A Q&A on Egypt's New Draft Constitution

On December 1, a 50-member panel given the task of amending Egypt’s constitution approved a draft of the document. It now goes to Interim President Adly Mansour for his approval and will then go to the public in a referendum. MEI spoke with its Senior Fellow, Khalil al-Anani, about the draft, how it differs from the 2012 constitution passed under Mohamed Morsi, and how the Muslim Brotherhood has reacted to it.

In general, what has changed in this new draft?

In terms of the architecture of the political system or the separation of powers, there is no significant difference between the 2012 and 2013 constitutions. However, there is an improvement in enhancing and protecting individual rights and personal freedoms. For instance, freedom of belief has become absolute, at least theoretically (Article 64), and torture of all kinds has been criminalized (Article 52). But the most important point in the new draft is the stipulation that Egypt will be bound by international human rights agreements that are signed by the state (Article 93). This should make those who violate human rights more accountable.

In particular, what has changed in terms of how religion is portrayed or used?

There are two ways in which the 2012 constitution and the new draft differ in this regard. First, the new draft kept Article 2, which has been in place since the 1970s and stipulates that "the principles of Shariah are the main source of legislation.” However, Article 219, which was proposed by Salafis in the 2012 constitution, has been removed. This article aimed to specify the meaning of the phrase “principles of Shariah” by stipulating that “the principles of Islamic law include the general evidence, fundamental and jurisprudence rules, and recognized sources as acknowledged by the Sunni school of thought.” It was part of the political bargain between the Salafis and the Muslim Brotherhood in order to pass the constitution. In the new draft, it is the Supreme Constitutional Court’s (SCC) interpretation of Shariah that will prevail. Second, and relatedly, while the 2012 constitution gave more power to al-Azhar in interpreting Shariah, the 2013 draft strips al-Azhar of this right and gives it to the SCC. Nevertheless, there is no difference between the two constitutions in terms of protecting religious freedom; both limit this freedom to those practicing the Abrahamic religions: Islam, Christianity, and Judaism. (This is also true for the article on “absolute belief” mentioned above; this freedom is guaranteed only if belief is associated with the Abrahamic religions. Thus, those adhering to other faiths, such as Bahais, are still vulnerable to discrimination.)

What do the changes mean for women and minorities?

The new draft grants more rights to women and minorities, rights that were restricted in the 2012 constitution. For instance, the new draft prohibits any discrimination against women and calls for full equality between men and women, while the old draft made relations between men and women subject to Shariah. It also urges the state to take actions that can guarantee women proper representation in elected bodies and councils (Article 11). The new draft also makes it mandatory that the next parliament give Christians the right to practice their religion freely and to build and rebuild churches (Article 235). In addition, the new draft calls for proper representation of Christians, youth, and handicapped people in the next parliament (Article 244). According to the draft, the percentage of seats that would be allocated for these groups will be subject to the law—hence, it has yet to be specified.

What has changed for the military?

The new draft enshrines the military’s role in politics and makes it harder to place the military under civilian control or oversight. The 2012 constitution already guaranteed the military this role, but it has been reinforced in the new document. The new draft maintains military trials for civilians, though it makes them contingent on direct attacks to military personnel or property (Article 204). However, because the military’s economic holdings and workforce are so vast, an attack on military “personnel or property” also applies to a vast number of people and places. In addition, the parliament will not have the right to discuss the military budget in detail. Yet the most striking point about the military in the new draft is the appointment of the minister of defense. Article 234, which is new and provisional, stipulates that the appointment of this minister is contingent upon the approval of the Supreme Council of the Armed Forces (SCAF) for two presidential terms (eight years). Previously, the defense minister only had to come from the military; thus, this article gives SCAF more power and immunity.

When does it look like the referendum will take place?

According to media reports, the referendum should take place in late December or early January 2014.

How has the Muslim Brotherhood reacted to the draft?

So far, the Muslim Brotherhood has been silent on the draft, and there is no official statement of its position and whether it will boycott or participate in the referendum. However, it is likely that the Brotherhood will attempt to delegitimize the new draft and urge people to boycott or reject it. But the ability of the Brotherhood to mobilize people against the constitution is questionable at this time, given the erosion of public support for it and the decrease in its capacity to mobilize.

What does this draft constitution mean for Egypt's transition?

Theoretically, the draft constitution should be a step forward in Egypt's tortuous transition. Yet it is hard to believe that the draft will end Egypt’s political crisis and bring genuine stability. First, as with the 2012 constitution, the new draft was written in a very divided and polarized atmosphere, which affected the credibility of the process and suggests that turmoil will likely continue for some time. This polarization can be seen in the exclusion of the Muslim Brotherhood from the process, as well as recent arrests of non-Islamist political activists. Second, the new draft has added more ambiguity and uncertainty to the road map by not determining whether presidential or parliamentary elections should be held first. Some observers argue that if the presidential elections come first, the new president will garner more power, which might affect the fairness of the parliamentary elections.