On Thursday, 22/11/2012 President Mohamed Morsi issued a constitutional declaration that included the re-trial of those who killed rebels (of the revolution), the looking after the casualties of the revolution, the protection of the Constituent Assembly and the Shura Council against dissolution, and – for a period of no more than two months – to give immunity to the president’s decisions from being reversed, as well as the dismissal of the Attorney General.
Some of the opposition political forces opposed this declaration by a sit-in in Tahrir Square.
The broad slogan raised by the opponents to these decisions lies in their rejection of the President’s holding of the judiciary, as well as the legislative powers. Their actions are based on ideas they were brought up on, which they view as sacred – which Montesquieu produced long ago in his ‘Bible’ called “The Spirit of the Laws”.
These people consider the issue of the separation of powers as the most important sacred cow, which Montesquieu highlighted in this book.
Both sides are justifying their positions. The first side claims that this declaration is a provisional declaration; and the law gives him the right to issue such a decision until the adoption of the Constitution, whereupon a new people assembly will be formed, thus restoring its legislative power. The second side claims that this declaration makes the president a pharaoh or an autocrat.
There is no doubt that both sides consecrate this cow; and they understand that it does not and will not speak to them, nor will it guide them.
The idea of the separation of powers, which is the structure of the civil state, is a purely Western idea, linked to democratic Western thought, which is a ‘sacred’ thought that does not deserve any kind of sanctification. This idea emerged from the idea of the civil state, as opposed to the Western concept of the religious state. Its emergence was a reaction in order to restrict the powers of the dictators in Europe, namely the kings and emperors. Some Western political thinkers thought that the solution to tyranny lay in restricting of powers, mainly government powers in the hands of the ruler.
Perhaps it is the fascination with Western democratic systems that made one of the two disputing parties shout loudly, calling for true democracy, life and freedom. While, the other party mumbled behind them saying: yes, we want true democracy, Shura, a civil state, and Islamic law – so combining contradictions in one basket, without seeing the contradiction within themselves! They even see more than this, that Islam is the religion of democracy. They do not see anything wrong in abstaining from talking about the application of the Shari’ah as long as they are moving in the path of democracy that will lead to Shari’ah, sooner or later!
Their sacred cow has not been slaughtered yet. Instead, it will be offered as a temporary sacrifice; and will return wearing a new garment, after the adoption of the new constitution, so as to fool simple people. Then the sacred cow will speak saying this is your judicial power, which I have returned it back to you free from every impurity. And here is your legislative power, which I return it back to you, white, clean and untouched. O dear people! We have returned the cow to you; and we will never do any harm to it again.
The attempt to mobilize the people for the sake of so-called legitimacy and Shari’ah is a false argument to portray the country as divided between the two sides: one side that wants Shari’ah, and the other that rejects it – a matter that is contrary to the truth. Those who went out in the squares, to the exception of their leaders and those who mobilized them, do not reject the Shari’ah. Had the President – instead of announcing his constitutional declaration – declared the start of the implementation of the Shari’ah, the heads of secularism in Egypt would have not been able to mobilize the masses with the same momentum they did against the constitutional declaration, and nor would they have dared to raise any slogan that rejected the application of the Shari’ah. Is it possible, for example, that Hamdeen Sabahi would declare he is against the Shari’ah? The man took advantage of the event and spoke to the people from a platform in Tahrir Square on Friday 30/11, saying I am a Muslim, I am proud that I am a Muslim, and I will defend the Shari’ah.
The state of division that has hit the country these past few days is meant in order to pass the constitution prepared by the Constituent Committee and hurriedly approved on Thursday 29/11, so as to be handed to the president for (again hurriedly) submitting it to a popular referendum. This, perhaps, would be an appropriate way out of what caused by the Constitutional Declaration, in terms of protests, sit-ins and calls for civil disobedience.
This is a devilish plan to pass a sleazy Constitution that does not differ much from the Constitution of 1971. It is rather a constitution contrary to Islam, which was a few weeks ago the focus of rejection from a broad sector of the Islamic movement. Then this crisis suddenly made those who went down to Tahrir Square on the Friday of implementation of Shari’ah on 2/11 and 9/11 forget the reason of their arrival there! And Dr. Morsi suddenly succeeded in regrouping the scattered crowds behind a Constitution whose flaw is quite clear, and its violation to Shari’ah is clearer.
To those who cried out “The people want the application of the Shar’ of Allah” – you must realise that Allah’s Shar’ cannot be applied through such a Constitution, which does not differ from past constitutions, and nor are its key clauses any different from them. Rather, its clauses that contradict Islam are still the same, without a change in either their wording or number! Even if the wording of some of its articles is similar to correct words of the Shari’ah, their adoption is not based on the Islamic ‘aqeedah. They are rather adopted based on interest and democracy. You must also realise that such a system would not be possible to change from within it. Don’t people realise that the republican system is a system that is contrary to Islam? Its ‘Aqeeda is the separation ofdeen from the state, which originated in Europe after a bitter struggle between the intellectuals and the Church in the Middle Ages. This system gives sovereignty to the people, i.e. it gives the authority to legislate to humans, where man can allow and forbid as he likes! While Allah, Ta’ala says:
(إنِ الحُكمُ إلاّ لله.)
“Indeed hukm is only for Allah.”
We reiterate here again: you must sacrifice this sacred cow; you have to slaughter it completely by rejecting the democratic system altogether, and not just the sanctity of the separation of powers that the President had already slaughtered, so inciting the monks of the temple of democracy.
It is not possible for a devout Muslim president to give an oath of allegiance on 29/06/2012 to this regime, and say loudly: “I swear by Allah the Almighty to uphold the Republican system” – and the Muslim crowd of millions applauded him when he gave this oath of allegiance to the system they rebelled against. And he addressed them, saying: “Today, the Egyptian people put the foundation for a new real democratic life and uphold the concept of institutions.” He said: “I will respect and appreciate the judiciary authority, and the legislature authority, and do my part in ensuring the independence of these two authorities from each other and from the executive authority.” And he said: “We will complete the journey in a modern, national, constitutional and civil state.”
It is not possible for such a president to destroy a system he pledged to maintain, mistakenly thinking that it was a system that does not violate Islam; and that the slogan of implementation of the Shari’ah does not contradict with the civilian, democratic republican system.
The crisis that the regime faces currently in Egypt is a contrived crisis that aims at passing the constitution, which was cooked in hurry and then put to a referendum in hurry on the 15/12/2012. Those Islamists who raised their voices yesterday, rejecting this constitution, they say now we refuse this Constitution, but we will vote yes for stability – arguing that the Shari’ah considers warding off harm has priority over bringing interests, according to their interpretation of harm and interests.
Muslims would not have accepted democracy or the separation of powers, nor called for a civil state had they been fully aware that the separation of powers is not realised in truth; and that there is only one authority managed by one person called the Khaleefah, by divine rulings (ahkam shar’iyyah) derived from the texts that came through revelation (wahy). What happened in the West did not happen with us. Rather our history was bright and different from their dark history. It did not happen that people ever asked over 13 centuries for the removal of the Khaleefah for being one individual that governs or that he is a despot. This is because such Khaleefah has never been a dictator. He never governed according to his whims and interests, but rather ruled by the revelation of Allah; so no one objected to his rule. Therefore, he was neither a despot and nor a dictator. All that they objected to was the misapplication of the pledge of allegiance (bay’ah), where the Khaleefah used to nominate his son, his brother or one of his relatives so as to be pledged as a Khaleefah after him, through wrong interpretation for maintaining the unity of the state, and in order to prevent dispute amongst people after him and to prevent disorder.
It is well known as well that Islam gives the Ummah the right to choose and give pledge to whomever she wants, whether he was a son of the Khaleefah or his relative or any other person from amongst the Ummah that was legally competent. There is no category of clergy in Islam because Islam did not give the right of legislation to ‘ulema and nor to other human beings. The task of the scholars is only to make ijtihad. So, they exert their utmost effort in deducing the divine ruling of an issue from the detailed evidences, i.e. from the Quran and Sunnah and whatever they pointed to, namely the consensus of the companions (ijmaa’ us-sahaba) and the divine qiyas. The Khaleefah might also be mujtahid. So, if he adopted a divine ruling whether he derived it, or it was derived by other scholars it becomes a divine ruling binding upon people so that the Khaleefah can manage their affairs and run the state interests. The Islamic state is not a religious state by the Western sense, although its basis is the Islamic religion. In other words, its Constitution and laws stem from the Islamic religion. But it is a human state ruled by human beings, who rule with the revelation of Allah. Its rulers and deputies are chosen from amongst humans, and not appointed by Allah. So, it is neither a divine state and nor a theocratic state. Its head, whether the Khaleefah or Imam is not infallible, but he is human that can do right or wrong. Islam rejects the immunity of the rulers and the people’s representatives as approved by the democratic system.
The Khaleefah or any governor in the state or any member of parliament can be tried by the court of grievances (mahkamat ul-madhalim) immediately. His decisions have no immunity unless they are based on the divine evidence. The archetypal state is that which follows the method of the prophet. i.e. a rightly guided Khilafah. This is according to the saying of the Messenger of Allah, peace be upon him: “I urge you to adhere to my sunnah and the sunnah of the guided Khulafaa’ coming after me.”
Dr. Morsi should work for such a state; and millions should be mobilized for such a state, where the people shout from the depths of their hearts that they want an Islamic Khilafah. For such a state, Dr. Morsi would have to challenge the whole world, not just challenge a bunch of self-haters who want to live in darkness, without seeing the light of Islam through its great state, the Khilafah State on the model of prophecy.
Sharif Zayed
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