Egypt's new draft constitution provides better protection for fundamental freedoms and human and minority rights as well as for women and youth, and gives special attention to socio-economic rights, such as education and health.
Sharia and the new Egyptian constitution
Friday ,20 December 2013
However, a major issue, among many others, attracted attention throughout the process of drafting of the constitution: the place of Islam and Sharia law in public life.
As expected and already shown in the first draft submitted by the 10-Member Committee of experts on constitutional law, the text prepared by the 50-Member Committee has been stripped of all references to Sharia, inserted by the Islamists, the Muslim Brotherhood and Salafists, in the 2012 Constitution, and emphasised the "civil" character of the state. This process provoked a bitter debate between liberals — who dominated the committee — and the only representative of the Salafists, the member of Al-Nour Party, supported from time to time by Al-Azhar Institution, represented by three members on the committee.
But the balance of power within the 50-Member Committee, given the general political context after the fall of the regime of the Muslim Brotherhood, did not allow Nour Party to assert its ultraconservative views. The party's representative was beaten in almost all issues of "Islamic identity" that he defended.
This was particularly the case when the controversial Article 219, introduced under Nour Party pressure in 2012, which gave a strict definition of the "principles of Sharia," was eliminated from the draft constitution. According to Article 2, the principles of Sharia are "the main source of legislation." The attempt of Nour Party to introduce, after the abolition of Article 219, a definition of "the principles of Sharia" in the preamble of the new draft constitution also failed.
The new text thus returns to the formula of the 1971 Constitution, in effect under former presidents Hosni Mubarak and Anwar Sadat, which merely mentions the principles of Sharia as "the main source of legislation" without giving them a particular definition, leaving their interpretation to the High Constitutional Court (HCC). Deleted Article 219 limited the powers of interpretation of the HCC, considered as too liberal by Islamists.
The 2012 Constitution also granted Al-Azhar a say, though not mandatory on legislators, on issues related to Sharia. This situation generated fears of the expansion of the role of the religious institution in political and public space, and even, for some, the establishment of a theocracy. This provision is deleted from the new draft constitution, with the agreement of Al-Azhar, which does not want to intervene in the thorny issues of politics.
In the same vein, Article 76 of the 2012 Constitution has been deleted. It provided that a crime may be inferred directly from the text of the constitution, without explicit mention in the penal code. Legal experts interpreted this provision as paving the way for the application by courts of punishments under Sharia law, without the need for prior legislation on specific categories of crime.
The inclusion in the preamble to the draft constitution of the formula "civilian government" is another indication of the de-Islamisation of the national charter. The term "civilian" was neither in the 1971 Constitution nor, a fortiori, in that of 2012.
After the unfortunate experience of the Muslim Brotherhood in power, the liberals, supported by representatives of the three Egyptian Churches — the Coptic, Catholic and Anglican — insisted on introducing this term to cut short any attempt to Islamise the state in the future. This desire to emphasise the civilian character of the state gave rise to an intense debate with the Salafists, which had been joined by Al-Azhar. Nour Party was opposed to any inclusion of the term "civil," as for them it reflects Western and secular values. The liberals wanted initially to use the formula of "civil state," which was rejected by Nour Party and Al-Azhar, because for them it could mean a "secular state." The compromise formula was, finally, "the establishment of a democratic and modern state," with a ”civil government.”
On another level, the draft constitution prohibits in Article 74 the establishment of political parties on religious or sectarian bases. It thus returns to the formula of the 1971 Constitution. However, the question of religious parties remains. These parties, 11 in total, were created after the popular uprising of 25 January 2011, under the constitutional declaration of March 2011, promulgated by the Supreme Council of the Armed Forces, which also prohibited the establishment of religious parties. The latter, to circumvent the difficulty, avoided making clear reference in their statutes and programmes to their religious nature, but their action and discourse betrayed this dimension. The political context of March 2011 is certainly not that of December 2013, at least for what is left of the Muslim Brotherhood and its political party, the Freedom and Justice Party (FJP), currently frozen.
It is likely that the Salafist Nour Party, the second political force after the FJP in the last parliament, which was dissolved, will survive this prohibition. It is the only Islamist party that agreed to the roadmap announced by the army following the dismissal of Mohamed Morsi 3 July. It also participated in the drafting process of the constitution and refrained from withdrawing from the 50-Member Committee despite the setbacks it suffered, when virtually all of its demands were rejected. The party called on its supporters to vote "Yes" for the draft constitution in the upcoming referendum in January.
This position can be explained by the fact that Nour Party is aware that the wind has turned and that the Islamists have lost the dominance they gained after the fall of Mubarak. Its leadership is both realistic and ambitious. It certainly lost the battle of the constitution, given the new balance of power established after the overthrow of the Muslim Brotherhood, but taking into account the weak anchor of liberal parties in the electorate, it keeps the hope and the ambition of inheriting the dominant position of the FJP in parliament and in political life.