Cairo, Asharq Al-Awsat—There has been a mixed reaction to Egypt’s draft constitution, sent on Tuesday to interim President Adly Mansour for approval before it is submitted to a public referendum. Feedback on the constitution from Egyptian legal experts and political parties has ranged from cautious optimism to outright rejection, with many in the country viewing the forthcoming public referendum on the document, expected in late January, to be the first real hurdle to the transitional roadmap in the country.
Egypt’s 50-member constitution committee began drafting the country’s new constitution in late July, after the previous constitution—drafted in 2012 by an Islamist-dominated body—was suspended following the ouster of the Muslim Brotherhood-backed president, Mohamed Mursi. Speaking to the press on Saturday prior to a final vote, committee chairman Amr Moussa announced that it had taken a total of 720 hours of deliberation to reach consensus on the draft constitution articles. However, the final vote on the 247 draft articles—including 42 new articles—churned out a number of unexpected changes.
Tahani Al-Gabali, vice president of Egypt’s Supreme Constitutional Court, was one of the leading critics of the 2012 constitution, and has welcomed the new draft constitution.
In exclusive comments to Asharq Al-Awsat, Gabali said: “The 2012 constitution . . . contained a number of basic threats. Most importantly, it laid the foundations for a religious state by naming the Senior Scholars’ Committee as a reference and explicitly stated, for the first time, that Egypt was a Sunni state.”
According to the new constitution, although Al-Azhar remains the “primary reference” for Islamic issues, Al-Azhar’s Senior Scholars’ Committee is no longer responsible for deciding if legislation conforms to the principles of Islamic Shari’a law. This right has been restored to Egypt’s Supreme Constitutional Court. The new constitution removes a number of controversial articles that strengthened the role of Islam and the Islamists in the Egyptian state, including banning parties formed on the basis of religion and enshrining “absolute” freedom of belief. The draft constitution also removes a 2012 amendment to Article 2 which gave a detailed definition of the “principles” of Islamic Shari’a law.
Gabali told Asharq Al-Awsat: “The suspended constitution mixed the Arab nation, which is a political nation, with the Islamic nation, which is a religious nation, and this served as the seed for an Islamic state.”
She added: “However, the current constitution has disposed with all this and preserved its Egyptian identity, represented by Article 2, which had been in place for 28 years since the 1971 constitution.”
The Muslim Brotherhood has strongly rejected the draft, stating that “abusive putschists” were attempting to “distort Egypt’s legitimate constitution,” in reference to the controversial 2012 document adopted by Mursi. If passed by public referendum, the draft constitution could significantly restrict the Muslim Brotherhood’s future activities, particularly following the enshrinement of articles explicitly banning political parties based on religion, in addition to parties that participate in “activities against democracy” and, perhaps most importantly, political groups whose inner workings are non-transparent.
Despite this, the Salafist Al-Nour Party—which secured the second-highest number of seats in the 2012 parliamentary election—has announced that it backs the draft constitution, and will call on supporters to vote “yes” in the forthcoming public referendum.
“The Nour Party will take part in this referendum and will take part with ‘yes’, out of our concern for bringing about stability and so that we spare the country more anarchy,” party leader Younes Makhyoun announced during a press conference on Thursday.
Ahmed Mekki, a former justice minister and a member of the independent judiciary movement, informed Asharq Al-Awsat that he believes that the draft constitution includes a number of flaws.
Mekki said that his main objection to the new constitution is that it contains “too much padding.”
He said: “A constitution, in essence, should be a document that regulates the relationship between the authorities. All the other additions may be good in themselves, but the constitution is not the place for them.”
He added: “In many cases, these stipulations also cannot be practically implemented on the ground.”
The new constitution includes a number of contentious articles that some Egyptians believe have no place in a modern constitution. They include articles on organ donation and random housing (squatting), as well as one stipulating a minimum percentage of the gross national product that should be spent on education and healthcare.
The former justice minister added that the new constitution abandoned a number of issues of primary importance, including guaranteeing the independence of the judiciary. The new constitution also does not specify the number of Constitutional Court judges, whereas the 2012 constitution specified that there should be 11 judges on Egypt’s most senior court panel.
Mekki also criticized constitutional articles relating to Egypt’s parliament. The new constitution contains no references to the Shura Council—the Upper House of Parliament—while also including detailed text regarding the way that parliament can be dissolved.
According to the new constitution, Egypt’s parliament can be disbanded and new parliamentary elections called if the legislative body fails to endorse a president’s choice for prime minister and then fails to pick its own replacement within a 60-day period.
Former Egyptian Justice Minister Ahmed Mekki told Asharq Al-Awsat: “There should be a stipulation that the People’s Assembly cannot be dissolved, since it was formed by the votes of the Egyptian people . . . because this is democracy, respecting the will of the people.”
Mekki added: “The constitution should also have stipulated that a sitting president cannot be removed, instead installing specific regulations for early elections if necessary.”
The new constitution includes an article allowing parliament to call a vote of no confidence in the president. If two-thirds of parliament endorses the motion, a public referendum is called which, if passed, sees the president is removed and new presidential elections held.
For his part, Maher Al-Buhairi, a former head of Egypt’s Constitutional Court, said that the 1971 constitution remains the best constitutional draft in the country’s history, discounting amendments made in 2005 and 2007 that altered the way the president is elected.
Buhairi criticized the 2012 constitution, saying that its drafting process was dominated by a “single faction,” a reference to the Muslim Brotherhood. Commenting on the new draft constitution, he described it as being “fair and impartial,” and praised the articles relating to social justice.
The Tamarod Movement, which played a key role in Mursi’s ouster, has launched a campaign calling for Egyptians to vote “yes” in the forthcoming constitutional referendum.
“This constitution is not the best, but it is better than the 1971 and 2012 constitutions,” the Tamarod Movement announced via Facebook on Thursday. “This constitution secures the rights of workers, farmers, teachers, fishermen, and all other Egyptians.”
Egypt’s most senior religious bodies have been careful not to influence any forthcoming vote on the constitution. Al-Azhar Grand Sheikh Ahmed Al-Tayeb has called on all Egyptians to participate in the referendum, stressing that it must take place in a free and fair democratic manner, but has not called on Egyptians to vote in a particular way.
The same applies to Pope Tawadros II, head of Egypt’s Coptic Orthodox Church, who described participation in the forthcoming referendum a “national duty” on Thursday.
In previous comments, the Coptic Pope had described the amended constitution as “balanced” and “an important step on the path to democracy.”
For her part, a senior member of the Constitution Party, Omaima Maher, told Asharq Al-Awsat that her party is not yet clear on how it will vote in the referendum.
She said: “We have many reservations on a number of articles, most prominently on the powers of the military. However, rejecting the constitution serves the interests of the Muslim Brotherhood.”
“We, as the youth of the revolution, stand against military rule, and also the Muslim Brotherhood, and so we are facing a dilemma,” Maher added.
The draft constitution includes a number of controversial articles regarding Egypt’s powerful military institution, including military trials for civilians accused of “direct” attacks on military premises, personnel, equipment, funds, and documents. The constitution also grants the military the right to choose its own defense minister.
The constitution stipulates that the Supreme Council of the Armed Forces must approve the appointment of Egypt’s defense minister, at least for the next eight years. This arguably places the military above civilian oversight for the next two presidential terms, while also raising questions about the president’s powers during this period.
It also raises questions about the military’s role in the transitional period, particularly as speculation remains rife over whether popular Egyptian Defense Minister Abdel-Fattah El-Sisi intends to run in the next presidential elections, as many Egyptians are calling for.
The draft constitution also keeps faith with a number of other articles that benefit the military, including ensuring that the military budget remains outside the realm of public scrutiny, with just the overall total expenditure being published.