The Arab Spring in Comparative Perspective
There were hardly any checks and balances in the Egyptian process of drafting the constitution. The greatest debate in Egypt was over who sits in the body that is tasked with drafting it. Unlike in the Tunisian case, it was not a group elected in national suffrage but first by the Islamist-dominated parliament and then, when that assembly was dissolved, negotiated between political forces (2012) and finally by anti-Islamists after the ousting of Morsi (2013). In essence, then, the two constitutions – the “Islamist” in 2012 and the “secular” in 2014 – should be very different, given the circumstances in which they came into being and the people who oversaw their creation. A closer look at the text, however, disproves that thesis.
Unsurprisingly, the rule that sharia be the source of legislation raised doubts from secular Egyptians, but the gist of the debate was whether sharia would be the source, meaning the sole source of legislation or the main source, implying the existence of other sources of legislation as well. Al-Azhar came out against any change in that article: “Scholars differ over the text for rules of Islamic sharia because these change all the time, while the constitution should express fixed principles.”19 In the course of the debate, the Muslim Brotherhood leaned towards compromise on this particular matter. They argued that sharia is a tradition much more than a code, therefore defining it in absolute terms made little sense. Eventually, in both the 2012 and 2014 constitutions that article remains unchanged.20 The criticism against the constituent assembly of 2012 also arose as a result of the idea to single out monotheistic religions as the ones enjoying freedoms and protected by the
18 See Annex 2. 19 “Egypt’s constitution…”, ibid. 20 Article 219 of the 2012 constitution is a particular Salafi project. It stipulated that the principles of sharia include general evidence, the foundational principles of Islamic jurisprudence (usul al-fiqh), and the reliable sources from the Sunni schools of thought (madhahib). The reading of its meaning was two-fold: some said it added very little, while some would warn against it being a trampoline to more conservative sharia.
39 JOINT POLICY STUDY
It is interesting to note that there is an invocation to God in three subsequent Egyptian constitutions of 1971, 2012 and 2014.18 All three stipulate that sharia is the main source of legislation, while Islam is the religion of the state. There is almost no difference between the three constitutions in how they describe the “family” (nucleus of the society or the basis of it) and its foundations (religion, morality and patriotism). As for the equality of men and women, it is worded in less egalitarian terms in the 1971 constitution, while the 2012 constitution guarantees no discrimination, intercession, or favouritism when it comes to rights and duties of men and women. The 2014 constitution goes so far as to make the state responsible for the achievement of equality between women and men in all civil, political, economic, social, and cultural rights in addition to granting women “appropriate” representation in the parliament. All three constitutions guarantee the freedom of belief and the freedom to practise religious rites, except that the 2014 constitution privileges the “Abrahamic” religions in this respect. This comes despite and as an addendum to the rule that sharia is the main source of legislation. And finally, in all three documents religious education is a “principal”, “essential” or “core” topic of general education curriculum.