Those who follow the Egyptian constitutional process have every reason to be confused and concerned. Leaks, partial drafts, and conflicting accounts make the content of the document hard to follow. But the constitutional stakes in Egypt seem to be very high, and the debate has become emotional and charged. Rhetoric is highly polarized, with non-Islamists claiming that Islamists have hijacked the process. The Islamists retort that their contemplated changes are small. Their critics, the Islamists say, cannot accept election results that indicate strong support for the Muslim Brotherhood and Salafi movements.

In a sense, both sides are right. Islamists are correct when they claim to be acting with restraint. The document they are producing will make only limited and subtle textual changes in religion-state relations compared to the 1971 constitution. On the issues on which there has been most controversy, such as explicit mentions of the Islamic sharia, changes will be particularly light. But their critics are also correct. Islamists are dominating the process and are likely to see a constitution that reflects their interests.

This is not so much because of the tools that they are crafting and more because of who will be using those tools if Egypt’s future elections look anything like its most recent ones. The 2012 constitution will be operating in a very different political context, so that even the stepof adopting past language is likely to produce very different results. In this way, Egypt’s new constitution will not so much resolve all controversies as it will set up a period of prolonged trench warfare within, among, and over a series of institutions. And Islamist forces are likely to move forward gradually rather than by suddenly capturing the state. This struggle will likely take place over many years, and the outcome will determine what the vague language of the constitution actually means in the lives of ordinary Egyptians.

 

The greatest impact of the constitution may well be the way in which it redesigns the Egyptian system of government and relations among its executive, legislative, and judicial branches. Those clauses have drawn less controversy, but they also seem more roughly designed—the drafters appear to be attempting to set up a semipresidential system with crude mechanisms for parliamentary oversight. But that is a work in progress. Religious provisions are somewhat more clearly defined and merit closer attention now.

Controversial Clauses: Egypt’s Wiki-Constitution Takes Shape

The Egyptian constitution-writing process is certainly hard to follow. The Constituent Assembly drafting the document is criticized for acting in a nontransparent and nonconsensual way. But part of the problem is that the process is actually too transparent and too consensual.

The assembly has been doing most of its work by committee and in a consensual fashion; the body as a whole has not yet formally approved anything. Members leak drafts, the committee posts evolving clauses, partial drafts are released completewith notations of matters not yet resolved—and when multiple drafts pass into circulation and no votes are taken, it is difficult to tell where the text stands. Egypt’s assembly seems to be writing a wiki-constitution.

At some point final decisions will have to be taken, but those running the process seem to wish to keep possibilities open and avoid stormy confrontations and walkouts as long as possible. For now, a draft dated October 14 seems to be aworking document, but even that is being changed by various committees.

Despite the somewhat chaotic nature of the drafting process, the constitutional debate in Egypt has at times been remarkably detailed and sophisticated. Formerly arcane distinctions are no longer the subject of scholastic discussions but instead the stuff of general political discourse.

One issue under discussion is the role of the sharia in legislation. Article 2 of the 1971 constitution, as amended in 1980, proclaimed that the sharia’s principles “are the main source of legislation.” That clause is likely to be copied without modification into the 2012 document.

Still, some Salafi circles see that wording as hinting everything but delivering nothing—an interpretation that is buttressed by a quarter century of constitutional jurisprudence. Over the years, the country’s Supreme Constitutional Court has worked out an approach to Article 2 that adheres to the language of the provision but does not find many laws in contravention of sharia principles and allows the country’s political authority considerable leeway in interpreting and applying the sharia. But that jurisprudence has made the court itself as important a subject of discussions as the text of the constitution. And it has also deflected attention to al-Azhar—the Sunni university, mosque, research institution, and religious complex that stands at the center of official Islam in Egypt—as another possible authoritative institution.

The draft’s provisions for gender have also generated heated debate. Article 68 of the current draft provides for gender equality but only in a manner that does not conflict with the “rulings” of the Islamic sharia. “Rulings” is a far more specific legal term than Article 2’s “principles” because it seems to refer not to general ideas but to detailed rules.

This debate on the clause may seem strange, since Egyptians have lived with much of this wording for four decades without noticing. When the 1971 constitution was drafted, women’s rights activists wanted a strong provision for gender equality, but Islamic religious leaders objected that this might be used as a tool to undermine the Islamic personal status law, which is not gender neutral. The current draft steps beyond the 1971 text by having the state care for divorced women and those forced to be primary breadwinners, suggesting an effort by Islamists to position themselves as more favorable than liberals to women’s concerns.

But as with Article 2, Article 68 is to be implemented in a new political context—one in which entrepreneurial litigators might feel emboldened to use the language to challenge women’s rights to travel or hold specific positions as contrary to the “rulings” of the sharia. Much therefore depends on how the courts and legislature will read these provisions in post-2012 Egypt.

Also controversial is the role envisioned for al-Azhar. For the first time, the institution has been given a constitutional role, but it is one that appears at first glance to be merely advisory, scaled down from earlier suggestions to give its rulings binding authority. The current working draft promises the institution full independence, and al-Azhar’s council of senior religious scholars—a body dissolved half a century ago but restored earlier this year—is supposed to have its opinion taken into consideration on matters related to the Islamic sharia.

Again, the real impact of such wording could only become clear in practice, when the actual members of the body and how its independence will be guaranteed are determined. Even if the council’s opinion is not binding, how much moral force the opinions of senior scholars have will be worked out over time.

Finally, freedom of religious belief is guaranteed in fairly robust terms, but freedom of practice and of constructing houses of worship is more confined to approved religions—Islam, Christianity, and Judaism. There are thus firm reasons for concerns about the rights of other groups (such as Baha’is) or adherents of heterodox interpretations to practice their religions. Indeed, even Egyptian Shia might find their protections weak. The structure of the Egyptian personal status law makes it quite difficult to guarantee a fully individual right of religious practice.

There are some details that have escaped much popular attention and debate, at least so far. Arab constitutions, like American politicians, have a tendency to thunder on about family values and even motherhood, and the current draft cannot resist some forays in that direction, often with a bit of a socially and religiously conservative flavor. And sometimes such clauses go further—for instance, when religious instruction (as in the 1971 constitution) is mandated in schools.

These changes not only give the state a religious tilt, but they also give religion an official spin. For instance, it is the Ministry of Education that has the task of deciding which Islamic teachings should be instilled in schoolchildren. The state is called to act in other ways as well—to prevent insults to religious prophets and to form an organization to preserve culture.

There are more subtle ways the draft wades into religious issues. It creates a new, independent body for administering religious endowments to replace the current ministry, creating one more autonomous agency that might be immune from cabinet oversight. Whereas the old document banned religious parties from politics, the new one bans only those that are somehow based on religious discrimination (the definition of which is not included in the draft). And parties can now be formed simply by notifying authorities rather than securing their approval—a step that is designed to make banning parties more difficult. This liberal principle is one that Islamists are likely to be able to use to protect the parties they have already formed and that are being challenged in the courts.

Most startling, perhaps, is Article 221, which enshrines Sunni Islam. The unnoticed clause restricts the “principles” of the Islamic sharia—presumably those referred to in Article 2—to Sunni principles. In that sense, Egypt now has not only an official religion (Islam), a small set of recognized alternative religions, an organization to be consulted about its teachings (al-Azhar), but also an official approach to Islam (Sunni).

Yet even with these hidden (and hardly final) elements, it is clear that most religious provisions in the 2012 draft will develop their real meaning from political practice, institutional development and staffing choices (that is, what bodies will interpret and implement the provisions in question and who is running those bodies?), and the legislation that implements the constitution’s general language.

The Coming Trench War Over Religion and State

The 2012 constitution, if completed and ratified, is likely to set the term of engagement, clarify the stakes, and shape the arenas of a long political struggle over the relationship between religion and state in Egypt. The major fields of struggle will be the institutions of the Egyptian state itself, tasked as they are with implementing the general language of the constitutional document. To make matters more complex, many of these institutions are not merely likely to be fields of struggle for various contending visions; they have their own strong sense of institutional interests and mission. They are both prizes to be won and actors in their own right.

Al-Azhar is one such actor. It has been struggling hard to assert its moral primacy in religious matters while simultaneously avoiding formal constitutional authority. The move to give al-Azhar definitive authority in interpreting Article 2, for instance, came from outside of the institution, and the sheikh (who heads it) quickly asserted that al-Azhar wishes to have no such role.

This shyness about formal authority is partly doctrinal, based on the claim that Sunni Islam does not accord any such authority to religious scholars. But the underlying logic is likely largely political. After all, al-Azhar does not object to having a powerful informal or advisory role. Nor does it completely avoid any formal legal authority: the current law governing the institution—rushed through with al-Azhar’s support by a decree from the Supreme Council of the Armed Forces (SCAF), the interim military rulers, at the beginning of this year—gives al-Azhar a vague but clearly stated authority in matters of Islamic law. Instead al-Azhar seems to seek to avoid becoming a political football in which various religious tendencies try to place their favorites on the body of senior scholars. And the sheikh who heads the institution may wish to avoid ceding too much authority to that body.

Whether it is given an advisory role (as the current draft suggests) or is not mentioned at all (as some drafters would still prefer), al-Azhar is likely to play a significant part in post-constitutional debates about Islam in public life. And that might mean that movements that seek to play a political role—the dominant Muslim Brotherhood, of course, but also the more politically inclined Salafi movements—deepen their efforts to pull the institution their way. Non-Islamist forces could latch on to the current sheikh as a bulwark against more rigid voices within the institution.

Meanwhile, the Supreme Constitutional Court (SCC) has emerged as the center of enormous controversy in the past year. Its critics allege that it has been hostile to the Brotherhood and a final bastion of the old regime. Its supporters charge the Islamists with failure to accept an independent judicial voice and with carrying out a vendetta against the court.

Neither charge is fair. The SCC’s justices are actually a more diverse lot than it may appear. Some justices have played a prominent public role, but most speak only through their judgments, which are issued by the court as a whole, rather than individual justices, with no dissenting or minority opinions. It is hard to avoid the impression that the SCC feels threatened by the Brotherhood’s rise, but that stems less from ideological factors and more from the concern that the court is a likely target for the Brotherhood.

Nor is it quite fair to see the Brotherhood as an enemy of judicial independence. The court’s role in dissolving the parliament (three times now) and the part some justices played in the presidential election commission, advising the SCAF, and participating in public debates has left a strong residue of mistrust. Some of the Brotherhood-affiliated Freedom and Justice Party leaders have failed to hold their tongues in their description of the court.

But while the current draft constitution curbs the court’s autonomy, it stops far short of the full assault on the SCC (or even elimination thereof) that some had feared. It requires the prior review of electoral laws so that the court will not be able to dissolve parliaments after they have been elected. It clearly leaves the matter of implementation of court judgments to legislation. Under its existing law, the court can oversee execution of its own rulings, as President Mohamed Morsi discovered when he tried to reconvene the parliament declared unconstitutional by the court; the draft constitution seeks to prevent that kind of thing from happening again. And the current draft also gives the entire judiciary a voice in naming justices to the SCC’s bench, not just the SCC itself, which is presently a self-perpetuating body.

The court is pushing hard against these changes—its chief justice has refused to participate in the Constituent Assembly and has spoken forcefully against the draft. And it has apparently persuaded one of the assembly’s committees to back down and drop the changes to the court in the current draft. It remains unclear whether the assembly as a whole will accept that outcome. Even if it does, the SCC may not have won the victory it thinks it has. Even if the new wording is adopted, the constitution may simply defer critical matters to ordinary legislation, thus empowering the coming parliament to tinker with the court’s formation and jurisdiction.

For any matter requiring the implementation of legislation, including the provisions regarding the SCC and al-Azhar, the parliament will play a critical role. Assuming an Islamist-dominated parliament—a reasonable but not inevitable assumption—what legislative path would it blaze? Here the 2011 parliament may offer some useful insight. That body earned an unsavory reputation, particularly among non-Islamist forces, for its ineffectiveness as well as the shenanigans of some of its members, most notably Salafi deputies who spoke of lowering the marriage age or interrupted proceedings with a very noisy call to prayer.

In fact, the ineffectiveness of the parliament was largely due to the strictures of the country’s interim constitutional declaration in addition to clear indications from the SCAF that it would not approve many laws or allow the parliament to oversee the composition of the cabinet. Nevertheless, the body was concerned with far more than the marriage age—it worked on developing an NGO law, for instance, as well as a host of legislative proposals on the judiciary and the basic institutions of the state. An Islamist parliament untethered by the SCAF would likely pick up such projects. How the situation develops depends on how majoritarian the new parliament’s impulses would be, how deferential it would be to the executive, and how it would prioritize the many demands for legislative attention.

What seems most likely is that the parliament would move slowly on clearly religious issues, but it would still likely move in ways that non-Islamists would not like. On basic institutional issues, it would not necessarily pursue an identifiably Islamic agenda. It would, however, likely look for ways to open up channels for those with Islamist inclinations to enter state institutions from which their voice has long been excluded. And in a sense, that process already started with media appointments by the current parliament’s still-seated upper house.

The civil service as well as the military and security services have been resistant to Islamist entry in the past, with some sectors (such as the diplomatic corps) largely non-Islamist preserves. Any Islamist leadership—whether in the parliament or the executive branch—is likely to seek to remove such barriers. Some institutions with greater autonomy, such as the military, should be able to continue to police entry to some degree. But the effort to define which positions in the state are beyond party politics and which are responsive to electoral outcomes and political guidance—the sort of understanding that is necessary to have a smoothly institutionalized democracy—has borne little fruit in Egypt thus far.

Finally, the executive branch is likely to be a site of contestation and a vital element in the effort to define religion-state relations in Egypt. The draft constitution gives the parliament surprisingly weak tools to oversee the cabinet, and if there is a majority party in Egypt—that is, if the same party controls both the presidency and the parliament—then the executive branch is likely to enjoy considerable latitude in using its significant regulatory authority. That will allow the minister of education, for instance, tremendous authority in determining the content of mandatory religious education. Other ministers might take the otherwise vague declarations of conservative social values as charges to develop policy along lines that non-Islamists will find illiberal.

In the end, it is political context that may determine the meaning of the constitution. Knowing this, the Freedom and Justice Party may be prepared to make short-term compromises on wording in the interest of securing a political system that will allow it to pursue its vision over the long term.