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Egypt and Shari'a Law

The Inevitable Constitution

by OMAR KASSEM

Egypt will begin to acquire democratic institutions, first a Shura (or Senate), then a Parliament (after new elections), after a Constitution will inevitably be passed with article 2 stating that the source of all law will be ‘the principles of Islamic Sharī‘a’. This is inevitable. The rest of the clauses of the constitution will be little different from the previous constitution of the Nasserite state run latterly by Mubarak. What I would like readers to consider is which is worse, this redrafted article 2, or the rest of the constitution conceived for a Nasserite state. I would also like them to consider the relationship between these two aspects of the constitution. Before we come to any of this though, some background is in order.

Informed opinion has it that the change in article 2 is disastrous. In protest at this, many wise men from those political parties calling themselves secular and liberal have walked out of the Constituent Assembly tasked with drafting the constitution. It is to be noted however, that few of the protestors have actually resigned. They have merely left this legislative body in limbo, putting the secretariat in the difficult position of having to work out the provisions for absenteeism. Since all this will involve delays, the move is a spoiling move, and has as its intention together with co-ordinated protests on streets to corner the popularly elected president, thus to topple him. This recalls their political machinations just after the January 25th Uprising.

The January Uprising was truly an awe-inspiring event. The peaceful protests, the vast mass movements, the resilience and the persistence of protesters in the face of the manipulation and thuggery of a ruthless régime were astonishing. Deliberate acts of social destabilisation included the release of dangerous prisoners which was coordinated with the withdrawal of police from the streets. Everything was done to render the average Egyptian, struggling under the strain of a terrible economy, frightened, tired and eager to give up his or her claim to freedom. In the end though, this didn’t happen. Despite fraying at the edges, this was an uprising that from the side of the protests was entirely peaceful. If you compare with events across the Middle-East, we find that even quiet Tunisia has been forced to keep its emergency law because of continued terrorist activity.

Egypt is a country where conscription requires every citizen to spend time in the army. This showed in the discipline with which the protesters comported themselves, and in that resilience. But it also showed in their confidence that the army was not ever going to turn on them: the people and the army, despite the political brass, were ultimately one. However, a strange thing happened. The political brass fielded a candidate in the Presidential elections against the various other contenders, and this contender won through to the second round (although he lost), divisively setting the army against the people.

The reason for this however was no grand plan by the armed forces set out after the departure of the dictator. The political brass of the army was in shock then, and only the machinations of the secular and liberal parties galvanised them into action. The Muslim Brothers despite their popularity had, as an organisation, the delicate task of re-establishing a relationship with the army, since the last time they vied for political power under Nasser in 1954, they were forcibly crushed. The comings and goings between the Muslim Brothers and the army were portrayed however as collusion. This charge was a misconception and its promulgation a deception however, since in fact the liberal and secularist parties had appealed to the military to adopt a national guardianship role in the face of the organised political power of the Islamic parties and their large electorate. This is what in fact propelled the armed forces briefly into the political arena.

To my mind the crucial event of this revolutionary period was the refusal of the liberal and secular parties to immediately accept the principle of democratic outcomes. We are seeing the same again now in their dealings with the Constituent Assembly drafting the constitution. So what could possibly be more important to potential new democratic liberal politicians than defending the principle of democratic outcomes? After all this constant filibustering over legal matters, which has driven President Morsi to issue his latest decrees, they know is crucially damaging to a nation attempting to relaunch itself after a difficult period.

This is a crack in the politics of the nation being exploited by elements of the old régime, using money stolen from the Egyptian state which its prosecutors are desperately seeking to repatriate, in order to prolong instability, hoping against hope that they reimpose themselves somehow on the country. It may seem as if the liberal and secularist parties and these elements are incompatible, but they are not. Both are defenders of the Nasserite state, if perhaps for some in a modified form, for they have all prospered from it, despite the fact that it has seriously impoverished the country. The Muslim Brothers Nahḍa (or Renaissance) project is ridiculed by them as a thin ridiculous document filled with Qur’anic quotations. But this project is worrisome for them, because what it says is that ethics must be brought back to governance, and waste eliminated. It doesn’t take two lines to say that, although it takes a lot of courage to implement. This brings me back to the considerations at the beginning.

Leaving aside article 2 for the moment, we shall have in our inevitable constitution the vast majority of articles being originally conceived for a Nasserite state. Articles 14 and 15 for instance stipulate that it is the state which guarantees gender equality, ethical standards, cultural values, and so on. The constitution is not formulated around rights which inhere in persons, which persons are then the fount of subsequent political structures which have as a purpose to protect, defend and develop those rights. In article 1 it is the state which ‘regards citizens as having equal rights, but what is the state if not a virtual emanation of these very same citizens? Might there not be an article here which says that the state ‘regards us as human’ perhaps?

This obviously is all the round way round, and the secular and liberal parties know this. They don’t care about that though, because their fight is over whether the identity of this state is Islamic or not, even though the majority of people in Egypt – like it or not – see themselves as Muslim. What concerns me is that they would be comfortable with the constitution of a bland fascist state, although not of an Islamic one. Now I know there are many highly moral people amongst the leadership of the secular and liberal parties in Egypt, and that each one perceives that if only they had political power, the country would prosper and they would take the country to greatness.

But the road to Hell is paved with good intentions as they say. I am sure Mubarak had every intention of being a moral person and a beneficent ruler. It is the state however that let him down in those respects. We the people allowed there to be a state of affairs in the country wherein idle bureaucrats mismanaged our resources, delayed our projects, and made us as citizens run from pillar to post to obtain our most minimal of rights. On top of all the corruption, a crazed police force was visited on us. Our dehumanisation finally came to be embodied in the terrifying macerated figure of Khalid Sa‘īd whose image helped launch the 25th January Uprising; a helpless young man who faced was pulped by police officers for no apparent reason, but unfortunately only one of very many such sad figures.

We allowed these bureaucrats and state officials to think that it was their right to behave in this way. It shouldn’t be surprising then that the state ended up making the country poor and making the bureaucrats wealthy. Neither should it be surprising that when the country ran out of money and had to borrow from the US and from IMF that the creditors then imposed neo-liberal policies on the country to get their money back plus interest. This made some of the bureaucrats even wealthier. Projects and privatisations were hived off into segregated zones with minimal multiplier effects for the economy at large.

The Muslim Brothers have all this time run the only educational and welfare system for the poor, stepping in where the state, whose employees were only concerned for themselves, signally failed to look after its ‘citizens’. When they wanted to expand their operations and run more businesses that would benefit the general public, they were seen as a threat, persecuted and their leaders imprisoned. Is it any wonder then the Islamic parties are popular at the polls today?

By filibustering the way they have done in the political arena, and treating basic democratic principles with contempt, the secular and liberal parties have basically signaled their lack of vision and lack of intention of investing their time in the long term business of developing the country. Their focus is on the instant gratification of their political desires and their fortunes, masked by supercilious contempt for their traditionalist opposition. Their only ambition is to acquire power over the levers of the state, whose reimposition in this inevitable and dreadful constitution is their intent: except not in Islamic form.

What about article 2 of the constitution that is supposed to be such a disaster? ‘Principles of Sharī‘a’ conjure up images of stoning people to death, cutting off their hands, and marrying girls too young. But since these are not common practices in Egypt amongst the supporters of the Islamic parties, why are they then of concern? Since furthermore all such practices are not necessarily legally valid practices under Sharī‘a, which can be argued against; again, why are they then of concern? Why not instead talk of the good works, the charity, the honesty and cleanliness that Sharī‘a demands? Why not talk of the simple justice that Sharī‘a demands: the justice that is so fundamental for the functioning of any society, where people treat each other with respect, trust is carried out with transparency, and theft ruled out? The reason for the Nahḍa project in all its simplicity is that society in Egypt has rotted to an extent where these basic things exist no longer, either in society at large or in a court of law.

For the basic problem is corruption, endemic widespread corruption. This makes an economy impossible

There is another thing. The Principles of Sharī‘a defining article 2 makes for a foreign body in this statist constitution, and one that if pursued legally with any vigour in the long term should destroy it from within, for the state, especially the Nasserite state, is unislamic. The ultimate authority in Sharī‘a is the community of individuals that make up Islam, which provides for all communities including Christians et al, not just those literally ‘Muslim’. It certainly is not a disembodied entity such as the state. The nation-state emerged in the 16th and 17th centuries in Europe and acquired its character as peace-maker archetypically in the course of religious wars. In Egypt’s experience however we have seen in graphic terms how it, and those who control its levers, have actually fomented religious divisions to promote their interests: to the extent of causing murder. Some Mubarak régime state officials are in the dock now for exactly such alleged activity.

Most importantly the ‘Principles of Sharī‘a’ in its open-endedness invites not just lawyers but thinkers and philosophers to vigorously challenge the metaphysical interpretation of Sharī‘a that predominates amongst Islamic scholarship today as a result of the influence of Egyptian 19thcentury reformers such as Muḥammad ‘Abduh and Rashīd Riḍā. So, article 2 maybe the most important element in the inevitable constitution, one that will force us argue as a society who we are, and where we have come from. This is nothing to fear, for, despite everything, our arguments with each other as Egyptians have so far been peaceful. This is also the stuff that has created great nations in the past.

Omar Kassem is an Egyptian living between London and Cairo; a Cambridge graduate in theoretical economics, post-graduate and Ph.D. from the School of Oriental and African Studies (SOAS). He has taken a long sabbatical from his business to write a book on the theory of justice and the nation-state.