December 2, 2013
Highlights from Egypt’s Draft Constitution (Part 1)
By Mai El-Sadany
This draft of the Constitution is set to replace the now-defunct 2012 Constitution which was written by a Constituent Assembly dominated by a heavy Islamist presence and criticized for its Islamist underpinnings, its heavy reliance on earlier documents like the Constitutional Declaration of 2011 and the 1971 Constitution, and its failure to recognize modern rights and freedoms as appropriate in light of social developments and international obligations. In light of this context, it becomes instructive to analyze this draft in light of previous constitutions and constituent assemblies.
This piece is the first in a two-part series. It will explore the role of religion and the identity of the state, while the second installment will delve into the government structure, the Armed Forces, and the rights of women and marginalized groups.
The Role of Religion
In light of an approximately 90 percent Muslim population, a recent history of increasingly pervasive sectarian attacks against the country’s Christian community, and a historical disregard for religious groups like Baha’is and atheists, the role of religion in the Egyptian Constitution has served as perhaps the most contentious issue in the foundational text.
The notion of a “state religion” was first incorporated into Egypt’s constitutional history when Article 149 of the 1923 Constitution declared Islam to be the religion of the state; this article was present in every subsequent text other than the 1958 Constitution, which was written upon the unification of Syria and Egypt. In 1971, Article 2 was drafted both to establish Islam as the state religion and to set forth the principles of Sharia as “a primary source of legislation.” In a 1980 move meant to placate Islamists, President Anwar Sadat proposed an amendment to change the text of the 1971 Constitution to refer to the principles of Sharia as “the primary source of legislation.” Since then, “the” has remained in the text, with clearly significant implications.
Until 2012, the interpretation of the phrase “principles of Sharia” had been left to the court system. This state of affairs ended amidst significant controversy following the creation of Article 219 in the 2012 Constitution, which defined the term “principles of Sharia” to include “general evidence, the foundational principles of Islamic jurisprudence (usul ul-fiqh), and the reliable sources from among the Sunni schools of thoughts (madhahib).” The degree to which this article’s text opened the door for the potential establishment of “social Islamic jurisprudence” had serious implications for “almost every aspect of daily life.”
Unlike prior constitutions, the 2012 text also enshrined a role for Al-Azhar. Article 4 in the 2012 Constitution states that “Al-Azhar’s body of Senior Scholars is to be consulted in matters pertaining to Sharia.” The role granted to Al-Azhar by the article called into question whether the court system would have ultimate jurisdiction in religious issues and left many unanswered questions relating to interpretational authority and separation of powers.
Regarding personal religious freedom, Article 46 of the 1971 Constitution guaranteed “freedom of belief and the freedom of practice of religious rites.” These freedoms were notably qualified in the 2012 Constitution when Article 43 specified that the State would only guarantee such rights “for the divine religions” (i.e., Christianity, Islam, and Judaism). Article 3 also stated that for Jews and Christians, the principles of their respective religious laws would be the main source of legislation in regarding personal status laws, religious matters, and the selection of spiritual leadership. Ultimately, while the 2012 Constitution established a more explicit recognition of the three Abrahamic faiths for the first time, it further marginalized religious communities outside of this specific fold and incorporated references to Islamic terminology, essentially undermining even the minimal rights granted to adherents of the “divine religions.”
In the current Constitutional draft, Article 2 remains as is, both defining Islam as the religion of the state and stating that the principles of Sharia are “the primary source of legislation.” Article 219 of the 2012 Constitution has been completely removed from the text with no replacement, although the Constitution’s preamble incorporates an explanation of the “principles of Sharia” as defined by the Supreme Constitutional Court. Article 3, much like its predecessors, states that Jewish and Christian law will govern the affairs of Jewish and Christian Egyptians in issues of personal status, religious matters, and the selection of spiritual leadership. Finally, Article 7 discussing the role of Al-Azhar, defines it as the “primary reference for the religious sciences and Islamic matters,” and emphasizes the independence of its head; however, the article does not assign the institution a specific role in the State unlike that set forth by Article 4 of the 2012 Constitution.
On the issue of freedom of religion in this constitutional draft, Article 64 sets forth freedom of belief as absolute. The Article, however, states that the law will set forth the right to establish places of worship and the right to practice religious rites for only “the divine religions.” Thus, while the state technically recognizes an absolute freedom of religion and freedom of thought in Article 65, it will only allow the establishment of houses of worship and the litigation of personal status issues based on either an Islamic, Christian, or Jewish identity. A transitional Article 235 also states that a law will be established to facilitate the building and renovation of churches.
Finally, as per Article 74, no political parties are to be established based on religious principles; a similar provision was included in the 1971 Constitution but was removed in texts since, allowing for organizations like the Freedom and Justice Party to be established.
The Identity of the State
As a people whose modern history contains periodic waves of nationalism, pan-Arabism, and Islamism—all of which existed in both state-sponsored and underground forms—Egyptians continue to contend with the elements behind their state’s identity. Although the majority of Egyptians identify as ethnically Egyptian, there is no doubt that the country also boasts considerable ethnic diversity, including Sinai’s Bedouins, Siwa’s Berbers, and the South’s Nubians, among others, all of whom are often marginalized in the country’s political scene.
While the 1971 Constitution and the 2011 Constitutional Declaration defined Egypt as a member of the “Arab nation” and identified Arabic as the national language, the 2012 Constitution expanded the country’s identity to include the Islamic umma (community), the countries of the Nile basin, and the African continent collectively; the article also referenced Egypt’s reach into Asia.
In the current Constitutional draft, Article 1 defines Egypt as an independent and democratic nation and states that the Egyptian people are members of the Arab umma. The article further notes that Egypt is a part of the Islamic world, has ties to the African continent, and is proud of its Asian ties, ultimately maintaining much of the language from the 2012 Constitution.
In a new development, the current draft’s Preamble touches heavily on Egypt’s identity, laying out the country’s Islamic and Christian histories and detailing the revolutions of 1919, 1952, and January 25, 2011-June 30, 2013. The Preamble is also colored with lofty rhetoric that describes the aspirations of the Assembly members for a future Egypt, discussing among other things, the role of Sharia, the importance of human rights, and the necessity for equality. The reference to Sharia is thought to have been included to assuage some members’ fears on secularism, but no doubt, plays a curious role in the draft’s introductory text.
This constitution also features two articles highlighting the role of the state in preserving the Suez Canal and the Nile River, implicitly emphasizing the importance of these two resources to the nation. Set forth as transitional articles, Articles 222 and 223 also define Cairo to be the capital of the nation and describe the components of the Egyptian flag; additionally invoking a deep-seated nationalism, the text states that insulting the flag is a crime that will be dealt with by the law.
Ultimately, the identity of Egypt as a state has served as a source of contention in constitutional discussions as it implicitly denotes (or can be understood to denote) a sense of allegiance to broader regional and religious entities. In addition to geographic allegiances, the description of the state has also been controversial, raising questions on separation of church and state and whether Egypt should be a secular nation.
Religion, geography, and identity politics have served as some of the greatest sources of contention both in Egypt’s constitutional history and its political dynamics. The issues at stake here are ones that have defined sectarian conflict, provided the impetus for political organization, and empowered militants to rise to power. In light of this, the text produced by the Constituent Assembly, while not the only relevant factor in the equation, will certainly have a lasting and pervasive influence on Egypt’s future, its people, and quite importantly, the trajectory of its transition.
Special thanks to David Johnson who provided editorial guidance on the writing of this article.
Mai El-Sadany is a law student at the Georgetown University Law Center, with an intent to focus on international and human rights law in the context of Middle East politics.