The problem(s) with Egypt's new constitution

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By Zaid al-Ali, who was recently a guest on our podcast. It's a very fair and balanced take that refutes both the unwarranted alarmism of its opponents and the ridiculous "best constitution evah" line of the MB:

The debate surrounding the new constitution has been acrimonious to say the least.  Many of the constitution’s most ardent critics have been scouring the text for evidence that the country’s Islamist movements are preparing to create a morality police or that the legal age of marriage is about to be lowered to 9.  Many of these accusations are either baseless or merely leftover provisions from the 1971 constitution and were never applied in any meaningful sense, which will likely to continue being the case under the new constitution.  The reality is that, when measured against Egyptian constitutional tradition, the new text brings a number of improvements to the protection of certain rights and to the system of government and is not the catastrophe that many have been so determined to identify. 

However, if the measure is changed, there are perfectly valid reasons to be opposed to the new constitution.  For example, considering recent developments internationally in the field of constitutional law, particularly in many African and Latin American countries, or considering even the aspirations that were expressed through the Egyptian revolution, the text leaves the reader disappointed. 

Apart from the fact that much of the drafting is vague, a number of important rights are also lacking, which has driven many activists to ardently oppose the text.  It also does not present a convincing vision in many areas, including decentralization, the role of independent agencies and civil/military relations.

The major question left unanswered in my view is the extent to which Articles 2, 4 and 219 will together change the way Sharia impacts the legal system and how they might be used by Islamist activist lawyers to force Azhar and the government to adopt retrograde measures.

Take for instance — and this is a pretty tame example — the question of the eligibility of women for the presidency. Historically, the MB and Salafis have opposed this, even if the former are not so vocal about it now. The new constitution has this in Article 134 in terms of setting conditions for eligibility:

A presidential candidate must be Egyptian born to Egyptian parents, must have carried no other citizenship, must have civil and political rights, cannot be married to a non-Egyptian, and at the time of nomination cannot be younger than 40 Gregorian years.

It does not specify that a woman can run, but does not bar her either (never-mind the narrow-minded xenophobic restrictions for now). Of course the constitution's preamble does include the wording "Equality and equal opportunities are for all: male and female citizens; for there is no discrimination, nepotism, or favoritism in rights and duties." But it's not clear this intended to give full equality between men and women — and indeed as far as family law is concerned, it does not since Islamic tradition does not give equal inheritance or divorce rights to men and women, for instance.

When the Muslim Brothers proposed in their 2008 draft political program that the presidency should only be open to men, then MB Deputy General Guide Mohammed Habib told me that the reason for this was a hadith by Imam al-Bukhari that said that "a nation led by a woman will be led to its perdition." Imam al-Bukhari is the author of one of the hadith collections considered the most correct, and virtually no religious scholar would dispute their authenticity. He is also extremely misogynistic.

Right now, the practice is that a woman that meets the requirements of Article 134 is eligible for the presidency. But what if an Islamist lawyer decides to file a lawsuit (probably with an administrative court) to obtain a decision banning women on the basis of Article 219, which would be interpreted as including the hadiths of Bukhari? A judge would probably reject that lawsuit, in light of past Egyptian practice. Would the lawyer then be able to appeal to al-Azhar to overturn the decision, using the weight of Bukhari (which might not move a secular judge) to force an Azhar scholar to make a decision? Would we then get into a debate over whether Bukhari's hadith should be balanced with the accepted historical record of Islam, such as [Prophet Muhammad's wife] Aisha's leading of the Battle of the Camel against Ali's forces in Medina, which suggests women can have a command position? How would this process exactly work, and by taking this power of interpretation from the courts and to a religious seminary, would major legal decisions be under the hands of scholars who will feel the pressure from Islamists over the interpretation of religious tradition? 

I still can't find a satisfactory answer to that, because as al-Ali writes the text is so vague. But the practice of the last two decades of hesba lawsuits and activist Islamist lawyers certainly suggests that many will try to use this vagueness to impose their views, including in ways this hastily drafted constitution might have avoided if it had been more precise in its wording.

Update: Marc Lynch recommends this book on the uses and abuses of lawsuits by Islamists in Egypt over the last two decades, notably the infamous Nasr Hamid Abu Zeid case: