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Egypt's Draft Constitution: Religious Freedom Undermined

Samuel Tadros

 CairoEgypt’s Islamist president Mohamed Morsi’s latest constitutional declaration removing legal oversight and restraint on his powers has been met with a storm of controversy and protests. He has decided to respond by pushing for a hasty vote to adopt an equally contentious new constitution.

Even before the current turmoil began, representatives of non-Islamist parties and the Christian minority had withdrawn from the Constitutional Assembly tasked with writing Egypt’s permanent constitution for the postJanuary 25 Revolution period. They cited the non-representative nature of this body, specifically its marginalization of non-Islamists, the absolute dominance of Islamists, and the Islamists’ unwillingness to negotiate on the proposed articles.

Islamists had rushed to complete the draft constitution, rejecting any and all compromise with non-Islamists, whose objections and fears they impatiently dismissed. In less than two days, the Constitutional Assembly, which at this point had few non-Islamist members remaining within its ranks, hurried voting on the proposed draft and submitted it to the president who then called for a national referendum on it for December 15. The process leaves little room for serious public discussion of the proposed articles or for the non-Islamist opposition to build meaningful grassroots opposition.

While the draft is problematic on numerous counts, those articles that pertain to religious freedom and the protection and rights of minorities merit separate concern. The Islamist influence is readily apparent when these articles are compared to the corresponding provisions of the 1971 constitution which governed Egypt under Mubarak:

-          Article 1 drops reference to citizenship as the basis of Egypt’s political order. The word “citizenship” in the Egyptian context has been understood to mean equal rights for both Muslims and non-Muslims. It also adds a further allegiance to which Egypt identifies, that of the Islamic nation.

-          A new Article 3 adds that non-Muslims are now governed in their personal-status affairs and on issues pertaining to choosing their religious leaders by the principles of their religious laws.

-          A new Article 4 provides for an official role for al Azhar (the Sunni university): It states that al Azhar is to give its opinion on all matters pertaining to sharia. Since the unchanged language of Article 2 makes “the principles of sharia” the main source of legislation, this new article places a non-elected, sectarian religious body above the Egyptian parliament as arbitrator and explainer of state laws.

-          Article 5 removes the word “only” from the prior constitutional language regarding “the sovereignty of the people.” This change was in response to a key demand of the Salafis, who argue that sovereignty only belongs to God and not to the people.

-          Article 6 adds the word “shura“ to the language about the basis of the political system; a shura is a traditionally unelected, Islamist consultative process that Islamists claim is equivalent to democracy. It also removes the existing prohibition on the establishment of religiously based political parties, asserting, instead, a prohibition on political parties based on discrimination. This new language, thus, allows for the establishment of purely religious parties as long as their stated goals do not actively call for discrimination.

-          Article 10 adds that “society,” as well as the state, is now responsible for protecting the already problematically vague phrase, “values of the Egyptian family,” and provides them with the new role of “entrenching its moral values and protecting them.”

-          A new Article 12 commits the state to the Arabization of education and knowledge.

-          Concerning the prohibition on all forms of discrimination in Article 33, it drops the words “on the basis of sex, origin, religion and creed.”

-          Article 42 drops language prohibiting forced evacuations within the country. This change follows forced evacuations of Coptic Christians in four instances since the revolution.

-          Article 43 limits the freedom to practice religion and build houses of worship to “heavenly religions” (Islam, Christianity, and Judaism). This means that Egyptian Baha’is and other groups who do not belong to the three religions recognized as “heavenly” by the state will not have the right to worship.

-          An anti-blasphemy clause was added as Article 44.

-          Article 54 drops “statutory bodies” from those allowed to petition in the name of a collective. The Church is the target of this change.

-          Article 132 drops the protection of national unity from the duties of the president (in the Egyptian context this meant unity between Christians and Muslims within the nation).

-          A new provision appears in article 212, dealing with endowments. Under this article, a new body will be created and given far-reaching powers for regulating and overseeing both public and private endowments. This article affects Christian religious endowments too: It places Church finances under the Islamists’ control, which as I explained a year agohas been part of the Muslim Brotherhood’s Freedom and Justice Party political program. By taking control of the Church’s finances, the Islamists aim to control the institution, and in turn use it to control Christians, thus creating a national church along the Communist model.

-          A new article 219 purports to define “the principles of sharia,” which, according to Article 2, are the main source of legislation. It states that “the principles of sharia” include: “its total evidence, its fundamental and jurisprudence basis, its accepted sources in the doctrines of Sunnis.”

While Egypt under Mubarak was no heaven for religious minorities, the proposed constitution is a clear setback for religious freedom. Under its articles the legal framework governing religious minorities and their rights to equality and protection would be undermined beyond salvage.

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