The constitutional debates that took place in the run-up to the formation of the current Iraqi constitution provide a blueprint for the questions Islamic parties must address if they are to be insiders to the process of consolidating democracy

Banai, Ayelet

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Hochschulschriftenserver - Universität Frankfurt am Main

Sharia and Egypt’s Constitution: an Iraqi blueprint Published on openDemocracy (http://www.opendemocracy.net)Sharia and Egypt’s Constitution: an Iraqi blueprint       Sharia and Egypt’s Constitution: an Iraqi blueprint      Ayelet Banai [1] 29 June 2011    Subjects:Democracy and government [2]Conflict [3]Civil society [4]International politics [5]Iraq [6]Egypt [7]women and the Arab Spring [8]Arab Awakening [9]Spring of the “others”  [10]Religion Gender Politics [11]      [12]   [13]          The constitutional debates that took place in the run-up to the formation of the current Iraqiconstitution provide a blueprint for the questions Islamic parties must address if they are to beinsiders to the process of consolidating democracy.  The importance of a new constitution and a proper constitutional process for Egypt after 25 Januaryand the end of Mubarak’s rule can hardly be exaggerated. A successful reform that enshrines civiland political rights and the equality of women, and stipulates principles of parliamentary rule anddecentralization may well make the difference between a better future for the entire region and adecline of the great events of the Arab Spring into another chapter of bitter disappointment in thecontemporary history of the Middle East.As the Supreme Council of the Armed Forces (SCAF) [14], Egypt’s transitional power, holdsconsultations on whether and how to embark upon such a constitutional process, there is a tangiblefear among various opposition groups, trade unions and parties, including religious organizations,that Egypt will ‘go Islamist’, Sharia will become law, and the clergy will take the position of rulers andlaw-makers (see Emad Gad, How to author a constitution [15], Ahram online 31.05.2011). In a recentinterview [16], Gamal al Banna, Egyptian reformist Islamic scholar (and brother of the founder of theMuslim Brotherhood, Hassan al Banna), argued that no civil state can be founded on Islam: if thishappened, he argued, it would become a religious state. In view of the failed attempts at Islamic rulein Arab countries, including Algeria and Sudan, al Banna added: “I believe that if the MuslimBrotherhood wishes to rule [ Egypt ], then they must forsake the application of Islamic law.” At thesame time, the official Muslim Brotherhood’s position against a reform of the constitution in asecularist-democratic direction won a large majority in a referendum in March, and the movement’ssuccess in the coming elections in September is likely to be considerable. If no change occurs in thecurrent constitutional process, the new Egyptian constitution will be drafted by the parliamentarymajority after the September elections. In the latest public opinion polls Egyptians in substantivenumbers affirm that they wish to see religion and clerics included in the legal system of theircountry.Is disaster inevitable? Though pragmatic considerations may yield a compromise in the short term, itis worth considering what the broader and principled conflict between constitutional models is about.Beyond the pressures of daily politics, a profound choice is looming large on the horizon: willIslamists take this historical chance and transform themselves from opposition-only movements,Page 1 of 4Sharia and Egypt’s Constitution: an Iraqi blueprint Published on openDemocracy (http://www.opendemocracy.net)whose only promise is destruction of what exists, into a constructive governance alternative thatdoes not undermine the very possibility of democracy? It was not so long ago that Christian partiesin Europe had to navigate their way from full opposition to parliamentary democracy as a system tobecoming a political power within it, and that a Hindu national liberation movement in India createdwithin the Indian Constitution an original model of separation and autonomy between state andreligion. What would it take for Islamists to follow suit?The constitutional debates that took place in the run-up to the formation of the current Iraqiconstitution should not be overlooked. Though eclipsed by the sounds and sights of terror at homeand growing dislike of the occupation of Iraq by the United States, the constitutional debates in Iraqprovide a blueprint for outlining the questions Islamic parties must address if they are to be insidersto the process of consolidating democracy in any country, rather than its foes. Three principlesenshrined in Iraq’s constitution pose a great challenge to Islamist parties across the region: first, thepeople are the sovereign - neither God, nor a community of believers, but the body of citizens of acountry defined by its geographical borders. “We, the people of Iraq?”, reads the preamble [17], “ofall components and across the spectrum”.Egypt’s national flag dominated the mass demonstrations in January. Will Egypt’s Islamic parties alsorally behind the national flag, foregoing the flags and symbols of the trans-national community ofbelievers? “We the people of Iraq” and equally “We the people of Egypt” poses a fundamental breakwith tradition not only for Islamists, but also for pan-Arab nationalists. For decades, pan-Arabnationalism has contested and transgressed the national-territorial borders of the countries of theMiddle East and North Africa, claiming to speak on behalf of a trans-territorial nation, while excludingmany of the citizens and inhabitants of these countries, notably Kurds and Shiah [18]. While theconstitution of Iraq still makes clear reference to the country’s affiliation to the Arab and Muslimworlds, the reference point for political legitimacy, according to this constitution, is however no otherthan the people of Iraq.Second, the people are sovereign, through their elected parliament and according to theirconstitution, make the laws of the country. Much attention has been paid over the last decade to thecompatibility of the values of Islam with the values of democracy, but the key question lieselsewhere, in what at first sight might seem a procedural question: what legitimates the legislationthat any state and its citizens shall follow? For fully-fledged fundamentalists such as Ayman alZawahiri [19], past member of the Egyptian Muslim Brotherhood and today one of the world’s mostwanted terrorists, the answer is clearly an across-the-board rejection of democratic government. Forhim God’s religious scripts are the law, and the law is not for human beings to question, accept,amend or reject. Instead, there should be clerics interpreting already-existing and eternal sacredtruths. The mass-mobilization in Egypt in January spoke volumes about the failure [20] of Islamicfundamentalists to reach the hearts and minds of their public and bring about the popular religiousuprise that they have long sought. Will the Islamic parties in Egypt, now taking it upon themselves toparticipate in the normal democratic game of partisanship and election, find their way to endorsingsubstantively the democratic prerequisite according to which peoples through their parliaments arethe authors of legitimate laws, or will democracy remain for them merely a justified means toanother end entirely?Third, there is a formulation in the Iraqi constitution with respect to the status of Islamic religious lawthat will rightly worry any secularist, but which at the same time poses a serious challenge anddilemma for Islamic parties, in the wake of a new democratic era. Article 2 of the Iraqi Constitutionstipulates that no law shall contradict the established provision of Islam, no law shall contradict theprinciples of democracy, and no law shall contradict the rights and basic freedoms stipulated in theconstitution. The latter includes, “equality before the law without discrimination based on gender,race, ethnicity, origin, color, religion, creed, belief or opinion, or economic and social status’ (Article14). While this stipulation clearly opens the door to the very risk raised by Gamal al Banna, thatreligious authority will take over law making, it also places unprecedented pressure on religiousschools and authorities to reform. On a variety of political issues, including the status of women andnon-Muslims, prominent interpretations of Islamic law today are in conflict with the individual rightsand principles of equality stipulated in the Iraqi constitution. But important religious leaders andauthorities are beginning to take up the challenge for reform (most famously Ayatolla al-Sistani[21]’s opposition to Iranian-style theocracy, in favour of separation between religious-spiritual andPage 2 of 4Sharia and Egypt’s Constitution: an Iraqi blueprint Published on openDemocracy (http://www.opendemocracy.net)political authorities; also recent co-operation [22] between Sunni clerics in Iraqi-Kurdistan withcampaigns for women’s rights as in the case of a fatwa issued by the Kurdistan Islamic ScholarsUnion last July against the practice of female genital mutilation in their region).In Egypt, following the Arab spring, clear voices for endorsing the established provisions of Islam thatdo not contradict concrete provisions of individual rights and representative democracy are nowissuing forth from Egypt’s Muslim Brotherhood, as in the recently launched campaign [23] ofpresidential candidate, Dr. Abou el-Fotouh [24]. Egypt’s Brotherhood is an Arab-Sunni Islamicmovement, the oldest in the region and a model for others that have followed; voices and politicalorientations coming from within it, even if in a minority position, can no longer be dismissed asmarginal. Whether or not such positions will move towards becoming the mainstream of Islamic lawand faith, the terms and rules of the conflict have already clearly changed for the better since 25January, with unprecedented internal pressure towards reform of religion and with clearly identifiableand politicized points of dispute. It is no longer an amorphous and misguided discussion about thehypothetical compatibility of Islam with human rights or democracy, but instead a matter ofwell-defined policy issues and constitutional provisions, on which the Islamist, like all other partiescompeting for votes are now required to state their clear positions, and to take sides.The results of the parliamentary elections scheduled for September in Egypt are far from predictable.A vigorous coalition [25] calling itself the ‘Free Front for Peaceful Change’ and backing a“Constitution First” campaign may yield a separate constitutional process that would change thecontext of the debate from contesting parliamentary and presidential elections to a moreconsensus-seeking constituent assembly. Regardless of the process, however, the stakes remain thesame: conflicting models of political, legal and social order. The Muslim Brotherhood in Egypt, likeother Islamic movements and parties in the region have the resources to go both ways. FollowingJanuary 25 in Egypt, for the first time, they are asked to make a clear choice.Country or region: Egypt  Iraq   Topics: Civil society  Conflict  Democracy and government  International politics   View the discussion thread. [26]   $(document).ready(function(){ $("div#contentgrid").removeClass('grid-8');$("div#contentgrid").addClass('grid-6'); });     About the authorAyelet Banai is a research fellow in political theory at Goethe University, Frankfurt         [27]This article is published under a Creative Commons licence. If you have any queries aboutrepublishing please contact us [28]. Please check individual images for licensing details.       Source URL: http://www.opendemocracy.net/ayelet-banai/sharia-and-egypt%E2%80%99s-constitution-iraqi-blueprintLinks:[1] http://www.opendemocracy.net/author/ayelet-banai[2] http://www.opendemocracy.net/topics/democracy-and-government[3] http://www.opendemocracy.net/topics/conflict[4] http://www.opendemocracy.net/topics/civil-society[5] http://www.opendemocracy.net/topics/international-politicsPage 3 of 4Sharia and Egypt’s Constitution: an Iraqi blueprint Published on openDemocracy (http://www.opendemocracy.net)[6] http://www.opendemocracy.net/countries/iraq[7] http://www.opendemocracy.net/countries/egypt[8] http://www.opendemocracy.net/editorial-tags/women-and-arab-spring[9] http://www.opendemocracy.net/freeform-tags/arab-awakening[10] http://www.opendemocracy.net/freeform-tags/spring-of-%E2%80%9Cothers%E2%80%9D[11] http://www.opendemocracy.net/5050/religion-gender-politics[12]http://www.facebook.com/sharer.php?u=http://www.opendemocracy.net/printpdf/60201&t=Shariaand Egypt’s Constitution: an Iraqi blueprint[13] http://twitter.com/share?text=Sharia and Egypt’s Constitution: an Iraqi blueprint[14] http://en.wikipedia.org/wiki/Supreme_Council_of_the_Armed_Forces[15] http://english.ahram.org.eg/NewsContentP/4/13359/Opinion/How-to-author-a-constitution.aspx[16] http://www.almasryalyoum.com/en/node/439421[17] http://forum.bismikaallahuma.org/archive/index.php/t-3647.html[18] http://en.wikipedia.org/wiki/Shia_Islam[19] http://www.google.co.uk/search?client=safari&amp;rls=en&amp;q=Ayman+al+Zawahiri&amp;ie=UTF-8&amp;oe=UTF-8&amp;redir_esc=&amp;ei=m7cKTsTdIcmohAfEv-D6Dw[20] http://www.foreignaffairs.com/articles/67687/dina-shehata/the-fall-of-the-pharaoh[21] http://en.wikipedia.org/wiki/Ali_al-Sistani[22] http://www.hrw.org/en/news/2010/07/18/iraqi-kurdistan-fgm-fatwa-positive-not-definitive[23] http://www.nytimes.com/2011/06/20/world/middleeast/20egypt.html[24] http://en.wikipedia.org/wiki/Abdel_Moneim_Aboul_Fotouh[25] http://www.carnegieendowment.org/2011/06/21/egypt-elections-or-constitution-first/7f[26] http://opendemocracy.disqus.com/?url=http%3A%2F%2Fwww.opendemocracy.net%2Fayelet-banai%2Fsharia-and-egypt%25E2%2580%2599s-constitution-iraqi-blueprint[27] http://creativecommons.org/licenses/by-nc/3.0/[28] http://www.opendemocracy.net/contactPowered by TCPDF (www.tcpdf.org)Page 4 of 4

Sharia and Egypt’s constitution: an Iraqi blueprint

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