An Examination Of Egypt's Draft Constitution Part I: Religion And State – The Most Islamic Constitution In Egypt's History

Introduction

In the past two weeks, Egyptian President Muhammad Mursi has accelerated the process of approval of the new Egyptian draft constitution. On December 1, 2012, following marathon meetings of the Constituent Assembly, he announced that the draft would be put to public referendum in two weeks' time, on December 15, 2012. This was despite widespread public opposition to the composition of the assembly and to the substance of some of the constitution's articles, and despite the fact that some 40% of the assembly's members – representatives of the liberal factions – had withdrawn from it.

In his December 1 speech, Mursi took pride in the completion of the draft constitution, presenting it as "a further step in the completion of the revolution" and as "the first time in Egypt's history that the constitution is in keeping with the people's will."[1] In actual fact, however, this was just one more step completing a series of measures taken by Mursi to impose the will of the Muslim Brotherhood (MB) upon the constitution of post-revolution Egypt.

On November 22, 2012, some ten days before the Supreme Constitutional Court was scheduled to issue its ruling in liberal lawsuits against the legitimacy of the Constituent Assembly, Mursi issued a new constitutional declaration – a kind of interim constitution – in which he granted himself sweeping judicial authorities, after already having gained all executive and legislative powers. Through this constitutional declaration, Mursi was trying to maintain the MB's dominance in the Constituent Assembly. He gave the assembly a two-month extension to complete its work, as well as immunity in an effort to preempt the Supreme Constitutional Court from dissolving the assembly on grounds that it does not represent the entire population. The court faced a conflict of interests, since it, too, opposes certain articles in the draft constitution that undermine its status; consequently, it is reasonable to assume that it would have ruled in favor of the assembly's dissolution.

The constitutional declaration sparked an unprecedented popular protest against Mursi, with tens of thousands of demonstrators taking to the streets. In response, hundreds of thousands of Mursi supporters staged counter-protests. Mursi took advantage of the turmoil to expedite still further the process of approving the constitution, stating that such approval would put an end to the concentration of powers in his hands. To appease the protestors, he promised not to make use of his legislative powers before the referendum either.[2]

However, even his announcement of the referendum on the constitution aroused the protest of his opponents, and especially of former presidential candidates 'Amr Moussa, Hamdin Sabahi, and former IAEA secretary-general Dr. Mohamed ElBaradei. The anti-Mursi protestors in Tahrir Square responded to his call for a referendum with boos, saying that he had lost his legitimacy and was betraying the revolution with a constitution that reflected the will of the MB alone.[3]

The MB is interested in passing the constitution out of the assumption that its approval in the referendum would mean the successful completion of the interim stage and would consolidate the MB's rule, while the process of formulating the constitution was making the situation in the country even more volatile, exacerbating social polarities, and sparking widespread demonstrations and protests. In addition, through the proposed draft constitution, the MB hopes to send a message – both within Egypt and internationally – that Egypt under its helm is not bowing to Islamic radicalism. At the same time, it is trying to leave the formulations of articles pertaining to religious status vague and convoluted, giving room for maneuvering and making it possible to grant the constitution a more radical interpretation at a later date. The approval of the constitution would be an achievement for the MB in its clashes with the judiciary. While it would divest the president of some of the unlimited authorities that he holds today, it would still leave him with substantial powers.

This report, the first in a series dealing with the new Egyptian constitution, analyzes the constitutional articles pertaining to several issues and compares them to the Egyptian constitution of 1971. Part I deals with the articles relating to the status of religion in Egypt. Future installments will deal with articles pertaining to the president's authorities, to the role of the judiciary in post-revolution Egypt, to the status of the military, and to general freedoms and human rights.

Past Constitutions – From A European To An Islamic Orientation

Egypt's first constitution was passed in 1882 during the era of Tawfiq Pasha, who ruled Egypt and Sudan at the time. In 1923, with the end of the British protectorate era in Egypt, a new European-influenced constitution was drafted, which defined the state's parliamentary structure and set out the political powers of the king as head of the executive branch. This constitution was in effect until 1953, though it was suspended by the king in 1930 as part of his struggle against the Wafd Party, which opposed him, and reinstated in 1935 in response to public pressure.

The 1923 constitution was overturned following the 1952 Free Officers Revolution. In February 1953, a Temporary Constitutional Declaration was issued, lending constitutional legitimacy to the rule of the Revolutionary Council, and in January 1956 a new constitution was adopted that defined Egypt as a presidential republic and as part of the Arab nation. In 1958, with the formation of the United Arab Republic (UAR), which was a political federation between Egypt and Syria, a joint constitution was endorsed, which remained in effect until 1964 (though the UAR itself was dissolved in 1961). In 1964 a temporary constitution was passed, which was replaced by a new constitution in 1971, during the Sadat era. The latter remained in effect until the ouster of Mubarak in 2011, though some amendments were made to it over the years.

An important and controversial feature of the 1971 constitution is Article 2. The first part of this article, stating that "Islam is the state religion [of Egypt] and Arabic is the official language," is based on Article 149 of the 1923 constitution, which was abolished after the Free Officers Revolution; the second part of this article, stating that "the principles of the Islamic shari'a are a main source of legislation" [our emphasis], was an addition, representing an attempt by Sadat to appease the Islamic factions whose power was on the rise at the time following the failure of Nasserism and Egypt's defeat in the 1967 war with Israel.

In 1980, following a decline in his status in Egypt, Sadat rephrasing Article 2 as yet another concession to the Islamic factions. The new version stated that the shari'a was "the main source of legislation," instead of "a main source" [our emphasis]. This amendment was regarded by many in the Islamic factions as a historical achievement and a real constitutional revolution – one that put an end to imperialist Western dictates superseding the laws of the Islamic shari'a.

However, under Mubarak, Egypt's Supreme Constitutional Court gave Article 2 a reading that displeased the Islamic factions. The latter favored a broad interpretation of this article, according to which all laws that had been previously passed in Egypt, as well as all laws that would be passed from then on, had to conform to the Islamic shari'a. The court, on the other hand, imposed a narrower interpretation: it applied the article only to laws passed from that point (1996) onwards, and decreed that these laws had to conform only to a limited number of shar'ic texts of absolute validity, namely texts about which the various jurisprudent schools of thought within Islam are in agreement.

In 2007, the 1971 constitution underwent further amendments. This time the presidential election process was changed, allowing the direct election of the president from among several candidates, instead of the referendum process that had been used until then. In 2007, following tensions between the Mubarak regime and the MB, and the latter's intention to form an official party, further amendments were made to the constitution, including the introduction of a ban on forming denominational parties and of an article on combating terror.[4]

Following the January 25 revolution, the 1971 constitution was suspended by the Supreme Council of the Armed Forces (SCAF), which ruled Egypt after Mubarak's ouster. An abbreviated version of this constitution, with amendments aimed at limiting the powers of the president and the duration of his term, was ratified by referendum in March 2011, and a constitutional declaration was issued setting a timetable for transferring power to an elected parliament and president. On the eve of the June 2012 presidential election, the SCAF issued a supplementary constitutional declaration ensuring the continuation of its rule and vesting it with many of the president's military and security powers.[5] Following his election in August 2012, Mursi revoked this supplementary declaration,[6] and, as mentioned, on November 22, 2012 he issued a new constitutional declaration expanding his powers at the expense of the judiciary branch. This latter declaration decreed that no decision by Mursi could be challenged though the courts until the endorsement of a new constitution and the election of a new People's Assembly; granted the Constituent Assembly a two-month extension to draft the new constitution and stipulated that nobody is authorized to dissolve it or the Shura Council; and dismissed the Prosecutor General, appointing another in his place.[7]

Muslim Brotherhood Takeover Of The Constituent Assembly

The constitutional declaration issued on March 30, 2011 required the Egyptian parliament to form a 100-member Constituent Assembly, which was to draft a new constitution within no more than six months from its establishment and put it to referendum.[8] This task turned out to be difficult, however, since the political forces could not agree on the assembly's composition. The assembly was eventually formed by the parliament only in late March 2012, and was headed by Dr. Sa'd Al-Katatni, of the MB, at the time People's Assembly chairman. Half of its members were MPs, and 65% of its members were from the Islamic factions.[9] The assembly's composition sparked public outrage and demonstrations, and about one month later, in late April 2012, it was dissolved by the Administrative Court on grounds that the assembly's members must be appointed based on their qualifications rather than merely by virtue of their membership in parliament. The court also pointed out that the constitutional declaration did not explicitly specify that they must be MPs at all.

Islamic takeover of the Constituent Assembly

The present Constituent Assembly was appointed by the parliament ahead of the June 2012 presidential election. Headed by Supreme Judicial Council head Hossam Al-Ghariani, it officially includes an equal number of representatives from the Islamic factions and from the civil (i.e., non-Islamic) factions, and comprises 33 representatives of Egyptian parties (eight parties in all); seven women; seven representatives of the youth movements and the families of the revolution victims; 10 members of Al-Azhar and other shari'a institutions; eight Copts; 28 legal experts representing the judiciary system and the universities; 10 writers, thinkers, and academics; seven labor union representatives; four representatives of the workers and farmers; and one representative of the Egyptian diaspora.[10] Like the previous Constituent Assembly, this one too had an Islamic majority, since some of the "civil" representatives are members of Al-Azhar and of the Islamic-oriented Al-Wasat party. In fact, many of the civil representatives resigned from it in protest over this inequality.[11]

Consequently, the assembly has been operating in the shadow of a legal battle by liberal circles to dissolve it as well. The Supreme Constitutional Court was scheduled to rule on their lawsuits on December 2, 2012, and was expected to dissolve the assembly, since this court itself objects to several articles of the draft constitution that undermine its status.[12] However, on November 22, 2012, in a new constitutional declaration, Mursi stripped the court of the authority to dissolve the assembly, thus rendering the assembly immune to judicial oversight. This sparked unprecedented outrage in Egypt against Mursi, leading tens of thousands to take to the streets. The protesters accused Mursi of granting himself even more powers than the ousted president Mubarak and demanded to revoke the latest constitutional declaration. Mursi refused to back down; moreover, despite the deep controversy over the constitution, he expedited the process of approving it and announced it would be put to referendum on December 15, 2012, explaining that its approval would put an end to the concentration of powers in his hands. [13]

Controversy Over Constitutional Articles Pertaining To Status Of Religion

The draft constitution currently on the table is more Islamic than any of previous constitutions, even if it is not as far-reaching as the Islamic constitutions of Iran or Saudi Arabia, for example – as the Salafis would have liked it to be.[14] The articles pertaining to religion in the new Egyptian draft constitution reflect an effort to find common ground upon which both liberal and Islamic camps could agree, one that would be acceptable both to the moderate and the more extremist circles within the Islamic camp. In the course of the formulation process, the MB managed to impose its will with regard to most articles of the constitution, while still giving an impression of moderation compared to the more extremist proposals raised by the Salafis, and while appearing to be taking the desires of the liberal streams into consideration. This impression was achieved by leaving some of the articles pertaining to religion vague and ambiguous, and leaving it to Al-Azhar, which enjoys wide support, to wage the battle with the Salafis and the liberals in the Constituent Assembly – thus making it appear as if it was Al-Azhar, rather the MB itself, that was waging this battle. This is suggestive of an alliance between the MB and Al-Azhar, in which the latter would continue to back the regime in exchange for the safeguarding of its role as Egypt's supreme religious authority.

Unlike the Document of Constitutional Principles, drafted in November 2011 by former deputy prime minister Dr. 'Ali Al-Silmi on behalf of the SCAF, which reflected the liberal voices in Egyptian society,[15] the draft constitution reflects the weakening of the liberal voice – which is heard more loudly in the media than in the Constituent Assembly – and the decline in the standing of the military elite and in its role in the decision-making in Egypt. The controversy over the constitution also reflects the power struggles within the Islamic camp – between Al-Azhar, which is trying to maintain its role as the main religion authority in the state, and the Salafis, who have become politically prominent since the revolution and who are trying to gain influence in the religious establishment. Al-Azhar is trying to maintain the delicate status quo, in place in recent decades, which provides for partial implementation of the shari'a, whereas the Salafis are trying to gain constitutional endorsement of the full implementation of the shari'a, a move that would lead to the Islamization of Egypt.

President Mursi recently declared commitment to implementing religious law. According to Mursi, "all agree that the Islamic shari'a is the constitution that rules all aspects of life. Only what was conveyed in the honorable Koran will be read and only it will be heeded… [The Koran] will be the basis for all matters pertaining to the general populace – not only Muslims – and to their activities in politics, agriculture, economy and all other fields."[16] In practice, however, the MB has generally sided with the relatively moderate Al-Azhar in the partial (rather than full) implementation of the shari'a. Its stance on this matter points to the movement's pragmatism and its willingness to make compromises on its ideology as it makes the transition from a persecuted opposition to the ruling power responsible for the country's stability. Nonetheless, senior MB officials have made it clear that they still consider full implementation of the shari'a to be their end-goal, but one to be achieved at a later stage, once the people's hearts and minds have been gradually attuned to this.

Following is a summary of the articles in the draft constitution pertaining to the status of religion.[17]

Article 1, which deals with Egypt's orientation, was amended. It now defines the Egyptian people as "part of the Islamic nation," a definition that did not appear in the previous constitution.

Article 2, which defines Islam as the "state religion" and "the principles [our emphasis] of Islamic shari'a" as "the main source of legislation," remains intact. The decision to leave it unchanged was a compromise between the Salafis and the liberals. The Salafis wanted the word "principles" either deleted or replaced with the word "directives"; in other words, they wanted full implementation of the shari'a, as in the early days of Islam. The liberals would have preferred to see the entire article deleted and Egypt defined as a civil state, or, at the very least, to leave the article with its original wording and to interpret the term "principles of the Islamic shari'a" as universal principles of justice, liberty, and equality. Leaving this article unchanged also reflects an effort of the MB to convey to the West and to the Egyptian citizens that its rise to power did not portend a radical Islamization of Egypt.

Article 219, added to the constitution to clarify Article 2, states: "[The expression] 'principles of Islamic shari'a' refers to the general methods of juridical argumentation, to fundamental juridical rules and principles, and to the [written] sources recognized by the Sunni juridical schools." Its role is to prevent a narrow reading of Article 2, like the liberals want or like the interpretation given by the Supreme Constitutional Court in 1996, according to which legislation from then on would be in keeping only with limited parts of the shari'a about which the various jurisprudential schools within Islam are in agreement. Article 219, in contrast, gives Article 2 a broader reading, which would enable the implementation of a larger part of the shari'a and require legislation to conform to the principles of Sunni law. The article was intended to appease the Salafis and to dispel the charges leveled against the MB that it had given up on implementing the shari'a by its opposition to the amendment of Article 2. Out of consideration for liberal circles, this article was placed toward the end of the constitution, and not immediately following Article 2, in order to indicate that it was of lesser importance. Article 219 allows the codification of the shari'a and enables discrimination against all who are not Sunni Muslims, including Shi'ites. It is not clear at this point how it will affect legislation in practice.

Article 3, newly added to the constitution, defines "the canon principles of Egyptian Christians and Jews" as "the main source of legislation for their personal status laws, their religious affairs, and the selection of their spiritual leaders." This article was introduced in order to create a semblance of tolerance and to appease the Copts, who claimed that Article 2 would serve as a basis for discrimination against them; however, it does not refer to other non-Muslim religions, such as Bahais.

Article 4 was added to the draft constitution in order to consolidate the status of Al-Azhar as the state's religious authority. It defines Al-Azhar as "an encompassing independent Islamic institution, with exclusive autonomy over its own affairs" and the Al-Azhar Sheikh as an "independent" position-holder who "cannot be dismissed." In other words, this article recognizes Al-Azhar as the supreme religious body of Egypt and presents it as an apolitical body independent of the regime. Nevertheless, Article 4 states that Al-Azhar's Supreme Council of Clerics is to be consulted in matters pertaining to Islamic law – a notion that appeared in the platform of the MB's Freedom and Justice Party.[18] The inclusion of this clause in Article 4 reflects the great influence of the MB on the draft constitution. Its inclusion is also aimed at requiring the Supreme Constitutional Court – the sole body with the authority to interpret the laws and determine whether they are in keeping with the constitution, including with the principles of the shari'a mentioned therein (Article 175) – to consult with Al-Azhar on matters pertaining to the shari'a. At the same time, the opinion of Al-Azhar in matters of Islamic shari'a is not binding. The phrasing is the outcome, on the one hand, of pressure by the Salafis to divest the Supreme Constitutional Court of its exclusive authority to interpret principles of shari'a, and, on the other hand, of taking into consideration the liberal voices that call to refrain from giving the religious establishment legislative authorities.

Article 5 states that "sovereignty is for the people; it is they who exercise and protect it, and safeguard national unity, and they are the source of authority, in the manner specified in the constitution." This phrasing is contrary to the position of the Salafis, who insisted upon writing that sovereignty is for the Lord.

Article 6 states that "the political system is based upon the principles of democracy and shura (an Islamic principle obligating the ruler to consult with authoritative advisors)." This addition, too, represents an attempt to please both the liberals, who wished to define Egypt's regime as democratic, and the Salafis, who wished to avoid the term democracy and use the term shura instead. The inclusion of both terms represents a compromise between the two approaches. The Salafis on the Constituent Assembly agreed to this phrasing on the grounds that it distinguishes Egyptian democracy from Western-style democracy and defines Egypt as a parliamentary regime subject to Islamic tradition, which means that practices such as same-sex marriage, for example, are not permitted. Conversely, moderate Islamic and liberal circles accepted this phrasing on the basis of the rationale that shura is a component of democracy and does not detract from the democratic character of the regime. The article goes on to state that the political system is based upon the principles of "citizenship (under which all citizens are equal in rights and duties), multi-party pluralism, peaceful transfer of power, separation of powers and the balance between them, the rule of law, and respect for human rights and freedoms." This was intended to clarify that despite the inclusion of Islamic principles, Egypt is not a theocracy.

Article 6 also abolishes the prohibition on forming denominational parties – which was part of Article 5 of the previous constitution – specifying instead that "no political party shall be formed that discriminates on the basis of gender, origin, or religion." The ban on denominational parties was added by Mubarak in 2005 to the 1971 constitution in order to prevent the MB from forming a political party and running for parliament. The new phrasing means that a party may not restrict its membership on the basis of religion.

Article 10 states: "The family is the basis of society and is founded on religion, morality, and patriotism. The state and society strive to preserve the genuine character of the Egyptian family, its cohesion and stability, and to protect its moral values, all as regulated by law. The state shall ensure maternal and child health services free of charge and shall enable the reconciliation between the duties of a woman toward her family and toward her work..." This article omits the clause, present in the previous constitution, that specifies that the state shall ensure equality between men and women without violating the directives of the Islamic shari'a. This clause was rejected by women's organizations, which feared that subjecting women's equality to the directives of the shari'a would lead to lowering the legal age of marriage, mandating the hijab, denying women the right to divorce, etc. The Salafis, for their part, insisted upon the inclusion of the reference to the shari'a, refusing to let the equality clause stand without it. The clause in the 1971 constitution that ensured women representation in parliament was also removed from the draft constitution. There is, however, some attempt to address the issue of discrimination – albeit not specifically with regard to women – in Article 33, which states: "All citizens are equal in the eyes of the law. They have equal public rights and duties without discrimination."

Article 43 states that "freedom of belief is an inviolable right" and that "the state shall guarantee the freedom to practice religious rites and to establish places of worship for the divine religions [our emphasis]." Human rights organizations wanted the article to include the words "absolute freedom of belief," claiming that the weaker phrase "freedom of belief" prevented one from converting to another religion. Moreover, this article provides for the worship of monotheistic religions only, in contrast to the previous constitution, which did not restrict freedom of worship to specific religions of any kind.

Article 44 states that "insult or abuse of all religious messengers and prophets shall be prohibited." This article was added on the initiative of Al-Azhar in order to prevent blasphemy. The original proposal was to prohibit affront to the essence of God and to the Companions of the Prophet, but, following pressure by Shi'ites and Copts, only part of Al-Azhar's proposal was accepted.

A more detailed discussion of the controversy over each of these articles will be presented in an upcoming MEMRI report.

* L. Lavi is a research fellow at MEMRI.

Endnotes:

[1] Al-Ahram (Egypt), December 2, 2012.