Now the question is this: what do we need a constituent assembly for, or laws, long debates, meetings for the drafting of the text and voting on its articles, if in the end we behave according to the law of the jungle? In other words, if we saved the expenses for the assembly, took a break from the debates and gave in to the law of brute force, might we not achieve the same result? In fact, if we lived without any type of constitution, the Muslims could also continue to stop the religious minorities from practising their religion or stating it on their identity card. The majority could continue to pretend to ignore the claims of the Nubians and Bedouins and the adults could sell young girls in the name of marriage. The rich could continue to exploit the poor, the workers in the black economy or without insurance, providing that the party in control of the Assembly presents the law of the jungle under the emblem of ‘Islamic Constitution’ or ‘Sharî‘a Constitution’. However, in order to be precise in the comparison, I must first of all ascertain whether mammals oblige their daughters to get married before they come of age or not.
But let us go back to the origin of things: why do people need the law? The first reason is the desire to distinguish themselves from the law of the jungle, the attempt to eliminate the logic of the survival of the strongest. The law is essentially devised for the protection of the weakest and not to consolidate the power of the strongest.
You need the law to stop the police from attacking or torturing you; you need the law to force your employer to pay your wage; your wife needs the law so that you cannot beat her, if you feel like it; your children need the law to be protected if you maltreat them; the defenceless need the law to be protected from thugs; girls need the law to be safeguarded from molesters; partners need the law so that the craftier ones do not cheat the more stupid.
Vice versa, those with power can do without the law: the rich can employ an escort, the strong person can defend himself alone and the president can crush the opposition. Is the law successful in all circumstances? Obviously not, since the law is not justice, even if it is the best way to realise it. The alternatives are a great deal worse.
The same rule applies to the Constitution, but at a higher and meaningful level: in fact the Constitution is the ‘mother of all laws’. But then, do the Muslims in Egypt perhaps need a Constitution that will guarantee the construction of places of worship? Or is it the minorities that need to see this right protected? Do adults need a constitutional text to safeguard themselves from forced marriage? Or do the young have precedence? Do the inhabitants of Cairo need a constitutional text that protects them? Or instead does the priority go to the inhabitants of Sinai? In Egypt does the Sunni Muslim need a constitution that protects his freedom to follow his own confession? Or is the Shiite or the Bahâ’î more entitled to it? Is it the president that needs texts that establish and protect his authority? Or is it the other powers that need it, which have neither army nor arms?
Reading the draft – or the drafts – of the Constitution, it is clear that what happens is exactly the opposite. It is as if in Egypt the Muslims, or the Sunni Muslims, were a threatened minority that, fearing for its future, sets about strengthening dogmas and confession, and not happy with this sets out the juridical references and historical figures of reference in writing. But it is not sufficient: it limits the right of the other Islamic confessions and the minorities to pure belief and insists on adopting the Sharaitic norms in every paragraph concerning women. This always brings us back to the same astonishing question: is there a woman who is afraid, for example, to be forced to take more than half of the inheritance, the reason for which the legislator considered it necessary to enshrine this right in the Constitution? In reality it is obvious that the Constitution must safeguard the person, race or nationality from obtaining fewer rights, and it is obvious that equality must not be considered as a persecution.
The drafters of the Constitution fight an imaginary battle against the ghosts of ‘identity’, ‘proselytism’, ‘Shiite propaganda’ and ‘westernisation’, and various other ‘conspiracies, but the result is that instead of carrying out its task of guarantor of rights and freedoms, the Constitution ends up doing the exact opposite, insofar that it tries to protect all those who enjoy majority status, power or authority. In short: the law of the jungle is high at constitution level.
And on balance we must also recognise that this law of the jungle is not so bad after all: it has never recognised the slave trade, torture or murder in the name of the defence of sharî’a, the sharî’a of the jungle obviously.
(article published in at-Tahrîr, 13 November 2012; translation by Francesca Miglio)