Egyptian Constitutional Drafting: A Comparative Review

2013-12-31    |   

Egyptian Constitutional Drafting: A Comparative Review

On December 3, 2013, Amr Moussa, the head of the Egyptian Committee of 50 tasked with amending the suspended Constitution of 2012, presented the new Egyptian draft Constitution to the interim president of Egypt, Judge Adly Mansour.

The draft will be put to a referendum within thirty days of its submission to the president and no later than January 3, 2014. As stipulated by Article 30 of the constitutional declaration promulgated on July 8, 2013, the new constitutional amendments will enter into effect once they get the approval of the people through the referendum. In this commentary, I try to review past events in order to determine future prospects and possibilities, in light of the disagreements that pose several problems during the preparation of the draft Constitution.

One of the subjects of disagreement to arise among the Committee of 50 was the margin for amendment allowed on the suspended Constitution of 2012. Some argued that the constitutional declaration tasked the committee with amending the Constitution of 2012 and not drafting a new one. However, the head of the committee had consultations and deliberations with constitutional and legal experts. These experts, who were not named, concluded that the committee’s work is not limited to amending the suspended constitution but actually includes drafting a new constitution. My opinion on this matter was presented in an article published in The Legal Agenda at the start of the committee’s work.

Another subject of disagreement was the timeframe required for drafting the new constitution. The Constituent Assembly that drafted the Constitution of 2012 was given a 6-month period to conclude its work. During said period, it was deduced that the allocated time will not suffice and former President Mohammed Morsi consequently extended the time frame by 2 months. The Constituent Assembly nonetheless, was able to complete its task within the 6-month period and voted on the draft Constitution of 2012 in a lengthy session.

The constitutional declaration gave the Committee of 50 a maximum period of 60 days to finish the final draft of constitutional amendments, during which the committee should present the draft for social dialogue. However, the committee did not abide by the specified period and was able to extend it without any addendum to the constitutional declaration.

In fact, the committee relied on an interpretation unprecedented in setting deadlines and dates by constitutions and laws. The committee claimed that the 60-day period should include effective working days only, and not public holidays. The committee’s claim was not based on any stipulation in the constitutional declaration or the established laws.

The reality of the matter is that legislation, jurisprudence and the judiciary [custom] concur on the fact that when a deadline, the count of run-up days to the deadline shall include working days as well as public holidays. However, if the last day of the deadline falls on a public holiday or a weekend, then the deadline will be extended to the following first working day.

The Constituent Assembly that drafted the Constitution of 2012 was criticized on several points.

One major point was its formation of a majority of Islamists (70%). Consequently, the committee was blamed for not producing a constitution representative of all the Egyptian groups and communities but rather of one political movement, that of political Islam.

It is true that some articles of the Constitution of 2012 seem to consecrate a salafi/Muslim Brotherhood view of the Egyptian state. For example, Article 219 presented a thorough explanation of the Islamic Law’s principles including Sunni doctrines. Moreover, Article 76 outlined the principle of penal legitimacy, and stipulated that “there shall be no crime or punishment without a legal or constitutional text”. Such stipulation could have led to having retributive punishment and legitimate limits set by judges themselves without any need for legislation by parliament. However, despite the criticism, the Constituent Assembly was still the first of its kind to be elected by an Egyptian parliament formed by free direct elections. In contrast, the members of the Committee of 50, who drafted and voted on the new constitution, were not elected but designated by an unelected interim president. The fact that said members had been initially nominated by their respective bodies and parties does not significantly alter that reality of their non-election.


On another level, if we compare the representation of the various Egyptian political and social movements in both the 2012 Constituent Assembly and the 2013 draft Constitution’s Committee of 50, we find that the latter had a better representation of Egyptians. It should be noted, however, that all pro-political Islam members of the Constituent Assembly withdrew before the vote on the draft Constitution of 2012.

Moreover, the representation of political Islamic movements in the Committee of 50 was very weak relative to the proportion of Egyptians it represents. In fact, the Muslim Brotherhood refused to take part in the Committee of 50 and was therefore unrepresented. Other parties of political Islam were only represented by two members, one being the representative of the salafi al-Nour Party and the second a well-respected Islamic figure and former member of the Muslim Brotherhood.

The representation of social forces including women, youth and Copts was better in the Committee of 50. The latter included 10% women (5 out of 50), while the Constituent Assembly of 2012 included 7% of women (7 out of 100). The youth category also had a 10% representation rate in the Committee of 50, and the Copts had a 6% representation rate.

All in all, the representation of society’s segments in the Committee of 50, versus the Constituent Assembly, was much more revealing of Egypt’s social diversity. This discrepancy is mainly a result of the political Islamic movement’s unlawful keenness on controlling the majority in the Constituent Assembly. The goal was to ensure the passing of a constitution deemed proper by Islamists, whether or not other groups withdrew from the Assembly before the date of the vote.

On the level of the Committee of 50, the representatives of the workers and farmers threatened to withdraw from the committee after the elimination of the quota allotted to them in parliament. Church representatives also warned that if the 2012 Constitution’s Article 219 on the principles of Islamic Law will be promulgated, they will withdraw from the committee. Al-Nour party also threatened to withdraw its members if Article 219 is eliminated or if the Constitution stipulates for a civil state. Nevertheless, there were no withdrawals on any side as a consensus on the subjects of disagreement was reached. Nobody knows yet the deals and compromises that had to be made to reach such a consensus.

In regards to social dialogue and popular participation, the Constitution of 2012, in all its drafting stages, scored higher than that of the draft Constitution of 2013. The Constituent Assembly of 2012 made sure all its sessions broadcasted live on several television channels. Egyptians were able to follow up on the developments within the Constituent Assembly’s sessions up to the end of the concluding voting session.

Meanwhile, the Committee of 50 started its work with hearing sessions and received several proposals. Its first sessions were open and the heads of the special committees were informing people of the proceedings of said committees’ sessions. However, the Committee of 50 did not abide by this democratic conduct for long. By the end of October, the committee decided to hold closed sessions and have the committee’s spokesman hold daily press conferences in which he summed up the proceedings of the meetings.

After the committee’s last session, it conducted two open voting sessions broadcasted on most public and private channels on November 30 and December 1. However, the voting sessions did not include any debate or dialogue and were limited to counting the votes for and against (and those abstaining).

A comparison between the suspended Constitution of 2012 and the draft Constitution of 2013 shows that both have their disadvantages. The Constitution of 2012 was subject to criticism of the way the first and second Constituent Assemblies formed to draft the constitution were created and operated.

In all cases, the referendum on the new draft Constitution will take place during the first week of January of 2014, as stipulated by the constitutional declaration. Hopefully, the referendum will not be delayed, thereby adding more hurdles before the new constitution. In the run up to the referendum, efforts should be deployed to convince Egyptians to practice their constitutional right and cast their ballots. It should be mentioned that 32% of Egyptian voters participated and voted on the Constitution of 2012, and it was endorsed by 63% of them.

The political forces in Egypt are mobilizing their popular bases for a “yes” or a “no” on the new draft Constitution. The Muslim Brotherhood, now banned in Egypt, declared that its supporters will boycott the voting on the draft Constitution. The Strong Egypt Party, headed by former presidential candidate Abdel Moneim Aboul Fotouh, called upon its supporters to vote against the draft. Undoubtedly, pro-Muslim Brotherhood Islamic movements will also call for rejecting the draft.

However, the salafi al-Nour Party called for voting and supporting the new draft Constitution alongside the different national forces. In fact, the draft is seen as a first step towards continuing the stages of the map of the future endorsed by the national forces on July 3, 2013, and recorded under specific steps in the constitutional declaration. This map should finally lead to the development of Egypt’s modern institutions, a matter that Egyptians have been waiting for three years now without any recorded progress until present day.

One hopes that, ahead of voting day, the draft Constitution will be published and made accessible to the people in order for them to know what it consists of, and allow them to make an informed decision and form their opinion about it. The media should present the articles of the draft Constitution to citizens by conducting debates that are fair, and easy to understand..

Remarkably though, the constitutional declaration regulating the current transitional phase did not address the possibility that Egyptians may reject the current draft of the constitution. That in itself is a problem that Egypt might face in the future. One wonders what the alternative would be in case Egyptians reject the proposed draft. Will Egypt revert to the suspended Constitution, or will it refer to the Constitution of 1971 as amended by the constitutional declaration issued on March 30, 2011? Or will there be a new Committee of 50 to amend the proposed draft Constitution? Each of said options has its grounds, but one can only wait for the people’s choice which might be totally different from all the above mentioned.

This article is an edited translation from Arabic.


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