Magdi Khalil

Magdi Khalil

Constitutions, Egypt, Extremism, Featured, Human Rights, Islamist Politics, Parliaments, Religious Freedom

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On October 14, the Egyptian government published a draft of the new constitution that clearly reflects the current state of political affairs in Egypt. A careful look at the Egyptian political landscape reveals that the drawbacks of Mubarak’s era are as present as ever, with further disadvantages brought about by religious extremism and the prospects of a religious state. The draft followed suit: not only did it fail to remedy the drawbacks of the 1971 Constitution; it also included the detrimental characteristics of a religious state. With constitutional principles relegated to legal ruling in 59 instances, rendering them essentially useless and highly subject to interpretation, the same critical defect that undermined the 1971 Constitution has found its way into the current draft.

This article examines each of the features and attributes of a religious state, as formulated by the following articles in the draft constitution presented by the Constituent Assembly.

The first article states that Egypt is part of the Arab and Islamic nations, however, when the draft describes its ties to Africa and the Nile basin, Egypt is only said to be “proud” to belong to both affiliations. The opposite should be true: Egypt is part of Africa and the Nile Basin. It is not an integral part of Pakistan, Afghanistan, Malaysia, Somalia, and Indonesia. This demonstrates its prioritization of religious identity over geographic and economic relationships.

The second article empowers the notion of a religious state, using the exact text of the 1971 Constitution, clearly stating: "Islam is the state religion, and the Arabic language the official language, and the principles of Islamic sharia are the primary source of legislation.” Diverging from the 1971 Constitution, two catastrophic articles have been added: Article 221 considers the entirety of Islamic jurisprudence and tradition to be the source of legislation, while article 4 entrusts ​​the interpretation of this jurisprudence and tradition to the body of senior scholars at al-Azhar, following in the footsteps of Iran and its Council of Guardians (Shura-ye Negaban). Thus, the current constitution has managed to feature the worst of the Iranian constitution, the Pakistani constitution, and the Saudi Wahhabi Bedouin doctrine.

Article 3 applies the Islamic concept of “dhimmitude” (derived from the word dhimmi, it describes the social and legal conditions of “People of the Book”), thus granting Christians and Jews certain rights to marriage, divorce, and the selection of spiritual leadership, while withholding these rights from other faiths.

Article 4 describes the role of al-Azhar, granting the institution the right to obtain funding from the state budget in order to spread Islam worldwide. Given that al-Azhar’s body of senior scholars are in charge of interpreting all sharia-related matters to the three other government authorities, it is essentially considered a superior authority. Therefore, not only will legislation be restricted by al-Azhar’s vision, which is dangerous enough, but the Egyptian Judiciary may morph into a religious judicial system as the judges await al-Azhar’s opinion in the majority of cases presented to them.

Article 6 hinders the meaning of democracy by limiting it to the Islamic concept of shura (meaning “consultation” in Arabic, the concept calls upon Muslims to gather and form opinions for the betterment of the Islamic nation), in addition to granting legitimacy to religious parties.

Article 9 states that religion and moral values are the sound foundation of the family, which is nothing more than empty religious rhetoric.

Article 10 describes the state’s responsibility to safeguard morality, public decency, and religious and nationalist values. Describing the state as “a guardian of religion” is a trademark of a religious state, and, even worse, the article imposes restrictions on freedoms and rights.

Article 37 states that "freedom of belief is protected.” To start with, there is a big difference between freedom of belief and freedom of worship. Furthermore, the article states that "the state shall guarantee the freedom of worship to the three monotheistic religions as regulated by law." This strange text restricts the right of belief to what is recognized as the “heavenly religions” by Islam. Under loose interpretation, extremists could even try to take a stab at Judaism and Christianity under the allegation that they have been misrepresented or distorted. Allowing laws to define the freedom to build mosques and churches will only maintain the status quo as no law will ever grant equal treatment to mosques and churches. Therefore, the archaic Hatt-I Humayun decree -- which originated in 19th Century Turkey and stipulates that a presidential decree is required for building a church or even for simple repairs and renovations -- and the ten unjust conditions will be maintained, while the rapid construction of mosques remains unhampered.

Article 38 warns against any “attack against or insult to the prophets." This is specifically directed at the Copts, since Christianity and Judaism are subject to daily insults that go unpunished, while Coptic citizens are the only ones who are put on trial if they happen to criticize Islam and defend their religion.

Article 52 reflects another characteristic of the religious state, making religious education a required main subject in pre-university education. Along those lines, article 67 adds another dimension by mandating the spiritual development of the child.

Article 68 destroys gender equality, restricting women's rights to the rulings of Islamic law.

Article 209 describes the so-called Economic and Social Council, which is in fact an Islamic shura council, and obliges the executive and legislative authorities to seek the opinion of this council before formulating any laws or policies.

Finally, articles 222 and 223 present an even more foreboding picture as they were deviously formulated to delineate the identity of a religious state. The first article allows moving the capital from Cairo to an alternative city, most likely to account for a future caliphate state, which would potentially require moving the capital to either Istanbul or Jerusalem, following a suggestion made by Imam Safwat Hegazi. The second article rids the constitution of the right to determine the state’s identity, deferring the responsibility to the parliament, along with the right to determine the national flag, slogans, seal, and national anthem, leaving these state symbols in the hands of the anticipated Islamic parliamentary majority.

Ultimately, the articles converge to form a clear design for the establishment of a religious state, with an identity, legal code, judiciary, religious censorship, capital, and culture that reflect its nature.

It is most alarming that the entire draft constitution is without any mention of the civil state, and is completely devoid of any reference to UN and/or regional international human rights instruments as the international authority on rights and freedoms. All articles referring to rights and freedoms have been restricted either by Islamic law, or by resigning constitutional rights to be regulated by law, which likewise subjects them to the restrictions imposed by the same Islamic law.

Magdi Khalil is an Egyptian intellectual, prominent human rights activist, and Executive Director of the Middle East Freedom Forum in Cairo & Washington.