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How Islamist is Egypt’s New Constitution?

Defining the Post-Mubarak Order


Egypt’s new constitution adopted in late 2012 was meant to erect the legal foundations of a democratic state following the 2011 uprising that overthrew the dictatorship of Hosni Mubarak. Instead, deep divisions between Islamists and secular groups produced a controversial legal document.

The constitution did not impose a strict Islamist state, but it did open the doors for a larger role for religion in the public life. Some of the key articles are entirely open to interpretation, which will probably prolong political instability in the country for some time to come.

1. The Role of Religion

  • Sharia law: The constitution upheld the wording of the Mubarak-era (secular) constitution stating that “the principles of Islamic law” form the main source of legislation. This was seen as a concession to the liberal opposition, because hardline Islamists demanded that Egypt’s laws be based solely on the Islamic Sharia law, a precondition for an Islamist state.

    Under Mubarak, only a minority of laws were actually derived from Islam, and these did not affect the functioning of the state. How the judiciary will act in the new political order remains to be seen.

  • Muslim clergy: The constitution adds that the government should consult the Muslim clergy on “matters related” to Islamic law. This is one of the most hotly contested articles, because it says nothing on the range of legal matters that fall under this definition, or how the process is supposed to work. Secular Egyptians fear that the article lays a legal precedent for clerical supervision of the state, and some see it as a first step toward “Iranization” of Egypt. Expect fierce legal battles, particularly because there is no consensus on what constitutes the Sharia law itself.

  • Religious freedom: Article 43 on freedom of religion limits both the right to practice religion and to establish places of worship to Muslims, Christians, and Jews. In the old constitution, all religious groups had the right to practice, but only the three monotheistic faiths had the right to establish places of worship. This change opens the doors to discrimination of Egypt's religious minorities such as the Baha’is. The situation of the Muslim Shiite minority is equally uncertain.

2. Political Freedoms

In a major improvement from the previous document, the constitution specifically guarantees the right to open political parties and newspapers without prior approval. It contains articles on the freedom of assembly, movement, and association, and safeguards the privacy of communication. The constitution also provides protection against arbitrary detention, torture and inhumane treatment.

At the same time, some of these provisions could be compromised through articles that forbid blasphemy (“insults to prophets”) and defamation (“insults to any person”). How exactly is this ban going to be applied in the court of law? Could the government use these legal provisions to place limits on the freedom of speech?

3. Gender Equality

The constitution says that all citizens have equal rights: a compromise between calls for explicit safeguards on women’s rights, and Islamist proposals to link women’s rights to the rulings of Islamic jurisprudence.

However, the document also stipulates “respect” for tradition and family values, another vaguely formulated article. Critics say it could potentially be used by conservative judges to sanction any behavior or cultural work they deem un-Islamic.

4. The Role of the Military

The army will retain considerable institutional influence in the political system, to the disappointment of pro-democracy groups who wanted its full withdrawal from the public life. By contrast, the constitution allows military trials for crimes “that harm the armed forces”, potentially enabling the army to silence its critics.

The generals will be able to protect their economic interests through inclusion in the new national defense council, where they will discuss the army’s budget allocations with the president and prime minister. The army will also retain the role of the minister of defense.

5. Presidential Powers

The constitution maintains a presidential system of government that will give President Mohammed Morsi (elected in June 2012) and his Islamist supporters substantial power in shaping the new political system. The head of state has the right to appoint the prime minister, conditioned on the parliament’s approval. President’s time in office is limited to two four-year terms.

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