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Spring 2013

Paper by:

Amr Magdi Refaei

THE ENDURING ISLAMISTS' CONFUSION;

THE NEW CONSTITUTION IN EGYPT AND THE CONCEPT

OF CITIZENSHIP

1

Introduction

The constitution writing process in post-revolutionary Egypt evoked lots of

questions, and even fears, among lots of Egyptians. It was not only religious

minorities who had those questions and fears. Rather, it was much broader in a sense

that the large strata among the millions who took part in the Egyptian revolution

wanted to feel represented in that new constitution and wanted to see their rights

guaranteed along with their obligations stated in non-discriminatory fashion.

Constitutions' writing is always a difficult process that causes lots of controversy.

It is never easy to come to a consensus. Nevertheless, it was much more controversial

in the post-revolutionary Egypt where Islamists (mainly the Muslim Brothers but also

Salafis) dominated the constitutional assembly and refused the continuous demands to

re-elect it on more balanced basis. It is not the function of this paper to reflect and

research all of those debates on the founding mechanisms of the constitutional

assembly. However, it will be touched upon when necessary. Similarly, the new

constitution was passed with 63% voting yes (against 36%) in a public referendum in

late 2012 (Stamboliyska, 2012). The referendum showed a very low voting turnout

(30% in average) just to cast more doubts on the legitimacy of the new social contract

(Hussein, 2012).

What this paper is rather trying to research is the fundamental concept of

citizenship in the new constitution. Did it really receive a progressive egalitarian

treatment that reflects, more or less, the notion of citizenship in democratic

contexts? The methodology espoused here to answer this question focuses, mainly

but not only, on exploring the underlying hypothesis that can be concluded from

constitutional articles dealing with vulnerable groups, particularly women and

children, as well as articles on religious, personal and press freedoms. In addition, the

methodology includes contrasting those articles with their counterparts in the previous

1971 constitution (suspended shortly after Mubarak was toppled) to comparatively

investigate the general direction of the new one and whether it represents a progress

or a decline.

A possible shortcoming in this paper is that the new constitution has been in

effect for a short period (around four months) which did not give enough chance to

test its application on the ground nor did it give enough time to test its potential, bad

or good, interpretations by the supreme constitutional court.

Another expected critique to this paper would be that it deals with the concept of

citizenship hugely as it was developed in western democracies. This is largely true but

the critique does not hold when taking into account that Islamists themselves

committed themselves to democracy and came to power through elections. Moreover,

this critique is self-contradictory for the mere fact that constitutions are the social

contract by the virtue of which any governing authority could gain sovereignty and

legitimacy to run a nation-state. And that last concept, nation-state, was hugely

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developed through the evolution of western democracies. This critique should be

elaborated upon in the paper too.

3

Between Citizenship Theories and Islamist Political Theory; A Synthesis of an

Inclusive Analysis

The difficulty of this research is that it is trying to synthesize its analysis based on

two widely divergent, if not contradictory, sets of theories; the Islamist political

theory of state and citizenship theories. It is that the paper deals with the "modern"

concept of citizenship in a country in the Middle East where the nation-state, as a few

scholars argue, was not given enough chance to reflect the "natural" outcome of the

indigenous societal, political and economic evolution. Rather, those countries lived

for long decades the legacy of colonialism and, even more, are still lingering

economically and politically according to structuralist approaches such as dependency

theory (For example; Hinnebusch, 2003, Fawcett, 2009 or Butenschon and Davis,

2000).

When the old Egyptian constitution (1971 constitution) was suspended in

February 2011, two days after Mubarak was toppled, that was naturally among the

very first revolutionary demands side by side with dissolution of the parliament and

resignation of the cabinet. No one could argue that the country could claim a

successful revolution without taking the first steps towards a new constitution that

aspires fully democratic concept of citizenship. That was because the recent Arab

uprisings just gave hope to redefine the concept of citizenship within a framework of

a new social contract that ideally was sought to represent the universal slogans and

chants of the revolutions; bread, freedom and human dignity.

So, it seemed like those revolutions were the opportunity that Arab societies

could finally seize in order to establish their own nation-states on new basis. It is by

no means astonishing that people called it "the second independence" or "the second

republic". Nevertheless, things have not been that ideal. As Nathan Brown perfectly

put it, it was the "Egypt's state constituting itself" (2012). He was referring to those

old established institutions in the Egyptian state, such as the military and Al-Azhar,

which were keen to influence the constitution writing process. "Political authorities

were helping draft the constitution from which they would draw their own future

authority", he argued (Nathan, 2012). That's why the dynamics and methodology

behind the creation of the constitutional assembly are, in themselves, very relevant to

my approach here to explore the concept of citizenship in the new Egyptian

Constitution.

For the previous facts, it is just much more evident why a citizenship approach is

still so much important. On the one hand, the past few decades witnessed increasingly

diverse approaches towards citizenship theories. It is finally realized that citizenship is

not only the organizing concept of society-state relations in the modern nation-state

but it is also important to unveil power relations and analyze how and why these

relations were built (Butenschon and Davis, 2000).

4

Given the proliferating diversity of citizenship approaches, I here largely agree to

Butenschon's point of view that when dealing with questions of political stability and

democracy in the Middle East, it is better to espouse a back-to-basics approach. It

basically means that it is still vitally important to investigate the applicability of those

basic civic, political and social rights attached to the concept of "democratic"

citizenship in addition to individual's right of abode (Butenschon and Davis, 2000).

Therefore, the theory of citizenship that I try to apply in my approach to analyze

the new Egyptian constitution is that back-to-basics approach. As Butenschon (in

Butenschon and Davis, 2000) puts it; "In itself, the phenomenon of citizenship does

not presuppose equality, democracy or a vibrant society of citizens. The basic quality

of citizenship is that of a contractual relationship: it regulates the legal status of

individual inhabitants of a state (by implication including noncitizens) and sets rules

for participation in political institutions and access to public resources. (…) It draws

lines between members and nonmembers, between those who are included and those

excluded from specific rights and obligations regulated by the authorities. The

patterns of theses dividing lines reflect the internal sociological boundaries of the state

as a membership organization".

There are many hypotheses that tried to explain the reasons of the enduringly

troubled notion of citizenship in Middle Eastern context. Examination of those

hypotheses is beyond the aim of this paper. However, I would rather feed my practical

case-study approach with a set of hypothetical tools that help assessing how much

democratic is the concept of citizenship in the new Egyptian constitution. To be

specific, I rely on tools offered by both Nils Butenschon and Bryan Turner.

To start with Butenschon, he offers a typology of three political state-territory

organization principles; singularism, pluralism and universalism. Both of singularism

and pluralism perceive "certain sociocultural collective identities as irreducible and as

constituting fundamental premises for state and nation building" (Butenschon and

Davis, 2000). However, in singlaristic citizenship the state is hegemonic and is not

neutral in the way it establishes its "umbrella" of citizenship over its territory. It rather

makes that umbrella tailored to include exclusively certain ethnic, religious and/or

blood groups while excluding all others to one degree or another. Examples of

singularistic states are Israel, Turkey Iran and Saudi Arabia. On the other hand, in

plural systems power is shared because there is no predominance to any of the

subgroups that constitute the collective identity. To use Butenschon's phrase: "the role

of state is to facilitate politics of compromise". Thus, different groups have a role in

decision-making usually according to its bargaining capabilities (Butenschon and

Davis, 2000). That presumed neutrality of the state would be very relevant to examine

in an important decision-making such as constitution writing.

The third principle in this typology is universalism. In this paradigm group-

specific identities are claimed to be irrelevant. It is the individual rights and individual

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member's status visa-a-visa the state that forms the basis of citizenship (Butenschon

and Davis, 2000).

Bryan Turner, however, offers a broader and more useful multidimensional

model composed of three principal concepts; "active vs. passive", "public vs. private"

and "universal vs. particular" (Butenschon and Davis, 2000). In the last dimension

obvious demarcation is made between particularism and universalism stressing the

same ideas that Butenschon typology revolves around. Nevertheless, Turner

emphasizes economic factor where he assumes a paradox of modern citizenship

between solidarity and scarcity (Butenschon and Davis, 2000).

Furthermore, the first two dimensions intermingle a lot as Turner explains that

active (revolutionary) citizenship is a process of continuous struggle by people against

different forms of state oppression/inequality (historically aristocracy and now,

assumingly, patriarchal dictatorship and capitalism inequalities) while passive

citizenship is portrayed as from-above (from the state) development to contain and

stifle possible contentions. That is also to say that active citizenship refers to the

presence of vibrant civic culture and public space where masses finally favor the

notion of the public over the private. Nevertheless, passive citizenship entails

portraying the public arena as a "dangerous and evil domain", to put it in Turner's

words (Butenschon and Davis, 2000).

6

The Concept of Citizenship in the New Constitution

As mentioned in the introduction, my approach here includes investigating

articles in the new constitution that unveil the underlying hypotheses and perspectives

of citizenship espoused by those who wrote it and trying to contrast it with the

concept of "democratic citizenship". However, as the constitutional assembly was

hugely dominated by Islamist members from the Muslim Brotherhood's Freedom and

Justice Party and the Salafis' Al-Nour Party (henceforth MB, FJP and NP

respectively), it is also important and relevant to shed the light briefly on the rules that

governed the process of constitutional assembly creation and work.

The Constitutional assembly

The Supreme Council of Armed Forces (SCAF) took over, after Mubarak stepped

down, against 1971 constitution according to which the head of the Parliament should

have been the interim president. That step from the very beginning reflected how

power relations controlled the rules of the transition. Shortly after, SCAF appointed a

committee of ten people (judges and constitutional law professors) to issue an interim

constitution. The head of that committee was Tarek El-Bishry; a high-profile retired

judge with a loose, still well-known, Islamist affiliations. The only lawyer in that

committee was Sobhy Saleh; a MB leader. That selection reflected again how the

military, as the surviving old established dominant institution, was playing a game of

bilateral power balance with the MB (For example; ICG, 2012 or Moustafa, 2012)

The interim constitution was passed in a public referendum in March 2011.

Article 60 of interim constitution stated that it was the function of the then upcoming

parliament to elect 100-members constitutional assembly that should write a

constitution within six month. That referendum caused one of the earliest biggest

cracks inside the Egyptian revolutionaries and political powers. That crack proved

later to be continuous, enlarging and giving rise to further divisions. Secular and non-

Islamists powers realized easily that putting the constitution writing in the hands of an

elected parliament meant that Islamists were going to dominate the constitution taking

into consideration their expected relative electoral preponderance. Although Islamists

tried to push away fears and espouse a rational discourse about equal representation,

the consequences of that interim constitution proved later to take the transition into

the wrong hard track.

In addition to seculars' and leftists' fears, the logic behind objection to the

parliament controlling the constitutional assembly was quite strong; constitutions are

social contracts. Constitutions are not, or should not ideally be, subject to the

7

principles that govern the political competition because political competition over

parliament seats are naturally and legitimately producing political majority and

minority rather than building an equation of consensus while constitutions are

supposed to be seeking consensus and equally representing, not only political powers,

but all aspects of difference; societal, ethnic, professional, religious, geographical,

gender and institutional diversity of the society. Moreover, if an elected political

majority has the right to form the government, audit government plans and the like, it

does not have the right to write the constitution because it would rather seek its own

interests; a process which would subject the country to constitutional instability if,

supposedly, another political trend could achieve majority in the next elections and

then tried to amend the constitution to reflect its interests too.

Despite all of these critiques, what happened next showed hugely that fears came

true. In March 2012, the elected Parliament (with Islamists forming the majority; 48%

for FJP and 25% for NP), with its two chambers, met several times to assign the rules

on which 100 members could be elected for the constitutional assembly. Almost 62%

of them were members of FJP and NP (Ragab, 2012). They chose 50 of them from

Parliament members. That was the reason why the administrative court issued a ruling

in June 2012 dissolving the assembly as it considered the inclusion of 50 parliament

members violating article 60 of the interim constitution and hence non-constitutional.

A second assembly was created with Islamists still dominating its formation. Again,

they insisted on having majority enough to achieve two thirds voting percentage

inside the assembly (this time by electing people who have loose Islamist affiliation

to soften ascending public discontent). A lot of members from other political trends

kept withdrawing to show their objection to the stubborn Islamists attitude to

dominate the assembly (BBC, 2012). The total number of resigned members were

around 50 but they were replaced by the 50 other substitute members.

As the aims of this paper does not include going through the whole huge debates

and steps of the constitution-writing process over almost two year, I want lastly to say

that prior to and during the work of the first and second assemblies, SCAF tried to put

obstacles in desperate attempts to gain control over the assembly and re-balance its

formation or at least control its outcome through supra-constitutional principles

(BBC, 2012 and ICG, 2012). That was a brief review of the circumstances that

surrounded the constitutional assembly formation and work. In the next part of the

paper, I shall start going through the purposed analysis of some articles.

8

Articles in the Constitutional

Article 2: "Islam is the religion of the state and Arabic its official language.

Principles of Islamic Sharia are the principal source of legislation". This Article

remained as it was in the 1971 constitution. Despite of a historical ruling from the

Supreme Constitutional Court that this article was talking to the legislator not the

individual judge, it caused a lot of debates (Farahat). From the practical experience

over the past four decades, the article was used in several cases before courts to

besiege fundamental rights, especially freedom of speech and press and the women's

rights, put aside that it never allowed a space for the creation of a parallel civil

personal status law for secular people or non-believers to choose to be governed with.

The article itself was amended in 1980 to state that Sharia is "the principal

source" instead of "one of the sources". This amendment was passed together with

another amendment that allowed unlimited numbers of terms of president's re-

election. This shows how the previous regime during Sadat's reign (and similarly his

successor; Mubarak) was using this article to boost his legitimacy in the political

games (Farahat, n.d).

Although secular forces agreed on the existence of article two in the new

constitution, one can speculate that this decision was hugely pragmatic. However, the

battle did not end. Actually, it was the Salafis during constitution-writing who tried to

amend this article to become (Sharia) without the word (prinicples) in order to force

more literal conservative interpretation of it. They waged a media war against the MB

and Al-Azhar who stood against their purposed formulation of the article (Egypt

Independent, 2012).

Article 219: "The principles of Islamic Sharia include general evidence,

foundational rules, rules of jurisprudence, and credible sources accepted in Sunni

doctrines and by the larger community". If article 2 was not "the responsibility" of

Islamists and, even more, a lot of secular forces agreed on it, then article 219 is totally

a "brand new" one.

It was the MB trying to calm down the anger of Salafis as they threatened to

withdraw from the assembly (Egypt Independent, 2012). It is not just unprecedented

but some might claim that it is one of the worst articles in the whole constitution and

could have many bad potential interpretations. . It is still early to judge how this

article would affect further legislations. However, it does not really need a lot of

contemplation to conclude how this article is deeply reflecting the kind of obsessions

Islamists have, as well as their enduring confusion about citizenship and identity.

9

Islamists were not only adamant and uncompromising when it came to article

two, but they were keen to give it narrower dimensions as well. This article

contradicts their claims that Sharia is open for ijtihad (reasoning) and shows that they

are trying to monopolize the interpretation of religion. Moreover, it is quite evident

that the working hypothesis behind this article is very exclusionary. Are all of the

Egyptians Sunni? And are all of Sunni people agreeing on what Sharia is or what rule

should it play in the state and public sphere? It is just again when you link the

privilege of citizenship with any kind of imaginary conditions and prerequisites that

you are destroying the very basics of democratic citizenship concept.

Article 3: "The canon principles of Egyptian Christians and Jews are the main

source of legislation for their personal status laws, religious affairs, and the selection

of their spiritual leaders". This article is also new. It has been a recurrent demand by

the Copts of Egypt or, more specifically, the Coptic Church and large strata of its

religious followers.

In that last sense, the article sounds very progressive as a lot of the

Muslim/Christian sectarian tensions were partly caused by the reluctance of

Mubarak's regime to achieve this demand. However, I can see from another angle

that, without giving any space for secular people and non-believers to be governed by

civil personal status laws, this article means again exclusion of those who distance

themselves from the mainstream Muslim, Christian or Jewish religion interpretations.

Moreover, this article directly and indirectly empowers the official version of religion

and dismisses opportunities for more pluralism. Someone can go further in the

analysis to consider it a "bribe" from the Islamist regime to neutralize the Church and

gain its support at the expense of secular Christians.

Article 4: "Al-Azhar is an encompassing independent Islamic institution, with

exclusive autonomy over its own affairs, responsible for preaching Islam, theology

and the Arabic language in Egypt and the world. Al-Azhar Senior Scholars are to be

consulted in matters pertaining to Islamic law.The post of Al-Azhar Grand Sheikh is

independent and cannot be dismissed. The method of appointing the Grand Sheikh

from among members of the Senior Scholars is to be determined by law. The State

shall ensure sufficient funds for Al-Azhar to achieve its objectives.All of the above is

subject to law regulations".

Again, this article was not in the 1971 constitution. The first part of it might look

a point of consensus even among seculars who would consider Al-Azhar institution as

one of the tools of Egypt's soft power proven to be highly influential in the Arab and

10

Islamic world. Yet, the second part of the article giving Al-Azhar sort of reference

rule similar to that of the Supreme Court conveys highly alarming message. There

was in the first platform draft of the Muslim brotherhood party in 2008 a call to

espouse some sort of the Iranian experience in giving the supervising rule over the

parliament to a religious authority. That was before MB received huge criticism that

pushed it back to give up this part in the final platform. But we see here that the MB is

still lingering about the same idea. They could not espouse a frank Iranian version of

Velayat Al-Fakeh, probably because they would be hugely slash backed, but they

were again trying to ensure the hegemony of their interpretation of Islam by giving it

an official Azhari coverage.

The article is still vague and does not refer to a specific mechanism of application

and whether Al-Azhar is going to supervise all legislations issued by the parliament or

only those which deal directly with Sharia (Al-Ali and Nathan, 2012). Ironically

enough, FJP in the Shoura Council tried to bypass the article when it proved to work

against the MB own interests as they were trying to issue the Sukuk law but Al-Azhar

constantly refused it (Al-Ali and Nathan, 2012). In addition, the article shows also to

what extent Al-Azhar, as an established institution, could seek its own interests in the

constitution.

Article 46: "The State shall guarantee the freedom of belief and the freedom of

practice of religious rites". Another very exclusionary article that means that

Egyptian citizenship is linked only to three religions while other religious minorities

such as Baha'i or nonbelievers would have to claim being a follower of one of those

religions or, otherwise, have their right of belief stifled.

Women, Family and Morality

Article 10: "The family is the basis of the society and is founded on religion,

morality and patriotism. The State is keen to preserve the genuine character of the

Egyptian family, its cohesion and stability, and to protect its moral values, all as

regulated by law. The State shall ensure maternal and child health services free of

charge, and enable the reconciliation between the duties of a woman toward her

family and her work. The State shall provide special care and protection to female

breadwinners, divorced women and widows".

Article 11: "The State shall safeguard ethics, public morality and public order,

and foster a high level of education and of religious and patriotic values, scientific

11

thinking, Arab culture, and the historical and cultural heritage of the people; all as

shall be regulated by law".

Changes in these two articles were rather minor. The mentality behind it was the

same in 1971 constitution. It was usually pointed out as discriminatory against women

and re-enforcing the patriarchal discourse and male hegemony. For example, Nihad

Abo-Komsan (a very well-known feminist leader whose organization has been active

against Mubarak's regime) argues that those articles open the gates for further

subjugation of women in the name of law (Abo-Komsan, 2012).Although Abo-

Komsan as one of those who support article two, she still thinks that the discourse

about women's rights from Islamist perspective might rather render these rights

inactive.

Finally, the new constitution did not define the age of children which might be a

preparatory step to amend the children's rights law against which Islamists have

always shown contention as they think it is totally a western discourse.

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Conclusions

The various hugely liberal articles stressing basic rights of free speech, freedom

of belief, freedom of press and the like cannot be read out of the context of the new

Egyptian constitution and its writing process.

It was the common interest of the military and the Muslim Brotherhood to

dominate the political game as the two biggest political powers remaining after

Mubarak's regime collapsed. The military and the MB have a very similar mentality

as both of them possess hierarchal patriarchal conservative structure and doctrine.

Both of them were seeking to secure their own interests in the new constitution.

The Islamist parliamentary majority controlled and dominated the process of

constitution-writing rather than giving the opportunity for less political and wider

civic and societal representations in the constitutional assembly. The outcome was

clear, the privileges of the army were constitutionalized and the constitution took a

shape of Islamic constitutionalism rather than modern democratic one.

When read in context, there are rather huge contradictions and a lot of basic

rights would be besieged or violated. Articles on the role of Azhar, the religious

freedoms and women's rights are all reflecting a mentality of rather a patriarchal

conservatism despite of the fact that the constitution was written after a revolution

that should have rather posed a lot of questions.

Linking the privilege of being an Egyptian citizen with certain prerequisites (such

as being a Sunni or a believer) reflects highly exclusionary mentality that is still

confused about the notion of citizenship.

To put the conclusions in the theoretical framework provided by Turner and

Butenschon earlier in this paper, the constitution should have reflected active rather

than passive citizenship. It was written after a revolution where huge masses were

mobilized to the public arena demanding universal rights. Nevertheless, the

constitution reflects more of a top-down passive citizenship that also emphasizes

religious/cultural particularism vs. the universal political and economic demands

raised in Tahrir squares.

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The contradicting liberal articles could be explained by the western ideological

influence that no nation-state in nowadays world could easily escape (even in the case

of Islamist regime) rather than a direct political pressure by the western governments.

Any close observant of the MB's discourse over the past three decades could easily

see the gradual, yet huge, change in principal positions such as partisan politics,

freedom of religion and democracy. In that sense, I would claim that the new

constitution hugely reflects their current mentality without any external pressures.

It is not to say that there are no people inside the MB (on both; the leadership and

the grassroots levels), not to mention the Salafis, who aspire a more theocratic Iranian

model. One can still see the influence of such ultra-fundamentalist in some articles

such as articles 219 of Sunni reference and article 4 of Al-azhar surveillance of

legislations. Yet, this ultra-fundamentalism could not affect the whole trajectory of

the constitution and failed to take it into theocratic model but was still successful in

shaping parts of its scriptural literalist mood.

The state could not prove to be neutral in the constitution writing. Important state

institutions such as the military, Al-Azhar, the Coptic Church and the parliament itself

had interests and influenced the writing process instead of functioning to facilitate the

bargaining process between different societal forces and trends, to reach a consensus

through compromise. Moreover, I can claim that when compromise was made by the

MB (represented by parliamentary majority but also by the government and the

presidency), it was made much more often for the sake of more ultra-fundamentalist

Salafis rather than the seculars. This bias by the state represents failed pluralism rather

than singularism.

The basic claim of Islamists that the political majority has the right to control the

constitutional writing reflects their enduring confusions of the notion of citizenship.

Where no one expects any utopian interest-free constitutional assembly, citizenship

should at least be free from any pre-requisites that could severely endanger the status

of thousands or millions of people who would be either compelled to be part of the

majority or risk losing substantial part of their citizenship privileges.

Finally, figures from the referendum, and especially its low voting turnout,

referred again to the public discontent and indicated clearly that the constitution

represents the political majority and failed to build a consensus.

14

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