The Middle East Channel

Egypt's Daring Constitutional Gang of 50

There have been more stirring declarations of independence, but in Egypt's constricted political environment, this one was still bold. Article 18 of the bylaws of Egypt's "committee of 50" drafting constitutional amendments proudly proclaims that the committee will complete its work in 60 days "not counting official holidays."

The 50 members now hard at work in Egypt are assigned the task of taking the very extensive list of amendments drafted by an earlier committee (consisting of 10 jurists) and developing a proposed text to submit to voters in a couple months. All committee members were appointed by interim President Adli Mansour, himself appointed by the military. The composition of the committee reflects a cross-section of Egyptian society but hardly a representative one. The last parliamentary elections resulted in a body that was two-thirds Islamists, but Islamist parties claim only one seat in the current committee. Various unions, syndicates, and state bodies were allowed to choose their own representatives, and the president peppered the body with some prominent politicians and intellectuals. 

The decision by the committee of 50 to stop its 60-day clock each Friday essentially extends the life of the committee by over a week beyond what the president and precedent would seem to have granted it. The matter is a minor one, but it seems to be a way for the committee to say that it takes orders from nobody. (There are legal grounds for a court or the president to overrule the committee, but that seems very unlikely politically.) Egypt's committee of 50 is showing surprising signs of life -- but while this vitality will make for a lively debate and a less predictable (and probably better) constitution, it is not likely to change the underlying political dynamics or counteract the reestablishment of a semi-authoritarian order.

To be fair to the committee, while its toying with the timeline may be its most audacious move (since it offers an implausible application of what was, after all, a presidentially-decreed constitutional document), the more significant aspects of the bylaws and operations lie in three other areas. Understanding each area requires -- to mix a metaphor -- a fairly deep dive into some very dry legal ground. When we come up afterward, however, it will not be clear how much effect the committee's daring will have on Egypt.

First, the committee is only outwardly respectful of the work of the earlier "committee of 10" (the jurists who came up with the first draft of the constitutional amendments). In reality it shows that body much less deference than was anticipated. The president ordered the committee of 50 to begin with the draft prepared by the committee of 10 and one member of that latter committee modestly suggested that the larger body did not need to make any changes at all in the jurists' work. From the beginning the committee of 50 sent signals that it would not be a rubber stamp. An initial draft of the committee of 50 bylaws made clear that the jurists' work would merely be consulted; the final bylaws hew more faithfully to the president's instructions by saying that the committee would use the jurists' suggestions as "the basis for work." Yet in its actual operation, it is clear that the committee is going clause by clause, effectively starting from scratch and writing a new constitution rather than amending the 2012 one or tweaking the jurists' draft amendments. And the members of the committee of 10 -- who may attend committee of 50 sessions but may not vote -- are clearly having trouble guiding the various committees of the larger committee as they had thought they would do. The committee of 50 clarified an ambiguity in the president's constitutional declaration about who would approve the final text before forwarding it to the president -- by awarding that authority to itself rather than the jurists from the committee of 10.

Second, the committee of 50 has decided to move by consensus and supermajorities in a manner that will facilitate logrolling among its disparate members. The committee itself is populated by a few very strong egos and independent figures; a smattering of party leaders; and a whole host of representative of various bodies, many from within the state apparatus. Many of those actors have very particular demands (such as regarding the electoral system, judicial rights, labor organizations, and the like). With these institutional interests strongly represented but generally focusing on distinct clauses, a dynamic exists for most of them to get what they want -- perhaps making the constitution more like a Christmas tree on which everyone hangs his or her favorite ornament than a comprehensively-designed sculpture. Not every member is likely to get what he or she wants -- the sole member of an Islamist party in the body is far more likely to be an Egyptian Jeanette Rankin (the sole U.S. member of Congress to vote against declaring war after Pearl Harbor) than its James Madison (perhaps the most influential member of the U.S. constitutional convention). On religious issues, the outcome instead will be hammered out between the non-Islamist majority and the representatives of official Islam; al-Azhar will likely have a dominant voice and Islamic social and political actors virtually none. The committee is likely to have a far freer hand -- not tied down by particular interests -- when debating general and ideological matters (like the preamble) as well as in some of the rights provisions, motivated generally by a desire to show that it can outperform its 2012 predecessor.

Third, the committee is already treading on some very sensitive turf, including military trials of civilians and human rights protections. The precise doings of the committee -- and its subcommittees -- is not completely clear from the public record, but it has started tweeting a steady stream of topics discussed, clauses debated, and committees deliberating. Those brief messages -- along with public comments by some members -- suggest that at least some committee members are anxious to show independence and refusal to honor taboos. The role of the military, the electoral system, religion and state, social justice, gender equality, the authority of the president, the nature of rights protections -- all these are issues that have provoked tremendous debate inside Egypt over the past years that are now being debated inside the committee of 50 and its subcommittees. Rather than accepting what the earlier committee of jurists devised, the larger committee seems determined to reopen every issue for discussion. Journalists, for instance, complained that the jurists had ignored all of their suggestions; the committee of 50 is trying to communicate that it will accept most of them. Of course, not all such discussion is liberal or democratic: a representative of the ministry of interior showed up to explain that the police should be loyal only to the people (i.e. outside of the political and constitutional order).

Yet for all its daring, it seems unlikely that Egypt's 2013 constitution will counteract the authoritarian practices that never disappeared and that are once again becoming thoroughly routinized in Egyptian political life. Critical state actors -- the military and the security forces most obviously -- will not be hamstrung or held accountable according to the text produced; what indications exist right now are that most other state actors will get what they want because of their presence in the chamber, the likely logrolling behavior of the committee, and the general counterrevolutionary spirit.

Where the committee might have some leeway is over rights provisions, the electoral system, and the distribution of powers in what is likely to be a semi-presidential system. But even here the impact will be limited. The precise language of rights provisions matters, but generally less than the mechanisms chosen to enforce them (where there is likely to be little change save to make the judiciary even more self-perpetuating than it already is). System of government provisions also matter, but it is extremely difficult to say in advance how they will work without knowing something about the parties and personalities involved.

Do these flaws matter? Yes, over the short term. Those who hope for either a liberal or democratic political system to come out of this process are likely to be deeply disappointed. The longer term is less clear. The dirty -- and often unspoken -- secret among comparative constitutional scholars is that the viability and operation of a constitution are far less connected to the circumstances of its birth than all the current attention to the drafting process suggests. There is no doubt that over the past two and a half years, Egyptians have done virtually everything that such scholars would have told them not to do. So the 2013 constitution may eventually deliver benefits to a later generation, but if that happens, it will be luck rather than wisdom that will have to take the credit.

Nathan J. Brown is professor of political science and international affairs at the George Washington University, non-resident senior associate at the Carnegie Endowment for International Peace, and author of When Victory is Not an Option: Islamist Movements in Arab Politics (Cornell University Press, 2012).

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The Middle East Channel

Sharia courts of the Sinai

In the Sinai Peninsula, where government buildings and checkpoints have been bombarded by rocket-propelled grenades (RPGs) and car bombs on a near-daily basis in recent weeks, the Egyptian state is losing ground to ultraconservative Islamists with an alternative vision for rule of law. The growing influence of self-taught sharia judges who uphold the Quran over Egyptian law reflects an alarming erosion of state sovereignty in the Sinai Peninsula. In late August, state courts in North Sinai were forced to transfer all of their cases to the comparatively stable jurisdiction of Ismailiya, in the face of escalating attacks by armed extremists targeting government buildings and security personnel. This week, two prominent sharia judges were among 15 hard-line Salafis arrested on charges of inciting terrorist attacks, as the Egyptian government struggles to contain rising extremism. But despite the current crackdown, it is clear that the deeply entrenched sharia courts of North Sinai are here to stay.

Since the removal of former President Mohamed Morsi on July 3, the already fragile government in Sinai has been further crippled by a wave of armed attacks, ambushes, and car bombings by militants equipped with increasingly sophisticated weaponry stolen from police stations or smuggled across Egypt's borders with Libya and Sudan. The escalation of violence has forced the closure of a critical police station in Arish and the evacuation of other government buildings, creating an institutional vacuum that sharia courts are opportunistically exploiting.

The outsourcing of traditional law enforcement functions to non-state actors is reminiscent of a pattern seen in failed states like Somalia, where powerful Islamic courts with their own private militias and ties to al Qaeda seized control over vast swaths of the country in 2006. While the sharia courts of Sinai are nowhere near as institutionalized as those in Somalia, they similarly aspire to absorb the functions of state institutions that are failing to govern.

In an unofficial sharia court in the Egyptian governorate of North Sinai, Sheikh Abu Faisal is slowly building the infrastructure of a parallel Islamic state in plain view of a government he regards as illegal and undemocratic. A former agricultural engineer who taught himself sharia jurisprudence in the jail cell where he was detained on charges of involvement in the 2004 bombings at tourist resorts in Sharm al-Sheikh, Abu Faisal has since become one of the most powerful sharia judges in North Sinai, hearing dozens of cases every week at the House of Sharia Judgment in Arish and another court in Sheikh Zuweid -- among at least 14 informal Islamic courts that have been established since the 2011 revolution.

Informal courts are not new to Sinai, where the predominately Bedouin population has been resolving conflicts through tribal customary law for centuries, but the increasingly Islamic character of non-state judiciaries is a recent innovation. Under Hosni Mubarak's rule, a handful of sharia judges operated underground, holding clandestine hearings in private homes to avoid detection by a state security apparatus that regarded Islamists as a threat to national security and the political status quo. But with the rapid disintegration of state institutions in Sinai since the revolution, sharia has taken on an increasingly public and visible role. Now, the courts occupy brick-and-mortar offices boldly marked with conspicuous signs, and it is clear that they are not just for Islamists anymore. "Everyone is using sharia courts," explained Mahmoud Saeed al-Lotfy, a prominent lawyer who runs a practice in Arish. Among the many mainstream professionals who have turned to sharia courts is a successful telecommunications entrepreneur, Anwar Ahmed Mohamed, who operates the local branch of a Cairo-based internet service provider that was recently accused of over-charging. When a furious mob of customers armed with knives gathered outside of the company's office and threatened to burn it down, Mohamed knew that he could not rely on the government for help, so he turned instead to the fastest and most reputable court in town: the House of Sharia Judgment. 

While the official justice system has abandoned Sinai, sharia courts have never been busier. Abu Faisal explained that a growing number of informal sharia courts in North Sinai are stepping in to enforce order in what would otherwise be a legal void. "We are the law here," he said. The House of Sharia Judgment is the largest Islamic court in North Sinai and claims to be working on hundreds of cases. When I visited its headquarters in Arish, the presiding judge, Sheikh Assad al-Beik, proudly informed me that his daily schedule is booked every day for the next three months, and noted that the court will soon be relocating to a larger building to accommodate growing demand for its services. Beik estimates that in the last three years alone, sharia courts have absorbed 75 percent of the caseload once handled by the official justice system.

While the rise of sharia courts in Sinai has accelerated sharply since the revolution, the trend can be understood as an extension of a longer-term process of tribal Islamization. The process began in the 1980s, under the influence of ultraconservative Salafi ideology imported by Bedouin students returning from the Nile Delta region and particularly Zagazig University, one of the key intellectual strongholds of hardline Islamism. By the 1990s, these newly Islamized Bedouins were actively proselytizing and setting up Salafi charitable organizations in North Sinai.

Residents of Arish, where the elevator in my hotel played a recording of Quranic verses on repeat, say religious conservatism has increased noticeably in recent years and particularly since the 2011 revolution, as the rapid erosion of government institutions created an optimal environment for the expansion of Salafi charitable organizations offering badly needed services that the state has failed to deliver.

The largest of these Salafi organizations, Ahl al-Sunna wal Jama'a (ASJ), has branches all over Egypt including one in Arish, which is headed by Beik. ASJ and the House of Sharia Judgment share adjacent offices in the same building, and together, they are building the infrastructure of a parallel welfare state providing free legal services and security through the mobilization of ASJ's "popular committees" -- unarmed community police units that can be seen patrolling the streets of Arish after sundown. While Beik insists that ASJ's extensive activities are staffed entirely by unpaid volunteers, most Salafi groups in Egypt have benefited from an influx of funding from the Gulf countries, and some of ASJ's work -- like chartering buses and providing supporters with a per diem of L.E. 45 (approximately $6.44) to participate in pro-sharia protests in Cairo last year -- could not be done without significant private financing.

While sharia courts and their Salafi affiliates have flourished in the post-revolutionary security vacuum, Abu Faisal fears that the return of military rule on July 3 has resurrected an authoritarian system that is once again determined to eradicate Islamists from political life. "What we are witnessing is the return of the police state," he told me over tea served on the living room floor of his apartment in downtown Arish, where a television was tuned to Al-Jazeera's live coverage of anti-military demonstrations in Cairo demanding the reinstatement of ousted Morsi. In the months since Morsi's removal, Islamists have capitalized on the dubious legality of the military's intervention to portray the Muslim Brotherhood as the defender of democratic institutions and rule of law.

This narrative emphasizing the unlawful nature of the military's takeover has resonated powerfully in Sinai, where sharia judges are promoting Islamic law as the only remedy for a broken justice system that cannot be trusted to investigate or prosecute state-perpetrated crimes -- a suspicion seemingly confirmed by the recent release of Mubarak from prison on a procedural technicality. After the army moved to forcefully disperse pro-Morsi sit-ins in Cairo on August 14, killing hundreds of Islamists including sons and daughters of top Brotherhood officials, Abu Faisal was so outraged by the interim government's attitude of impunity that he conducted a symbolic trial to hold the perpetrators accountable under Islamic law. The verdict, published on his Facebook page, sentenced General Abdel Fattah al-Sisi, the interior minister, and other "infidels" to public execution. When Egyptian newspapers described the statement as a "fatwa" condoning the assassination of public officials, Abu Faisal was quick to accuse the media of distorting his views, insisting that his symbolic ruling was purely rhetorical. But at the same time, Abu Faisal acknowledged that rising anger among Islamists in Sinai is contributing to a retaliatory mood. "There is a long line of people seeking revenge," he said in an interview on September 11.

Anti-military sentiment in Sinai has been enflamed by a sweeping counter-terrorism campaign launched in July, which has since been described as the single largest Egyptian military operation since the 1973 October War. Among the Bedouins, the deadly crackdown is reviving painful memories of the Mubarak-era counter-terrorism campaigns in which thousands were incarcerated and allegedly tortured. Statements by al Qaeda in the Arabian Peninsula (AQAP) and Sinai-based jihadists demanding retaliation for the killing of "martyrs" in recent air strikes indicate that the military's heavy-handed strategy is likely to generate as many new terrorists as it eliminates. A common theme in the rhetoric emanating from militant groups is the justification of violent tactics as legitimate retribution for unlawful state action that the official justice system is unwilling or unable to prosecute. In a recent audio message proclaiming solidarity with Egyptian Islamists, an AQAP leader called the government's violent dispersal of pro-Morsi rallies a "serious crime" and described state security personnel as a "gang" colluding with Israel "in killing our mujahideen brothers in Sinai."

Sharia judges in Sinai now find themselves at a pivotal crossroads between moderation and extremism. The sheikhs I interviewed in August were careful to condemn acts of terrorism and violence by militants, whom Beik described as criminals bringing "fitna" -- or chaos and social upheaval -- to the Sinai. In the absence of a functional security apparatus, sharia judges and other Islamist figures have proven themselves to be the only credible mediators capable of negotiating between the government and militant groups. A prominent Salafi sheikh, Mohamed Adly, helped broker the release of a soldier and six policemen who were kidnapped by extremists in May. Last year, sharia judges backed the formation of a committee, including a number of prominent Salafi leaders and more moderate Islamists affiliated with al-Azhar, to engage in a dialogue with militant groups in Sinai and assess their demands. Ahl al-Sunna wal Gamma -- headed by Beik in Arish -- has also taken a stand against violent extremism, recently condemning an RPG attack that killed several cement workers after militants mistakenly hit a bus instead of their intended target, a police vehicle.

Sharia judges, eager to disassociate themselves from more radical Islamists, are quick to enumerate their moderate credentials and tolerance of religious minorities. Beik insisted that the courts operate on a purely voluntary basis and would never forcibly impose Islamic law on non-Muslims without their consent. To illustrate this point, he proudly informed me that the House of Sharia Judgment has heard three cases involving claims by Christian litigants against Muslim adversaries since the revolution, and in all three cases, the Christian party prevailed -- a fact he cited as evidence of the courts' neutrality.

But although the sharia judges of North Sinai pay lip service to liberal democratic principles of inclusion and equality, they ultimately aspire to establish a parallel state governed not by Egypt's constitution, but by a retrograde interpretation of sharia that relegates women and religious minorities to second-class citizenship. For now, their rulings are purely advisory and non-binding. But Abu Faisal predicts that his court's decisions will one day carry the force of law in the Islamic emirate he hopes to see established in the Sinai. "Sharia is already the law of the land here," he said. "God willing, someday it will be the law of the state."

For the time being, sharia judges are distancing themselves from militant groups and could potentially play a constructive role in mediating between Islamists and government officials. But as the rhetoric on both sides of an intensely polarized battle between Morsi supporters and the military becomes more extreme, prominent Islamists in Sinai are showing sympathy for the violent tactics of radicals. On August 14, a Sinai-based jihadist posted a photo of a church that militants firebombed in retaliation for violence against Morsi supporters in Cairo, and Abu Faisal commented approvingly, "May God prevent it from ever returning." In what has become an existential struggle between two mutually exclusive visions for Egypt's future, even the more moderate Islamists in Sinai who have previously renounced violence are now facing pressure to toughen their stand against the military. As Beik predicted, "There will absolutely be no retreat, no matter how many people are killed."

Mara Revkin @MaraRevkin is a J.D. candidate at Yale Law School and former assistant director of the Atlantic Council's Rafik Hariri Center for the Middle East.

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