. In a live appearance on Egyptian television on Friday, Morsi attempted to address criticism that the January 25 revolution has been hijacked by the Muslim Brotherhood. He singled out the two critical votes that led to an Islamist majority in Parliament and his own election, on March 19 and June 30. “The opinion of 18 million Egyptians was expressed” in the popular vote, he said. The parliamentary vote for president was from the “heart of the people.” In other words, the people had spoken. The facts were on the ground. The constitution is the product of this new majority whose base, he said, includes “men, women, Christians and Muslims.”

This allusion to balance is written into the new constitution as well. But as with the Tunisian Draft Constitution, which has enjoyed more robust public discussion, the controversial question of rights for women and minorities has been predicated on unlikely ideological foundation: an idiomatic expression. It is found in the teachings of ‘Abd al-Bahāi’, the founder of the Bahāi’ faith:

The world of humanity has two wings. One is woman and the other man. Not until both wings are equally developed can the bird fly. Should one wing remain weak, flight is impossible. Not until the world of woman becomes equal to the world of man in the acquisition of virtues and perfections, can success and prosperity be attained as they ought to be.

The saying is commonplace in the Arabic speaking world. In the Egyptian constitution the spirit of the phrase is apparent, but it has to contend with a more narrow interpretation. The clause in question, principal six of the preamble, reads:

Respect for the individual, the cornerstone of the nation, whose dignity is a natural extension of national pride. Further, there is no dignity for a country in which women are not honored. Women are the sisters of men and hold the fort of motherhood; they are half of society and partners in all national gains and responsibilities.

The wording here echoes closely part of the controversial Article 2 from the Tunisian Draft Constitution released last August.

The state shall guarantee the protection of the rights of women and shall support the gains thereof as true partners to men in the building of the nation and as having a roll complementary thereto within the family.

The role of women as “complementary” to men sent up immediate red flags in Tunisia and the clause has since been abandoned there. Although the final draft of their Constitution has been delayed for at least another two months, it appears that the Troika in Tunisia may have also abandoned the controversial blasphemy law, or Article 3 of the Draft Constitution that prohibited any expression in violation of sacred values.

The Egyptian Constitution has retained wording that may enable a blasphemy law, however. Article 32, from Part II, introduces the post-revolutionary refrain of “dignity” as a “right of every human being, safeguarded by the State. Insulting or showing contempt toward any human being shall be prohibited.” The Prophet Muhammad, his image and name, would of course be protected by this law.

Correctly, human rights groups will likely continue to scrutinize such wording. Undoubtedly, Western news organizations will also focus on wording like that of Article 2 in Part 1 of the Constitution that reads:

Islam is the religion of the state and Arabic its official language. Principles of Islamic Sharia are the principal source of legislation.

The translators of the document at Egypt Independent (formerly Al-Masry Al-Youm) have injected their own bit of spin here by keeping the term “Sharia” as opposed to translating it. In Arabic the word simply means the “law.” Taken independently, the English word too sounds rather ominous. Though, to be fair, the phrasing in Arabic: مبادئ الشريعة الاسلامية المصدر الرئيسى للشريع   (the principles of Islamic law are the principal source of law) leaves little room for doubt about which code of law they are talking about. This particular clause is a carryover from the 1971 Constitution, but the strategic ambiguity implied by the idea of “Sharia” carries new weight in the present context.

Rachid al-Ghanouchi, the founder and head of the Tunisian al-Nahda party, described in an interview with Al-Jazeera’s Teymoor Nabili how he envisioned Islamic law functioning. Vague in nature and entirely subject to not solely judicial but theological interpretation, a legal system based on Islamic law (“sharia law”), for Ghanouchi (and presumably most political Islamists) looks something like the Statist utopia of the American Republican Party. With minimal federal oversight from the capital, magistrates, chosen by local councils would administer law based on independent judgment. However, by the very nature of the system it seeks to enable— because interpretations should and will vary— deference defaults to the highest circles of authority. In Egypt, the seat of that power is Al-Azhar. In Tunisia, it is Al-Zaytouna.

The Egyptian constitution goes to some length in dissolving the entente between the former regime and Al-Azhar, the country’s center of Islamic jurisprudence. It emphasizes complete autonomy, holding that “Al-Azhar Senior Scholars are to be consulted in matters pertaining to Islamic law.” Because Islamic law is also intended to be the “principal source of legislation,” this clause, Article 4 of Part 1, helps ensure that local legislation remain deferential to these higher authorities, who will function beyond the reach of government oversight. This, of course, is the source of tension between Egypt’s Islamist parliament and the existent judicial authority. The coming days will determine how far this fight will reach. But it will likely be a decisive battle for the entire region.

In Tunisia, Ghanouchi said in a recent CNN interview that while the situations in Egypt and Tunisia are different, the two societies are similar. Egypt, he said, will “reach the point of harmony.” In the absence of a robust, accountable, and secular central legislation, “harmony” is the only means of stability.