15. Building a new (religious) foundation

Afbeelding - middelste B.R.Q.-flickr

The constitutional process in the neighbouring countries (left to right): Tunisia drafting a new constitution, Libya burning its old constitution and Egypt with its new 2012 constitution. (source middle picture: B.R.Q.)

In revolutions dictatorial regimes are seen as a structure that has to be demolished. The end of the regime’s figurehead is not the end, but the start of the demolition of the “structures” of the old regime. Not only the cronies, who profited from the dictatorship, should go, but also the legal foundation of the old regime: the constitution. This process can be observed in Tunisia, Egypt and Libya. They all have abolished or suspended their old constitutions after the revolution to make way for a new one. Each country is moving at its own pace and in its own direction.

Egypt has moved the quickest of all three. When president Hosni Mubarak stepped down in February 2011, the caretaker government of the Supreme Council of Armed Forces (SCAF) replaced the 1971 constitution with a temporary one within a month. And the Constituent Assembly, appointed in July 2011, succeeded in drafting a new 236 article long constitution in just four months. To top it off, the Egyptians approved the new constitution last year in a constitutional referendum with nearly 64% notwithstanding the protests and controversy surrounding the new constitution.

The Tunisians, on the other hand, seem to take their time. The old 1956 constitution was only suspended in December 2011, nearly a year after the toppling of president Abdelzine Ben Ali. The Constituent Assembly, appointed in October 2011, is still busy with drafting a new constitution. It released a preliminary version in August 2012 in the Tunisian newspaper al-Chourouk, but the final version is planned for begin 2013 (initially February 2013).

Finally, the Libyans have yet to start writing their new constitution. But this is not surprising as they were the last country to overthrow their dictator. When Mu’ammar Ghaddafi was killed in October 2011, Libya’s old constitution was already abolished and replaced by a temporary one by the National Transitional Council (NTC), the rebels’ interim government. Libya’s old constitution was a curious one. It was in fact not a constitution, but the Green Book, in which Ghaddafi had collected his ideas and ramblings. Libya’s new parliament, the General National Congress (GNC), stands now for the task to appoint a Constituent Assembly to write a new constitution. Once appointed the sixty members have to complete the new constitution within 2 months tops.

It will be hard to predict how the new Libyan constitution will look like. It is sure that it will be nothing like the old “constitution”, but the Libyans have little experience with drafting a constitution as a result of Ghaddafi’s quirk. This inexperience may be a benefit as it gives, for example, women’s and human rights groups the opportunity to promote the inclusion of these rights in the constitution. But the inexperience may also lead to an incoherent or restrictive constitution. The exact contents of the constitution remain unknowable, but it will doubtless mention Islam as the national religion and Arabic as its national language and designate Islamic law (sharia) as source of law. How this role should be formulated (sharia as sole legal source, a legal source or legal inspiration) is still under discussion in Libya.

Luckily, more can be said on the content and effects of the new constitutions of Egypt and Tunisia. Both Tunisia’s draft constitution and Egypt’s new constitution have attracted much criticism with regard to the dominant role that the country’s Islamists had (or have) in the writing of the constitution. Their influence will lead in the view of their opponents to the deterioration of the position of women, human rights and religious minorities. But are these new constitutions really worse than the old ones?

The first striking thing about the new constitutions is that they are at the same time more outward looking and more nationalistic. Both Tunisia and Egypt are described as being part of the Islamic, Arabic and African world (or in case of Egypt, the countries of the Nile-Valley). On the other hand the new constitutions stress the national characteristics and culture of both countries. This worldview mixes nationalism with the wish of the Islamists to stress their country’s Arab and Islamic nature. A safeguard was even added to the Tunisian draft constitution to secure this last aspect against any future constitutional changes. The worldview evoked in the new constitutions in a clear change from those in the old constitutions. The 1959 Tunisian constitution saw Tunisia as part of the Maghreb (North-Africa) evoking the wish to form an economic union with the other Maghrebi countries. This was realised in 1989 with the foundation of the Union de Maghreb Arab. Egypt’s old constitution saw Egypt as part of a grander Arab nation, which reflected the Pan-Arabic ideas of the Egyptian president Gamal Abdelnasser. His efforts led in the 50’s to a brief unification with Syria as the United Arabic Republic.

The most controversial point of the new constitutions is the position of the sharia. In Egypt’s new and old constitution the principles of the sharia form a principal source of legislation. However, these principles have been given a very broad definition in the new constitution. Moreover, a stipulation was added that al-Azhar, Egypt’s largest religious institute, should be consulted on all sharia related issues. This stipulation could be interpreted broadly, providing al-Azhar the right to judge the legality of every Egyptian law. However, the stipulation could also be read as a confirmation of al-Azhar’s traditional role, limiting its influence to family law and worship. The inclusion of sharia as source of law in the constitution has long been discussed in Tunisia. While ultra orthodox Muslims have pressed for its inclusion, the Islamists of the Ennahdha party have decided in the end to keep the sharia out of the draft constitution to the relief of more secular minded Tunisians. Or not? Ennahdha’s leader Rachid al-Ghannoushi defended his party’s decision by saying that  the constitution already mentioned the Islam as the country’s religion. As sharia and Islam are in his opinion the same, its inclusion in the new constitution would be superfluous. Moreover, Ennahdha has shown that it does not need a constitution to implement their religious agenda by introducing a vaguely worded anti-blasphemy law.

The Tunisian draft constitution gives overall mixed signals regarding the freedom of religion and conscience. On one side, it still guarantees this freedom and with less limitations than under the old secular constitution. On the other side, it now outlaws Zionism and the normalisation of the relations with the “Zionist entity” (i.e. Israel). This is further bad news for Tunisia’s Jewish minority, who has suffered over the years from terrorist attacks and anti-Semitic attacks. Egypt’s new constitution obviously does not contain a similar article as it has a peace treaty with Israel. But the new Egyptian constitution restricts freedom of religion and worship severely by limiting this freedom to Muslims, Christians and Jews and forbidding the insult and abuse of all holy messengers and prophets. The new constitution does not only deny the freedom of worship to other non-Abrahamic faiths, but may also be used to deny certain Muslim sects (like the Ahmadiyya) this right as they are not “real” Muslims. It also remains unclear whether the new constitution improves the position of its Christian inhabitants. Although the constitution now includes the right to build a place of worship, it remains to be seen whether Egypt’s Copts may now build their places of worship under the same conditions as Muslims, or whether they will still need a special presidential decree for this as result of the constitutional possibility to further “regulate” of this freedom.

Finally, another sign of the influence of the Islamist on the new constitutions is women’s rights. The Tunisian draft constitution caused an uproar under women’s rights groups as it formulated the position of women in their eyes as subservient to her husband. However, the proposed constitution still protects the rights of women but formulates them more in a traditional role as member of a family. Something similar occurred in the Egypt’s new constitution. But the equality of women was already limited in Egypt’s old constitution if it contradicted the sharia, while in the new one it is only limited if it harms (public) morality. The wording makes it difficult to say if the position of women has improved or not under Egypt’s new constitution. The same goes for the proposed Tunisian constitution, which mentions women as partners of men and describes their roles in the family as complementary. While these wording may imply  a subservient position of women to some, the draft constitution still explicitly mentions the equality between husband and wife and men and women.

The above mentioned points are just a few of the developments in the constitutions of Tunisia and Egypt. But they show the influence of the Islamists on the drafting of the constitution, especially in Egypt. The constitutions have become more traditional, nationalistic and more restrictive on certain points than the old constitutions. However, on numerous points it is hard to say whether the new constitutions are a step back or forward. Regardless, we should not forget the place of the constitution in a country. It is the basis on which the rest of its laws are built. Currently, the proposed Tunisian constitution and the new Egyptian constitution give their lawmakers enough leeway to turn their country in either a conservative orthodox country or a more liberal one. In this regard is the role of Ennahdha as lawmakers in Tunisia counterbalanced by its secular government partners, while these controls are currently lacking in Egypt for its Islamist lawmakers. The influence of the Islamists may not stop there with writing the constitution.


Main sources and further reading

– The 1971 Egyptian Constitution – sis.gov.eg

– The 2012 Egyptian Constitution – sis.gov.eg

– The 1959 Tunisian Constitution – jurisitetunisie.com

– The 2012 Tunisian Draft Constitution – venice.coe.int

– Libyan daily The Tripoli Post – tripolipost.com

– Egyptian daily Egypt Independent – egyptindependent.com

– Tunisian daily Journal Le Temps – letemps.com.tn

– US think tank Carnegie Endowment for International Peace – egyptelections.carnegieendowment.org

– Arab Studies institute (ASI) magazine Jadaliyya – jadaliyya.com

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