FMC Blog: Free Speech Zone

Egypt's Draft Constitution Part One: Religion And State

MEMRI

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had withdrawn from it.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 2005, 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.

[2] Aljazeera.net, December 3, 2012.

[3] Al-Yawm Al-Sabi' (Egypt), December 2, 2012.

[5] On the supplementary constitutional declaration, see Inquiry & Analysis No. 865,

The Egyptian Revolution Is Only Starting: Will Power Be Transferred From The SCAF To The Elected President And Parliament?, July 30, 2012.

[6] On the revoking of the supplementary constitutional declaration, see Special Dispatch No. 4908, Egyptian President Muhammad Mursi Rescinds The SCAF's Authority, August 24, 2012.

[7] Al-Yawm Al-Sabi' (Egypt), November 22, 2012.

[8] Egypt.gov.eg, March 30, 2011.

[9] Al-Ahram, Al-Masri Al-Yawm (Egypt), March 26, 2012.

[10] Ikhwanonline.com, June 13, 2012.

[11]Al-Masri Al-Yawm (Egypt), March 26, 2012, June 13, 2012.

[12] Al-Ahram (Egypt), October 24, 2012.

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

[14] According to the Iranian constitution (in place since 1979), the regime is based upon belief in a single God, His exclusive sovereignty and right to legislate, and upon the necessity to submit to His directives and to divine revelation, and to return to God in the Hereafter. See http://www.iranonline.com/iran/iran-info/Government/constitution.html. The Saudi constitution (in place in 1992) defines Saudi Arabia as an Islamic state with Islam as its religion and the Koran and the Prophet Muhammad's Sunna as its constitution, to which all state institutions are subject. It also states that the rule in the Kingdom is based upon justice, shura, and equality, in accordance with the Islamic shari'a. See http://ar.wikisource.org.

[16] Al-Sharq Al-Awsat (London), August 18, 2012.

[17] This report is based upon the latest draft constitution (http://egelections-2011.appspot.com/Referendum2012/dostor_masr_final.pdf), posted on the official website of the Constituent Assembly on November 30, 2012 (http://sharek.dostour.eg/sharek/).

[18] For the platform of the Freedom and Justice Party, see MEMRI Inquiry & Analysis No. 753, Egypt's Islamic Camp, Once Suppressed by Regime, Now Taking Part in Shaping New Egypt - Part II: Muslim Brotherhood Prepares for Parliamentary, Presidential Elections, October 25, 2011.

By: L. Lavi

Posted December 15, 2012 by Kamal Nawash

Egypt's Draft Constitution Part THREE: Presidential Powers, Status Of Military And Judiciary, Civil Freedoms

MEMRI

Introduction

Previous reports in MEMRI's series on Egypt's draft

constitution dealt with the controversial articles regarding

the relations of religion and state in Egypt.[1] The present

installment addresses the other central issues that have

triggered public criticism of the draft constitution, which is to be brought to referendum on December 15, 2012.[2]

A. Presidential Powers - Compared to the 1971 constitution,

and compared to the sweeping powers assumed by

President Muhammad Mursi in recent weeks,[3] the present

draft constitution does restrict the president's powers, as

many Egyptians had hoped it would after the January 25, 2011

revolution. For example, the draft constitution limits the

president to two four-year terms in office (Article 133),

unlike the previous constitution, which did not set any limits

on presidential tenure. Moreover, unlike the previous

constitution, the new one does not permit the president to

dissolve the parliament at will, but only by referendum (127),

and the president is no longer authorized to declare a state

of emergency of unlimited duration (148). Also, the prosecution

of a president is possible under certain conditions involving

suspicion of criminal activity or treason (152).

However, many of those opposed to the constitution claim that

it still leaves the president with excessive powers[4] that do

not exist in other presidential regimes around the world. For

example, some pointed out that according to the draft

constitution, the president appoints the prosecutor-general

(173),[5] as well as the heads of the bodies charged with

supervising the president himself (202).[6] It was also noted

that, unlike in the previous constitution, the president

appoints the judges of the Supreme Constitutional Court

(176)[7] and must approve every law legislated by parliament (104).

Unlike in the past, the president is no longer entitled to

appoint some 30% of the members of the Shura Council, but

still has the right to appoint up to 10% of them (Article 128).

[8] It was also noted that the article authorizing the

president to appoint and dismiss civil and military personnel (147)

virtually enables him to fire 6,000,000 civil servants and

replace them with appointees of his own choosing,[9] and

that the new constitution, unlike the previous one, does not

require him to appoint a vice president.

B. Human Rights and Liberties - Like the previous constitution,

the new draft constitution enjoins the state to guarantee liberties

such as freedom of speech and opinion (45), congregation (53),

and movement (42), and human rights, such as the right to live in

dignity (31), and the right to employment (64) and education (58). Moreover, the new draft constitution guarantees some rights and liberties that

were not mentioned in the previous constitution, such as the right to demonstrate (50), freedom of information (47), the right to establish NGOs (51)

and newspapers (49), and the restriction of media censorship to wartime only (48) (unlike the previous constitution, which enabled censorship as part of

a state of emergency as well). The new draft also determines

that prisons will be monitored (37), and forbids prisoner torture (36).

On the other hand, to the chargin of human rights organizations

and liberal circles in Egypt, the draft constitution does not include any expression of commitment to international conventions on human rights and

liberties.[10] The detractors of the draft constitution also point out that it permits the shutdown of NGOs (51) and newspapers (48) by court order,

and that, unlike the former constitution, it includes no explicit clause on gender equality, and no explicit ban on discrimination against religion minorities

or women; instead, it includes only a general clause calling

for equality among citizens and prohibiting discrimination (33). In fact, the new constitution opens the door to discrimination against

non-Sunni Muslims, including Shi'ites, by stating that Sunni

Muslim jurisprudence is the primary source of legislation (219).

It also restricts freedom of religious worship to members of the monotheistic faiths (43).

C. Status of the Military - The previous constitution did not address military legislation

and budget, and whether civilians may be tried in military courts. Popular demands to

address these issues in the new constitution arose after

Mubarak's ouster, during the rule of the Supreme Council

of the Armed Forces (SCAF), which sought to establish the

military's supremacy in the constitution, as reflected in the

Constitutional Principles document drafted by its deputy

prime minister, Dr. 'Ali Al-Silmi, in November 2011.

Articles 9 and 10 of that document granted the SCAF the

exclusive right to handle the affairs of the military and its

budget, and the authority to veto any legislation pertaining

to the armed forces.[11] This document, which sparked

widespread criticism and was abandoned with the

appointment of a new government, triggered public demands

to restrict the military's authority in the new constitution.

The draft constitution indeed addresses the controversial issues.

It does not grant the military exclusive authority over its own

affairs, yet it does grant it substantial independence and

influence regarding military decision-making. It determines

that the military budget will not be debated by the parliament,

which handles the rest of the national budget, but rather by

the National Defense Council - which includes the president,

the heads of parliament, the head of intelligence, the chief of

staff, and the heads of the sea, air, land, and operations

branches of the military (197). The president must also

consult this body before declaring war (146), and the

parliament must consult it regarding any legislation

related to the military (197) - two provisions that did not

exist in the previous constitution. Furthermore, the draft

constitution enables the prosecution of civilians in military

courts in cases of offenses "that harm the armed forces"

(198); and, following pressure from the military delegates to

the Constituent Assembly, articles relating to the military

judiciary system remain under the section dealing with the

military, as opposed to the general judiciary section (198).

D. Status of the Judiciary - Like the previous constitution,

the current draft is committed to preserving the independence

and autonomy of the judiciary (168). However, there are

several new key articles that have been met with outrage

among many judges in Egypt, especially those of the

Supreme Constitutional Court, particularly the one

authorizing the president to appoint the prosecutor-general (173),

as well as the justices of the Supreme Constitutional Court its

elf, including its Chief Justice (176). This article overrides a

law set forth by the SCAF after the revolution that determined

that the head of the Supreme Constitutional Court would be

elected by a general assembly of judges.[12]

In addition, the draft constitution includes several articles that

directly challenge the authority of the Supreme Constitutional

Court, in that they override previous rulings by this court.

For example, it determines that members of the National

Democratic Party (NDP) - the ruling party during the

Mubarak era - are banned from serving in public office for

10 years (232), while the Supreme Constitutional Court

ruled that this law contravened the equality clause of the constitution

and that it should be applied only to members of the previous regime

found guilty of corruption.[13] Furthermore, the new draft

determines that the parliamentary elections will continue to

include candidates from party lists alongside independent

candidates (231) - a system that enabled the Muslim

Brotherhood (MB) to win a majority of seats in the

previous People's Assembly, and which the Supreme

Constitutional Court ruled unconstitutional, leading to the

disbanding of this assembly.[14]

In response to the criticism of the draft constitution, its

proponents, chiefly the MB, underscored its advantages by

focusing on articles likely to appeal to the general public -

such as the articles limiting presidential authorities - while

downplaying its controversial articles. For example, in his

December 1, 2012 speech, in which he called for a referendum

, Mursi said: "For the first time in Egypt's history, the

constitution supports the people's will and limits

the powers of the president... who can no longer dissolve the

parliament [at will], but only by referendum."[15] At a

gathering intended to educate the public on the new

constitution, the MB's secretary-general in Giza, Dr. Hilmi

Al-Gazzar, explained that the president will no longer be

entitled to declare a state of emergency or a war without the

approval of parliament.[16] Yet another example of this

focus was an informational video posted on the MB's official

website which explains in simple language the constitutional

articles dealing with salary caps for senior officials, workers'

right to strike, and social security and various other services.

The website also posted reports listing the articles that improve the people's lot. One such report, by Muhammad Kamal, lists 41 articles dealing with

ensuring social justice.[17]

Egyptian Legal Expert: There Is Nothing New In The

Draft Constitution

In an article titled "Ten Reasons To Oppose The Constitution Draft Proposal," published in the independent Egyptian daily Al-Shurouq, Egyptian economist and legal expert Ziyad Bahaa Al-Din, a former member of the People's Assembly and a present member of the Egyptian Democratic Party, outlined the main public criticisms of the above-mentioned constitutional articles. Bahaa Al-Din harshly decried the way in which the Islamic majority in the Constituent Assembly had hijacked this assembly and then finalized and approved the draft with lightning speed. He added that the draft was being imposed upon the people, and had come to symbolize schism and the trampling of the rule of law, concluding: "The way this constitution has been forced upon society, and the claim that we must choose between accepting it and living under a tyrannical constitutional declaration, is reason enough to object to it." The following are excerpts from his article:[18]

"I really tried to examine the draft constitution through the eyes of someone who sees the glass as half full, not half empty. But, sadly, I eventually found myself forced to reject it, for 10 main reasons:

"First, the debate on the Islamic shari'a was unfortunately presented as a debate on the value of the shari'a itself, or [on the value] of faith, while it is [actually] a purely legal question: will legislation remain in the hands of the elected parliament and the justice system in the hands of the courts, or will there be a new source of authority - Al-Azhar's Supreme Council of Clerics - with the dictates of shari'a receiving specific legal recognition?...[19]

"Second, the constitution, which we hoped would bring about clear achievements for the Egyptian people in terms of economic and social rights and human development, includes the usual flowery phrases without imposing specific standards or goals upon the state, and therefore offers [nothing] new."

Pretty Words About Human Rights, But Devoid Of Content

"All imaginable rights were mentioned in the draft constitution, just as they were in many previous constitutions - [including] education and scientific research (Articles 59 and 61), healthcare (62), employment (64), social security (65), benefits (66), housing, water, and food (68), and even sports (69), and the care of children (70) and the disabled (72). However, there is no requirement [that the state] produce results, allocate resources, or even do anything more than just talk. In my estimation, this part of the constitution, which has not received the [public] attention it deserves, is one of the weakest sections, because it will not bring about a noticeable improvement in the public's standard of living, and will not meet its needs."

The Draft Constitution Does Not Ensure Equality Or Prevent Discrimination Between Citizens

"Third, the new draft constitution does not ensure equality among citizens or preclude discrimination among them. [True,] Article 6 states that 'Egypt's political system is based upon citizenship, under which all citizens are equal in rights and duties'; Article 9 states that 'the state shall ensure safety, security, and equal opportunities for all citizens without discrimination'; and Article 33 stipulates that 'all citizens are equal before the law. They have equal public rights and duties without discrimination.'[20]

"However, these pretty words are empty, since the 2012 draft constitution does not include a single text that explicitly prohibits discrimination between men and women in rights and duties, jobs, education, healthcare services, or benefit payments. Nor does it contain a single text explicitly prohibiting discrimination on the basis of religion or belief. It contains no explicit statement about the state's responsibility to end the various kinds of discrimination, or any prohibition against hatred and incitement on a religious basis. It does not criminalize forced immigration or prohibit collective punishment, nor does it defend cultural pluralism, though Egyptian society is characterized by cultural richness and diversity... The new constitution neither defends nor ensures equality between citizens because it largely ignores this issue, perhaps in order to avoid embarrassment, or else out of the assumption that ignoring it is enough - when [the fact is that] equality among the sons and daughters of a nation is the most important message in all the constitutions of the world.

"Fourth, many of the suggestions made by [various] professional unions, associations, and parties regarding rights and guarantees they hoped would appear in the constitution ultimately went unheeded. Sadly, many of those who read the final version of the draft constitution assess it only according to what they find in it, and ignore what is absent and could have been included in it. [For example], Article 70 on the rights of the child does not define the age of minority and does not defend children [against abuse] inside the family. The constitution does not include any text banning torture (Article 36 prohibits the torture of prisoners, but not of citizens in general).

"In addition, [the Constituent Assembly] withdrew its original [intention] to ban imprisoning [journalists] for publication violations; nor does the constitution include the proposed prohibitions on human trafficking, underage marriage, and the violation of women's rights. Additionally, [the Constituent Assembly] did not heed the suggestion to include a clause guaranteeing resources and services for women in order to help them combine their roles in the family and in the [job market], and defending women from violence and guaranteeing their right of inheritance..."

No Change Was Made To The Parliamentary Election Process

"Fifth, turning to [the issue of] the state's political system, we find that, with regard to the legislative branch, the draft constitution leaves the [upper house of parliament], the Shura Council, in place, though [this body] is superfluous - especially since, according to the draft constitution, it is elected by the same procedure as the Senate [i.e. the lower house of parliament, previously known as the People's Assembly]. This means that we will have two houses of parliament, [both elected] in the same way and with more or less identical authorities, [except that] one will convene in a green hall and the other in a red hall, and the two will doubtless spend most of their time smoothing out their differences and debating rules that they must agree on.

"Sixth and more importantly, the draft constitution includes a puzzling clause (Article 231), which states that it has suddenly been decided, without prior warning, that 'two thirds of the seats [in the parliament] are to be won by a list-based electoral system and one-third by individual candidacy, with parties and independent candidates allowed to run in each.' This [clause] is puzzling because... that was the procedure used in this year's [People's Assembly] election [held between November 2011-January 2012], which was bad because it combined all the drawbacks of the list-based system and all the drawbacks of the individual [candidacy] system. Moreover, this addition [to the draft constitution] was made at the last moment, and precluded an understanding between the political forces on this issue [by preventing] a debate on it.

"Seventh... Article 229... reinstates the reservation of half the seats in parliament for workers and farmers. But, since the purpose of this article is [merely] to gain popular support rather than to achieve useful results, [the article] defines 'worker' as 'anyone who is hired by another for a fee or salary.' This basically refers to the entire Egyptian people, with the exception of businessmen and white collar workers..."

Opening The Door To Reinstating Military Courts' Control Over Civil Society

"Eighth, when it comes to the armed forces, the [Constituent Assembly] did not realize all the expectations or heed all the suggestions that were made by the political forces over the last year. [At first,] the principle that civilians are not to be tried in military courts seemed to be taking root in the [draft] constitution, but then, along came Article 198, which ignored this and restored the permission to try civilians in military courts for offences against the armed forces (to be defined in a subsequent law). It was also stated that this law (to be passed at a later date) will define the rest of the authorities of the military court system - which opens the door to restoring the control of the military courts over civil society.

"As for the complicated issue of the armed forces' budget, and the question of whether the parliament is authorized to debate it as it debates the state's budget as a whole, Article 197 ignores the numerous alternatives and impartial concepts that are used around the world to maintain the balance between considerations of national security and the people's right to oversee the national budget. [The Constituent Assembly] chose the worst alternative, granting sole authority to discuss the military budget to the National Defense Council, which is to include, from the legislative branch, only the heads of the People's Assembly and the Shura Council, while the majority of the members of this council are from the military itself. What kind of oversight is this?"

The President Still Has Absolute Authority

"Ninth, regarding the president of the republic, it is surprising to hear from the defenders of the constitution that his rule and authority are severely curtailed. This may be true, but how do you respond to the fact that, [according to the draft constitution,] the president of the republic is the head of the executive branch (Article 132)? [Moreover,] he appoints the prime minister (139), determines the country's general policy (140), is in charge of defense, national security, and foreign policy (141), heads government meetings whenever he wants (143), and ratifies international treaties (145). He is [also] the commander-in-chief of the armed forces (146), and [may] appoint and dismiss civil and military personnel (147), declare a state of emergency (148), grant pardons and commute the prison sentences of convicted criminals (149), and call for referendum (150). He appoints [up to] 10% of the Shura Council delegates (129), as well as the members of the Supreme Constitutional Court (176) and the heads of all oversight mechanisms (202), and he is the head of the National Security Council (193).

"Furthermore, the draft constitution does not require him to appoint a vice president, so he makes all these decisions without involving a possible successor. If this is not absolute authority, what is? If you require further evidence of the expansion of the president's authority, look at the government's powers (159), and you will see that it is devoid of means and authority and is limited to [roles of] 'collaborating [with the president],' 'directing' [and] 'preparing' projects, and 'following [them] up'. All these are authorities befitting the office of the president of the republic, not the government that runs the country."

The Constitution Is Being Forced Upon Society

"Tenth, let us set aside language and look at the conditions under which this constitution is being issued. How can we ignore the fact that it was drafted by an assembly of questionable authority, [since] the People's Assembly that appointed it has been disbanded by court order? [How can we ignore the fact] that one political faction insisted on controlling it from the start? That all delegates of the secular stream withdrew from it in protest over its takeover by the [Islamic] majority? That it was boycotted by Egyptian churches? That two professional unions - the Attorneys Union and the Journalists Union - objected to its activity? That the president of the republic issued a tyrannical constitutional declaration to bullet-proof its makeup and its resolutions?[21] That the Supreme Constitutional Court was besieged so it wouldn't rule on it? And that its final draft was hastily ratified?

"How can we hold a referendum on a constitution that was supposed to be agreed upon, when it has [actually] become a symbol of schism and of trampling the rule of law? The finished product cannot be [viewed] separately from the circumstances and method of its issuing. The way this constitution has been forced upon society, and the claim that we must choose between accepting it and living under a tyrannical constitutional declaration, is reason enough to object to it.

"For these reasons, I call upon you to reject the constitution. Do not believe that the referendum is about choosing between a civil [state] and a religious [one] because, in reality, the choice is between democracy and dictatorship. Don't believe that consenting to this pathetic constitution guarantees us stability, security, and economic prosperity - because the only things that will bring us closer to all those [goals] are concord and unity, rather than division and schism. Do not be afraid to object to this constitution out of a belief that [your] objection will lead to chaos. There are many possible alternatives that are preferable and can lead to true stability. Do not be afraid to object to the constitution, because it essentially does not fit this country."

















President Mursi sets the Egyptian constitution in stone[22]

*L. Lavi is research fellow at MEMRI.

Endnotes:















[2] This report is based on the latest draft constitution published on the official website of the Constituent Assembly on November 30, 2012.

[4] Al-Shurouq (Egypt), December 10, 2012.

[5] Al-Watan (Egypt), December 10, 2012.

[6] Al-Shurouq (Egypt), December 10, 2012.

[7] Hoqook.com, October 17, 2012.

[8] Dawlanews.com, December 5, 2012.

[9] Al-Dustour Al-Asli (Egypt), December 4, 2012.

[10] Al-Shurouq (Egypt), December 10, 2012.

[12] Al-Ahram (Egypt), October 23, 2012.

[13] Al-Ahram (Egypt), June 15, 2012.

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

[16] Ikhwanonline.com, December 4, 2012.

[17] Ikhwanonline.com, December 8, 2012.

[18] Al-Shurouq (Egypt), December 5, 2012.

[20] Translation of constitution articles: egyptindependent.com, December 2, 2012.

[22] Skynewsarabia.com, December 4, 2012.

By: L. Lavi*

Posted December 11, 2012 by Kamal Nawash

Comparison of Egypt's suspended and draft constitutions

Comparison of Egypt's suspended and draft constitutions

Members of Egypt's constituent assembly (29 November 2012)

Members of Egypt's constituent assembly (29 November 2012)

Egypt's Islamist-dominated constituent assembly has approved a controversial draft of the country's new constitution in a session boycotted by most liberals, secularists and Christians.

Critics have warned the draft could impose a more Islamic system on Egypt, and that it fails to guarantee the equality of men and women.

The BBC News website compares the 1971 constitution, which was suspended following the overthrow of Hosni Mubarak in February 2011, and the draft charter, which must be passed by a popular referendum.

1971 constitution (suspended) 2012 draft constitution

Identity of the state: "The Arab Republic of Egypt is a democratic state based on citizenship.

The Egyptian people are part of the Arab Nation and work for the realisation of its

comprehensive unity."

Identity of the state: "The Arab Republic of Egypt is an independent state with unified sovereignty that cannot be divided. Its system is democratic. The Egyptian nation is a part of the Arabic and Islamic nations (Umma). It is proud to belong to the Basin of the Nile and Africa, as well as of its Asian extensions."

Islam and Sharia (Islamic law): Article 2 says: "Islam is the religion of the state and Arabic is its official language. The principles of Sharia are the main source of legislation."

Islam and Sharia: Article 2 stays as it is, but Article 219 is new. It states: "The principles of Sharia include general evidence and foundations, rules and jurisprudence as well as sources accepted by doctrines of Sunni Islam and the majority of Muslim scholars."

Religious minorities: No article in the old constitution.

Religious minorities: "The principles of the legislations for Christian and Jewish Egyptians are the main source of legislation that organises their civil status and religious affairs."

Religion: "The state shall guarantee the freedom of belief and the freedom of practice of religious rites."

Religion: Article 43 says: "The state shall guarantee the freedom of faith and the freedom of practice of religious rites and the right to establish worshipping places for monotheist religions based on law"; Article 44 adds: "Insulting prophets and messengers is forbidden"; but Article 45 states: "Freedom of opinion and thought is guaranteed. Every person has the right to express his opinion orally or in writing, pictures or other means of publication and expression."

Al-Azhar: No mention of al-Azhar University or its scholars was included in the 1971 constitution.

Al-Azhar: "Al-Azhar is an independent and a comprehensive entity. It takes the task of preaching Islam in Egypt and in the whole world. Scholars of al-Azhar should be consulted in all matters related to Sharia."

Democracy and Shura (consultation): "The political system is based on pluralism."

Democracy and Shura (consultation): "The political system is based on principles of democracy and on Shura."

Women: Article 10 says: "The state shall guarantee the protection of motherhood and childhood, take care of children and youth and provide suitable conditions for the development of their talents"; Article 11 adds: "The state shall guarantee the proper balance between the duties of women towards the family and their work in society, considering their equal status with men in the fields of political, social, cultural and economic life without violation of the rules of Islamic jurisprudence."

Women: The new Article 10 says: "The state shall provide motherhood and childhood services for free. It shall also guarantee co-ordination between the duties of the woman and her public work. The state shall provide protection and care for the divorced and widowed woman".

Article 30 states that "citizens are equal before the law and equal in rights and obligations without discrimination", but there is no explicit guarantee of women's rights.

Rights and freedoms: The chapter of rights and freedoms included 24 articles.

Rights and freedoms: The new constitution includes 51 articles on personal rights, political and moral rights, economic and social rights, guarantees for protecting rights and freedoms.

The new Article 73 says: "Enforced employment, slavery and sex trade are deemed acts punishable by law." The draft does not not include a clear ban on human trafficking or an obligation to adhere to international rights treaties.

Military: No article in the old constitution.

Military: "It is not allowed to try civilians before military tribunals unless in cases for crimes that damage the armed forces."

Media: No article in the old constitution.

Media: Article 48 states: "Media organisations cannot be suspended, closed or their assets be confiscated unless there is a judicial decree"; Article 49 adds: "Notification only is required to launch and own newspapers."

Judiciary: No article in the old constitution.

Judiciary: "The Supreme Constitutional Court is formed of a president and 10 members." It currently has a president and 18 members.

Presidential mandate: "The mandate of the president is six years, starting from the results of the elections; the president can be re-elected for an unlimited number of new terms."

Presidential mandate: "The mandate of the president is four years starting from the results of the elections; the president can only be re-elected for a second term, not more."

Political ban on the former ruling National Democratic Party (NDP): Article 232 says: "Leaders of the dissolved NDP are banned from all political activities, or from running for presidential or legislative elections for 10 years, from the day when this constitution is adopted in a referendum. Those who are considered 'leaders' are all members of the general secretariat of the NDP, members of the political bureau, political committee, and MPs during the last two legislative sessions pre-revolution."

BBC

Posted December 09, 2012 by Kamal Nawash

Egypt's Draft Constitution Part TWO: The Egyptian Media Debate Over Religion And State

MEMRI



Introduction

On December 1, 2012, Egyptian President Muhammad Mursi announced that Egypt's new constitution would be put to referendum on December 15. The previous report in this series[1] reviewed Egypt's past constitutions and the events surrounding the establishment of the Constituent Assembly, and presented the articles of the draft constitution pertaining to the status of religion in Egypt.

The present report is a detailed review of the debate and controversy over each of these articles.

The Debate Regarding Article 1

Egypt - An "Egyptian Nation" Or "Part Of The Arab And Islamic Nation?"

In the 1971 constitution, Article 1 was phrased as follows: "The Arab Republic of Egypt is a state with a democratic system, based on citizenship, and the Egyptian people are a part of the Arab nation working toward achieving its comprehensive unity." This article was changed in the current draft constitution, and now reads: "The Arab Republic of Egypt is an independent sovereign state, united and indivisible, its system democratic. The Egyptian people are part of the Arab and Islamic nations, proud of belonging to the Nile Valley and Africa and of its Asian reach, a positive participant in human civilization."[2]

This amendment is an intimation of the Islamization of the constitution. The proposal to change the wording to define the Egyptian people as part of the Islamic, and not merely the Arab, nation appears in an article written by Salafi Sheikh Yasser Burhami, one of the leaders and founders of the Al-Da'wa Al-Salafiyya movement. He wrote that this addition would "affirm the Egyptian people's belonging to both the Arab and the Islamic nation, which is enshrined in the hearts of all Egyptians since the Islamic conquest of Egypt and to this day..."[3]

A dissenting opinion was heard in the public discourse, though not in the Constituent Assembly. In a series of articles published in the Egyptian daily Al-Ahram, columnist Taha 'Abd Al-'Alim called to define Egypt as an "Egyptian nation," not as Arab or Islamic: "Those who criticize the [notion] of upholding the national Egyptian identity are the ones who support Arab identity, pan-Arabism, and Arab unity... [and also] the ones who support Islamic identity, the Caliphate and Islamic unity, who would like [to restore] the Islamic Caliphate state... and those who support Westernization and globalization... In actuality, the Egyptian nation is an existing fact and a tangible reality, whereas... the call for Arab unity is a possible future enterprise... and the call for Islamic unity is a [utopian] Salafi enterprise striving to establish a global religious Caliphate state, which would subsume different and conflicting nationalities, languages, and interests."[4]

















"The Writing Of The Constitution"[5]

Egypt - A "Civil State"?

The previous Egyptian constitutions did not define Egypt as a civil state. This amendment was the aspiration of liberal-secular circles and Copts, who view it as a guarantee that the Islamic shari'a will not be implemented, that religion will be separate from politics, and that religious minorities will enjoy equal rights. As early as August 2011, the Supreme Council of the Armed Forces (SCAF) attempted to ensure that Egypt's definition as a civil state would be anchored in the constitution, as evident in the "Document of Constitutional Principles" written by Dr. 'Ali Al-Silmi, then-deputy prime minister for political affairs and democratization.[6] However, the document aroused great public opposition and sparked violent demonstrations, and it was shelved when the government was disbanded and a new government, headed by Kamal Al-Ganzouri, was established. With the establishment of a Constituent Assembly with an Islamic majority, the hopes of the liberals that Egypt would be defined as a civil state were shattered.

It should be stressed that although most Islamic streams use the term "civil state" in order to appear liberal in Western eyes, they express reservations about including it in the constitution. The Salafis are adamantly against the addition of the word "civil" per se to the constitution, owing to its liberal-secularist connotations. The Al-Nour Party even threatened not to vote for the constitution in the referendum if this word were included, making it clear that it would accept the addition only with an accompanying explanation that the word was used to mean "non-military."[7] The spokesman of the Al-Gama'a Al-Islamiyya party said that his party would not object to the word "civil" if the constitution explicitly explained that it is taken to mean "non-theocratic."[8]

The Muslim Brotherhood (MB) adopted a middle-of-the-road solution with regard to the issue of the civil state. For several years, they have espoused the slogan "a civil state with an Islamic source of authority," which also appears in the platform of their political party.[9] Consequently, they could not object to the use of the concept in the constitution,[10] but they expressed their reservations, saying that it had gained a bad reputation in public opinion because it had come to denote the secularization of the state and a war against religion, and that the concept of "civil" does not appear in any other constitution in the world.[11]

Al-Azhar opposed the use of the word "civil" in the constitution because it could be interpreted in a myriad of ways, and added that the meaning of the term as they understand it is already expressed in the constitution, so there is no need to include the explicit term. A spokesman for Al-Azhar's representatives in the Constituent Assembly explained that Al-Azhar considers a civil state to mean "a national, constitutional, democratic, and modern state, which guarantees the Islamic shari'a and whose source of authority is Al-Azhar."[12] It was reported in the Egyptian media that the Sheikh of Al-Azhar had reached a compromise with the Salafis, according to which the expression "Egypt as a civil state" would not appear in the constitution and the Salafis, in return, would abandon their demand to amend Article 2.[13]

The Controversy Over Article 2

Article 2 of the constitution, which is considered the main article to define the status of religion in Egypt, remains as it was in the previous constitution: "Islam is the state religion [of Egypt] and Arabic is the official language. The principles of Islamic shari'a are the main source of legislation." The debate with regard to this article rocked the Constituent Assembly, and the decision to leave it unchanged, without deletion of the word "principles," as the Salafis had demanded, was the result of MB efforts to allay the fears of many - in Egypt and in the West - that the MB rule in Egypt would lead to the Islamization of the country. The controversy sharpened the differences between the liberal-secular and the Islamic streams in Egypt, and also among the different Islamic streams, with regard to the relation between religion and state.

The Minority Opinion: Abolish Article 2

Only a few called to abolish Article 2 altogether, and this demand did not come to the fore in the Constituent Assembly. The Copts and the liberals in the assembly preferred to concentrate their efforts on struggles more likely to succeed, such as the struggle to leave the article as it is and prevent it from being amended according to the wishes of the Islamic majority in the assembly.

However, calls to abolish the article were heard in the Egyptian media. Egyptian intellectual 'Abd Al-Mu'ti Higazi, for example, wrote: "The constitution [should] recognize only common rights, which pertain equally to all citizens... Article [2] is not a divine revelation, but bida' [a prohibited innovation that deviates from religious precepts], which is foreign to us and was not recognized in any of our constitutions, except for the patchwork constitution that we inherited from the days of Mubarak and Sadat... When [Islamic factions] say that the shari'a is the main source for legislation, they are bringing together two parallel threads that could never meet, for the shari'a pertains to Muslims alone, whereas legislation is the basic right of all Egyptians, since the people is the source of all authorities. How can an Egyptian who is not Muslim accept this article? In fact, how can any enlightened Egyptian [accept it], be he Muslim or non-Muslim?..."[14]

The coordinator of the Egyptians Against Religious Discrimination organization, Muhammad Mounir Mugahid, likewise called to abolish Article 2, as it appeared in the 1971 constitution, because it "provides constitutional sanction for discriminating between citizens on a religious basis." He proposed an alternative phrasing: "Egyptian society is founded upon citizen rights, upon honoring pluralism and dissimilarity, and upon equality between citizens. Arabic is the official language of the state and Islam is the religion of the majority of its people. The intentions of Islam stand alongside the values endorsed by humanity [at large]. The conventions on human rights are a main source of legislation..."[15]

The Salafi Approach: Amending Article 2 To Mandate Full Implementation Of Shari'a Law, Including Koranic Punishments

The Salafi parties Al-Asala and Al-Nour, as well as the Al-Gama'a Al-Islamiyya movement, advocate the full and literal implementation of the laws of the Islamic shari'a, including Koranic punishments such as cutting off the hands of thieves, stoning adulterers, and flogging alcohol imbibers - a radical approach that contravenes the international conventions on human and citizen rights. The proponents of this approach made two main suggestions for amending Article 2:

The first suggestion, typical of Al-Gama'a Al-Islamiyya and Al-Asala, is to omit the word "principles" from the article, so that it reads: "The Islamic Sharia [rather than the principles of the Islamic shari'a] is the main source of legislation." Al-Asala chairman Dr. 'Adel Al-'Afifi even ruled that leaving the word "principles" in place would be an act of heresy. He wrote in the Egyptian Islamic daily Al-Misriyyoun: "Is it permissible to vote for a constitution that makes the shari'a only a main source of legislation - which means that there can be other sources of legislation alongside Allah's shari'a, with equal weight? Is it conceivable that some of the directives of the shari'a will be discarded, and replaced with other directives, anchored in man-made laws? Can we cheat in implementing the shari'a by adding the word 'principles'...? There is no disagreement among religious scholars that whoever adopts another legislator in addition to Allah the Almighty and [grants him the authority] to judge, alongside the shari'a of Allah the Almighty, is an infidel..."[16]

The second Salafi suggestion, promoted by the Al-Nour party, was to replace the word "principles" with the word "directives," so that the article reads: "The directives [emphasis ours] of the Islamic Sharia [rather than the principles of the Islamic shari'a] are the main source of legislation." This means that not only the general spirit or the general principles of the shari'a will be respected, but that all of its directives will be implemented.[17] Al-Nour party spokesman, Yusri Hammad, explained: "The Islamic shari'a includes the absolute principles and the shari'a directives pertaining to all public affairs and all aspects of life, without neglecting even the smallest detail, from the definition of the tenets of the Islamic faith and the essence of belief and worship, to laws pertaining to all aspects of life - from laws on [issues of] family, divorce, marriage, custody, childrearing and inheritance, to laws on governance, justice, shura and the handling of state affairs, and also laws on commerce, buying and selling, possession, and maintaining and developing capital. Moreover, [the shari'a] regulates the state's relations with other states - what is called international relations - and the rules of war and peace according to Islam. It also regulates the relations among the people within the state.

"Then there is the [shar'ic] penal code, which comes to protect society from misconduct by [some people], which undermines these [religious] principles... The punishment for stealing applies to the well-fed who intimidated simple folk who work hard all day to earn a few pennies to feed their families. The punishment for robbery applies to someone who took up a weapon... to rob peaceful passersby, mug women, or kill children in a peace-loving society that seeks security. The punishment for adultery applies to someone who seduces a young girl who could be your daughter or sister. The [shar'ic punishments] are a fence protecting all those living on Egyptian soil, and are not used against honorable and peaceful people who respect the public's safety, property and honor..."[18]

The Middle Way: Leaving Article 2 Unchanged

This approach, which was insistently advocated by the Sheikh of Al-Azhar, Dr. Ahmad Al-Tayyeb, was the most common and dominant of the three. Al-Tayyeb explained his approach in a press conference: "[Article 2, in its existing form], is a message to the Egyptian legislator that he must base the Egyptian laws, in all branches of legislation, upon the laws of the Islamic shari'a and upon the familiar shar'ic schools of thought, or else base them upon the international traditions of legislation, as long as the latter do not contravene the shari'a and serve the public interest. The Supreme Constitutional Court is the only body authorized to assess whether laws are in keeping with the constitution and to abolish any legal clause that contravenes the Islamic shari'a..."[19]

This wasati (middle way) approach aims to maintain the status quo and the delicate balance between the polarized sectors of Egyptian society, namely between those who call to abolish Article 2 altogether and the Salafis who wish to anchor the codification of the shari'a in the constitution. This compromise was endorsed not only by Al-Azhar but also by the Coptic Church and by the majority of liberal-secularists, who recognized the unlikelihood of abolishing the article altogether and preferred the option of leaving it as it is to the option of having it rephrased in more extremist terms. Among those who wished to leave the article unchanged was also the MB, on the grounds that changing it could lead to fitna (civil war) and that the controversy over it could tear the Constituent Assembly apart.[20] In its present role as the ruling force in Egypt, the MB also preferred to leave Article 2 intact in order to calm the situation in the country and allay concerns worldwide regarding the possible Islamization of Egypt under its rule.

This approach was expressed in an article by Egyptian intellectual Fahmi Huweidi, who belongs to the wasati stream. He wrote: "[In drafting its new constitution, post-revolutionary Tunisia] made do with establishing Islam as the state religion, and steered clear of the question of the shari'a. The head of the Al-Nahda movement, Sheikh Rashed Al-Ghanoushi, explained that this phrasing was sufficient indication of the state's identity and religious affiliation. He added that the [Al-Nahda] movement sensed that the issue of the shari'a was a delicate one with [various Tunisian] elites, and therefore decided not to mention it [in the constitution], in order to avoid controversy and maintain national unity.

"Al-Ghanoushi was reasonable and responsible in taking this political [decision]. He read the reality well, and gave priority to the unity of the homeland. In contrast, our brothers [in Egypt] who insist on removing the word 'principles' [from Article 2] and replacing it with the word 'directives' [namely the Salafis] are thinking like preachers who are living in the past and have lost touch with reality and with the homeland. The difference between the two approaches is the difference between open-mindedness and intelligence [on the one hand] and blind narrow-mindedness [on the other]. Practically speaking, the principles [of shari'a], in the sense of its overarching intentions, are more important than its 'directives,' in the sense of its details... Closed-minded secularism is no different from its equivalent in the Islamic camp... There is no difference between one who insists on imposing the directives of the shari'a and one who insists on erasing [Egypt's] Islamic identity."[21]

The MB, which advocated leaving Article 2 unchanged, and opposed the November 2012 protests held by Salafis in demand to implement the shari'a, was accused by many of abandoning the shari'a. The movement defended its stance in a communiqué posted on its official website: "For us, the shari'a is a complete way of life... The penal code of the shari'a is just and precise, for punishments are [only] applied after all the conditions for proving [the perpetrator's guilt] are met. [However,] society must first of all be prepared for understanding and accepting the shari'a, and must be led gradually to its practical implementation. [We] must [first] implement the general intentions [of the shari'a], which society is in need of, [by] observing religion and protecting life, reason, capital and property, so as to ensure the material and mental security of society."

The communiqué clarifies the MB's understanding of the expression 'principles of the shari'a': "The shari'a is based on a system of fundamental principles that are unique to it, in contrast to all man-made laws: leniency rather than severity; removing [the threat of] injustice and harm from individuals and society; placing the public good above the good of the individual and the avoidance of harm over the making of profit; a balance between the rights of the individual and of society; and other well-known shar'ic principles. Basing the laws [of the state on these principles] guarantees the security, welfare, and stability of society... The Islamic shari'a is the most important issue we deal with and aim to inculcate in society. Our brothers sacrificed their lives and suffered in jail and detention for many decades for the sake of this [goal], so we cannot conceivably give up the demand for this glorious shari'a... The MB always strove to grant the shari'a its rightful status in the constitution, so as to enable parliament to codify the laws of the Islamic shari'a, with Allah's help..."[22]

















Woman carrying a placard saying: "The Shari'a Is Our Constitution"[23]

Article 219: An Opening For The Implementation Of Shari'a

Article 219 was added to the constitution as a clarification of Article 2 in order to satisfy the Salafis. It 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." The purpose of this article is to avoid narrow interpretations of Article 2, such as the liberal interpretation, according to which the principles of shari'a are synonymous with universal principles of freedom, justice, and equality, or the interpretation given to it by the Supreme Constitutional Court in 1996, according to which future (but not existing) legislation must conform only to the parts of shari'a whose validity is absolute and that are not disputed among different schools in Islam. Article 219, in contrast, gives Article 2 a broader reading, which would enable the implementation of a larger part of the shari'a and requiring legislation to conform to the principles of Sunni law - although it is unclear how broad the interpretation will actually be. The MB clarified that the Article 219 refers to "everything stated in the Koran and proper Sunna" and "the foundations stemming from all the methods of juridical argumentation that are undisputed and fulfill the intentions of the shari'a," and that the expression "sources" refers to "the Koran, Sunna, ijma', and qiyas."[24]

Article 219 is meant to enable the MB to counter the Salafi claim that it forewent the implementation of the shari'a by objecting to amending Article 2, since Article 219 opens the door to the codification of the shari'a. 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 is of lesser importance. Therefore, it is still unclear how this article will influence legislation in practice.

The addition of this article was acceptable to the Al-Nour party, which is represented in the Constituent Assembly, but it did not satisfy all the Salafis. Thousands took to Al-Tahrir Square in protests organized by Al-Gama'a Al-Islamiyya and the Salafi Front on three Fridays in November 2012, protesting against Article 2 and demanding to implement the shari'a.[25]

Article 219 was also criticized by liberals, Copts and Shi'ites, who see it as an opening for discrimination against all those who are not Sunni Muslims. For example, recently elected Coptic Patriarch Tawadros II said that, while he accepted Article 2, Article 219 is "a catastrophe that transforms Egypt from a civil state to the complete opposite."[26] Dr. Khaled Fahmi, head of the History Department at the American University in Cairo, wrote on his Facebook page that Article 219 discriminates against the Shi'ite school of Islam and therefore violates the rights of Egypt's Shi'ite citizens.[27]

Muhammad Al-Sayyed Salim, a political science lecturer at the University of Cairo, wrote in Al-Ahram: "It is unclear why the two articles [2 and 219] were not placed together... Was the idea to hide Article 219 by putting it at the end? We know that there is deep controversy among religious scholars of the various Sunni streams and schools of thought... regarding those fundamental juridical principles and sources [mentioned in Article 219], especially when it comes to political matters, chief among them the system of government. Can we [really] know what the 'fundamental juridical rules and principles' and the 'general methods of juridical argumentation' [say] about [the issues of] shura or the status of women and non-Muslims in the political sphere or about the international relations of an Islamic state? There are deep disagreements between [different] juridical schools of thought about these issues, and deciding [issues] based on controversial [opinions] opens the door to interpretations by [Al-Azhar's] Supreme Council of Clerics [a body disbanded by Gamal 'Abd Al-Nasser in the 1960s and reestablished after the 2011 revolution], establishing them as the rulers of society, like the Rule of the Jurisprudent [in Iran]..."[28]

It must be noted that Article 222 of the draft constitution states that laws legislated in the past will stay in effect, but can be amended to conform to the new constitution. This means that the Islamic camp may demand the revision of existing laws in accordance with Article 219.

Article 3: Religious Tolerance Only Towards Members Of The Monotheistic Faiths

Article 3 states: "The canon principles of Egyptian Christians and Jews are the main source of legislation for their personal status laws, their religious affairs, and the selection of their spiritual leaders."[29] Most Salafi streams objected to the addition of this article, on grounds that the Islamic shari'a guarantees minority rights anyway, and therefore, since the shari'a is defined as the main source of legislation, there is no need for a separate clause ensuring their rights.[30] Some even objected to the mention of the word "Jews" in the constitution, claiming it might lead to an increase in the number of Jews in Egypt and to espionage.[31]

The MB and Al-Azhar, on the other hand, were willing to accept the addition, provided that it would apply only to monotheistic religions and not to non-Muslims in general, so as to exclude groups they consider deviant, such as the Baha'is, Buddhists, Qadianis, and Quranists.[32] This article was meant to create the impression of tolerance and to appease Copts who claim that Article 2 could serve as a basis for their discrimination.

The Coptic Church indeed accepted the article,[33] but within the Coptic community in Egypt there were those who objected to it, on the grounds that it is a trap meant to get Copts to agree to Article 2 while enabling the Muslims to boast of their tolerance towards the Copts. They added that Article 3 would not really end the suffering of Copts so long as there was no equality in rights and duties among all citizens, due to the status of Islam as the state religion and of the shari'a as the primary source of legislation.[34] Some in the Coptic community also explained that they did not want separate cultural rights, but only to be equal citizens and equal in the eyes of the law.[35] Another argument was that Church laws are even more restrictive than Islamic law, especially in the domains of inheritance, as well as the law banning divorce, except in cases of adultery.[36]

Article 4: The Status Of Al-Azhar

Article 4 defines 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. Al-Azhar Senior Scholars are to be consulted in matters pertaining to Islamic law. The post of Al-Azhar Grand Sheikh is independent and [he] cannot be dismissed. The method of appointing the Grand Sheikh from among members of the [Supreme Council of Clerics] is to be determined by law. The State shall ensure sufficient funds for Al-Azhar to achieve its objectives. All of the above is subject to law regulations." [37]

This article reflects the consensus regarding Al-Azhar's status in Egypt, and aims to establish that Al-Azhar is no longer dependent on the regime and that its rulings shall no longer be influenced by political considerations, after previous regimes used it to grant religious sanction to their policies. The article also reflects the considerable influence of the MB on the constitution's language, since a similar suggestion to reestablish the Supreme Council of Clerics, select the Sheikh of Al-Azhar from among the members of this body, and consult it on matters of Islamic shari'a appeared in the MB party's platform.[38]

This article also reflects an attempt to find common ground that would please both the Salafis and those with more liberal leanings. At a certain point, the Salafis agreed with the Sheikh of Al-Azhar that they would remove their objection to the expression "principles of shari'a" in Article 2, provided that Al-Azhar (rather that the Supreme Constitutional Court) would be granted the sole authority to interpret "the principles of shari'a."[39] However, this demand sparked criticism among elements demanding the separation of religion and state, since it means vesting a religious body with authority to influence legislation.[40] This criticism stems from their fear of Egypt becoming a religious state, and the fear of a future Salafi takeover of Al-Azhar and the subsequent radical Islamist interpretation of "the principles of shari'a."[41]

Tension between Al-Azhar and the Salafis peaked when the Sheikh of Al-Azhar insisted that Article 2 remain as it was, i.e., without an addition granting Al-Azhar the sole authority to interpret "the principles of shari'a." The Salafi parties - Al-Nour, Al-Asala, and the party of Al-Gama'a Al-Islamiyya - asked to reopen discussion on Article 2, and called on the Sheikh of Al-Azhar to resign, claiming that he had backed down from what had been previously agreed in the Constituent Assembly and that he was undermining their efforts to defend the shari'a.[42] Ultimately, Al-Azhar was defined as a body that "must be consulted on matters of Islamic shari'a," meaning that Al-Azhar's opinion should be sought in such matters, but would not be binding. Article 175 stipulates that the Supreme Constitutional Court has sole authority to interpret laws and determine whether they conform to the constitution.

Article 5: Sovereignty Of The People Or Sovereignty Of God

Article 5 determines 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." [43] This article is identical to Article 3 in the previous constitution, despite the Salafi pressure to replace "sovereignty is for the people" with "sovereignty is for God." Dr. Younis Makhyoun, an official in the Salafi Al-Nour party and its representative in the Constituent Assembly, explained the benefit of the Salafi demand, as he saw it: "The idea of the sovereignty of Allah prevents the sovereignty of humans [in the name of the religion]. [This way] no one can speak for Allah or claim he is acting on His behalf..." Makhyoun added that the amendment his party proposed was meant to prevent a religious theocracy ruled by a person or a body seeking to govern by divine decree.[44]

Most members of the Constituent Assembly, including from the MB, objected to this proposal, which also sparked criticism among the public. For example, columnist Dr. Osama Al-Ghazali Harb wrote: "There is no room for such a proposal. Sovereignty is a political and legal term... relating to the supreme independent rule of the state, meaning a specific area and a specific people. This rule is not in the hands of a single ruler or tyrant, or a minority with a monopoly, [so as to] strengthen the spirit of democracy and defend society from the evils of dictatorship and tyranny.

"The concept of 'sovereignty' bears no relation to religion. Moreover, forcefully inserting God's name into the concept [of sovereignty] is a mistake that must not be made, just as the term 'sovereignty' does not appear in the Koran. The most important and logical reason for this is that relations between man and Allah are much wider, deeper, and more lofty than those between ruler and subjects. Relations between the creator and his creations transcend the affinity to a particular country..."[45]

The Controversy Over Article 6

Egypt - A "Democratic State" Or A "Shura State"?

The first part of Article 6 determines that "the political system is based on the principles of democracy and shura; 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 - all as elaborated in the constitution."[46]

The language of this article reflects an attempt to please the Salafis, who pressed for avoiding the use of the term "democratic regime" and for replacing it with the term shura (an Islamic principle requiring the ruler to consult with authoritative advisors, and which, according to some Muslims, proves that the modern concept of parliament comes from Islam[47]). At the same time, this language aims to please the liberals, who objected to the reference to shura.[48] The inclusion of both terms, suggested by the MB, represents a compromise between the Salafi and liberal approaches. The legal advisor for the MB party, Dr. Ahmed Abu Baraka, said that "shura means democracy... and there is no reason to avoid adding the term because it does not detract from the meaning of democracy in any way or from the principles of the people's sovereignty and the rule of law."[49]

In the eyes of the Salafis, the addition of "shura" alongside "democracy" distinguishes Egyptian democracy, which conforms to Muslim traditions, from permissive Western-style democracy. The Al-Nour party spokesman clarified that shura is "an Islamic synonym for the Western word 'democracy.' [The latter term] poses many dangers to Egypt, since, in its Western sense, it means the absolute sovereignty of the majority's will, including... laxness regarding the tenets of the faith and moral values, which has led to the legalization of gay marriage in Western countries, [for example]. Can we accept that in Egypt? The democracy we want involves freedoms and shura, as long as they do not contravene a divine text..."[50]

The addition of the term shura sparked concern in secular and liberal circles. Former People's Assembly member 'Omar Al-Hamzawi, who withdrew from the Constituent Assembly in protest over its Islamic majority, wrote: "Democracy does not stand in contradiction to [the notion of] shura in terms of participation, but rather subsumes it as a basic component and addresses meanings and mechanisms larger than it. I see no justification for the phrasing proposed [by the Al-Nour party]. We can make do with the term "democratic," with [the addition] of "civil," meaning equal rights without discrimination and transfer of power among elected citizens who manage public affairs..."[51]

And indeed, the rest of Article 6 comes to clarify that the inclusion of the term shura does not imply theocratic rule, but rather a rule that leans on the principle of citizenship - meaning equal rights and duties among citizens without discrimination on the basis of religion, as well as a rule based on party pluralism, the separation of the powers, the rule of law, respecting human rights, and peaceful transfer of power.

Revoking The Ban On Establishing Religious Parties

The second part of Article 6 determines that "no political party shall be formed that discriminates on the basis of gender, origin or religion." This clause replaces an amendment made by Mubarak to Article 5 of the 1971 constitution, which used much stronger language, prohibiting any political activity or parties based on religion, on a religious source of authority, or on discrimination.

The Al-Nour party submitted a request to the Constituent Assembly to remove the ban on establishing religious parties, claiming that it contravened Article 2 of the constitution. The MB party supported Al-Nour's request, claiming that Mubarak had added the prohibition solely to prevent the MB itself from establishing a party.[52] On the other hand, the head of the left wing Al-Tagammu' party, Dr. Rif'at Sa'id, objected to canceling the ban on establishing religious parties, on the grounds that no party can claim that its platform represents Islam, even if it defines itself as having an Islamic source of authority, since the various parties have different views of Islam. He warned that removing the ban could open a Pandora's box of sectarianism in Egypt.[53]

















Islamists in the Constituent Assembly[54]

Article 10: Women's Status

Article 10, pertaining to women's status, states: "The family is the basis of the society and is founded on religion, morality, and patriotism. The State is keen 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 enable the reconciliation between a woman's duties to her family and to her work. The State shall provide special care and protection to female breadwinners, divorced women, and widows." [55]

An earlier version of this clause mentioned the state's obligation to take all steps to establish gender equality in politics, culture, the economy, society, and other areas, without violating Islamic shari'a. However, despite being included in the previous constitution, this phrasing sparked outrage among women's rights and human rights activists. They claimed these limitations could increase gender discrimination in Egypt, since they might lead, for example, to lowering the marriage age for girls, separating boys and girls in school, forcing female students to wear head scarves, permitting female circumcision, and forbidding women to run for president.[56] The Salafis, for their part, were unwilling to include an article on gender equality without the caveat regarding conformity with the principles of shari'a. This eventually led to the elimination of this clause from the third draft of the constitution altogether. It should be mentioned that Article 33 states that citizens are equal in the eyes of the law without discrimination (though, unlike the previous constitution, it does not explicitly mention gender discrimination). In addition, Article 73 outlaws the "sex trade." However, the article from the 1971 constitution ensuring a minimal representation of women in parliament was removed.

















"National Front for Egyptian Women: The women of Egypt call for fair treatment in the constitution."[57]

In an article in the independent Egyptian daily Al-Shurouq, women's rights activist 'Izza Kamel wrote that the disappointing language of the article on women's status does not necessarily stem from the Islamic character of the Constituent Assembly, but rather from the patriarchal character of Egyptian society as a whole: "Patriarchal thought still controls [all of] us and the mentality of most members of the [Constituent] Assembly, which, in turn, besieges the woman with legal, social and religious restrictions, and pushes her to the margins of society. This patriarchal thought is not related to the fundamentalists' recent rise to power; it has been ongoing for centuries… Breaking free of the cycle of backwardness in which our Egyptian and Arab society is stuck - which marginalizes women and excludes them, and violates their most fundamental rights as citizens and human being - can only be achieved by striking at the foundations of the patriarchal system, which is not confined to the family, but is a phenomenon that applies to society as a whole: the family, the tribe, and the religious, cultural, societal and political state institutions."[58]

It should be mentioned that Salafi members of the Constituent Assembly wanted the constitution to specify that not only women's freedoms but most freedoms must conform to the Islamic shari'a, including the freedoms of expression, congregation, and the press, and demanded not to define them as absolute freedoms.[59] This demand was not met in full, but Article 81 determines that "rights and freedoms shall be practiced in a manner not conflicting with the principles pertaining to State and society included in Part I of this Constitution,"[60] which could be interpreted to mean that these freedoms must conform to the principles of Islamic shari'a as determined by Article 2.

Article 43: Restricting Freedom Of Worship

Article 43 states: "Freedom of belief is an inviolable right, and the state shall guarantee the freedom to practice religious rites and to establish places of worship for the divine religions." This article, like its equivalent in the previous constitution (Article 46), guarantees freedom of belief. However, the demand of human rights groups to specify that freedom of belief is "absolute" - which would include the freedom to convert from one religion to the other, as well as the freedom to practice non-monotheistic religions - was rejected. Yasser Burhami, one of the founders of the Al-Da'wa Al-Salafiyya movement, for example, explained that "absolute freedom of belief... includes devil and idol worship and heresy [ridha] against Islam, which would undoubtedly place society in grave danger."[61]

Unlike the article dealing with freedom of belief and worship in the previous constitution, this one restricts "the freedom to practice religious rites" to members of the "divine" (i.e. monotheistic) faiths. Former People's Assembly member 'Omar Al-Hamzawi criticized this article: "Freedom of belief is severely restricted in the second sentence [of the article]... since freedom of belief is organically tied to the freedom to practice religious rites, which in turn involves the freedom to establish houses of worship, which must not be restricted in a democratic constitution to members of monotheistic faiths while excluding members of [other] religions..."[62]

Similarly, Egyptian author 'Alaa Al-Aswany wrote: "What if a country with a Buddhist or Hindu majority decided to behave the same way [towards Muslims]? What if an Egyptian living in China or India, whether a Muslim or Copt, wished to pray but was arrested by the authorities and told that [the state] did not recognize Islam and Christianity, just as Egypt refuses to recognize Buddhism or Hinduism? A state cannot be considered civilized so long as it does not permit its citizens unrestricted freedom of worship."[63]

















Islamists hijack the constitutional article on rights and freedoms.[64]

Article 44: Ban On Insulting The Prophets

Article 44 states that "insult or abuse of all religious messengers and prophets shall be prohibited, even if implicit." It was the result of a proposal by the Al-Azhar representatives in the Constituent Assembly to add an article that prohibits insulting the divine essence and depicting the Prophets, caliphs, and Companions of the Prophet Muhammad. This would mean not only a ban on cartoons of the Prophet, etc., but also on producing movies (including respectful ones) in which actors portray the Prophet, for example.[65] This proposal received the support of the Salafis, who saw it as a way to restrict Shi'ite worship in Egypt, since Shi'ite rituals involve worshippers cursing the Companions of the Prophet. Shi'ites in the country indeed opposed the proposal, fearing it would be used to marginalize them and prevent them from establishing husseiniyahs (Shi'ite houses of worship).[66]

The MB also supported Al-Azhar's proposal. MB General Guide office member 'Abd Al-Rahman Al-Barr, who is on the Constituent Assembly, stated that Article 44 was intended to "first, defend the people's [understanding of] the religious tenets from confusion, and to protect society from the [religious] flare ups that occur from time to time; and second, [to address the problem of] the Shi'ites, who often insult the Companions of the Prophet and the Mothers of the Believers, who are revered by the Sunnis, which can cause fitna..."[67]

Liberal elements, on the other hand, expressed reservations about the proposal. Former People's Assembly member 'Omar Al-Hamzawi wrote: "The challenge that the law will have to [deal with] is how to practically implement the ban on insulting religions without restricting freedom of expression, thought and creation."[68] Al-Azhar's proposal also sparked criticism among the Copt minority in Egypt, since it includes a ban on the depiction of Jesus, whom Islam considers a prophet (while the Coptic faith does not forbid depicting Jesus). Due to this criticism, the language ultimately adopted was more moderate compared to Al-Azhar's initial proposal, and does not mention insulting the divine essence or the Companions of the Prophet.

* L. Azuri is a research fellow at MEMRI.

Endnotes:















[2] Translation: Egyptindependent.com, December 2, 2012.

[3] www.alnourparty.org, July 14, 2012.

[4] Al-Ahram (Egypt), June 30, 2012; July 7, 2012; July 14, 2012.

[5] Al-Masri Al-Yawm (Egypt), April 1, 2012.

[7] Al-Masri Al-Yawm (Egypt), July 2, 2012.

[8] Al-Masri Al-Yawm (Egypt), July 1, 2012.

[10] Al-Masri Al-Yawm (Egypt), July 2, 2012.

[11] Al-Masri Al-Yawm (Egypt), July 11, 2012.

[12] Al-Ahram (Egypt), June 29, 2012.

[13] Al-Masri Al-Yawm (Egypt), July 6, 2012.

[14] Al-Ahram (Egypt), July 17, 2012.

[15] Al-Shurouq (Egypt), July 15, 2012.

[16] Al-Misriyyoun (Egypt), July 8, 2012.

[17] Al-Masri Al-Yawm (Egypt), July 8, 2012.

[18] Al-Masri Al-Yawm (Egypt), August 7, 2012.

[19] Al-Ahram (Egypt), July 15, 2012.

[20] Ikhwanonline.com, July 7, 2012.

[21] Al-Shurouq (Egypt), July 8, 2012.

[22] Ikhwanonline.com, October 31, 2012.

[23] Al-Watan (Egypt), November 9, 2012.

[24] Ikhwanonline.com, October 31, 2012. "Sunna" refers to the traditions describing the life and sayings of the Prophet and his Companions; "ijma'" refers to agreed-upon practices and beliefs that have become rooted among Muslims; "qiyas" is logical inference based on the Koran or Sunna regarding matters that are not explicitly stated.

[25] Al-Masri Al-Yawm (Egypt), November 10, 2012.

[26] Al-Wafd (Egypt), November 20, 2012.

[27] Al-Wafd (Egypt), December 3, 2012.

[28] Al-Ahram (Egypt), December 4, 2012.

[29] Translation: egyptindependent.com, December 2, 2012.

[30] Hurryh.com, July 12, 2012.

[31] Islammemo.cc, October 16, 2012.

[32] Hurryh.com, July 12, 2012.

[33] Al-Masri Al-Yawm (Egypt), November 14, 2012.

[34] Ahewar.org, April 28, 2012.

[35] Al-Tahrir (Egypt), October 28, 2012.

[36] Al-Ahram (Egypt), July 27, 2012; Al-Misriyyoun (Egypt), August 18, 2012. Due to the Coptic ban on remarrying, there is a trend in Egypt of women who covert to Islam in order to get divorced, which often causes tension between Copts and Muslims. See MEMRI Inquiry & Analysis Series Report No. 693, In Egypt, Muslims' Attacks on Copts Increase, June 2, 2011.

[37] Translation: egyptindependent.com, December 2, 2012.

[39] Islammemo.cc, July 23, 2012.

[40] Roz Al-Yousef (Egypt), September 29, 2012; Al-Musawwar (Egypt), August 8, 2012.

[41] Al-Badil (Egypt), July 12, 2012.

[42] Islammemo.cc, July 23, 2012.

[43] Translation: egyptindependent.com, December 2, 2012.

[44] Al-Masri Al-Yawm (Egypt), July 12, 2012.

[45] Al-Ahram (Egypt), July 18, 2012.

[46] Translation: egyptindependent.com, December 2, 2012.

[47] Alnourparty.org, July 14, 2012.

[48] Al-Watan (Egypt), July 23, 2012.

[49] Al-Masri Al-Yawm (Egypt), July 11, 2012.

[50] Al-Masri Al-Yawm (Egypt), July 11, 2012.

[51] Al-Watan (Egypt), July 16, 2012.

[52] Al-Masri Al-Yawm (Egypt), July 16, 2012.

[53] Al-Ahram (Egypt), July 29, 2012.

[54] Coptstoday.com, April 5, 2012.

[55] Translation: egyptindependent.com, December 2, 2012.

[56] Al-Watan (Egypt), October 30, 2012. It should be mentioned that several representatives from the Salafi Al-Nour party in the Constituent Assembly suggested lowering the marriage age of girls in the constitution to nine. Assembly member Yasser Burhami, one of the founding heads of the Al-Da'wa Al-Salafiyya movement, claimed that "Islam did not set a [minimum] marriage age for girls. If a girl can perform a wife's duties, she can be married at nine or 10, as long as her marriage does not prevent her from completing her studies." Roz Al-Yousef (Egypt), September 22, 2012; Al-Quds Al-Arabi (London), September 26,

Posted December 05, 2012 by Kamal Nawash