Friday, October 26, 2012

The Difficult Birth of the Egyptian Constitution: Will a Caesarian Be Necessary?

The noise inside the meetings of the Constituent Assembly and outside goes on.  It is truly a difficult birth for the new Constitution of post-dictatorship Egypt.  It is a struggle for the soul of the January 25 Revolution.  That soul is basically whether Egypt shall be secular, Islamist or a combination of both.  I am betting on the third alternative.  And nearly 90 million Egyptians are watching very closely.  So is the rest of the Arab world and beyond.

What is the problem?  Who are the actors?  Which articles have emerged from the Assembly's Drafting Committee only to be opposed by the Governance Committee?  And who will arbitrate between the factions and under what authority?  Could the judiciary step in?

These questions would have never arisen if the popular parliamentary elections in which 70% of the huge electorate of 53 million did not produce an Islamist majority of 70%. But they did, and 70% of the parliamentary seats were gobbled up by the Islamist parties with 50% for the Muslim Brotherhood, and 20% for the Salafis.

The heart of the battle is Article 2 which is being copied from the old Constitution of 1971.  It refers to "the principals" of Sharia being the principle source of legislation.  The Islamists, especially the Salafis, are opposed, since the term "principles" is ill defined.  Dr. Issam Dirbalah, the President of The Shura of Al-Jamaah Al-Islamia expressed on October 25 his opposition in these words: "It is obligatory to provide a clear definition of that term and then place it in a separate article."

Confronting that call of Dr. Dirbalah, the independent Cairo daily "Al-Sabah," delegitimated the entire Constituent Assembly.  Its executive editor, Wael Lotfi said: "History shall remember that that Assembly has no legitimacy, either constitutionally, or politically, or morally...It consists of a small group of Muslim Brothers and their allies."

In response, the Editor-in-Chief of "Freedom and Justice," the mouthpiece of the Muslim Brotherhood party countered: "Our national duty enjoins us to urge our brothers who constitute the liberal and leftist currents to apologize to the Egyptian people for their attempts to impede the building of the State's institutions."

In spite of its centrality to the warring factions, Article 2 is not the only subject of contention.  There are of course the articles dealing with the President's powers and prerogatives, the rights of minorities especially the Copts, gender equality, the independence of the judiciary and broad civic and individual rights.  All these articles are now thrown for a historic public debate in the streets of the new Egypt, before the final text is brought before the entire electorate for approval in a referendum.

This is the first time ever in the very long history of Egypt to have the public at large debate its national charter, its Constitution.  It is also the first time that one hundred and one civic society organizations call for the incorporation into the yet-to-be approved Constitution of an article dealing with the role of civil society in the drafting of the new Constitution.  Athenian form of democracy being practiced in Egypt across the Mediterranean from Greece!!

But the secularists resorted to what amounts to an overreach.  They instituted a case before the Administrative Law court challenging the legality of the institution and composition of the Constituent Assembly.  The court issued a ruling referring the case to a higher court, the Supreme Constitutional Court.  Well, this is the very court whose judges were hand-picked by Mubarak.  But strange things happens in any revolution or transitional period in any State in post World War II.

The referral of that case to a higher court was seen by the Islamists as a victory - a victory through delay.  The Assembly now could rush its work towards completion before the Supreme Constitutional Court would be ready to dispose of that historic case.  This is although the Constituent Assembly is still grappling with the draft articles dealing with several important issues, such as Article 36 which guarantees gender equality.  This formulation is inherited from the Sadat-era Constitution of 1971.  Even the Salafis are content with that Constitutional inheritance because the article ends with words to the effect that equality should be observed in a way not contradicting to Islamic Law.  The secularists want these words removed.

The issues do not just end there.  There are supplementary articles dealing with the rights of women, the child and the family - the family being the core of society.  Emphasis is made on mutual observance of the rights and obligations of a husband and a wife towards one another.

These are matters of crucial importance to the new Egypt and beyond.  Problems surrounding that birth abound.  Perhaps a Caeserian might be needed!!  One thing is certain: In about two months from now, the Egyptians will see the birth of a new dawn through a new text of their new Constitution.

Monday, October 22, 2012

Democracy and Faith: Not for Foreign Exportation, Dictation or Reinterpretation

Look it up in any dictionary!!  I did, in English, French, Spanish and Arabic.  No precise definition, except for the generic terms: "by the people."  So please stay away from imposing any definition, except "by the people" on that term.  Your yardstick should not be one measuring various shapes, forms and practices which, by historic necessity, change from one environment to another.

The Arab Spring is giving birth to democracies; that is to say again "government by the people" at various stages of maturation.  Take Egypt, for example, demographically at least, the center of the Arab world.  Democracy is moving by baby steps.  Messy steps, yes.  Backward to the old bad days of dictatorship, the phenomenon of absolute rule, no.

Therefore, if you believe that absolute rule is oppressive due to its suppression of human rights, as in the days of the Nasser/Sadat/Mubarak, whom would you prefer: Mubarak, the secularist dictator, or Morsi, the so-called Islamist, the democratically-elected President of Egypt?  Before you answer this question, use your "rule by the people" yardstick.

If you throw "stability" in the mix, you, as some commentators are prone to do, might say: "Mubarak was an age of stability."  Really?  What kind of stability, and for whom, and through whom?  If you mean by stability, tranquility and predictability, so is the nearest cemetery.  The people of Egypt voted for Morsi.

They have never voted in a fair and open election, not run by "the Ruling Party" since 1950.  After 62 years, they, through the chaos of Tahrir Square, toppled Mubarak, put him judicially in jail for his abuse of power and elected Morsi, the candidate of the Muslim Brotherhood.  You may then argue that only 50% of the Egyptian electorate of 53 million men and women voted.  And I would say: In any democratic practice, the result is decided by those who are "present and voting."  There is no vote for the so-called silent 50%.  They chose not to have a voice.  And that was a run-off, preceded by 70% + participation which narrowed the field to two candidates: Shafik, the military man (a holdover from Mubarak days -rule by the Air Force pilots), and the Islamist, Morsi.  Shafik lost; Morsi won.

Was that a victory for Islamism in Egypt?  Yes it was.  Is this good or bad?  It was good for the principle of democracy.  This is providing that: (a) secularity in Egypt is not smothered; (b) minority rights pertaining to the Copts, women, bedouins of Sinai, and Nubians of upper (southern) Egypt are respected; (c) all forms of freedoms of expression in dress, art, film, songs, dance and theater are protected; (d) international treaties are respected; (e) opposition parties, whose number exceed 30, exercise the freedom to organize and to voice their views of the conduct of their government (the heart of "by the people");  (f) rebuild the economy, through investment, indigenous and foreign, trade and tourism; (g) keep the Salafis away from trying to impose their nearly 1500 years of interpretation of Sharia, which has never stopped to evolve, towards accommodating "the public good" at any given time; (h) maintaining the principle of sovereignty by not being subservient to special interests, domestic or foreign; and last but not least (i) safeguarding the core of democratic rule through respecting the Constitution which is now being drafted by the Constituent Assembly, especially the peaceful rotation of power through the voice of the people, freely expressed in open and fair elections.

Have I exhausted all criteria?  No.  The list is open and can go on and on, without forgetting the principles of "judicial independence," of the dictum issued by Al-Azhar, namely that "Islam does not recognize a State based solely on religion."  And this is where Sharia and the US Constitution converge (the First Amendment on the separation between State and religion).  I had the opportunity of stating that convergence at a panel organized in New York City at the Waldorf Astoria hotel in 2006 by the American Bar Association which dealt with "Law and Religion."

The two values, the State, underpinned by democracy, and religion, are not mutually antagonistic.  For each of  them serves the people within its own domain.  Mixing between the two is not only confusing.  It is also combustible as it leads to a sinister form of racism, discrimination, hate, and unchannelled rage.  Yet they both share one common characteristic: they issue from their own environment, and defy dictation and/or definition from the outside.

Friday, October 12, 2012

Mahmoud v. Morsi: "The Battle of the Camels"

Mahmoud (Egypt's Chief Prosecutor, Abdel-Meguid Mahmoud) and Morsi (Egypt's President Mohamed Morsi) are battling it out.  Morsi has ordered Mahmoud out of his job and to the Vatican, as Egypt's Ambassador.  Mahmoud is refusing on the grounds of judicial independence, and Morsi is sticking to his authority, as the democratically-elected President who has been on the job for a little more than 100 days.

Now Tahrir has again been engulfed in demonstrations, led by the two factions: pro-Morsi and anti-Morsi.  In essence, the Mahmoud v. Morsi is the straw which broke the camel's (Morsi's) back.  The Chief Prosecutor has just exonerated the symbols of the defunct Mubarak regime from any wrong-doing in early February 2011 in what has entered the annals of the Egyptian Revolution of January 25, 2011 as the "Battle of the Camels."

In that engagement, as the Mubarak regime was fighting for its life of 32 years of outright dictatorship, the Tahrir demonstrators were suddenly and brutally attacked by Mubarak thugs.  The attackers descended upon the pro-democracy demonstrators, riding camels, horses, and horse-driven carts.  The attackers brandished swords, knives, and long bamboo sticks in a hopeless last-minute gasp to enable Mubarak to hold on to his dictatorial power.

The Battle of the Camels of February 2011 was quickly and decisively settled in favor of the pro-democracy movement, though after suffering fatalities and injuries.  There was no assistance from the security forces which have fled Tahrir.  When I was in Cairo shortly afterwards, I was told by some eyewitnesses that the role of the Muslim Brothers in vanquishing the pro-Mubarak mounted attackers was crucial.  They were experts in street combat, tightly organized, highly motivated, and fearless as they brought horses and camels down with their mercenary riders.

Confessions documented that "the Battle of the Camels" was ordered by the former Presidents of the two Chambers of the then-Parliament: Fathi Sorour, of the People's Assembly, and Safwat El-Sherif, of the upper Chamber, the Shura Council.  Both men are now in the Tora jail, south of Cairo, having been inculpated on charges of corruption.  Their alleged roles in "the Battle of the Camels" were still pending investigations on the more serious charges of killing and maiming peaceful demonstrators.

Out of a sudden, the Chief Prosecutor, Abdel-Meguid Mahmoud, declared those prominent figures innocent of wrong-doing in "the Battle of the Camels," a development which caused popular uproar and precipitated the attempted dismissal by President Morsi of the Chief Prosecutor.

While the highly secular Egyptian judiciary sided with Mahmoud, the President's supporters, especially the Islamists, saw in that verdict the continuing influence of the "foloul" -the remnants of the Mubarak regime who  were already pre-maturely celebrating that verdict in the Tora prison.

In reality, Mahmoud v. Morsi, is a larger battle between the Islamists and most of the secularists.  The majority of the occupants of the senior ranks of the judiciary and the Prosecutor's Office are holdovers from the Mubarak regime.  Confronted by the Morsi presidential decision of terminating his high profile position, Mahmoud cited a law barring the President from firing him.  To many Egyptian observers, the struggle which is now taking place between Mahmoud and the President is highly politicized.  During the Mubarak era, the judiciary was Mubarak's cat's paw in subduing the Muslim Brotherhood from whose ranks Morsi has emerged to win the presidency of Egypt last June.

Dr. Essam Al-Erian, who heads the "Freedom and Justice" Party of the Muslim Brotherhood called Mahmoud's ruling "very dangerous."  He also called upon Morsi to convene the Presidential Council (advisors to Morsi) to examine the political implications of declaring the wrong-doers innocent.

The Salafis also called on the President to order "the retrial of the killers of the demonstrators."  They, together with the Muslim Brotherhood, are accusing the investigators of not examining the totality of the evidence.

In this campaign of attacking the Chief Prosecutor, they were joined by a large segment of the secularists, especially "The Popular Current." (P.C.)  The P.C. claimed that not all evidence inculpating those who ordered the mounted attackers in "the Battle of the Camels" into battle was presented.  They went as far as describing that episode as "a massacre."  The P.C., together with "the Youth of April 6," called for parliamentary intervention to overturn Mahmoud's ruling.

More importantly, a prominent member of the Constituent Assembly which is still drafting the new Egyptian Constitution, Mahmoud El-Said, declared, "The blood of the martyrs shall not be spelled in vain."  Contributing to this argument, the spokesman for "The General Union for the Revolution," Mustafa Younes El-Nagmi, called upon Morsi to prevent those accused of fomenting "the Battle of the Camels," from leaving Egypt pending a retrial.

In the meantime, Tahrir is witnessing clashes between the pre-Morsi and the anti-Morsi forces (the latter campaigning against the rise of Islamism in Egypt).  The sad result so far has been nearly a 100 demonstrators being injured.

The saga of "The Battle of the Camels" of February 2 and 3, 2011 is not over yet.  The mass exoneration of 24 suspects accused of committing those atrocities is indeed the straw which broke the camel's back.  Even the Director General of the Presidential Office, Ahmed Abdel-Atti, confessed that "the general situation in Egypt is perplexing and is difficult to separate its intertwined components one from another."

Friday, October 5, 2012

The New Egypt "Oktoberfest": A Parade of Ills and Attempted Solutions

There is hardly an easy transition from dictatorship to the magical world of democracy.  After the "Silence of the Lambs," for sixty years, the lid is off that boiling pot of discontent.  So if you wish to observe a unique Oktoberfest, we suggest that you don't go to Munich.  Your destination, we propose, should be Cairo.  There you will find a nation of 90 million being reborn, with all the attendant noises of a difficult birth.

The parade which you shall witness is that of ills and attempted solutions.

First you shall observe a bunch of drummers obstructing major railway junctions demanding higher pay.  Under Mubarak, security forces, backed up by a mighty military, would have been on the scene, breaking those demonstrations up, notwithstanding the number of human casualties.  But in the New Egypt, democracy calls first for negotiations which may or may not be backed up by a measured level of force.  The historic love for Mother Egypt - "Mother of the World" - would be invoked, and the drums, drummers, and throngs of discontented workers would eventually go home.

Next you shall hear armored personnel vehicles rumbling towards Northern Sinai in pursuit of bedouin marauders who, under Mubarak, have been marginalized.  The result of 30 years of neglect is that plundering and attacks on army posts and natural gas pipelines have become a way of life.  These events do not permit of negotiations, as security in Sinai is not only an internal issue; it is also a transborder headache.  Thus force is applauded, including capital punishment for the loss of innocent lives.  However, force only without more cannot solve an endemic problem stretched over a vast frontier.  So at the end of the columns of military might, comes in the parade a big sign raised by the first Sinai dweller to be appointed Deputy-Governor for North Sinai.  His name is Dr. Adel Qatamesh, who declares:

"We hope to restore Sinai to its natural place in Egypt's priorities.  We shall develop its huge natural resources in accordance with well developed plans.  Sinai possesses huge potentialities which have been neglected for far too long.  We intend to recreate in Sinai an engine for economic development for all of Egypt.  Unlimited jobs will be created."

Our parade of ills proceeds along a twisting road of hopes, struggles, expectations, and a big dose of hyperbole.  This time, the parade's segment is made of representatives of more than 25 liberal and secular parties.  They have been largely squeezed out of central stage by the unique device of fair elections.  The Islamists, both the moderate Muslim Brotherhood, and the ultras, called the Salafis, registered majoritarian gains in Parliament.  This sector of the parade is fronted by "the April 6 Movement," "the Free Egyptians," "the Popular Current," and "the Constitution Party."  What do they want?  Political Diversity!!  What do they mean by that?  The creation of an accountability lobby to keep the Islamists under secular scrutiny.

Now, with the sun setting down over the Great Pyramids of Giza west of Cairo, our parade of ills and proposed solutions accelerates its pace.
  • The Constituent Assembly which is still in the midst of drafting a new Constitution is under continuous criticism.  The screams mix and mingle around some of the new articles dealing with: Sharia being "a primary" (not the primary) source of legislation; Al-Azhar's restoration to its traditional independence as the main source of interpretation of questions of Islamic faith; the renaming of the upper house of Parliament "the Senate," to replace "The Shura Council" (a nod toward secularity); and the judicial mechanism for suing the State (i.e. appealing Government executive decisions).
  • The journalists want to draft a code of ethics to be administered by a National Information Authority.
  • The Labor Unions gushing forth with several grievances, including the quickening pace of privatization of inherited public sector establishments.
  • Then comes thousands of children seeking proper school buildings for their proper education, instead of tents set up in certain localities because of lack of funds.
The parade of ills goes on.  But it seems to roll by in a diminished state of agitation.  Hope in the New Egypt springs eternal.  As Egypt struggles through its difficult transition, including combating corruption and insecurity on the streets, a new spirit of this Egyptian Oktoberfest asserts itself:

National reconciliation including President Morsi honoring the late President Sadat posthumously. It was under the military regimes of sixty years, including the Sadat era, that the Muslim Brotherhood of which President Morsi was a presidential candidate, suffered the unmitigated pain of suppression.  The Mandela pattern of national reconciliation seems to accord more with the spirit of historic Egypt.