Three months ago, Egypt’s 50-member Constituent Assembly headed by politician Amr Moussa was tasked with amending the 2012 constitution, which was suspended on 3 July after the ouster of former president Mohamed Morsi. The assembly received a bundle of proposed amendments from the 10-member judicial committee appointed by interim president Adly Mansour in August and has been working on them since.
Early this week the Constituent Assembly finished drafting the final amendments and submitted them to the presidency as a preparatory step for a public referendum to be held in the upcoming weeks.
Before finishing the constitution, a campaign was started calling on Egyptians to participate in the referendum, saying, “Participation in the constitution is a ‘Yes’ to the 25 January and 30 June revolutions.”
Although the billboards and advertisements placed on main streets and roads in Cairo do not directly tell people to vote “Yes” in approval of the draft, their design, wording and colour (particularly the green colour highlighting the “Yes”) are reminiscent of the same campaign that Islamists used to support the 2012 constitution.
Meanwhile Islamists supporting deposed president Morsi are calling for a boycott of the referendum rather than a ‘No’ vote, saying their participation would legitimise the current regime, which they do not recognise.
A smaller campaign was also launched on social media, composed mostly of activists and students, calling for rejecting the draft via a “No”. They have criticised several controversial areas of the draft; starting with the preamble, describing its phrasing as weak and expressions as clichéd, and ending with Article 204, which allows exceptions for military trials for civilians.
The final draft of the amendments includes 247 articles rather than 236 in the suspended 2012 constitution. While the drafters of the amendments repeatedly commented that most of the new articles had been added to improve rights and freedoms, some commentators said they saw little difference from the suspended constitution of 2012. On the contrary, they viewed it as more empowering of the military that the constitution has written under its auspices. The following is comparison between the contentious articles in the two constitutions in an attempt to shed light on improvements and shortcomings.
The state and its identity
The new draft preserves Article 2 of the 2012 constitution, which stipulated that “Islam is the religion of the state, Arabic is its official language and the principles of Islamic Sharia are the main source of legislation.”
However, it cancels out the controversial Article 219, which explained what Islamic Sharia principles are to be used, and restricted them to those in Sunni doctrines. This article had caused many to view the 2012 constitution as having a sectarian character, since it explicitly spoke to the Sunni Muslim majority.
In Article 7, the new draft cuts out the authority of Al-Azhar’s Association of Senior Scholars to be consulted in matters pertaining to Islamic law, an authority granted them in Article 4 of the 2012 constitution. This was after much debate and criticism about how this stipulation could be abused to pass repressive laws.
Articles 10 and 11 of the 2012 version emphasised the role of the state in “preserving the genuine character of the Egyptian family,” and obligated the state to “safeguard ethics, public morality and public order.”
Article 11 of the new draft drops most of that ambiguous phrasing and requires the state to protect women from violence, ensure their empowerment and achieve equality between them and men in civil, political, economic, social and cultural rights. It also grants women the right to be appointed in judicial institutions and public office and obligates the state to guarantee women are adequately represented in representative councils and bodies. The 2012 constitution did not include a similar clause.
Rights and freedoms
With regards to rights and freedoms, the new draft seems to have brought some improvements as well as disappointments.
For example, in Article 43 of the 2012 constitution, freedom of belief was made an “inviolable right,” but the state was required to guarantee the freedom of practicing religious rituals to all and to establish houses of worship for the three celestial (Abrahamic) religions; Judaism, Christianity and Islam. Instead of developing the article further in the new draft, it became more restrictive. Now Article 64 makes freedom of belief “absolute,” but restricts both the freedom of practicing religious rituals and the establishing of houses of worship to the followers of Abrahamic religions as regulated by the law.
However, the amendments remove Article 44, which prohibits insulting religious messengers and prophets and was included in the suspended constitution, with the apparent purpose of gaining leverage with the Salafis back then.
Moreover, Article 53 of the 2012 constitution, which came under fire from labour union for limiting the establishment of trade unions to one per profession and thereby advancing “state infiltration and control of unions” was included in the new draft as Article 77, with only slight changes in its wording.
Article 64 of the suspended constitution stated that work is a right granted by the state, but allowed forced labour “in accordance with the law” if “performing a public service” for a defined period of time and for a fair wage and without breaching workers’ rights. This is a slight improvement from the 2012 version; nevertheless, human rights activists advocate the elimination of forced labour altogether.
Article 73 of the suspended constitution banned all forms of oppression, forced exploitation of humans and sex trade. However, Islamists said they saw no need to add “human trafficking” to the article, claiming that the phenomenon did not exist in Egypt. The new draft rephrases the prohibition and places it in Article 90 to include human trafficking and all forms of slavery.
The amendments include additional articles not present in the 2012 constitution. Among them is Article 69, which requires the state to protect intellectual property rights in all fields and to establish a body that regulates these rights.
Another is Article 72, which obliges the state to guarantee the independence of the state-owned media and journalistic institutions so as to ensure objectivity and representation of all opinions, ideologies and social interests.
Furthermore, Article 74 bans the formation of political parties based on religious, racial, sectarian or geographical basis. The article also bans establishing secretive parties and parties with a military or semi-military nature. It also prohibits establishing parties that are “hostile to democratic principles.”
Finally, Article 90 requires the states to encourage the philanthropic endowment system “Al-Awkaf” and to guarantee its independence. Professionals working on philanthropic endowments have praised this article because they say the return of the awkaf system would open up new means of investment and social solidarity.
The inherent and common problem with regards to the articles in the freedoms and rights sections of the new draft and the preceding constitutions lies in the reference to the law (i.e. ending many articles with the phrase “in accordance with the law”) which can include clauses and loopholes that infringe on some of these freedoms granted by the constitution.
The parliament and representation
The new amendments eliminated the Shura Council from governance, leaving the House of Representatives as Egypt’s sole legislative body. This has been a long-sought demand because the Shura Council had been abused by political parties to ingratiate their politicians while expending a significant budget with no clear job description.
Article 113 of the 2012 constitution was amended to Article 102 in the new draft where the number of parliament members increased from 350 to at least 450. The article allows the president to appoint about 5% of parliament members. This clause is newly added and problematic because the appointed members may impact some decisions that require the approval of the majority of the parliament members, such as in the case of accusing the president of treason as stated in Article 159 of the same draft.
Additionally, Article 229 of the 2012 constitution, which requires a 50% representation of farmers and labourers in the House of Representatives has been eliminated in the new draft. This clause that has been part of Egypt’s constitutions for over 60 years, however it has proven problematic in practice, as some areas are considered neither agricultural nor industrial. Nevertheless, Articles 243 and 244 require the state to “adequately” represent farmers, labourers, youth, Christians, the disabled, and Egyptian expatriates, in the first parliament elected after the constitution passes.
Due to unconstitutionality of the parliamentary election law Article 229 of the new draft has been made in line with Article 102 of the same draft and it stipulates that candidates will run either individually, through electoral party-lists or using a mixture of both systems. Consequently, specifying which electoral system has been left to the interim president to decide.
The debate over which elections are to be held first – presidential or parliamentary – has also been left to Mansour. However, Article 230 of the new draft states that regardless of which elections are held first, the other must be held six months after the constitution passes.
Unlike the 2012 constitution, in which the political system was presidential/parliamentary, the new draft divides powers between the president and the prime minister following more of a semi-presidential system.
In the new draft Article 123 grants the president the right to issue or object to laws. This clause was not included in the 2012 constitution; instead the parliament had the upper hand on what laws to issue by notifying the president of them.
With regards to the president’s power to dissolve the parliament through a popular referendum, Article 127 of the 2012 constitution stipulated that the president would resign if the votes were against dissolving the parliament. The new draft drops out this clause in Article 137 and does not provide any procedural steps if the referendum results are negative.
Article 139 of the suspended constitution regarding the appointment of the prime minister and his/her cabinet was amended in the new draft and replaced by Article 146. It allows the president to assign a prime minister to form the cabinet and present its programme to the House of Representatives for approval. If the cabinet receives a no-confidence vote within 30 days, the president appoints a new prime minister from the party that has the majority of seats in the parliament. If the new prime minister and the cabinet fail again to get a vote of confidence from the majority of the parliament members within another 30 days, the parliament would be dissolved and the president should call for new parliamentary elections within 60 days.
The new draft is controversial in Article 142 regarding the criteria for presidential candidates. For a candidate to qualify to run in the election, he or she has either to either be endorsed by at least 20 parliament members or collect 25,000 signatures from people from 15 governorates – at least 1,000 per governorate.
According to Nour Farahat, a constitutional expert, the article may conflict with Article 230, which does not specify which elections should be held first; presidential or parliamentary. If the parliamentary elections were held first then this contradicts with the roadmap, which sets presidential elections before parliamentary elections.
However, if presidential elections were held first, then one of the two qualifications for presidential candidates would not be available for them to use because the parliament would not be there for candidates to be endorsed through. Farahat thinks that parliamentary elections are likely to be held first so as to avoid this constitutional legitimacy dilemma.
Article 185 of the draft stipulates that the judicial bodies have an independent budget that will be incorporated in the state budget as a single figure. This raises the question of whether the independence of the judiciary contradicts with having a detailed account of its budget.
A positive amendment was made to Article 176 of the suspended constitution regarding the members of the Supreme Constitutional Court. Instead of restricting the number of the members to ten and their president, Article 193 of the draft states that the court is made up of “a sufficient number of deputies, advisors and assistant advisors.” This gives the court greater flexibility in handling cases.
The appointment of the Minister of Defence in Article 195 of the suspended constitution was by the president, like other civil and military personnel. However, Article 234 of the new draft stipulates that the Supreme Council of the Armed Forces will approve the appointment of the Minister of Defence for two presidential terms. Additionally, Article 203 of the draft that determines the functions of the National Defence Council, states that the council would discuss the armed forces’ budget, which will be incorporated as a single figure. These two stipulations further the idea that the military enjoys more autonomy from the rest of the executive body of the Egyptian state.
Since 25 January, activists have been campaigning against the military trial of civilians, but the 2012 constitution came to disappoint these calls and when Article 198 was passed. It allowed military trials on the condition of getting involved in crimes that harm the armed forces leaving the law to define and determine these crimes.
The new draft was no better, with Article 204 only defining these crimes, reading: “It is not permissible for civilians to stand military trials except in crimes that represent direct assault on military establishment, the armed forces’ camps and the like, or the military areas or its border zones, its equipment, vehicles, weapons, ammunitions, documents, military secrets, public funds, factories, or crimes related to conscription or crimes that constitute a direct assault against its officers and personnel while performing their work.”
Article 204 remains one the reasons political groups such as 6 April Youth Movement (Democratic Front) is calling for the constitution to be rejected, and leaning towards issuing a constitutional declaration rather than going back to the 1971 or 2012 constitutions if the draft is rejected.
Overall, there seem to be some improvements in a number of articles in the new draft, especially in the rights and freedoms articles; however, these improvements are accompanied by key setbacks in other important sections of the draft and even several articles of the rights and freedoms section. The majority of actors in the political arena have announced their support for the constitution, including the conservative Al-Nour party. Religious institutions including Al Azhar, the Ministry of Religious Endowments and the Church are all encouraging the people to take part in the referendum. The current media narrative also praises the constitution and demonises the position taken by the Muslim Brotherhood supporters to boycott the referendum. A minority who is against both the Brotherhood and the current military-backed interim government disapprove of the constitution, but are still caught between a rock and hard place; rejecting the constitution would prolong the transitional period, boycotting the referendum would empower the Muslim Brotherhood and voting ‘yes’ approves of a constitution that they believe to be unjust. Nevertheless, the public remains the most influential player in the equation. How it would react to the new draft and what the result of the constitutional referendum to be held sometime in the future would be, however, remain unpredictable.