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Monday, December 3, 2012
MEMRI: An Examination Of Egypts Draft Constitution Part I: Religion And State - The Most Islamic Constitution In Egypt's History

MEMRI Inquiry and Analysis 904 December 3, 2012

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

By: L. Lavi*

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assembly's members – representatives of the liberal factions – had withdrawn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 and the
military. 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: "Al-Azhar senior scholars are to be consulted in matters pertaining
to Islamic law" – a concept 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 185) – 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. The Supreme Constitutional Court, and not Al-Azhar,
remains

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.

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

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

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

[4] See Inquiry & Analysis No. 341, As Part of Its Struggle Against the
Muslim Brotherhood, The Egyptian Regime Comes Out Against the Concept of a
Cleric-Led State, April 12, 2007; Inquiry & Analysis No. 321, Relations
Worsen Between the Egyptian Regime and the Muslim Brotherhood, February 02,
2007.

[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.

[15] See MEMRI Inquiry & Analysis No.762, Egyptian Deputy PM's Document of
Constitutional Principles: An Attempt to Bolster Military Supremacy, Curb
Islamists' Influence on Constitution, November 16, 2012.

[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.

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