Egypt's constitutional tussle rules out any compromise
If you believe the government and the newly dominant Muslim Brotherhood, Egypt's constitution is about to be finalised. The draft released this week, the product of four months of deliberation and haggling, represents a centrist consensus. While there is no full agreement, "we have agreed on over 90 per cent" of its content, Amr Darrag, the constituent assembly's secretary general and a Muslim Brotherhood member, told me last week.
The remaining points of disagreements will be ironed out over the next few weeks, and a coalition of moderate Islamists and moderate secularists should approve the text by the end of next month. Then it will finally be put to a national referendum and should have no trouble being approved by an overwhelming majority of voters.
The trouble with this scenario is that it is completely out of touch with the reality of Egyptian politics today. Yes, it is true that there is more agreement than there appears to be on the content of the next constitution. The Muslim Brotherhood has agreed that Article 2 will remain the same: defining legislation as based on "the principles of Sharia", and not "the rulings of Sharia" or more simply "Sharia" as more hardline Islamists have demanded.
And it is true that the media has exaggerated the degree to which the new constitution will contain whoppers such as the lowering of the age of marriage to 9 years for girls (all based on one loony sheikh's rantings, but widely repeated by secularists as proof of Islamist chicanery). But the differences that remain are real, and even if compromises can be found, the political dynamics of the new Egypt do not play in favour of consensus.
The Muslim Brotherhood, dominant but not (yet) hegemonic on the political chessboard, claims to be a new centre. It has sought to appease secularist fears by agreeing to keep Article 2 as it was, but compensates by introducing Islamic references in other articles.
For instance, it limits equality between genders according to Sharia, claiming it must do so since Sharia is quite clearly not equal on questions such as inheritance. But even critics who accept traditional rulings on inheritance worry about other, more controversial interpretations of religious law - such as a woman's right to travel without her husband's permission, or the punishment for spousal abuse.
Secularists who concede to tradition on some elements of Sharia, which has always been in effect in Egypt when it comes to family law, are much less conciliatory when it comes to what might be termed individuals' rights. For them, the Brotherhood's vague position is worrying, and in the absence of trust or goodwill, they will not leave things to future interpretation.
For Salafis, the problem is the opposite. They are about to stage the most concerted effort to date to reject the new constitution, promising to vote against it in the constituent assembly and campaign for it to be rejected should it go to referendum. The key question here is Article 2, and why the wording "rulings of Sharia" was not adopted.
The Brotherhood claims that this is all a misunderstanding, and that Salafis will calm down once they see a new preamble to the constitution being drafted by scholars at Al Azhar, the highest seat of Sunni learning in Egypt. That preamble will define what is meant by the "principles of Sharia".
Even if this new definition (strictly based on Sunni jurisprudence, according to Article 221 of the draft constitution) satisfies Salafis - which it may very well not, considering their theological opposition to many traditional views of Al Azhar - it is bound to upset at least some secularists, even if they have generally defended Al Azhar as a bulwark of traditional Islam against Islamists.
The non-Islamists do not agree on much, aside from their hostility to the Brotherhood and the Salafis. Conservatives will happily agree with the Brotherhood's view of social justice while more left-wing parties demand an explicit commitment to a welfare state. But both conservatives and liberals agree on minimising religious references in the constitution, which they fear could be a Trojan horse for future Islamist campaigns. Hence, the opposition to constitutional references to blasphemy, as such cases are proliferating in Egypt and elsewhere after the riots sparked by the defamatory YouTube clip about Prophet Mohammed.
There is another thing the secularists largely agree upon: they view the fight over the constitution as an opportunity for brinkmanship against the Brotherhood, and they hope this can undermine the legitimacy of Brotherhood rule. One prominent secularist politician recently told me the constitution was headed to a deadlock in any case: the administrative court, which has received dozens of requests to dissolve the constituent assembly, will soon do so.
This will force Mr Morsi to to appoint a new assembly, a power he gave himself on August 12 when he sacked top military leaders and asserted his power. But then more lawsuits and appeals will be filed to declare the president's move illegal, on the grounds that a president whose role is constitutionally defined cannot give himself such supra-constitutional powers.
Whether the legal logic in play holds may not be as relevant as perceptions, on both sides of the political divide, of where the judiciary stands. Thus far, it has been a check on Brotherhood ambitions. Some secularists see it as a potential saviour, the same way that some even hope that, if the Brotherhood is unable to govern, the military will be forced to take control once again.
This is probably wishful thinking, but it does highlight a fundamental aspect of the current tug-of-war over the constitution: it is as much about securing tolerance and plurality as about the desire to see the Brotherhood fail. Egypt's politics, for now, remains stuck in a winner-takes-all mentality.
Issandr El Amrani is an independent journalist based in Cairo who blogs at www.arabist.net
On Twitter: @arabist
Updated: October 24, 2012 04:00 AM