On
November 30, a Constituent Assembly consisting almost 100 percent of
Islamists voted to approve the draft of Egypt’s new Constitution. The
next day, President Muhammad Mursi ordered that a referendum be held on
December 15. In other words, Egypt’s population will be given two weeks
to consider the main law, which has 230 articles, that will govern their
lives for decades to come.
Most
of the non-Islamists had walked out of the Assembly because they
objected to the proposed Constitution and it seems as if the remaining
opposition members did not even attend the vote. Yusuf al-Qaradawi, the
Muslim Brotherhood’s chief spiritual guide. raved about how great the
Constitution is and then responded to the walk-out with a phrase that
might serve as the slogan for the new democracy in Egypt and other
Arabic-speaking countries:
Yes,
they could say what they thought and then be outvoted. Now that,
indeed, is democracy. But what if you can already see that the
democratic procedure will produce a dictatorial result? For example,
Mursi was democratically elected president. He then issued a decree that
said no court could countermand anything he decides. Isn’t that
democratic, at least in the broader sense? Well, no it isn’t.
The competing street demonstrations of regime supporters and anti-Islamist oppositionists have now coalesced around two slogans.
Pro-Islamists chant, "The people want the implementation of God's law."
The opposition chants, "The people want to bring down the regime."
But
this time, unlike 2011, it is the regime that enjoys the support of the
armed forces and Western governments, being buttressed also with almost
$10 billion in aid. “The people” aren’t going to bring down this regime
and the new rulers are going to implement their interpretation of
“God’s law.” That is the new meaning of democracy in Egypt.
I draw here from the analysis in the Egypt Independent newspaper. For a BBC comparison of this with the previous Egyptian constitution see here. And here's the full text. Keep
in mind that neither we nor Mursi knows for sure what will happen to
the parliament already elected. The Islamists have 75 percent of the
seats in that body (Muslim Brotherhood, 50 percent; Salafist party, 25
percent) but
the high court has ruled the lower house's election to have been
unconstitutional. If this decision stands new elections will be
necessary next year. In the presidential election, the Brotherhood's
vote was only 52 percent.
While
this lower vote could be due to extraneous factors--the abstention of
many Salafist supporters for partisan reasons; some Islamists preferring
someone other than Mursi in the first round presidential balloting and
not switching to support him in the second--Mursi doesn't know how well
the Brotherhood will do if there is a new parliamentary election.
Consequently, he
needs to find a way to either overrule the court's decision (hence, his
decree letting him overturn what the judges say) or prepare for rule
with a parliament less favorable to the Brotherhood. Hence, the
constitutional provisions creating a strong presidency are very much in
his interest and frighten the non-Islamist opposition.
--Islamic
Sharia law is the main source of Egypt’s laws. While this has been in
previous constitutions, the problem is interpreting how strictly Sharia
will be interpreted and how widely it will be applied. What that passage
means for Egypt is going to be a lot more
significant under a Muslim Brotherhood government with major input from
even more radical Salafists than it did under President Husni Mubarak’s
relatively secular-style regime.
--A
basic principle of the Constitution (Article 4) is to consult al-Azhar,
the country’s influential Islamic university on any issue when Sharia
is concerned, which potentially means on every issue. That elevates
al-Azhar above all other non-governmental institutions. Al-Azhar is not
(yet?) in Muslim Brotherhood hands but its leaders, who know which way
the wind blows, can be expected to back a tough interpretation of
Sharia law.
--To
further ensure that Egypt will be a Sharia state, another provision
(Article 219) states that the principles of Sharia are to be found in
the four Sunni schools of thought, ruling out any reformist
possibilities.
--The
state must
preserve the “genuine nature” of the Egyptian family and its moral
values (Article 10) and has the power (Article 11) “to safeguard ethics”
and morality. In other words, the government can do just about anything
to determine how people should live and any aspect of their existence
it chooses. This is repeated in other articles which limit rights to
those that do not contradict what the state might not allow as
unacceptable (Article 81) and lets the police arrest people for such
crimes (Article 199).
--Islam,
Christianity, and Judaism are the only legal religions in Egypt
(Article 43). This is
in accord with the general interpretation of Islamic law that only
these three “people of the book” religions are legitimate. Of course,
the face of Christian property will be in the hands of an Islamist
government that is unlikely, for example, to approve the construction—or
possibly even the renovation—of churches, again in accord with Sharia.
Many of these things were also done by the Mubarak regime but one can
expect an even tougher approach now.
--It
is against the law to insult a prophet (Article 44). This might seem
only to be a bother for those who would burn Korans or Bibles or make
deliberately provocative videos. But it is important to remember that
Islamists have charged that academic research has crossed this line and
also the novels of Naguib Mahfouz, Egypt’s Nobel Prize-winning author as
well as a tweet from the main backer of the leading non-Islamist party.
Islamist groups will be able to bring law suits against anyone whose
writing or statements or tweets they don’t like.
--Freedom
of expression is limited (Article 48) by the principles of state and
society, national security, and others things. That means that any
television station or newspaper that says anything
that can be deemed contrary to Sharia or Islamic morality as
interpreted by a Muslim Brotherhood government can be shut down. A
National Media Council (Article 215) will be responsible for preserving
“societal principles and constructive values,” which presumably means it
can order publications and television channels to be closed down.
--There
can be only one trade union for each profession (Article 53). This has
hidden implications since in the past the state has controlled the sole
such organization in each area. In addition, though, suppose doctors,
journalists, engineers, or members of
other professions are tired of being in associations that are
controlled by the Brotherhood. They cannot form their own separate
groups.
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--The
president can force parliament to meet in secret rather than public
session (Article 93). In that case, the legislators would have no say in
the decision. This makes observers suspicious about how much the
president will dominate parliament, since Egypt has been a country ruled
by a single man for six decades in which parliament was a rubber stamp.
In addition, anything critical of the regime can be kept secret.
--This
concern is furthered by another provision (Article 104) only allowing
parliament to overturn a presidential veto on laws by a two-thirds’
majority. This is, of course, also in the U.S. Constitution but, again,
Egypt is a country that has long seen a dictator who rules and a
parliament which has no significant influence.
--There
is no maximum number of members for
parliament set (Article 114 and 128), raising suspicions that the
president and the Brotherhood’s political party can add more people if
needed to maintain control.
--If
the lower house of Parliament does not approve the government platform
set by the president (Article 139) he can dissolve it. Since members of
parliament don’t like to be forced to run for reelection and possibly
lose their seats, this pressures them to accept the president’s
policies. This provision is also found in other parliamentary
democracies but again there are suspicions given Egypt’s history and the
regime’s
ideology.
--A
provision intended to make the army accept Muslim Brotherhood rule
(Article 197) establishes a National Defense Council, with a majority of
officers, to set the military budget. This had been a major demand of
the armed forces. Another thing that will make the army happy (Article
198) lets civilians be tried by military courts for crimes that “harm”
the armed forces.
--The president has the power to appoint the heads of many public institutions (Article 202).
--Two
provisions (Article 231 and 232) are explicitly designed to reverse the
Supreme Constitutional Court’s ruling that parliament was elected on
the basis of an unconstitutional the elections law. Thus, approval of
the Constitution at the referendum would lead to Mursi arguing that a
parliament with two-thirds Islamist membership would be legitimate,
rather
than facing new elections in which the Islamists might lose seats.
Probably
the provision most bruited in the Western media will be the taking out
of a provision that explicitly said women’s equality would be subject to
revision based on Sharia (removed from Article 68). Another article
(Article 30) states that citizens are equal before the law and equal in
rights and obligations without discrimination.
Presumably,
however, this changes nothing since conformity with Sharia law is
already mandated in the Constitution. But that last point is a good
symbol of the Constitution’s meaning. It enshrines Sharia rule without
rubbing people’s faces in it. Thus, the Western media and governments
can cheer the Constitution as democratic and proof that Islamists are
now moderate even though that document opens the door for dictatorial
rule.
Barry
Rubin is director of the Global Research in International Affairs
(GLORIA) Center and editor of the Middle East Review of International
Affairs (MERIA)
Journal. His latest book, Israel: An Introduction, has just been published by Yale University Press. Other recent books include The Israel-Arab Reader (seventh edition), The Long War for Freedom: The Arab Struggle for Democracy in the Middle East (Wiley), and The Truth About Syria (Palgrave-Macmillan). The website of the GLORIA Center and of his blog, Rubin Reports. His original articles are published at PJMedia.
Professor Barry Rubin, Director, Global Research in International Affairs (GLORIA) Center http://www.gloria-center.org
The Rubin Report blog http://rubinreports.blogspot.com/
He is a featured columnist at PJM http://pajamasmedia.com/barryrubin/.
Editor, Middle East Review of International Affairs (MERIA) Journal http://www.gloria-center.org
Editor Turkish Studies,http://www.informaworld.com/smpp/title~db=all~content=t713636933%22
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