Constitutional Developments in Egypt: The New 2014 Egyptian Constitution

A preliminary analytical commentary on key constitutional changes to the Constitution of the Arab Republic of Egypt introduced by the new 2014 Constitution, ahead of a full country report to be published soon, including an English-translated text of the 2014 Constitution.

The new Egyptian constitution which was adopted by popular referendum on January 15-16 and entered into force on January 18, 2014 removes the most controversial elements which the Muslim Brotherhood and its allies had introduced in the short-lived constitution of December 26, 2012 with the aim of strengthening the Islamic identity of the Egyptian state but otherwise retains many of the basic features contained in that constitution which had already featured in the preceding 1971 constitution. This is perhaps not surprising in view of the fact that the Constitutional Declaration of July 8, 2013 had provided the 50-member constitutional committee appointed by the interim President Adli Mansour only with a mandate to draft amendments to the suspended 2012 constitution, not with the task of drawing up a completely new text. The text proposed by the constitutional committee was approved by 98 percent of Egyptians on a turnout of 38.6 percent of Egypt’s 52 million eligible voters. It thus fared better than the 2012 constitution—which was approved by 68.8 percent of voters on a 32.9 percent turnout—but was still far from achieving broad consensus in an increasingly divided society.

Like its two predecessors, the 2014 constitution combines liberal, religious and authoritarian elements. Its liberal features include the definition of the Arab Republic of Egypt as a democratic republic based on citizenship and the rule of law (Article 1), the guarantee of a political system committed to multi-party competition, the peaceful transfer of power, the separation and balance of powers, accountability for the use of public authority, and respect for human rights and freedoms (Article 5), as well as extended chapters on public liberties (Articles 51 to 93) and the rule of law (Articles 94 to 100). But perhaps the greatest step forward has been the abolition of a second chamber with questionable democratic credentials but substantial legislative authority. Law-making powers are now concentrated in the House of Representatives which is elected by direct universal suffrage. The unpopular Shura Council has been abolished.

In addition, those clauses of the 2012 constitution which were designed to give a bigger role to Islamic clerics and to promote a stricter interpretation of Islamic law have been removed from the constitutional text. The requirement to consult Al-Azhar in all matters pertaining to Islamic law no longer figures in the new Article 7 which defines Al-Azhar’s role in Egyptian society as that of an “independent scientific Islamic institution” responsible for preaching Islam in Egypt and the world. Article 219 of the 2012 constitution—which had attempted to limit the scope of interpretation of judicial bodies with regard to the principles of Sharia by defining them as including “general evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community”—was dropped from the text altogether.

On the other hand, the key provisions pertaining to the Islamic identity of Egypt have been preserved. Article 2 of the constitution, which declares that Islam is the religion of the state and the principles of Islamic Sharia are the principal source of legislation, has remained unchanged. By dropping the clause that Al-Azhar senior scholars are to be consulted on matters pertaining to Islamic law and by stating in the Preamble that the reference for interpretation of those principles is the relevant rulings of the Supreme Constitutional Court in its collected decisions, the new constitution restores the status quo which existed prior to the 2012 constitution and under which the Supreme Constitutional Court was solely competent to determine the scope of the Sharia clause in Article 2. It is also noteworthy that Article 64 proclaims freedom of belief to be “absolute,” but limits the freedom to practice religious rituals and to establish places of worship to followers of the revealed religions (i.e., Muslims, Christians and Jews).

The 2014 constitution has also recovered most of the authoritarian features of the 1971 constitution which the 2012 constitution had reversed only half-heartedly. The new constitution has kept the requirement of parliamentary approval for a presidential declaration of the state of emergency, but reduced the period for which the initial declaration is valid to three months. Extensions require a two-thirds majority in the House of Representatives instead of popular approval in a referendum, as prescribed by the 2012 constitution. There is no absolute limit on how often the emergency period may be extended (new Article 154). Even more disconcertingly, the 2014 constitution gives the public authorities broad powers in the fight against “terrorism.” The 2012 constitution had eliminated references to antiterrorist laws together with the power to create special courts for the trial of suspected terrorists. By contrast, the new Article 237 obliges the State “to fight all types and forms of terrorism.” Although the provision indicates that this fight shall be accompanied by “guarantees for fundamental rights and freedoms,” it does not specify the relevant guarantees. Instead, the constitution leaves wide discretion to the legislature in adopting the legislation organizing the provisions and procedures of fighting terrorism. In addition, the new Article 86 has introduced a potentially far-reaching duty to safeguard national security; this duty is no longer limited to the security apparatus of the state, but is incumbent on all citizens “as a national responsibility ensured by law.”

The new Egyptian constitution leaves the composition and the powers of the National Defense Council virtually unchanged. The majority of its members still belong to the security apparatus. The Council shall look into matters pertaining to the safety and security of the country and discuss the armed forces’ budget. The new Article 203 dispels any doubts which may have lingered under the 2012 constitution concerning parliamentary oversight over the military budget by stating that, following the discussions in the National Defense Council, the armed forces’ budget is incorporated as a single figure in the state budget. At the same time, the new constitution makes some effort to define the role and the powers of the military courts more precisely. The principle that civilians shall not stand trial before the military courts is confirmed. While this principle is still subject to exceptions, the exceptions are defined more carefully than in the preceding constitution (Article 204).

Whether all this is sufficient to promote and bring about the reconciliation of a deeply polarized polity remains to be seen. Given the increasingly bitter divisions which have beset political life in Egypt in recent months there is reason to fear that constitutional practice will focus on the authoritarian possibilities of the new constitution rather than on its democratic potential.