Egypt's second Constituent Assembly is racing to finish the first integral draft of the constitution before the Islamic Holy Month of Ramadan ends three weeks from now, partially due to fears of its potential dissolution by another court order. Below is a quick breakdown of the major controversies that the constitution-drafting body still faces:
The first Constituent Assembly was dissolved by a landmark court ruling in April because it failed to represent “the full spectrum of Egyptian society.” The assembly was criticised for being heavily dominated by Islamists, as well as for lacking proper women or Coptic representation.
The selection process for the assembly itself was marred by controversy as the Brotherhood’s Freedom and Justice Party and the ultra-conservative Salafist Nour Party, allegedly settled on a list of members that they enforced upon the remainder of parliament in a vote that was effectively ceremonial. This prompted walk-outs by liberal members, parties and many representatives of Egypt’s key institutions in the assembly.
Many of the same controversies face the second Constituent Assembly. Some (though not as many) members have walked out again, with the verdict of a court case on its dissolution due at the end of the month.
Members of the current assembly have issued statements both pledging to respect the court's verdict and, at the same time, reaffirming their insistence on continuing their work even if the court dissolves it. This potentially threatens to create another standoff between the Brotherhood and Egypt's judiciary.
Saluting the flag
During a recent flag salute to the national anthem, seven Salafist members of the assembly refused to stand up with the rest of the attendance, prompting heated reactions from the media, political groups and across social networks.
Critics, consequently, questioned how the very people writing the country’s constitution could refuse to salute the flag. A detailed response by the members in question has yet to be given.
Article 2 - "principles of legislation"
The current and previous texts of Article 2 of Egypt’s constitutional documents stipulated: "Islam is the religion of the state, Arabic is the official language, and the principles of Islamic Sharia are the primary source of legislation."
Salafists have demanded either exchanging the word "principles" with "laws” or keeping the text as it is while adding a note that Al-Azhar would be the final reference and authority on matters involving disputes on the compliance of proposed legislation with the Islamic Sharia.
Another Salafist proposal was to remove the word “primary” and instead to make Sharia the sole source of legislation. Both the removal or the changing of the word "principles" and the omission of “primary” were adamantly opposed by Al-Azhar, as well as liberal forces and even Brotherhood members.
Al-Azhar argued the current text was better, as it is cognisant of different schools of Islamic jurisprudence and in line with the wider national consensus and identity. Liberal groups also see the current text as maintaining a wider toolset in the hands of legislators that would help to avoid moving in an overly theocratic direction.
Grand Sheikh of Al-Azhar Ahmed El-Tayeb, along with others, also rejected the proposal setting the institution as an official final reference and arbitrator on legislative religious-compliance matters. They argued that it risked turning Al-Azhar into the core of a theocracy, with the Grand Sheikh becoming “an Islamic Pope.”
Article 2 - "other religions"
One proposal revolved around making an addition to the end of the article (or writing a new article all together), stipulating that "adherents of other religions may seek arbitration on their own matters through the laws of their religions." Alternatively, the annex would specify "Judaism and Christianity" by name. The third option is to keep Article 2 as is.
Freedom of religion and divine religions
There is a dispute over how the constitution addresses the question of freedom of religion and worship. There are questions whether the document would specify that only "divine/heavenly religions" (meaning the three major Abrahamic faiths of Islam, Christianity and Judaism) would have state assurance of freedom of religious worship and practice, or whether the article would remain without specification.
Article 46 of the 1971 Constitution specified that “The state ensures freedom of (religious) creed, and the state ensures the freedom of religious practice.” As it appears in media reports, the current draft is reported to be “Freedom of religion/creed is absolute and the state ensures freedom of religious practice for the followers of the heavenly religions.”
The majority of the committee charged with drafting the article seems to be headed towards adopting the proposed draft, while a minority has been adamant that the more open form of the article remains.
Some warned that the specification of the three faiths only would amount to an official constitutional restriction on freedom of worship and belief, while some argued it only means a restriction on which religions can get state assistance in building or maintaining houses of worship. The debate over the article and its actual implications continues.
Both Article 40 of the 1971 Constitution, Article 40 and its corresponding article in the Constitutional Declaration prohibit discrimination on the bases of “gender, origin, language, religion or creed.” A Nubian human rights activist, who is a member of the committee debating the freedoms and human rights elements of the draft constitution, suggested that "origin" should instead become “ethnic origin.” Some members had no problem with the proposal, while others objected for various reasons, with one argument being that the original phrasing was already comprehensive and sufficient.
Form of government
Debate continues over whether or not Egypt should become a presidential, semi-presidential, or a parliamentary state. The Brotherhood prefers empowering parliament as the supreme institution.
Liberal forces seem to prefer a presidential or, at best, a semi-presidential system, hoping another powerful institution could counter Egypt’s legislative body which is likely to remain dominated by Islamists for a while.
Another pertinent debate involves who would have the authority to dissolve parliament and if that dissolution would require a referendum.
Identity of Egypt
According to Egyptian daily Al-Masry Al-Youm, a recent draft of Article 1 proposed stipulating that Egypt is "a part of the Arab and Islamic Nation, and is tied (“wa mortabita”) to the African continent." This has caused some significant Egyptian and African uproar on social media, with Egyptians expressing anger at the apparent relegation of Egypt's “African-ness” to a secondary position.
The original form of Article 3, in both the 1971 Constitution and the Constitutional Declaration, stated that "sovereignty is for the people alone, and they are the source of (state) powers."
A Salafist proposal was to amend the text to become "Sovereignty is for God." The legislative consequences of such an amendment remain unclear. Debate was divided between those who felt it could have theocratic implications and those who felt it added nothing more than a “spiritual and religious touch” to the text of the constitution.
One different idea, also put forward by a Salafist member, was to remove the word “alone” from the text. The overall direction seems to be headed towards maintaining the article as it has always been written.
Workers and farmers
During the rule of former president Gamel Abdel Nasser, a stipulation that half of parliament be set aside for workers and farmers was added to the constitution.
While the amendment was meant to ensure that all classes of society were represented in Egypt’s legislative authority, over time the stipulation began to lose popularity.
Parliament expanded to allow more non-worker and non-farmer members into its fold, leading to the necessary expansion of the quota of workers and farmers.
More significantly, many non-worker and non-farmer candidates began running for the reserved seats rendering the article largely meaningless.
The debate continues on whether to abolish, maintain or adjust this allocated quota.
Free education and healthcare
There has been some discussion on whether to retain free or subsidised education and healthcare within the constitution as a "right", or whether to amend or abolish the principles. The majority, according to reports, appear to agree on maintaining them.
Articles pertaining to the Egyptian Armed Forces remain the most sticky points of contention in the ongoing debate on the new constitution. Among the key issues is how proposed laws affecting the military would be discussed and acted upon by the parliament.
In addition, there are discussions over the reach of the legislative and executive authorities over the military, the secrecy of the military's budget, how its leadership is determined and the process by which a war is declared, including whether the military would be able to veto the president’s decisions.
Also up for debate is whether the military should have a constitutional role as the "guarantor of the civil nature of the state" or "guarantor of constitutional principles" – a situation that parallels the military’s position in Turkey.
Egypt has had both an upper and lower house of parliament for decades. However, the current upper house the “Shura Council", an advisory body, has proven to be largely ineffectual and, some argue, lacks any genuine raison d'être.
After early calls for its abolishment following the ouster of Hosni Mubarak, there is now a growing movement within parliament towards maintaining the Shura Council as a potential counterweight to the lower house. Simultaneously, there has been a push to find ways to genuinely empower it. This seems likely to become the eventual outcome.
Egypt is a "consultative" state
The current draft of Article 1 states that "The Arab Republic of Egypt is a modern democratic, 'consultative' and constitutional state, founded upon the separation of powers, the principle of 'citizenship,' and it is a part of the Arab and Islamic Nation, and is tied to the African continent."
The addition of the word "consultative" to the text, a suggestion by a Salafist member of the assembly, stirred some debate. The Arabic for "consultative" is the word "Shuriyya," which has Islamic undertones and was seen by some as having potential theocratic implications.
Nevertheless, the majority have dismissed any fears regarding the word, arguing it is just an Arabic synonym for the word "democratic" that it will not have a negative impact and is, at best, eloquent tautology.
Egypt is a "civil" state
Some, mostly on the liberal side, proposed adding the word "civil/civic" to the first phrase of the draft of Article 1. However, the proposal was dismissed by conservative members of the assembly, who feared it would be "misunderstood by some" according to several reports. The key issue is that some worry "civil/civic" is a euphemism for "secular."