Following days of quite debatable leaks, the first draft of the suggested amendments to Egypt’s suspended 2012 Constitution, which was effectively drafted by the Muslim Brotherhood and Islamists, has finally come to light.
The proposed amendments are the result of the work of a 10-person committee of judicial experts and members of the judiciary, all chosen by the legal and educational entities they represent according to the constitutional declaration governing Egypt following Morsi’s ouster on July 3. These amendments will then be submitted for review to a still-unformed 50-person committee that would theoretically represent Egyptian society as a whole. The final say over what goes into the amendments will be, as things stand, in the hands of the 10-person committee, while the mini-assembly will mainly submit its opinions and demands, which do not appear binding according to the text of the current constitutional charter. Recent rhetoric suggests a potential drive toward further empowering the 50-person assembly to better improve the image of this being the result of a more democratic process.
This draft will be the subject of a back-and-forth race for about two months, as per the transitional charter, and significant changes will likely take place. Mainly, the most interesting dynamic to watch — other than whether or not the Brotherhood will have any official influence on the final draft — would be the relationship between the current administration and the Salafists. In the original constitution, the Salafists had effectively been at the heart of the more controversial religious-based articles, yet still signed off on June 30 and are still fully part of the current political process.
The initial impression of this current draft is that it is a significant and substantial edit of its 2012 original, rather than a monumental and groundbreaking change. It is slightly slimmer (about 40 articles were axed, many of which were of literary rather than legal effect) and brings what could be argued as some subtle improvements from a democratic perspective. Yet it still leaves much to be desired: solidification and expansion of liberties, a welcome and preset electoral system and further decentralization of the Egyptian state. This is essentially a preliminary reading of the draft and not intended to be an exhaustive analysis. The focus is on the most important aspects of what has changed and what hasn’t.
- Identity of Egypt: While Article 1 adds more emphasis on the indivisibility of Egyptian land (i.e., land cannot be ceded to other states and no administrative region can declare independence), it now just states that Egypt belongs to the “Arab and Islamic Nations,” dropping references to Africa and the “Asian extension,” as well as “positive involvement in human civilization.” The 1971 constitution had only stated that Egypt was a member of the Arab world and was actively working on “full unification” of the Arab world.
- Article 2 and Sharia: The famous Article 2, mainly stating that the “principles of Islamic Sharia” are the main sources of legislation, remains unchanged, while Article 219 of the 2012 Constitution has been removed. Article 219 was a controversial suggestion by Salafists, which had elaborated on what those “principles” supposedly meant from their perspective, rather than leaving those principles open-ended. While some saw Article 219 as having no actual effect, others worried it had effectively given Article Two a more conservative and legally complicated meaning, one that effectively meant that the “laws” — rather than principles” — of Sharia would be the main source of legislation.
- Personal status code: Article 3 retains the 2012 stipulation that Egyptian Christians and Jews should refer to their own religious laws on personal status issues. Some welcomed the article at its inception, while others were concerned it might mean further distance from the potential for a secular civil code, at least as an alternative alongside a religious code.
- Al-Azhar: Article 4 removes the 2012 stipulation that Al-Azhar be consulted on matters pertaining to Sharia and that the state assist Al-Azhar financially. Otherwise, the Al-Azhar article, which initially aimed to establish its independence as an organization, is largely intact, and still remarkably remains at the beginning of the constitution in Article 4. The original article, though essentially formalizing a consultative role that had already been in effect for some time, raised fears that it would herald the move toward a more theocratic approach to legislation, and even the grand imam of Al-Azhar had opposed it.
- Rights and freedoms: Freedoms and rights remain pretty much within the same framework as in Egyptian constitutional tradition. This means that essentially every right or freedom continues to be subject to regulation by law.
- Gender equality: The updated text in Article 11 features relatively more direct wording on gender equality, but also qualifies that by an adherence to the principles of Sharia.
- Religious freedoms: Article 47 appears subtly improved. Freedom of religion remains “protected” rather than “absolute,” as was the case in the 1971 constitution. But it also now simply states that the state “facilitates” the construction of houses of worship for the three “celestial faiths” (Christianity, Islam and Judaism) while not seemingly sealing the door on religious liberties for other religions, as appeared to be the case in 2012. Remarkably, much of this improvement — other than syntax changes — comes from the usage of a comma between the portion on protection of religious practice and that on building houses of worship.
- Legal punishments: The 2012 version of Article 76 — also a Salafist suggestion — stipulated that a legal punishment could be deduced from both the text of the constitution and the penal code. This article has been brought back in Article 69 to its more traditional form, limiting punishments only to what is specifically mentioned in the penal code. The original text was seen as a backdoor that could allow judges to use traditional Islamic punishments not mentioned in the current penal code, and was criticized by jurists on the grounds that all laws and punishments need to be specifically mentioned in text to avoid judges acting upon personal whims.
- Religious-based articles: The 2012 Constitution introduced a number of articles that contained conservative and Islamic-oriented statements, though their unclear legal implications were still to be determined through time and practice. Some of these have now been axed, including Article 44 banning any slander of religious “messengers and prophets” and Article 11 stating that the state protects morals. The spirit of the latter article is still evident throughout the rest of the constitution. Others appear to have been reformed, such as Article 10, which was criticized in its first form for potentially paving the way for unofficial popular morality police and committees.
- Moving away from Jan. 25?: The new Article 15 (Article 64 in the previous constitution) retains the stipulation on honoring the “martyrs” of the January revolution and giving preferential treatment to the injured and the martyrs’ families. It now simply states “revolution” rather than the “Jan. 25  revolution.” Whether this reflects a move from Jan. 25 toward June 30  as a new political zeitgeist, or is simply an attempt to be more holistic and incorporate both uprisings into a single text, is still to be determined. The preamble would also clarify much.
- Composition and form of parliament: The new draft scraps the former stipulation that at least 50% of parliament be composed of workers and farmers. There is enough political room for this once controversial amendment to actually pass right now. Furthermore, the upper house — the much maligned and generally useless Shura council — now no longer exists. The lower house is also back to being called “The People’s Assembly” rather than the 2012 title of “House Of Representatives.” It now must have a minimum membership of a whopping 450 members rather than the previous 350.
- The next parliamentary elections: The upcoming parliamentary elections, as of now, will be held according to the single-vote, single-candidate system as a transitional method, with no proportional representation or party lists. Even if this stipulation passes, the draft merely speaks of these upcoming elections, and leaves the subsequent and more permanent choice of electoral system up to legislators. This suggestion is creating controversy, arguably in that it could theoretically weaken nascent political parties and party-based democracy in general, possibly even allowing for easier rigging.
- Formation of political parties and groupings: Article 54 reintroduces stricter language against the formation of political parties upon religious references (among others), but it essentially uses language similar to the 2011 constitutional declaration and the 1971 constitution, under which the Freedom and Justice Party, Al-Nour and a host of Islamist parties had already been established. Thus, unless the legal interpretation is different this time, the syntax change might not actually lead to anything different. The article also bans parties, political groupings and activities that “antagonize the social order” — a very foggy, open-ended limitation that could easily be abused. There is also a ban on political activities of “secret, militaristic or quasi-militaristic” natures.
- Syndicates: Article 56 retains the controversial stipulation that there be only one syndicate for each profession. This was the cause of much uproar in the 2012 constitution.
- Division of power: The new draft largely retains, at first glance, the same division of powers between the president, cabinet and (the now unicameral) parliament, creating a hybrid political system in which parliament has more powers than before, is predominantly empowered with control over the cabinet and its formation, and can effectively take over leadership more fully on domestic issues. The term for each parliamentary session is still five years, each presidential term is still four years and a president can only be re-elected once. One interesting and now-removed stipulation from the 2012 Constitution was that if the president called for a referendum on the dissolution of parliament and the referendum failed, he then would have to resign.
Parliament now also has the power to hold the president accountable for any acts seen as violating the constitution. It may go beyond accusing him of grand treason, and the prosecutor general now has to investigate such allegations as well. The president must also obtain approval of the cabinet if he were to decrease the severity or length of a particular legal sentence, and he must obtain parliament’s approval if he wishes to cancel the sentence altogether. And according to Article 132, any calls for referenda by the president now must be “without violation of the rules of the constitution.” Interestingly, the demands by some that a mechanism be put in place for removing a president from office during his term (when legally and constitutionally justified) have not been implemented.
- Amending the constitution: To amend the constitution, according to Article 188, either the president, at least one third of parliament (previously one fifth — this English translation of the 2012 constitution misreads the Arabic text), 30,000 eligible voters from across 15 governorates with at least 1,000 in each governorate can demand that amendments be considered. Still, parliament must debate and approve any amendments by two thirds.
- The Constitutional Court: According to Articles 163 and 164, the court now has no maximum number of judges, just a “sufficient” number of members. The 2012 Constitution’s downsizing of the court was seen as an intentional political move to ax judges deemed hostile to the Islamists. The 2012 move toward prior supervision over legislation by the court seems to have been removed in favor of the pre-2012 continuous supervision mechanism. The president now can only pick the head of the court from its three oldest serving judges, and the general assembly of the constitutional court must also approve the decision, rendering the court further independent from executive pressures.
- More power to the judiciary: The judiciary gets another boost in Article 158. If an official judicial body objects to a draft law regulating its affairs, parliament would either have to amend it and then consult again, or alternatively try to forcefully pass the law by a supermajority of two thirds. This is likely a direct result of the saga featuring the Brotherhood and the draft law it wanted to pass that would have effectively axed 3,500 judges.
- Military and the defense minister: The military and defense articles remain largely unchanged, including the stipulation that the military budget be entered as a single figure in the national budget. Only the National Defense Council, which also includes the prime minister and the head of parliament, gets to review the budget in detail.
One interesting note: Article 170 now adds upon the 2012 stipulation that the defense minister must be an officer (i.e., not a civilian) by explicitly saying that the Supreme Council of the Armed Forces must approve the nominee, further solidifying the army’s independence. Another noteworthy modification is that Article 173 now states that civilians can only be tried in front of military tribunals in “crimes that represent a direct assault on the armed forces.” The original Article 198 stated that the jurisdiction in that case was for “crimes that harm the armed forces.” It’s ostensibly an improvement, though still far from the post-2011 demands to remove military trials for civilians altogether. The specification of crimes that represent such a “direct assault” will also have a strong impact on the final impact.
- Media: Article 179 establishing the National Council For Media, which is set to become the regulatory authority on media in Egypt and whose composition would be later set by law, introduces some potentially problematic language amendments. While the 2012 text already had, for example, the vague stipulation that the council would protect “the values of society and its constructive traditions,” the 2013 text also includes protecting “national unity and societal peace.” The problem with this vague wording is that, while purely decorative if left alone, it could also open the door for potentially restrictive practices.
- No Economic and Social Council: This was a new entity mentioned in Article 207 of the previous constitution, tasked with providing advice on “economic, social and environmental policies” and formed predominantly from professional and social syndicates and associations. It is absent in the amended draft.
- End of Mubarak-era political isolation: The new draft also controversially removes Article 232 of the original, which stipulated the political isolation (i.e., a ban on running for political office) of the leadership of the former National Democratic Party for a period of 10 years.
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