CAIRO — One of Egypt’s most prominent ultraconservative Muslim clerics had high praise for the country’s draft constitution. Speaking to fellow clerics, he said this was the charter they had long wanted, ensuring that laws and rights would be strictly subordinated to Islamic law.
“This constitution has more complete restraints on rights than ever existed before in any Egyptian constitution,” Sheik Yasser Borhami assured the clerics. “This will not be a democracy that can allow what God forbids or forbid what God allows.”
The draft constitution that is now at the center of worsening political turmoil would empower Islamists to carry out the most widespread and strictest implementation of Islamic law that modern Egypt has seen. That authority rests on the three articles that explicitly mention Shariah, as well as obscure legal language buried in a number of other articles that few noticed during the charter’s drafting but that Islamists insisted on including.
According to both supporters and opponents of the draft, the charter not only makes Muslim clerics the arbiters for many civil rights, it also could give a constitutional basis for citizens to set up Saudi-style “religious police” to monitor morals and enforce segregation of the sexes, imposition of Islamic dress codes and even harsh punishments for adultery and theft — regardless of what laws on the books say.
The spiraling crisis is threatening to turn into an outright fight for the identity of post-revolutionary Egypt, splitting the nation between those who want an Islamic state and those who oppose it, two years after the fall of autocrat Hosni Mubarak.
For Islamists, the constitution is the keystone for their ambitions to bring Islamic rule, a goal they say is justified by their large victory in last winter’s parliamentary elections. President Mohammed Morsi, who hails from the Muslim Brotherhood, has rejected opposition demands that he cancel a Dec. 15 nationwide referendum on the draft.
“Egypt is Islamic, it will not be secular, it will not be liberal,” thousands of Morsi supporters chanted Friday after the funeral of two men killed in clashes earlier this week. Witnesses say the violence began when Islamists attacked an anti-Morsi protest camp outside the presidential palace.
“Bottom line, this is a struggle between ideologies — the Islamic ideology moving with a clear plan with public support, and the secularists,” said pro-Morsi demonstrator Khaled Omar, his head bandaged from Wednesday’s fighting. “We are defending Islam, which people want.”
The opposition is determined to stop the draft, and thousands marched for a third straight day Friday on the palace.
The Brotherhood is “unleashing its gang chanting jihadi slogans, as if they are in a holy war against the infidels,” said businessman Magdi Ashri, who opposes Morsi. “Their agenda is to monopolize power in Egypt, whatever it takes.”
Egypt's Islamist-dominated Constituent Assembly debated the draft for months, until most liberal members — and all the Christian ones— walked out to protest what they called hard-liners’ railroading of the process.
Islamists rammed through approval of the final draft in an all-night session Nov. 30. Of the 85 members who voted, 80 percent were members of the Muslim Brotherhood or the ultraconservative movement known as Salafis, or their allies.
Some Salafis had been reluctant about the draft because they wanted more explicit commitments to Shariah. But several days before the assembly session, Borhami — who is also an assembly member — assured them that what they sought was there, hidden in subtler language.
He said that by defining Egypt’s political system as “democracy and Shura” — the Islamic term for “consultation” — the draft prevents what he called an “American or European” democracy that “gives the power of legislation to people and not to God.”
Before liberals and Christians quit the panel, Islamists convinced them to allow a number of crucial clauses that solidified Shariah, either because of bargaining or because they didn’t realize the articles’ significance, he said.
“They didn’t understand it well at first,” he told the clerics, according to a full video of his speech posted on YouTube. “They only got it later and that’s why they said it was disastrous.”
How much some of the Shariah provisions in the constitution come into effect depends on who would be implementing it. And attempts to use some of its provisions would likely bring court battles over what the constitution really allows. But Borhami expressed confidence the courts would be obliged by the charter to allow a widespread implementation of Shariah.
Three articles of the more than 230-article draft mention Shariah directly.
Article 2 states that the “principles of Shariah” are the main source of legislation, the same phrasing as past constitutions. The vague term “principles” previously gave lawmakers so much leeway that they could almost ignore tenets of Islamic law. As a result, Islamic law largely only governed rules on marriage, divorce and inheritance.
But at the insistence of Salafis, Article 219 was added, defining the principles of Shariah for the first time. It says the principles are based on “general evidence, fundamental rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community.”
The language is obscure, drawn from the terminology of religious scholars and largely incomprehensible to anyone else.
But “it is like a bombshell,” says Mohammed Hassanein Abdel-Al, constitutional law professor at Cairo’s Ain Shams University.
The article means that laws passed by parliament must adhere to specific tenets of Shariah that the four main schools of Sunni Islam agree on. That could include banning interest on loans, forbidding mixing of genders, requiring women to wear headscarves and allowing girls to marry when they reach puberty.
“The doors are wide open to restrict individuals’ freedoms,” Abdel-Al said.
Another new article says clerics from Al-Azhar, Egypt’s most prominent Islamic institution, are “to be consulted on any matters related to Shariah,” implicitly giving them oversight in legislation.
Other articles give sweeping powers for implementing Shariah, without directly mentioning it, often through subtle additions introduced by Islamists.
Article 10, for example, commits both the state and “society” to protecting “the moral values” of the “true Egyptian family.”
The vague language empowers private citizens to enforce Islamic morals, Abdel-Al said. It could even give a constitutional justification for the creation of religious police, known as commissions “for the promotion of virtue and prevention of vice.”
“If I’m walking with my wife and her face is not covered or she’s not wearing a headscarf, a man can come up and order me to cover her. I can’t protest or object because the constitution instructs him to do so,” Abdel-Al said.
Borhami pointed to Article 76, which he called “amazing.” Originally the text said the only crimes and punishments can be those set by law. But Islamists amended the phase to “by law or by virtue of constitutional text.”
As a result, punishments could be implemented based on the constitution’s Shariah clauses even if they are not passed into law by parliament, such as bans on adultery and bank interest, Borhami said. Abdel-Al agreed on the article’s effect.
The charter includes a section on personal rights, including guarantees of freedom of belief, creative and political expression and the press. The section also bans arrests and searches without court order and explicitly forbids torture for the first time. Many of the rights are more firmly worded than past constitutions under Mubarak and his predecessors.
But the section’s final article says those rights cannot be implemented in a way contradicting the charter’s articles on Shariah and protection of morals — giving a tool for Islamists to limit the freedoms. “These human rights are now restricted by Article 2,” Borhami said.
The charter has a broad clause saying all citizens are equal, but an article specifying women have equal rights to men was dropped amid squabbles over the wording, and the article on children’s rights is vague, experts say.
Overall, the draft leaves it unclear who is “the final authority in law and its interpretation — the elected parliament, the senior clerics or the judiciary,” economist and former lawmaker Ziad Baha el-Din wrote in the independent El-Shorouk newspaper Wednesday.
The charter also limits the mandate of the Supreme Constitutional Court, which is seen as one of the strongest opponents of Islamists. Islamists also wrote in a last-minute article shrinking the court to 11 judges, from 18, eliminating its younger members.
That removes some of the fiercest anti-Islamist judges on the body, such as the court’s only female judge, Tahani el-Gibali.
Youth activist Mahmoud Salem warned in his blog that “if this constitution is passed, Cairo will truly become Kandahar, with the blessing of the Egyptian president and the Muslim Brotherhood” —referring to the home city of Afghanistan’s Taliban movement.
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