Saturday, January 19, 2013

Egypt’s Constitution and the Facade of Change (part 1)


Ali Harfouch

It is indeed difficult, amidst the heat of an intense and immediate battle or conflict to retain objectivity, remain principled, and orient ones thinking as to balance between long-term and supplementing short-term goals. The clashes and political turmoil in Egypt – and their intensity have instantiated this difficulty as Muslims continue to rally in support of Mursi and the draft constitution mainly in response to the fierce response of the Secularist following the November 22 constitutional decree. And of course the perceived victory makes it all the more difficult to critically understand the reality of the scenario.

Few however have critically asked about the structural factors or mechanisms which have perpetually created similar conflict in Egypt. And whether or not the existing political framework under which the constitution is being drafted, is even legitimate. We will argue below, as follows (1) political reform, in this case, legislative reform within the political architecture of ‘the State’ does not bring about a change in the concepts and political principles carried by a society for the state is a reflection and political manifestation of pre-existing ideas. (2) Calls for the implementation and designation of Shariah as a “main source of legislation” fail to acknowledge the reality of the prevailing political system, namely, the overarching Secular fixated framework of which the constitution is merely a product. (3) Designating the “Principles of Shariah” as a “main source of legislation” in a Secular political system in which revelation is not sovereign but rather subordinated to the sovereignty of a political institution – Parliament – is not only at fundamental odds with an Islamic worldview but rationally nonsensical. And (4) the Yes/No dichotomy which had been set up prior to the referendum vote is fallacious in that it assumes a false dichotomy and the jurisprudential principles employed to justify

1-    Legislative Reform does not induce Change
Any constitution is the legislative expression and reflection of ideas within a community or political society – the framework of implementation for which is ‘the State’. In other words – ideas adopted by a society produce a constitution and the respective authority which implements its content. And thus, legislative reform does not produce ideas nor does it bring about political change.






What this means is that, any paradigm shift, cannot come through incremental legislative reform for example a Capitalist system cannot be transformed into a Socialist system nor can a Secular system become an Islamic system. Dissolution of the constitution requires dissolution of the political framework which produced it, and the dissolution of that political-framework requires dissolution of the ideas from which it naturally emerged. Constitutions do not produce societies, but rather it is the binding ideas of a society which produce a constitution. A reformation of a constitution merely makes the existing system work better. What Islamic movements like the Muslim Brotherhood fail to realize is that political power is a means and not an ends. Rosa Luxemburg, in her critique of Reformism explains
 “Every legal constitution is the product of a revolution. In the history of classes, revolution is the act of political creation, while legislation is the political expression of the life of a society that has already come into being. Work for reform does not contain its own force independent from revolution. During every historic period, work for reforms is carried on only in the direction given to it by the impetus of the last revolution and continues as long as the impulsion from the last revolution continues to make itself felt. Or, to put it more concretely, in each historic period work for reforms is carried on only in the framework of the social form created by the last revolution. Here is the kernel of the problem.”
A common response contends that the Secular factions in Egypt would make the prospects or push for an Islamic system unfeasible at this given time. However, this fails to acknowledge that the Secular factions in Egypt are a minority whose power is only magnified vis-à-vis their hegemony over “reality-defining” institutions like the media. Secondly, preserving a Secular political-framework and failing to explicitly demarcate the conceptual boundaries between Islam and ‘the Secular’ in Egypt will not diminish the scope of those Secular factions in Egypt – if anything, it will only increase and sustain it. As a matter of fact, the very strength of the Secular factions and hybridity of Egypt’s intellectual fabric is a direct result of Egypt’s long-relationship with colonialism, be it through military colonization or more importantly the colonial institutions such as the nation-state.
A chief impediment towards the realization of an Islamic political system is the aura of transcedency it has gained, through “Islamist” discourse over the decades, becoming a sort of Utopian vision and the ultimate expression of an Islamic society. And the ‘State’ is no longer a means or an instrument but rather a sort of Hegelian ‘ends’.  Those who are quick to dismiss the notion of introducing an Islamic constitution in Egypt seemingly fail to realize that the polarization between two contending camps during the referendum crisis was between those who sought a more “Islamic” constitution and those who sought a more “Secular” constitution. Supporters and those who rallied around the President did so based on ‘ideological’ affiliations to Islam, and a desire to see Islam being introduced into the political realm. However, the nature and content of this more “Islamic” constitution is a task delegated to their leadership with whom they affiliate based on their Islamic ideological inclinations.
2-    The Conceptual Framework of the Constitution is Secular
A Nation-State is essentially the politico-legal expression (‘the State’) of a ‘Nation’ – an identity- whose existence preceded that of ‘the State’. Several elements constitute the ‘identity’ of a Nation, including language, race, and religion. All of which (language, race, and religion) however, are part of the ‘Nation’s narrative. And as such, religion as a secondary characteristic and feature is part of (and not definitive of) a National Identity and subsequently expressed legally through constitution or law. The states identity, principles, and structure is defined in the introductory section of the constitution and is based, as stated above, on Secular paradigms and not revelation despite the fact that it is the identity, principles, and structure of the state which most directly orients and influences not only the actions of the people but also their consciousness and subjectivity.
A reference to the “Principles of Shariah” is thus not an ‘Islamic’ element in a Secular constitution by rather the natural expression of the Nations Secular identity and a domestication of Islam. An explicit example of this is in the draft constitutions introduction which proclaims;
Constitution of 1971Draft Constitution of 2012
Identity of the state: ”The Arab Republic of Egypt is a democratic state based on citizenship.The Egyptian people are part of the Arab Nation and work for the realisation of itscomprehensive unity.”Identity of the state: “The Arab Republic of Egypt is an independent state with unified sovereignty that cannot be divided. Its system is democratic. The Egyptian nation is a part of the Arabic and Islamic nations (Umma). It is proud to belong to the Basin of the Nile and Africa, as well as of its Asian extensions.”

Even the most Secular of States, mention ‘State Religion’ or designate the religious affiliations of the heads of state.
Furthermore, the process by which a constitution is reformed and drafted is primarily defined and informed by the conceptual-framework and ideas which underlie ‘the State’ and is in no way absolute. For example in Egypt, the principles of Arabism, Parliamentary Democracy, and Republicanism define both the political architecture of the system, the framework of the constitution and the content of the legislation it implements. As illustrated below, the constitution is embedded within the politico-economic framework of ‘the State’ which itself is the product of a overarching worldview-principles.
(Similarly, the Qur’an and Sunnah define the boundaries of Ijtihaad in Islam and the political architecture of the system which emanates from the Qur’an and Sunnah) And thus the “Islamic” legislation passed in Egypt would be implemented by a Secular political system which is nonsensical. It would seem absurd to suggest that Liberal legislation be implemented within the framework of a Socialist political system. If that were the case for two ‘Secular’ and Eurocentric systems than what would be the case for divine revelatory legislation being subordinated and implemented by a Secular system? Islam, through its holistic worldview and comprehensive revelation provides man with the politico-institutional framework through which Islamic law is implemented and that system is the Khilafah. It is for this reason that the first article in the draft constitution adopted by Hizb ut-Tahrir for the Islamic State is:
“ The Islamic ‘Aqeedah constitutes the foundation of the State. Nothing is permitted to exist in the government’s structure, accountability, or any other aspect connected with the government, that does not take the ‘Aqeedah as its source. The ‘Aqeedah is also the source for the State’s constitution and shar’i canons. Nothing connected to the constitution or canons is permitted to exist unless it emanates from the Islamic ‘Aqeedah.”.
There is a fundamental difference between Islam being part of the constitution and the constitution being based on Islam. It follows that:
(1)  The Egyptian Constitution is temporally Relative and not Absolute.
(2)  The Qur’an as an epistemic base of knowledge is Absolute by its revelatory nature.
(3)  It is thus irrational for the Qur’an to be part of the temporal Egyptian constitution.

Reason, contrary to what the Democratic mimics in the Muslim world might think, does not serve as the epistemic base from which legislative injunctions are derived. The only “reason” which supersedes over the principles of State and the revelatory injunctions of Islam is that of the Descartian “I” i.e. the prevailing reason of the colonizing European man who super-imposed is socio-political and economic models on the Muslim world. Popular sovereignty, Nationalism, and Parliamentary Democracy were all the products of the European man’s revolt against the despotic Church and the absolutization of ‘reason’. A Eurocentric ‘reason’ thus reigns authoritatively superior to the divine ‘will’.

Ali Harfouch is a student of Political Studies at the American University of Beirut working in Islamic activism with Islam Policy.

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