Towards the Iranization of Egypt-Egypt opposition groups announce Protests
- Egypt opposition groups announce plans to march on presidential palace
Ahram Online, Sunday 2 Dec 2012
Political forces opposed to President Morsi's November decree and draft
constitution say they will stage peaceful march to presidential palace on
Several Egyptian political parties and groups have issued a joint statement
announcing their intention to peacefully march to the presidential palace
in Cairo at 5pm on Tuesday to voice opposition to President Mohamed Morsi's
recent decisions and the date that has been set for a nationwide popular
referendum on Egypt's draft constitution.
"The constitution project that Morsi wants to put before a referendum is in
fact a project for tying down the political, civil, social and economic
freedoms of Egyptians," read the statement, published on the Egyptian
Popular Current's official Facebook page.
The statement went on to question the draft charter's constitutionality,
stressing its rejection of the date set � 15 December � for the upcoming
Egypt's High Constitutional Court had been expected to issue a ruling on
the constitutionality of Egypt's Constituent Assembly (which wrote the
draft constitution), but the ruling was postponed indefinitely after large
numbers of pro-Morsi protesters gathered outside the court's downtown
headquarters on Sunday.
Groups opposed to Morsi, which have been occupying Cairo's Tahrir Square
for over two weeks, accuse the president of working in the interests of the
Muslim Brotherhood and its Freedom and Justice Party.
"This is a final warning to Mohamed Morsi, who was democratically elected
president: his policies, which favour his party and group, will cause the
dissolution of his legitimacy," read the statement.
On Saturday, despite continued protests against Morsi's recent
constitutional decree, which protects the Constituent Assembly from legal
challenge, the president announced that the draft constitution would be put
before a nationwide referendum in two week's time.
The statement was signed by eighteen political parties and groups,
including the Constitution Party, the Egyptian Social Democratic Party, the
Free Egyptians Party, the National Front for Justice and Democracy, the 6
April youth movement, the Democratic Front and the Kefaya movement.
Anti-Morsi forces have threatened for several days to march on the
presidential palace in Heliopolis if constitutional declaration was not
Veteran journalist Abdel-Halim Qandil, a fierce critic of the president,
and the Mubarak regime before the revolution, has called in a tweet "on the
judges, workers, and underground metro drivers to strike and to march on
the presidential palace" to defeat the president's decrees.
Many judges, who are on strike against the decree, have already threatened
not to monitor the referendum if the president did not rescind his
Meanwhile, shortly after the president finished his speech on Saturday
night calling for a vote on the draft constitution, Mohamed El-Beltagy, the
Muslim Brotherhood main operative in the Constituent Assembly, called on
the opponents of the draft to fight it - if they disagreed with it - by
mobilising a NO vote not to protest.
El-Beltagy, a leading member also in the Brotherhood's Freedom and Justice
Party, told Ahram Online that if the opposition defeats the draft at the
referendum set for 15 December, a new Constituent Assembly will be chosen
via direct elections.
The decisions of the president have been so high-handed as to be branded
dictatorial by many of his critics, and have provoked revolutionary youth
once again to call for the �fall of the regime.� Caricatures show Morsi�s
face morphed with that of deposed dictator Hosni Mubarak.
The composition of the Constituent Assembly was controversial. It was
appointed by a parliament that was itself dissolved by the courts for
electoral irregularities, and those irregularities contributed to a
dominance of the Muslim Brotherhood and hard line Salafi fundamentalists.
The resulting constitution-drafting committee was therefore unbalanced in
being dominated by Muslim Brothers or their sympathizers. It began with 100
members, but 22 liberals, leftists, Copts and centrist Muslims gradually
withdrew because of the Muslim Brotherhood dominance. Seven members of the
reserve committee also resigned. For the remaining 78 to rush their favored
text through instead of reconsidering their unrepresentative character is a
slap in the face of pluralism and democracy.
The resulting constitution is a strange hybrid of the current French
constitution and more Islamically-tinged constitutions such as those of
Iraq and Afghanistan, where the US brought fundamentalist movements to
power but attempted to moderate the constitutional text.
The new constitution promises many rights, but also limits them in vague
could be opening to abuse.
As a historian, I am fascinated by the parallels of this proposed
constitution with the 1906 Iranian constitution. In the latter, a committee
of five ayatollahs was given review power to decide if legislation is in
accordance with Islam. That provision was never really implemented (in 1979
it was made moot when the clerics just took over altogether). Likewise, the
Egyptian constitution gives to the Muslim clerics of Al-Azhar Seminary (the
closest thing the Sunni world has to a Vatican) the prerogative of
interpreting Islamic law as it pertains to the constitution. Since the
constitution puts Muslim Egyptians under Islamic law for personal status
purposes, and has other provisions that invoke Islamic law, someone had to
decide what Islamic law is. Having al-Azhar make determinations that then
feed into constitutional law is a way of ensuring orthodoxy.
The Iraqi Constituent Assembly in 2005 drafted a similar provision, for the
Shiite clergy of Najaf to review legislation and interpret Islamic law as
it touched the constitution. That article was dropped, however, under
severe pressure from the US ambassador of the time, Zalmay Khalilzad, and
from other Iraqi groups such as the Kurds.
Putting Muslim Egyptians under Islamic law for matters of personal status
is also troubling. Many secularists would not want to have their private
lives governed in this way. In cases of intestacy, their daughters would
only inherit half what their sons did. There is also a danger that this
constitution could normalize the interference of religious groups and
authorities in private matters such as marriage.
In the 1990s, academic scholar of the Qur�an, the late Nasr Hamid Abu
was declared an apostate by fundamentalists. They then brought a
public-morals case against his marriage, insisting that the authorities
dissolve it and divorce him from his wife, Professor Ibtihal Younis, who
taught Romance Languages at Cairo University. (Muslim women under Islamic
law may not be married to non-Muslims). The two fled to Europe, where he
found a position in the Netherlands. The Mubarak government allowed all
this to happen, but said, at least, that it would tweak procedures to keep
it from occurring again. Now, it could be open season on liberal Muslim
thinkers like Abu Zayd.
Article 10 allows the state to intervene in the family, and article 44
forbids insults to the Prophet Muhammad. If a group decided that a scholar
had �insulted� the Prophet, and brought a case against his marriage just as
happened to Abu Zayd, who would adjudicate all that? The al-Azhar Seminary!
*The constitution is therefore a big step toward the Iranization of Egypt,
and very possibly a death knell for freedom of speech and freedom of
In turn, such religious restrictions on what can be said publicly can be
used to suppress science. Relatively few high-powered scientific articles
are produced in Egypt that get cited by other scholars, and few patents are
achieved. Things won�t get better if Salafis can go around accusing
scientists of disrespecting the Prophet by contradicting some saying of his
that they interpret literally. (This kind of thing has happened in
Pakistan, which has a blasphemy law).
*Part of and taken from:*
Reading the Draft Constitution of Egypt: Setbacks in substance, process,
Chibli Mallat, Sunday 2 Dec 2012
Rather than enshrine the democratic aspirations of the Egyptian revolution,
the draft Constitution to be put to referendum in mid Dec. is faulty in
execution, lacking in legitimacy and a set-back in terms of rights and
Thousands of Egyptian citizens have been pouring in the street to ask for
�a constitution for all Egyptians�. Thousands others are marching for
�legitimacy and Islamic law�. In the profound political and constitutional
crisis in which revolutionary Egypt finds itself, one matter is certain:
the constitutional process was rushed in the week of 22-30 November, and
the Draft Constitution that emerged on Friday is highly divisive. The
presidential announcement setting the referendum on December 15 is bound to
make the crisis worse.
How does the Draft Constitution compare with the Amended 1971 Constitution
it is meant to replace?
The process for the adoption of the Draft Constitution (hereinafter DC) is
important for the coherence and appeal of the text that the citizen is
asked to adopt as his main contract with the state.
A cardinal principle in constitution-making is being ignored in Egypt.
Passing a law is unlike passing a constitution. While a majority generally
suffices to pass a law, it does not become effective without a thorough and
complex process to ensure that is carefully discussed. A constitution is
far more demanding in terms of legitimacy and comprehensive appeal than a
When a fundamental text is rushed through the night (literally the night of
29-30 December) with no particular reason for such urgency, constituents
being replaced at the last moment, and representatives of the youth who
made the revolution as well as members of historically victimised groups
like women and Christians all but absent from the process, the constitution
becomes intrinsically divisive and fails its calling to speak for all the
The constitutional draft itself underlines the basic contradiction in the
process. To be ratified, the 237 articles adopted by the Constituent
Assembly require a simple majority of voters voting in the referendum on
the document as a whole (Art. 225 DC). For one article to be amended under
any constitution, including the current Draft Constitution, the process is
far more complicated, with votes going through presidential and
parliamentary deliberations, qualified majorities, and a robust civil
society involvement. Article 225 is one line-long. In contrast, the
Amendment procedure adopted by the Draft Constitution is ten lines long,
with a complex procedure that regulate debates, deadlines, majorities
before any referendum is considered. (Arts. 217, 218 DC)
The Supreme Constitutional Court (SCC) of Egypt invalidated an electoral
law which distinguished between �representatives of party members that
number 3 million, and independents representing 50 million� (SCC decision
of 14 June 2012). A constituent assembly with an ever shrinking number of
representatives of �the many groups that form Egypt�, which is then rushed
into a referendum that is passed by a simple majority of the voters under
Article 225 DC, cannot deliver a constitution for all Egyptians. In light
of the SCC precedent, Egyptian courts should hardly find it difficult to
invalidate the unprecedented divisive process in the rush to adopt the
Draft, and in the rush to ratify it.
The rush has affected the quality of constitutional language. Some articles
in the Draft Constitution are awkwardly phrased, such as Article 117 on the
budget. Art. 131 illustrates the problem: �If these laws are not brought
[to the houses after they reconvene], or if they are brought to them and
are not confirmed, they lose retroactively the effectiveness of law that
they had, except if the house [singular, it is unclear which of the two
houses] decides it was effective for the previous period, or regulates its
consequences in another way�. Nor is the need for both a National Security
Council (Art.193 DC) and a National Defense Council (Art.197 DC)
fathomable, while the fog persists around the role of the military, which
President Morsi and the revolution were united to force out of the
political process once and for all.
There are a few innovative measures, for instance the request for members
of the two houses (the lower house, council of deputies or representatives,
majlis al-nuwwab and the upper house, majlis al-shura) to provide a list of
their assets at the beginning and end of their term, as well as annually,
to their respective chambers (Art. 88); this is also required for the
president and for the ministers, who present their respective financial
status to the lower house (Art.138 and Art.158) Another useful advance is
the requirement for associations to simply notify (ikhtar, Art.51) the
authorities to become legal, as opposed to the state of limbo in which they
were left because they were previously deemed legal only after the approval
of the authorities, usually the Ministry of Interior. Otherwise, the basic
rights list does not improve much on the current Constitution, and even
includes some unnecessary repetitions, for example both Article 35 and
Article 77 provide the right of the accused to an attorney.
More worryingly, one counts at least twenty qualifications of basic rights
by a deferral clause to �the law�. Since thousands of laws and various
legislative and executive instruments are bound to be passed in any case,
such reference is inherently dangerous. The use by Mubarak and SCAF of laws
to stifle constitutional rights attests to the easy manipulation of the
Constitution by way of deferral clauses. Overall, there are more than 50
instances of clauses of the type �this will be later decided by law.� These
deferral clauses are typical of disagreement and rush, as the constituents
abdicate their role in important constitutional matters they have not been
able to frame correctly.
On balance, it is hard to see a democratic improvement in the Draft
Constitution of what is presently the Constitution of Egypt.
There are also serious setbacks which undermine the integrity of
constitutional substance one expects in a founding document.
Where the DC fails most the calling of a revolution that united over the
end of a self-perpetuating dictator and the protection of the citizen�s
basic rights, is apparent in two central areas of constitution-making. The
Draft Constitution (1) undermines the Egyptian judiciary, and (2) brings
back the specter of religious sectarianism against the citizen�s
fundamental right to equality.
The judiciary undermined. The judiciary is undermined in several ways. The
Draft Constitution fragments it into different subaltern roles (Arts
168-182 DC). While this was true of the Mubarak regime, courts are further
compartmentalised, with each having its own rules and its own budget (Art.
169 DC), leading to inevitable conflicts that disorient the citizen and
weaken the rule of law. The constitution drafters also failed to correct a
major flaw inherited from French practice. All legislation is supposed to
be reviewed by the top administrative court (Majlis al-dawla) before it is
passed, even though the court retains a judicial review power in a dispute
between the citizen and the administration (Art. 174 DC). The military
courts remain (Art.198 DC), despite their central role in the repressive
security apparatus under the former regime and under SCAF -- SCAF had
reportedly tried over 13,000 people before it folded. President Morsi has
been actively putting an end to these trials, so retaining military courts
in the Draft Constitution appears as a step back from revolutionary demands
to do away with all special courts.
The main nemesis of the constitution drafters seems to be the Supreme
Constitutional Court. Art.235 was added in a midnight deliberation on
November 30 to reduce the number of SCC judges, a court packing in reverse.
In addition, the SCC is now forced into a meaningless constitutional review
of voting and electoral laws which it is forbidden to consider subsequently
if a case is brought by a harmed citizen (Art.177). This is a major setback
for voting rights.
In sum, instead of advancing the rule of law by consolidating it in a
coherent judicial system, the Draft Constitution undermines the state
institution that has been the most important voice of peaceful, thoughtful,
and active resistance to Egypt�s authoritarian rulers, from Naser to
Sectarian discrimination. There is no mention in the Draft Constitution of
any mechanism for the protection of historically victimised and
marginalised groups in Egypt, especially women and religious minorities.
Article 2 of the 1971 Constitution (as amended in 1980) is kept as is (�the
principles of the shari�a are the main sources for legislation�). This text
had been enhanced by thirty years of SCC case-law demonstrating that
Islamic law can live well in a modern constitution, and indeed enrich the
constitutional life of citizens. With the SCC in jeopardy, this legacy is
under threat. Despite the welcome inclusion in Article 3 of Jewish
Egyptians, the article limits the legal traditions of Jewish and Christian
Egyptians to the organization of �their personal status� and �the choice of
their community leaders�. Buddhist, Hindu, and non-believers find no place
in the Draft Constitution. Instead, Article 2 declares that �Islam is the
official religion� (literally, the religion of the state, din al-dawla).
Millions of Egyptians are not Muslim, and the Draft Constitution continues
to discriminate against them openly.
An addition and an omission raise further concerns of increased
The drafters added Article 219, which stipulates that �the principles of
Islamic law comprise its general rules and jurisprudential method as
understood in the Sunni schools�. Egypt was never so sectarian as to openly
express Sunnism as the exclusive source of its Islamic tradition. This
Article is clearly set against Shi�is, despite their constituting an
insignificant minority in Egypt, but also against Copts and any
denomination that is not Sunni. Instead of honoring all legal traditions in
Egypt across the board, sectarianism comes stronger from this unexpected
The omission is revealed by the disregard for the substance of Islamic and
other laws in the rich Egyptian legal corpus. Despite the call to for the
shari�a to be the main source of legislation in the country, the drafters
can hardly point to any serious trace of Islamic law in the text they
passed. No legacy of individual rights dear to the Islamic legal tradition
can be found in the Draft Constitution. An example would have been the
adoption of the clear Qur�anic injunction prohibiting duress in religion
(�No compulsion in religion, la ikrah fil-din). Examples can be multiplied,
including various injunctions on the equality of men and women, the
protection of life, limb and property, or the privileged role of the
impartial judge. The drafters made no effort to revive the best and most
enlightened aspects of the Islamic legal corpus.
Egyptians deserve better. In the last few months, a free presidential
election brought hope to all those who supported the Nile Revolution for
more freedom and equality under a new constitution. In just one week, the
process was dramatically reversed, augmenting the risks of civil war and
reviving the prospects of military intervention. The SCC and the courts
should stand up for the preservation of the Egyptian Constitution, which
the Draft Constitution sets back. Only the judges remain between Egypt and
Chibli Mallat is Chairman of Right to Nonviolence, a Middle East based NGO
that focuses on nonviolence, constitutionalism and judicial accountability.
He is a visiting professor at Yale Law School, and a scholar of Islamic
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