Egypt's Draft Constitution 2014: Focus On De-Islamization, Expansion Of Military Power

Introduction

On January 14 and 15, 2014, for the second time in the three years since the January 2011 ouster of president Hosni Mubarak, Egypt's citizens will vote in a referendum on a new constitution. The previous constitution, drafted under the MB regime of ousted president Muhammad Mursi and approved by a 64% majority in a December 2012 referendum, was suspended by Defense Minister 'Abd Al-Fattah Al-Sisi in July 2013.[1] A referendum approval of the new draft constitution will be considered a vote of confidence in Al-Sisi and his road map.

The new draft constitution was drawn up in two stages: On July 20, 2013, Interim President Adly Mansour appointed a committee comprising 10 judges and academics to contribute their proposals for a new constitution, based on the review of thousands of drafts submitted to them by various elements.[2] A month later, the committee submitted its recommendations to President Mansour, who then appointed a Committee of 50, headed by Mubarak-era foreign minister and former Arab League secretary-general 'Amr Moussa, and tasked with completing the draft of the constitution.

While the 2012 constitution drafting committee had been dominated by Islamic representatives, this new committee comprises predominantly civilian elements, with only five representatives from Islamic streams: three Al-Azhar members (the same number as representatives of the Christian churches); one representative from the Salafi Al-Nour party, and former MB member Kamal Al-Hilbawi.[3]

This new draft constitution includes 247 articles, some 40 of which are completely new. About 100 articles taken from the 2012 constitution have been amended, and the remainder, also from the 2012 constitution, remain unchanged.[4]

The Egyptian authorities are claiming that the new constitution is merely an amended version of the 2012 constitution.[5] Its most striking difference from the 2012 document is the eradication of the Islamization direction, notably the so-called "identity clauses" regarding the status of the religion; the new draft constitution is more civil and rationalist in its tone, and it attempts to be more enlightened and tolerant, and to more firmly anchor human rights and freedoms. At the same time, the new draft grants greater privileges to the military establishment, including the authority to prosecute civilians in a military tribunal; this move has enraged many in the Egyptian street, even within the youth movements that supported Mursi's ouster by the military.

The new draft constitution reflects the political balance of powers that has emerged following Mursi's ouster:

--The exclusion of the MB from public life;

--The increase in the strength of forces and institutions not identified with political Islam – particularly the Supreme Constitutional Court;

--The weakening of Islamic elements and institutions – among them Al-Azhar and the Salafi Al-Nour party. Although these last two have had some influence in the drafting of the new constitution due to their backing of Al-Sisi in his removal of Mursi, but, in the current political climate of de-Islamization, their impact is much less than in the drafting of the 2012 constitution.

--The expansion of the military's powers and the reduction in the powers of the president. At this time, it is the military establishment that is actually controlling the state, not the civilian interim president;

--The increased status of members of the former Mubarak regime, following the lifting of Article 232 of the 2012 constitution that calls for a "cooling-off period", banning leaders of the Mubarak-era ruling National Democratic Party from participating in political activity or running for parliament or the presidency for a period of 10 years.

The MB rejects the draft constitution, as it has rejected every move by what it calls the "coup regime." In its propaganda, the movement depicts it as a "constitution of blood" that betrays the January 25, 2011 revolution and sets up a military state, and also as a "church constitution" aimed at secularizing Egypt and eradicating its Islamic identity.[6] For this reason, MB supporters, led by the National Alliance for the Support of Legitimacy, the Al-Gama'a Al-Islamiyya organization, and the Al-Wasat party, have called for boycotting the referendum, pointing out that its results will in any case be faked.[7]

The Strong Egypt Party, headed by former presidential candidate 'Abd Al-Mun'im Abu Al-Futouh, has called for voting against the constitution in the referendum,[8] while most of the civil parties and movements, including Tamarrud and the National Salvation Front, except for April 6 Youth Movement, as well as the Coptic Church, Al-Azhar, and the Salafi Al-Nour party, have called for voting in favor.[9]

"Boycott the constitution of blood, of the minorities, of the military" (Amwague.com, December 10, 2013)

At demonstration in Alexandria: "Yes to the Constitution" (Al-Ahram, Egypt, December 7, 2013)

The following is a review of the main differences between Egypt's new draft constitution and its 2012 constitution.

I. The "Identity Clauses": Transitioning From Islamic To More Civil Orientation

The new draft constitution reverses the Islamization direction of the 2012 constitution. It does give Islam a place of honor by retaining Article 2, which is the main article concerning the status of the religion in the state, defining Islam as the "state religion" and the principles of the shari'a as "the primary source of legislation," an achievement of the Islamic forces that has persisted since the days of President Anwar Sadat. The draft constitution also respectfully refers to Al-Azhar and its head as the state's religious establishment. Overall, however, the draft takes a more civil and rationalist tone than the 2012 constitution, and reflects a more enlightened and tolerant approach in terms of the so-called "identity clauses" that concern religion.

At a press conference following the completion of the draft constitution, committee spokesman Muhammad Salmawi said: "The June 30 revolution [i.e., Mursi's ouster]... called for the fall of the religious state and joined the voice of the first [revolutionary] wave on January 25, which shouted 'Civil, civil, not religious, not military,' in addition to [demanding] social justice, human dignity, freedom, and democracy. These were the starting points for this constitution, and it was therefore written to establish a civil state, and every one of its clauses stresses the concept of a civil state..."[10]

The word 'civil' (madaniyya in Arabic) does indeed appear in the 2014 draft constitution; however, due to pressure from Al-Azhar and the Salafi Al-Nour party representatives, it is not in Article 1. Moreover, the term "civil state," the inclusion of which was demanded by the civil forces, does not appear in the constitution, but only the term "civil government," which appears in the preamble, and can be interpreted as referring strictly to the members of the government and not to the character of the state as a whole.

The Committee of 50 stripped the 2012 constitution of most of the additions to the 1971 constitution that its framers had added; these additions had given it a more religious Islamic hue than previous constitutions. The main addition that was removed was Article 219, which promised a broad interpretation for the "principles of shari'a," which are set out in Article 2 as the primary source of legislation. The new draft constitution omits Article 219 entirely. It also omits the article forbidding harming the Prophet Muhammad and the requirement that Al-Azhar be consulted on shari'a matters. The Committee of 50 went even further and established the Supreme Constitutional Court as the sole authority in interpretation of the principles of shari'a.

The new draft constitution met many demands that left-wing and liberal-secular streams, the Coptic Church, and civil society organizations had made to the previous constitutional committee under Mursi. These included the addition of the term "civil" to the description of Egypt in the preamble, as opposed to "religious"; emphasis on the importance of the principle of citizenship (muwatana in Arabic) as the basis of affiliation to the state and on religious nondiscrimination; a guarantee of complete freedom of belief; restoration of the ban on religion-based activity and political parties; and recognition of international human rights conventions.

The 2014 constitution sweeps away the MB (vetogate.com, December 3, 2013)

As noted, representatives of the Islamic streams comprised only about 10% of the constitutional committee. In contrast to the situation during the drafting of the previous constitution, this time, the representatives of Al-Azhar and the Salafi Al-Nour party were forced to pick their battles and to back down on some of their previous demands. On the other hand, the other committee members were careful to take their demands into consideration, apparently in return for their support in ousting Mursi and to prevent them from withdrawing from the constitution drafting process – which might have harmed the committee's legitimacy – and to ensure support from broad sectors of the population in the coming referendum.

The main achievements of the Islamic representatives were in blocking further demands by the other streams that they found completely unacceptable: defining Egypt as a "civil state" in Article 1; inserting a restricted interpretation of "the principles of shari'a" in Article 2; and granting members of non-monotheistic religions – that is, not just Jews and Christians – freedom of worship and the right to be tried according to their own religion in matters pertaining to religion. In addition, Al-Azhar kept an article guaranteeing its own independence and granting its Sheikh immunity from removal.

Article 1: The Restoration Of The Concept Of Citizenship

Article 1 of the new draft constitution states: "The Arab Republic of Egypt is a sovereign state, united and indivisible; no [part of it] is dispensable, and its system is [a] democratic republic based on citizenship and the rule of law. [The Egyptian people] is part of the Arab nation and [works for] its integrity and unity. [Egypt] is part of the Muslim world, belongs to the African continent, is proud of its Asian dimension, and contributes to building human civilization."

In 2007, the Mubarak regime added several amendments to the 1971 constitution, including an amendment to Article 1 stating that the Egyptian regime was based on the principle of citizenship, a principle which stipulates that an individual's belonging to the state is based on citizenship – i.e., not religion – and that discrimination due to religion, faith, ethnicity, gender, etc., is forbidden. While the 2012 constitution moved this citizenship clause to Article 6, in the new draft constitution it has been restored to its original place in Article 1, to indicate its great importance.

The new draft constitution replaces the 2012 constitution's definition of the Egyptian people as part of "the Islamic nation (ummah)" with a definition of Egypt as part of the Muslim world – thus removing the pan-Islamic approach from the constitution.

In the initial stage of the drafting of the new constitution, a subcommittee of the Committee of 50 defined Egypt as a "civil state" in Article 1 – a major achievement for the liberal-secular and Coptic circles, who consider the inclusion of the word "civil" as guaranteeing that shari'a will not be implemented, that religion and politics will be separate, and that religious minorities will have equal rights. At the same time, radical Islamic circles interpret "civil state" as recognition of the establishment of a secular, anti-religious state. Under pressure from Al-Azhar, which strongly objected to adding the word "civil" to Article 1, and from the Al-Nour party, which threatened to withdraw from the committee, the word "civil" was omitted from Article 1, and, as a compromise, was inserted into the preamble, which constitutes an integral part of the constitution (as stated in Article 227). The draft preamble stated: "We are now drafting a constitution that completes the building of a modern democratic state with a civil rule."[11]

Last Minute Change: "Civil Government" Instead Of "Civil Rule"

However, in what appeared to be a last-minute ruse, during the vote on the draft, as 'Amr Moussa was reading the text aloud, he said "with a civil government" instead of "with a civil rule." Video footage of the vote shows that he hesitated slightly while reading the phrase, and perhaps was even surprised by it, but then he repeated it a second time.[12] The preamble was approved unanimously, and only afterwards, when the committee members were given a hard copy of the draft, did Coptic Church representatives protest, claiming fraud. Moussa defended the change, saying that there was no difference between the two terms, and denied that it was a trick.[13]

It should be mentioned that the Islamic streams prefer the term "civil government" to the term "civil rule," because "civil government" could be interpreted as referring only to the members of the government – and most Islamic streams agree that the ruler of an Islamic state is a civil leader, rather than a military leader or a cleric or other religious figure. On the other hand, "civil rule" refers to the state's orientation, including legislation, and most of the Islamic streams are opposed to legislation that is not based on religious law.

Article 2: No Change; Interpretation Of "The Principles Of Shari'a" To Be Determined By Supreme Constitutional Court Rulings

Article 2, the main article on the status of religion in the state, has been part of the Egyptian constitution since 1980, and is unchanged in the new draft constitution. It reads: "Islam is the religion of the state and Arabic is its official language. The principles of Islamic shari'a are the primary source of legislation."

The article remains the same despite pressure from Salafi elements, who wanted to omit the word "principles" and make shari'a itself the primary source of legislation, thus preventing restrictive interpretation of shari'a implementation. There was also pressure from some civil elements to omit the article entirely, claiming that it discriminates against Egypt's non-Muslim population, particularly the Coptic minority, and that it contradicts other articles such as those dealing with citizenship and equality for all citizens.

The new draft constitution omits Article 219, which was added to the 2012 constitution under pressure from the Al-Nour party and which gave a broad interpretation to "principles of Shari'a" in Article 2 – something which could have been an opening to wider implementation of the shari'a.[14] Instead, the draft constitution's preamble states that the source of authority for interpreting Article 2 would be all Supreme Constitutional Court rulings.[15]

In this context, it should be mentioned that the Supreme Constitutional Court interpreted the phrase "principles of shari'a" in 1996, determining that it refers only to religious texts whose meaning is unequivocal and whose validity is absolute – thus preventing full implementation of the shari'a and forcing legislation to correlate only with the goals of shari'a, primarily personal welfare. It also allowed only for the implementation of limited parts of the shari'a that are not disputed by the various Muslim schools of thought.

In order to make it easier for the Islamic streams to accept the change in the interpretation of the phrase "the principles of shari'a," the preamble states that it is referring to "the collected rulings of the Supreme Constitutional Court" and not just the 1996 ruling. Egyptian Mufti Muhammad Shawki 'Allam, explained that this language should not be seen as harming the shari'a, because Article 2 supersedes all the other articles, and because there is a Supreme Constitutional Court ruling from the end of the Sadat era (whose content 'Allam did not detail) which is more acceptable than the 1996 ruling.[16]

Al-Nour party leader Younes Makhioun also said that the language of the constitution does not specifically refer to the Supreme Constitutional Court's 1996 ruling, which he claimed no intelligent person would accept, and stressed that the Court has no single clear ruling on this matter, but rather several, and that one, from 1985, determined that "the principles of shari'a" refers to the directives of the shari'a. Thus, he says, it ordered the legislature to reexamine all legislation and omit any that contradicts the directives of Islamic shari'a.[17]

In a communique issued following the publication of the draft constitution, the Al-Nour party explained why it had participated in the constitution committee and why it had backed down from its demands on the identity clauses. It stated: "First, we cannot assess the constitution separately from the various circumstances and conditions to which we are subject, taking into account the domestic, regional, and global situation and the dangers threatening Egypt. Second, it is not possible for every faction to get everything it wants; we must have balance among the various forces in society. Every outcome has advantages and disadvantages, as does every human activity – but in general, [the draft constitution] is acceptable to the entire Egyptian people and sufficiently actualizes its aspirations. We must distinguish between what is desirable and hoped-for and what is possible and realistic. Third, regarding the identity and shari'a clauses: The Al-Nour party believes that the articles in the draft voted on by the committee article by article and word by word, in a live broadcast, preserve the Arab and Islamic identity as well as Islamic shari'a as the source of legislation, and protect the balance between the actualization of rights and freedoms and society's foundations and values..."[18]

Article 3: Only Monotheists Have The Right To Be Tried According To Their Own Custom In Matters Pertaining To Religion – Retained From The 2012 Constitution

Article 3 of the draft constitution states: "The principles of the laws of Egyptian Christians and Jews are the main source of laws regulating their personal status, religious affairs, and selection of spiritual leaders." This article is retained from the 2012 constitution, where it first appeared. During the deliberations on the new constitution, representatives of the Coptic Church and civil forces pressed for replacing "Christians and Jews" with "non-Muslims," so that it also refers to other religious minorities such as Baha'i, Buddhists, Qadianis (Ahmadis), and Quranists. However, the demand was rejected, following objections by Al-Azhar and the Al-Nour party.[19] Article 235 states that in its first session after the approval of the constitution, parliament would pass "a law to organize the construction and renovation of churches, guaranteeing Christians the freedom to practice their religious rituals."

Article 4: The People Are The Source Of Power – No Change

Article 4, which states, "Sovereignty belongs to the people alone" and that "[t]hey are the source of power" remains largely unchanged from the previous two constitutions. Unlike in the 2012 constitutional debate, Al-Nour's representative did not even suggest replacing the sovereignty of the "people" with the sovereignty of "God."

Article 5: Omission Of The Word "Shura"

An article of the 2012 constitution stated that "the political system is based on the principles of democracy and shura." The word "shura" – an Islamic principle requiring the ruler to consult with others when making decisions, and one cited by Muslims who claim that the modern parliament has its origins in Islam – was inserted into the previous constitution next to the word "democracy" under Salafi pressure. This was in order to establish a democracy that is not as permissive as its Western counterpart, and is limited by Islamic shari'a. In the new draft constitution, "shura" was omitted, as was "democracy", which already appears in Article 1. Article 5 of the new constitution states: "The political system is based on political and partisan multiplicity, the peaceful transfer of power, the separation and balance of powers, [the principle of the authorities' accountability to the citizens], and respect for human rights and freedoms, as set out in the constitution."

Article 7: Removal Of Requirement To Consult Al-Azhar On Matters Of Islamic Shari'a

The 2012 constitution was the first one with an article denoting Al-Azhar as "an encompassing independent Islamic institution, with exclusive autonomy over its own affairs, responsible for preaching Islam, [and teaching] theology and the Arabic language in Egypt and the world" (Article 4). The new draft constitution kept Article 4, but added that Al-Azhar is an "academic" body [implying that it is not a body with binding authority]. It also retained the status of the Sheikh of Al-Azhar as "independent and unimpeachable" and likewise retained the process of choosing him from among the members of Al-Azhar's Council of Senior Scholars. However, to the chagrin of the Egyptian mufti, who was a committee member, the new draft constitution removed the section from the 2012 constitution requiring to consult with the Council of Senior Scholars on all matters concerning the shari'a.[20]

Article 64: "Absolute" Freedom Of Belief – A Return To The Constitution Of 1923; Freedom Of Worship – But For Monotheistic Religions Only

While the 2012 constitution stated that freedom of belief is guaranteed. The new draft constitution states that "freedom of belief is absolute," restoring the word "absolute" which appeared in the 1923 constitution. However, the article in the 2012 constitution guaranteeing freedom of worship and establishment of houses of worship for monotheistic religions only remains unchanged in the new draft constitution. That is, under the new constitution, freedom of belief will be absolute but freedom of worship will not be.

Committee of 50 spokesman Muhammad Salmawi explained in his column in the daily Al-Masri Al-Yawm: "Article 64 states that 'freedom of belief is absolute,' which means that a person has the right to adopt any belief he wishes, as Islam states: 'For you is your religion, and for me is my religion' [Koran 109:6]. Moreover, our religion, which is devoted to God, grants man the right to not have any faith, as it is written in the mighty Koran: 'Whoever wills – let him believe; and whoever wills – let him disbelieve' [Koran 18:29]... Faith is in the heart, and no one knows it but Allah. Therefore, it is not the right of people to search for it. It is between man and his Maker, and therefore it is an absolute right... The constitution does not forbid the adoption of any non-monotheistic faith or participation in its rituals... The constitution does not forbid a Chinese tourist who believes in Buddhism or an Indian who believes in Hinduism from praying in their hotel room according to their beliefs..."[21]

However, Egyptian author and human rights activist Nawal Al-Sa'adawi dismissed the significance of this addition, saying, "Article 2 abnegates the article of absolute freedom of belief."[22]

Article 74: Restoring The Ban On Religious Political Parties

The new draft constitution restores the 2012 constitution's ban on religious activity and the establishment of religious political parties – a ban added to the constitution in 2007 by president Mubarak, and which in the 2012 constitution was replaced with a ban on political parties based on "religious discrimination."

Another article omitted from the 2012 constitution was Article 44, which banned harming Allah's messengers and prophets.

II. Human Rights: Expanding Constitutional Articles On Equality And Nondiscrimination; Civilians May Be Tried In Military Tribunals

In addition to the identity clauses, the new draft constitution includes articles on equal rights and obligations regardless of religion, faith, gender, race, etc., and without explicit mention that this equality is limited by the principles of shari'a. The draft says that the state will strive for gender equality and that it is responsible for ensuring women's rights to hold public office and roles in the judiciary.

Also, the new draft constitution is the first to recognize the authority of international human rights conventions signed by Egypt, and to ban punishment of journalists for publication offenses, except for incitement to violence, discrimination against citizens, or libel. It says that the state will act so that state media are neutral, and that it will require the state to expand investment in education and health care in order to bring Egypt to a globally acceptable level in both areas. However, the new constitution also includes a clause permitting the prosecution of civilians in military tribunals for a wide variety of offenses; this is opposed by the youth organizations that supported Mursi's ouster.

Commitment To International Human Rights Conventions

The new draft constitution's human rights approach is better than the 2012 constitution's. This is made clear in the preamble, which expresses a commitment to international human rights conventions (albeit only ones signed by Egypt) – which was completely absent from all previous constitutions. The preamble states: "We are drafting a constitution that paves the way to the future for us, and which is in line with the Universal Declaration of Human Rights, which we took part in the drafting of, and approved." A commitment to international human rights conventions also appears in Article 93, which reads: "The state is committed to the agreements, covenants, and international conventions of human rights that were ratified by Egypt. They have the force of law after publication..."

Two articles in the draft constitution require the government to devote resources to health care and education at globally acceptable levels. Article 18 requires the government "to allocate to health a percentage of government expenditure that is no less than 3% of Gross Domestic Product (GDP). The percentage will gradually increase to reach global rates." Article 19 requires "allocating a percentage of government spending that is no less than 4% of the GDP for education. It will gradually increase this until it reaches global rates."

Expansion Of Articles On Equality And Nondiscrimination

While the 2012 constitution stated that the law applies equally to all citizens without discrimination, but did not specifically mention race, religion, and so on, the new draft constitution expands this and gets specific: "Citizens are equal before the law, possess equal rights and public duties, and may not be discriminated against on the basis of religion, belief, sex, origin, race, color, language, disability, social class, political or geographical affiliation, or for any other reason. Discrimination and incitement to hate are crimes punishable by law. The state shall take all necessary measures to eliminate all forms of discrimination, and the law shall regulate the establishment of an independent commission for this purpose." (Article 53).

This trends towards equal rights and nondiscrimination is supported by articles already mentioned: Article 1's definition of the principle of citizenship; the omission of Article 219, which was seen as discriminating against Shi'ites since it based its interpretation of Article 2's principles of shari'a on the foundations of Sunni Muslim law; and Article 64's definition of freedom of belief as "absolute," to the satisfaction of Shi'ite and members of other religious minorities. However, as previously mentioned, freedom of worship and religious minorities' rights to be tried according to their own custom in religious matters apply only to members of the three main monotheistic religions.

Improving Women's Status; No Protective Quotas For Parliamentary Seats

Women's rights are better protected by the new draft constitution than by all previous constitutions; it notes: "The state commits to achieving equality between women and men in all civil, political, economic, social, and cultural rights in accordance with the provisions of this constitution. The state commits to taking the necessary measures to ensure appropriate representation of women in the houses of parliament, in the manner specified by law. It grants women the right to hold public posts and high management posts in the state, and to appointment in judicial bodies and entities without discrimination. The state commits to the protection of women against all forms of violence, and ensures women empowerment to reconcile the duties of a woman toward her family and her work requirements. The state ensures care and protection for motherhood and childhood, for [working women], elderly women, and women most in need." (Article 11). This article goes even further than its counterpart in the 1971 constitution, which did indeed grant women equal status, but made gender equality subject to the shari'a. It also goes further than its 2012 counterpart, which did not specifically mention that women's status is equal to men's.

The phrase "to ensure appropriate representation of women in the houses of parliament" came after the constitution committee demanded that a certain number of parliamentary seats be reserved for women, as a form of affirmative action. However, ultimately the committee decided not to reserve seats for any group, and eliminated the decades-old Nasser-era quota of 50% of seats for representatives of farmers and workers.

To protest against this elimination of seats for farmers and workers, the two labor representatives, Yousri Ma'ruf and 'Abd Al-Fattah Ibrahim, withdrew from the Committee of 50;[23] the elimination also sparked a public outcry. For example, Supreme Constitutional Court deputy head Tehani Al-Gebali called it a mistake that could lead to an uprising.[24] The constitution committee spokesman explained that the custom of reserving the seats for farmers and workers originated during a time when Egypt had a one-party political system, while under the current multiparty system, any group can form a party to represent it in parliament, in accordance with the will of the voters.[25]

Instead of the previous quota, Article 243 stipulates that "the state [will act to] grant workers and farmers appropriate representation in the first House of Representatives to be elected after this constitution is adopted, in the manner specified by law." According to the draft constitution, youths – who are defined as persons under 35 – are assigned 25% of seats in local councils; women, 25%, and workers and farmers, 50%, including proper representation for Christians and the disabled (Article 180).

Freedom Of The Press: Reduced Penalties For Publication Offenses

Regarding press freedom, the new draft constitution limits punishment for publication offenses strictly to cases of incitement to violence, discrimination against citizens, or libel – a distinction which was absent in all previous constitutions. This article is intended to prevent cases like that of journalist Ibrahim 'Issa, editor of the Al-Tahrir paper, who was sentenced to one year in prison in 2007 for publishing details about Mubarak's failing health.[26] Many media personalities expressed their satisfaction at this change, including the editor of the Egyptian weekly Al-Qahira, Salah 'Issa, the brother of Ibrahim 'Issa, who wrote in his column in the daily Al-Masri Al-Yawm: "I may be one of the happiest people regarding the articles on freedom of the press and media, which were approved on first reading in the Committee of 50... They [are] the jewel in the crown of a long arduous battle that began with the first non-governmental 'popular' newspaper in Egypt, [which was founded] in 1869..."[27]

Article 71, which deals with publication offenses, states: "No custodial sanctions shall be imposed for crimes committed by way of publication. Punishments for crimes connected with incitement to violence or discrimination amongst citizens, or impugning the honor of individuals are [specified] by law." Like in the previous constitution, limited censorship is only permitted in times of war or general mobilization (Article 71). Article 72 determines that "the state shall ensure the independence of all press institutions and [state]-owned media outlets, in a way that ensures their neutrality and expressing all opinions, political and intellectual trends and social interests..." The new constitution also determines that the National Media Council – a body responsible for handling the matters of media outlets – is an independent entity (Article 211).

The main article that includes a regression in freedoms and human rights is the one allowing civilians to be tried in a military tribunal (see below).

III. Expanding Powers of Military And Police – While Limiting Presidential Powers

The new draft constitution expands the authority of the military and limits the authority of the president compared to the previous one. For the next two presidential terms, it revokes the president's exclusivity in appointing the defense minister and requires the Supreme Council of the Armed Forces (SCAF) to approve his appointment. It also enables trying civilians in a military tribunal, revokes the president's title of supreme commander of the police, and requires consulting the police on legislation regarding its affairs. The draft constitution limits the president's ability to fire the government or replace ministers, as well as his authority to grant pardons. Also, for the first time, it enables parliament members to declare no confidence in the president, and determines that, if the president is on trial, he will not be able to appeal the verdict.

The weakening of the president's status, while granting dominance to the military establishment in managing the affairs of the state, reflects the political situation that emerged in Egypt following Mursi's ouster by defense minister Al-Sisi – a situation where the defense minister appointed the president instead of the other way around. Since then, it seems that the army, led by Al-Sisi, is the one managing affairs of state behind the scenes.

New Egyptian constitution – tailored for Al-Sisi (Raialyoum.com, December 5, 2013)

Excessive Powers For Military, Police

As noted, the new draft constitution grants several excessive powers to the defense minister and the military compared to the 2012 constitution. Like the 2012 constitution, it determines that "the Minister of Defense is the Commander-in-Chief of the Armed Forces, appointed from among its officers" (Article 201), but adds that "the Minister of Defense is appointed following the approval of the Supreme Council of the Armed Forces" (Article 234). The latter article is temporary, and will be valid for two full presidential terms starting after the approval of the constitution. For that period, it effectively revokes the president and government's authority to exclusively appoint a defense minister, stressing that the appointment must be acceptable to the military leadership.

This article sparked criticism from the Egyptian public. Fahmi Huwaidi, an Islamic pundit belonging to the Wasatiyyah stream and known for his support of the MB, wrote in his column in the daily Al-Shurouq: "There is no explanation for the insertion of this article except that it reflects the [power] balance [in the country] at the moment in history when the [constitution drafting committee] was formed. The defense minister [Al-Sisi] is the one who summoned and appointed the president of the Supreme Constitutional Court [Adly Mansour] to the role of president of the republic, and it is apparently inconceivable for a constitution published under these circumstances to determine that the president should appoint the defense minister, just like [he appoints] other ministers..."[28]

Civil forces also criticized the status of the defense minister in the draft constitution. 'Amr Hamzawy, a member of the National Salvation Front (an umbrella organization of opposition forces during the MB regime) and a former member of the People's Assembly, warned in an interview with the website of the daily Al-Shurouq of an intention to establish military rule in Egypt, and said that the language of the constitution formulated by the Committee of 50 creates a unique situation in which the military is "a state above the state."[29]

Another privilege granted to the military in the new constitution is the power to incorporate the military's budget into the state budget as a single, given figure (Article 203) after it is discussed by the National Defense Council – a body made up of the president, prime minister, heads of parliament, intelligence cheif, military commander-in-chief, commanders of the sea, land, and air branches, and the head of the operations unit – and not by parliament. (In other words, the parliament has no say over the military budget). It should be mentioned that the 2012 constitution included a similar article stating that the military budget would be discussed by the National Defense Council, but it did not establish that said budget would be incorporated as a unit into to the state budget. An article stating this appeared in November 2011 in a document of base principles for the constitution formulated by then-deputy prime minister Dr. 'Ali Al-Silmi, under the rule of the SCAF that replaced Mubarak after his ouster. However, it sparked criticism and protests and was abandoned upon the appointment of a new government.[30]

Furthermore, there was no change to the article stating that the National Defense Council should be consulted on any legislation concerning the military.

Expanding The Article On Trying Civilians In Military Tribunals

The new draft constitution expands the article dealing with the possibility of trying civilians in military tribunals compared to the 2012 constitution. While the previous constitution permitted to try civilians in military tribunals on offenses of harming the military, the 2013 article is more detailed, stating: "Civilians cannot stand trial before military [tribunals] except [in cases of] crimes that represent a direct assault against military facilities, military barracks, or [who]ever falls under the authority [of the military]; military or border zones; [military] equipment, vehicles, weapons, ammunition, documents, secrets, general property or factories; crimes related to conscription; or crimes that represent a direct assault against [military] officers or personnel [in the course of] performing their duties. The law defines such crimes and determines the other competencies of the Military Judiciary..." (Article 204)

This article caused a public outcry, among both MB and Al-Sisi supporters. Fahmi Huwaidi wrote: "The constitutional article related to trying civilians in military tribunals was a misstep in the 2012 Egyptian constitution, but has become a disaster in the new draft constitution... The worrisome and frightening expansion of the authority of the military judiciary, which will no longer only discuss transgressions involving officers and military personnel, but rather another group as well – 'whoever falls under the authority of the military' – opens the door to trying anyone who confronts employees on economic projects belonging to the military, such as gas stations, contractors and water-bottling companies, hospitals and hotels... The optimists imagined that the new constitution would clean up the shameful language of the 2012 constitution, but we were surprised to see that we have not progressed, as we thought, [but rather] regressed several steps back..."[31]

Others criticized the article, but expressed willingness to tolerate it so that the constitution would be approved. Renowned Egyptian author 'Alaa Al-Aswany, who opposed the SCAF's rule but has supported Al-Sisi since Mursi's ouster, wrote in his column in the daily Al-Masri Al-Yawm: "This constitution places Egypt at the start of a democratic regime, apart from two unfortunate articles: [First,] the article requiring the president to receive consent from military commanders before appointing a defense minister. This article stands in contrast to a democratic regime, since the essence [of such a regime] is that the elected president has the authority to appoint and dismiss the defense minister without receiving anyone's consent. However, this article, despite its drawbacks, can be accepted because it is temporary and will be automatically revoked in eight years. In addition, the framers of the constitution took into account the extraordinary circumstances that Egypt is in and wanted to preserve the stability of the Egyptian military... Another article that is not in line with a democratic regime and cannot be accepted under any circumstances is the one allowing to try civilians in military tribunals...

"There is a legitimate fear, then, that the Mubarak regime will return, and with it the oppression of oppositionists by the means of military courts. But are these fears enough for us to oppose the constitution or boycott the referendum?... Even if we object to a few articles of the constitution, we must endorse it with a substantial majority in order to complete the path of revolution that began on January 25 [2011] and later corrected its course on June 30 [2013]. Opposition to the constitution or a low voter turnout in the constitutional referendum will send us back, make the events of June 30 into a coup, and grant the MB legitimacy that it does not deserve..."[32]

In contrast, some justified the option of trying civilians in military tribunals. For example, Al-Wafd columnist Hassan Al-Rashidi wrote: "The normal citizen respects the armed forces, is proud of them, and will never accept harming [military] personnel or facilities. Those who attack them must be urgently tried in an appropriate court. We have courts that specialize [in various fields], like family court that debates family matters, [and] an economic court that discusses economic matters. Should we leave military matters to non-military courts?..."[33]

Another article in the draft constitution that can be seen as serving the interests of Defense Minister 'Abd Al-Fattah Al-Sisi is Article 230, which was added to the draft in the final moments before its approval. This article grants interim president 'Adly Mansour the authority to hold presidential elections before parliamentary elections, and to decide the method of elections in both cases. This, in contrast to what stated in the road map drafted by Al-Sisi upon Mursi's ouster, according to which, after the approval of the constitution, the state would hold parliamentary elections first, and only then presidential elections. Moving the presidential elections up could help Al-Sisi if he decides to run for office, since he has thus far enjoyed widespread popularity – although he has recently been criticized by youth movements that supported his ousting of Mursi following a law prohibiting sit-down strikes.[34]

The new draft constitution calls for the establishment of a Supreme Police Council, whose members are senior officers and which must be consulted on laws concerning the police (Article 207).

Concurrently, the new draft constitution restored an article requiring the state to combat terrorism in all its forms (Article 237). A similar article appeared in the 1971 constitution (Article 179) but not in the 2012 constitution. For this reason, and since in the months since Mursi's ouster, the Egyptian regime's struggle against the MB has been described by many Egyptian media outlets as a struggle against terrorism, MB members claim that this article is intended to enable their persecution and prevent them from future political organizing.[35] It should be mentioned that on December 25, 2013, leading up to the constitutional referendum, the Egyptian government declared the MB a terrorist organization.[36]

Limiting President's Authority

The president's powers under the new constitution are not very different than those granted him in the 2012 constitution. Some of them have been restricted even further than in the previous constitution, and only in a few cases have they been expanded. The new draft constitution grants the president more leeway in appointing MPs compared to the 2012 constitution, which enabled him to appoint up to 10% of the Shura Council (upper parliamentary house), meaning up to 15 representatives. The new draft constitution abolishes the Shura Council altogether and determines that parliament will be comprised of a single house with 450 delegates (Articles 101-102). The president is given the authority to appoint up to 5% of these delegates, meaning up to 23. Expanding this authority is meant to enable the president to ensure representation by weak groups with no reserved seats such as women, Cops, youths, workers and farmers.

As said, limiting the president's authority is manifested in cancelling his exclusivity in appointing a defense minister in the coming years. In addition, he is no longer the supreme commander of the police. The president can no longer fire the government or replace its members without approval of parliament (Article 145). Agreements made by the president regarding a cease fire, alliance, or sovereignty require approval by referendum (Article 151), and not just by parliament as in the 2012 constitution. The new draft constitution also includes an article enabling parliament to vote no confidence in the president under certain conditions (a provision that was absent in the 2012 constitution), and to move up the presidential elections (Article 161). Article 159 determines that if the president stands trial, the verdict given by tthe special court established for that purpose will be final with no possibility of appeal.

Like in the 2012 constitution, the new draft constitution does not require the president to appoint a deputy. If the president is temporarily unable to perform his duties, the prime minister will stand in for him (Article 160). The 2012 constitution enabled the president to declare a state of emergency with the approval of parliament for six months, and only extend it another six months if approved by referendum (Article 148). The new draft constitution limits a state of emergency to three months and extensions must be approved by parliament (Article 154).

Though the draft constitutions limits the president's powers, the deputy editor of the oppositionist Islamic daily Al-Misriyyoun, Gamal Sultan, believes that it still grants the president excessive authority. According to him, the president should not have the authority to appoint the prime minster, for example, and the constitution should allow the formation of a government out of the majority party in parliament. He wrote: "The new constitution establishes a new Pharaonic kingdom for the benefit of the presidency and military establishment, and precludes any balance of powers... This is not democracy, but rather dictatorship and tyranny, regardless of how many pertty articles the constitution contains – since the constitutions of all oppressive regimes in the third world include pretty articles on the freedoms and rights of the people, but all these [pretty articles] dissipate in the face of the head of state or the military taking over the other state institutions..."[37]

The dictatorial military reigns supreme, borne up by "the New Egyptian Constitution" (Hespress.com, December 2, 2013)

*L. Lavi is a research fellow at MEMRI.

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