Middle East Task Force

Cairo--Protestors hold a giant Egyptian flag aloft in Tahrir Square on November 26, 2011.(Photo by Peter Macdiarmid/Getty Images)

The Middle East Task Force announces the launch of the Constitution Watch, a unique website dedicated to monitoring constitution-making that will detail and analyze current constitutional processes ongoing in countries of the Middle East and North Africa. Our first entry examines the progress in Egypt.

By Mara Revkin

After months of fierce debate between Islamists and non-Islamists over the text of a new constitution to replace the military-issued interim charter that has governed Egypt’s transition, the process of writing a new legal framework is once again on the brink of collapse. After a long struggle with military intervention in the constitutional process—in which the ruling Supreme Council of the Armed Forces (SCAF) lobbied to ensrhine a privileged status for the armed forces into the new charter—the constituent assembly tasked with writing the constitution faced fierce disagreement between the Islamist majority and their liberal and secular opponents who sought to curb the role of Islamic law in the new constitution and demanded guarantees for rights of women and religious minorities. Controversy over the constituent assembly escalated in November, as the Supreme Constitutional Court prepared to issue a long-delayed ruling on the disputed legality of the assembly – a potentially game-changing decision that could dissolve the assembly before its work is complete and send the constitutional process back to square one. In an effort to preempt the ruling and force the fragile assembly to complete its mission, President Mohamed Morsi intervened radically in the constitutional process on November 22 by unilaterally issuing amendments to the interim constitution that immunize the president’s decisions from judicial review and shield the Constituent Assembly from legal challenges. Tens of thousands of protesters rallied in Cairo and other cities to protest the decree, and judges went on strike across the country. On November 29, the Constituent Assembly hastily approved the final draft of the constitution after President Morsi compressed the timeline for its completion. Critics have voiced concerns that the draft preserves too prominent of a role for Islamic law and the status of the military. Others fear that the gaps and silences in the constitution are more dangerous than its explicit provisions, and leave open areas of ambiguity that will require clarifying legislation drafted by an Islamist-dominated Parliament.

Under growing pressure from the streets and the opposition, Morsi annulled his controversial November 22 decree, in a partial concession to critics, but at the same time refused to yield to demands for a cancellation of the referendum and issued a new law imposing martial law in the days leading up to the vote. The referendum remains scheduled for December 15 against a volatile backdrop of street protests in Tahrir Square and outside of the presidential palace, crippling labor strikes, paralysis of the judiciary, and resignations from Morsi’s inner circle. Although the Judges’ Club has reluctantly agreed to supervise the referendum with conditions, a spokesman for the professional association estimated that three-quarters of the judges will defy the official position and boycott their traditional monitoring role anyway. A large-scale boycott by the opposition and judiciary would deal a devastating blow to the document’s already disputed legitimacy, and could send the constitutional process back to square one.

Overview

After months of fierce debate between Islamists and non-Islamists over the text of a new constitution to replace the military-issued interim charter that has governed Egypt’s transition, the process of writing a new legal framework is once again on the brink of collapse. After a long struggle with military intervention in the constitutional process—in which the ruling Supreme Council of the Armed Forces (SCAF) lobbied to ensrhine a privileged status for the armed forces into the new charter—the constituent assembly tasked with writing the constitution faced fierce disagreement between the Islamist majority and their liberal and secular opponents who sought to curb the role of Islamic law in the new constitution and demanded guarantees for rights of women and religious minorities. Controversy over the constituent assembly escalated in November, as the Supreme Constitutional Court prepared to issue a long-delayed ruling on the disputed legality of the assembly – a potentially game-changing decision that could dissolve the assembly before its work is complete and send the constitutional process back to square one. In an effort to preempt the ruling and force the fragile assembly to complete its mission, President Mohamed Morsi intervened radically in the constitutional process on November 22 by unilaterally issuing amendments to the interim constitution that immunize the president’s decisions from judicial review and shield the Constituent Assembly from legal challenges. Tens of thousands of protesters rallied in Cairo and other cities to protest the decree, and judges went on strike across the country. On November 29, the Constituent Assembly hastily approved the final draft of the constitution after President Morsi compressed the timeline for its completion. Critics have voiced concerns that the draft preserves too prominent of a role for Islamic law and the status of the military. Others fear that the gaps and silences in the constitution are more dangerous than its explicit provisions, and leave open areas of ambiguity that will require clarifying legislation drafted by an Islamist-dominated Parliament.

Under growing pressure from the streets and the opposition, Morsi annulled his controversial November 22 decree, in a partial concession to critics, but at the same time refused to yield to demands for a cancellation of the referendum and issued a new law imposing martial law in the days leading up to the vote. The referendum remains scheduled for December 15 against a volatile backdrop of street protests in Tahrir Square and outside of the presidential palace, crippling labor strikes, paralysis of the judiciary, and resignations from Morsi’s inner circle. Although the Judges’ Club has reluctantly agreed to supervise the referendum with conditions, a spokesman for the professional association estimated that three-quarters of the judges will defy the official position and boycott their traditional monitoring role anyway. A large-scale boycott by the opposition and judiciary would deal a devastating blow to the document’s already disputed legitimacy, and could send the constitutional process back to square one.

Participating parties

Egypt’s Constitution is being drafted by a parliament-elected constituent assembly according to the transitional roadmap specified in the SCAF’s March 30, 2011 decree. After the first two attempts to form an assembly were derailed over allegations of Islamist domination of the process, a third assembly was successfully elected on June 13, 2012 according to a carefully calibrated compromise on the composition of the 100-member committee, to include:

• 39 members of parliament
• 6 judges
• 9 legal experts
• 13 union representatives
• 21 public figures, five members of al-Azhar
• 4 representatives of the Coptic Orthodox Church
• 1 representative each of the armed forces, the police and the Ministry of Justice

The compromise was intended to appease liberal and leftist political forces who boycotted the first constituent assembly in protest of the over-representation of Islamist, who held 66 seats.

The compromise also specified numerical quotas for the 39 seats held by political party members:

• 16 for the Muslim Brotherhood’s Freedom and Justice Party (FJP)
• 8 for the Salafi Nour Party
• 5 for the centrist Wafd Party
• 2 for the Free Egyptians Party
• 2 for the Egyptian Social Democratic Party
• 1 for the moderate Islamist Wasat Party
• 1 for the Nasserist Karama Party
• 1 for the Socialist Popular Alliance Party
• 1 for the liberal Reform and Development Party
• 1 for the Islamist Building and Development Party (the political wing of al-Gama’a al-Islamiyya)

Critics of the Constituent Assembly have continued to express concerns about its diversity. Prominent political figures, including former presidential candidates Mohamed ElBaradei and Hamdeen Sabbahi called publicly for the assembly to disband in late September, 2012, and the prominent human rights activist Manal al-Tibbi resigned her seat on September 26 in protest of “the dominance of political Islam over the assembly.” 

Structure of constitution

The current draft of the constitution [English translation here], released on October 14, 2012, consists of five major chapters and 13 subsections. The 231-article draft is incomplete. Negotiations are still in progress over the wording of key controversial clauses and the preamble has yet to be written. The basic structure of the document is as follows:

The Preamble

1. The State and Society
2. Rights, Freedoms, and General Duties
3. General Powers
   1. Legislative Power
      1. Common Provisions
      2. The House
      3. The Senate
   2. Executive Power
      1. The President of the Republic
      2. The Cabinet
   3. Judicial Power
   4. Local Administration System
   5. Security and Defense
4. Regulatory Agencies and Independent Bodies
   1. Common Provisions
   2. Regulatory Agencies
   3. The Economic and Social Council
   4. National Elections Commission
   5. Independent Bodies
5. Final and Transitional Provisions
   1. Amending the Constitution
   2. Common Provisions
   3. Transitional Provisions

The role of Islam

The role of religion in the constitution is a point of contention between Islamists who favor the application of Sharia law and non-Islamists who are opposed to any expansion of the religious clauses contained in the 1971 constitution.

Ninety percent of Egyptians are Muslim and Islam has held a prominent role in all of Egypt’s Constitutions, starting with the 1923 charter that marked the end of British colonial rule. But whereas the 1923 and 1930 constitutions limited the role of Islam to the official state religion, the 1956 constitution expanded the religious provisions to define Islamic law as “a main source of legislation.” Amendments to the constitution in 1971 further strengthened the status of Sharia by proclaiming Islamic law “the principal source of legislation,” thus effectively elevating Islamic law over competing bodies civil jurisprudence. Nathan Brown has situated the expansion of religious provisions in the Egyptian constitution within the context of a broader regional trend toward “Islamic inflation,” which started in the second half of the nineteenth century. Brown argues that despite the remarkable expansion of Islamic provisions, the effect of these amendments has been primarily rhetorical, with little impact on the structure of political systems in Egypt and elsewhere in the Islamic world. The provisions were designed primarily as statements of national ideology, and contain no concrete mechanisms for altering the basic infrastructure of governing institutions.  Despite evidence that Islamic constitutional provisions have far less impact on a country’s overall legal environment than parliamentary legislation, Egypt’s draft constitution is still viewed as an ideological battleground that could fundamentally reconfigure the relationship between religion and the state. 

Article 2 of the current draft constitution has been a subject of intense controversy between Islamists – who are demanding an expansion of the religious provisions contained in the interim constitution (and the 1971 constitution on which it is based)– and liberal and secular political forces, who insist that the previous language be at the very least preserved, and ideally scaled back in the interests of guaranteeing religious freedom and equality for all Egyptians. While the Muslim Brotherhood’s FJP has become more amenable to compromise with non-Islamits, the ultraconservative Salafis have taken a hard stance on “Article 2,” proposing that the word “principles” be replaced with “rulings” -- a switch that would require Egyptian laws to comply not only with the abstract values of Sharia, but with concrete and detailed legal rulings, as Nathan Brown has noted.  This subtle rhetorical shift might open the door for restrictions on women's rights and religious freedoms, justified with reference to specific decisions in Islamic jurisprudence. Salafis lobbied to eliminate the word “principles” or replacing it with “rulings,” but the Muslim Brotherhood – wary of the need to reach a consensus with liberal and non-Islamist forces -- promoted a compromise that retained the 1971 wording. In exchange for this concession, liberals agreed to accept the Islamist-proposed Article 221, which contains a legal definition for Sharia.  

The content of religious provisions in the new constitution will depend heavily on how the Muslim Brotherhood mediates an ideological tug-of-war between ultraconservative Salafis and their non-Islamist opponents over the appropriate relationship between Islam and the state. The Brotherhood has taken a more gradualist approach, prioritizing the immediate goal of consolidating its own political power above the long-term objective of implanting Sharia. In the interest of ratifying the new constitution as quickly as possible, the Brotherhood has been willing to make strategic and largely symbolic concessions to liberals and minorities, notably the preservation of the previous constitutions Islamic provision, Article 2, “to keep [up] appearances and show that it’s attempting to reach a consensus,”according to Egyptian political scientist Ashraf El-Sherif. Responding to these concessions, Salafis have accused the Brotherhood of backstabbing and dragging their feet on the application of Sharia.  Meanwhile, the compromise has failed to placate non-Islamists. On November 17, eight out of ten members of an advisory committee providing technical assistance resigned, complaining that their advice was being ignored. One day later, 12 liberals and five Christians withdrew from the constituent assembly, citing similar concerns that the voices of non-Islamists were not being heard.

Minority rights

One of the most controversial changes from the 1971 constitution is the addition of Article 37, which appears to roll back guarantees on freedom of belief for religious minorities. An earlier version of the draft Article 37 stated that "freedom of belief was absolute." But the current draft has watered down this provision, stating that "freedom of belief is protected." The clause goes on to guarantee the right to construct houses of worship for the “Celestial religions” – meaning Islam, Christianity and Judaism – but is silent on the rights of religions outside of the Abrahamic faiths. Under this constitutional framework, religious minorities such as the Baha’I -- a historically marginalized community in Egypt – will have no legally protected right to freedom of belief.

Women’s rights

The draft constitution sends contradictory signals on the rights of women. Article 30 of the current draft bans gender discrimination, a guarantee that was not included in the 1971 constitution. However, the October 24 draft of the constitution also included Article 68 – a controversial holdover from the 1971 constitution – which makes clear that women’s rights are qualified by the requirements of Islamic law. The article, which has reportedly been dropped from the current working draft, guarantees gender equality, subject to the limitations of Sharia. Under pressure from women’s rights groups and human rights activists who feared that the preservation of Article 68 would give the Islamist-dominated parliament free rein to introduce regressive legislation curbing women’s rights in the areas of inheritance, divorce, and other personal status matters, the constituent assembly has reportedly eliminated the article from the latest draft, expected in late November.  

Freedom of Expression

The draft constitution contains more explicit protections for freedom of expression than the 1971 constitution, but also includes a number of problematic exceptions. Article 45 states that “freedom of thought and opinion shall be guaranteed,” and “every individual has the right to express an opinion and to disseminate it verbally, in writing or illustration, or by any other means of publication and expression.” However, these freedoms are curbed by important qualifications. Article 31 prohibits “insulting or showing contempt” toward any individual, and Article 44 bans religious blasphemy, defined as “insult or abuse of all religious messengers and prophets.”A wave of anti-blasphemy prosecutions since the revolution – at least 17 different cases – has raised concerns that a constitutional provision barring insults to religion could have a chilling effect on freedom of expression and instigate sectarianism. In one of the most publicized cases, two Coptic Christian boys were detained on October 4, 2012, on charges of defiling pages of the Koran.

Critics of the draft constitution have also targeted Article 45, which sends contradictory signals on media freedom and allows for the possibility of censorship. While the article guarantees that “media shall be free and independent,” it also requires that they act "in accordance with the basic principles of the State" and society, and respect “the requirements of national security.”

Decentralization/regionalization

Decentralization is a controversial topic in post-revolutionary Egypt. Proponents of decentralization argue that the current system is too Cairo-focused, and advocate delegating greater powers to local governments. Their opponents argue that decentralization undermines national security and unity, and may also give rise to corruption. The latter camp appears to have prevailed in the draft constitution, which deals with decentralization in Chapter IV (Articles 186-195).  The draft does not allow for the election of governors or mayors. It only provides for the formation of partially elected councils to supervise each local administrative unit, which can be dissolved at will by the central government. Article 186 specifies that the state is divided into several local administrative units and that each unit can contain one or more village or city, but the article does not make clear how these units are to be integrated with or replace the existing system of municipal councils. The structure and powers of the local governing units will need to be clarified by new legislation.

Egypt’s 1971 constitution provided for the election of local councils, but specified few limits on their powers and selection criteria.  In the 1990s, local councils had become powerful players in the Egyptian political landscape, and by 2006, USAID had partnered with the Egyptian government to launch the Egyptian Decentralization Initiative, aimed at supporting greater public participation in decision-making, and strengthening the capacity, efficiency and transparency of local governing institutions. Although local councils were intended to decentralize the political system and enhance government accountability, but corruption and cronyism ran rampant as a result of inadequate oversight and regulation. Under Hosni Mubarak’s rule, it was estimated that 97 percent of municipal council members belonged to the former ruling National Democratic Party.

The current draft attempts to clarify the municipal councils’ power and administrative structure, but also contains holdovers from the 1971 constitution that are likely to perpetuate institutional problems of corruption and inefficiency in local government.  Proponents of decentralizing measures in the draft constitution, including Local Development Minister Ahmed Zaki Abdeen, have adopted a revolutionary social justice rationale to argue that the reforms will promote development and empower local governments to address economic inequality. However, the draft provides little guidance on how decentralization can be operationalized without the corruption that tainted municipal councils in the Mubarak era. As Zaid al-Ali notes, the draft is troublingly silent on the powers of governors, and does not specify any mechanism of recourse to investigate or dismiss local officials who engage in misconduct or corruption. Furthermore, the draft does not adequately specify the separation of powers and responsibilities between local assembles and the federal government, which could lead to inefficiency and miscommunications in the delivery of public services.

Separation of powers

Egypt’s political system has historically been dominated by a strong executive branch, and one of the few points of agreement between Islamists and non-Islamists has been on the need to curb presidential powers. The draft constitution provides for a mixed or semi-presidential system of government that limits the powers of the presidency, relative to the executive-dominated constitutions of 1956 and 1971. The draft constitution tilts the balance of power away from the executive branch and toward the legislature, by empowering the latter to withdraw confidence from a prime minister elected by the president.  However, on balance, the legislature’s powers remain limited. Parliament may propose legislation, but the laws cannot take effect without presidential ratification. The president also reserves the right to issue a veto, which Parliament can only override with a majority vote in each chamber.

Some critics of the draft fear that power remains too heavily concentrated in the executive branch, and at the outset of the transition, the Muslim Brotherhood had advocated for the introduction of a pure parliamentary system that would give the Islamist-dominated legislature exclusive control over cabinet appointments. Although the Brotherhood backed down from this demand under pressure from critics whof eared that Islamists might monopolize two out of three branches of government, many analysts believe that the Brotherhood remains committed to the long-term objective of achieving a pure parliamentary system.

Although the draft constitution does not require parliamentary approval of either the prime minister or cabinet officials, it does grant Parliament the power to reject the cabinet’s policy program.

The draft does impose some new limitations on the executive branch. Article 149 authorizes the president to appoint and dismisses military officials and political representatives (presumably including governors and diplomats), but not civil servants, who can be appointed and dismissed solely by the prime minister, according to Article 164. This provision, echoing a similar clause in the French constitution, appears aimed at restoring the integrity and independence of the Egyptian civil service, which was permeated by nepotism and political favoritism under Mubarak.

The president has retained many traditional powers in the draft constitution, including the authority to declare war and states of emergency subject to the approval of the legislature. The president may call for amendments to the constitution, and maintains the right to veto legislation passed by Parliament. 

One of the most significant structural changes embodied in the draft is the significant expansion of the powers of the Prime Minister, who is responsible for overseeing the day-to-day work of the cabinet. It is worth noting that this change gives the Prime Minister some control over the leadership of the armed forces through the appointment of the Defense Minister.

While it is clear that the draft constitution has reduced presidential powers to some extent, the practical effect of the changes remains to be seen.  Gamal Gibril, who heads the constituent assembly’s “political systems” sub-committee, told reporters in October 2012 that the new constitution will reduce the president’s powers “by half,” but when pressed to elaborate, he declined to specify which powers had been taken away.  In preserving the president’s power of appointment over key posts -- Prime Minister, the heads of the intelligence services, state media editors and Supreme Court judges, among others -- the draft ensures that the executive branch will continue to wield significant control over the political system.

Role of military

For the duration of its interim executive control, ending with President Mohammed Morsi’s inauguration on June 30, 2012, the Supreme Council of the Armed Forces lobbied for the inclusion of special provisions or “supra-constitutional principles” in the new constitution that would potentially shield the military’s budget from parliamentary oversight, give the SCAF veto power over legislation pertaining to the armed forces, and possibly exclusive control over military appointments. Under pressure from protesters and political forces led by the FJP, the SCAF was forced to back down from the supra-constitutional principles.  The military has, for the time being, receded from the political scene, following a dramatic power-play by Mohamed Morsi on August 12, 2012 – in which the newly inaugurated president moved to nullify the SCAF-decreed interim constitution on August 12, 2012 and forced the leading generals into resignation. 

In general, the draft provides for greater civilian oversight of the armed forces. Article 198 – which abolishes the longstanding practice of trying civilians in military courts and prohibits the establishment of exceptional courts – was hailed by human rights advocates as a victory for due process and rule of law. In addition, the National Defense Council will now be staffed heavily by civilians, including the ministers of foreign affairs and of finance. However, Zaid al-Ali notes that many of the military’s privileges have been preserved in the current draft. The draft makes no mention of parliamentary oversight of the military's budget, an omission that will allow the military to continue reporting its budget as a single figure in the annual state budget, a practice that has been widely criticized for lack of transparency. Another indicator of the military’s entrenched status in the political framework is Article 198, which requires that the Minister of Defense be a military officer. Although Article 198 does prohibit military trials for civilians -- a core demand of revolutionaries -- it includes one notable exception "for crimes that harm the armed forces," a category of offenses that could be interpreted expansively to criminalize political opposition.

Judicial Independence

Article 176 has been criticized as a setback for judicial independence from the 1971 Constitution, which stated that judges of the Supreme Constitutional Court (SCC) cannot be removed from their positions.  In early debates over the draft constitution, judges had demanded full control over judicial appointments, a change that would render the SCC a self-perpetuating body. However, the draft constitution authorizes the president to directly appoint judges to the SCC, a throw-back to the Mubarak era. It also reduces the number of justices from 19 to 11, viewed as an effortto eliminate anti-Islamist judges.