Contrary to common belief, Egypt is not drafting a new constitution. Last December, President Morsi ratified a constitutional document that was approved after a chaotic and opaque referendum. This event marked the beginning of a series of revolts against the government, which was increasingly seen as oppressive and autocratic in putting forward certain forms of Islamism through the law. Soon after the most recent transition of power and Morsi’s arrest, current President Adly Mansour has put together two committees that will outline a series of amendments to Morsi’s constitution, without repealing it as a whole. This decision has spurred both great debate and curiosity over the nature of the decision and the possible changes that will be put in place.
How it Will Work
Interim President Adly Mansour was sworn in on July 4th
First, the Committee of Ten, made of 10 constitutional scholars and judges, will prepare the amendments for Morsi’s constitution. The first group will then pass on the amendments to the Committee of Fifty, which instead is comprised by selected figures from major interests in Egypt, following Article 29 of the same constitutional draft they will be working on.
This mechanism, established by a Adly Mansour’s decree on July 8, created confusion with regards to the fairness of the process. Initially, it was said that only the Committee of Ten would be able to draft new amendments, ultimately granting the second committee mere veto powers.
However, on July 22 Al-Shorouq published an interview to constitutional adviser to the President Ali Awad Saleh. In the interview, Saleh affirmed that “the Committee of Fifty has the right to insert additional amendments” and that “most likely the Committee of Experts and the Committee of Fifty will work together in order to better achieve integration and avoid wasting time.” Yet, the only reason why the Committee of Ten exists is to speed up the amendment drafting process, which suggests that the second group will have a minor role in the initial process.
Moreover, there has been a great deal of opposition to the idea of simply amending a constitution that has been a major source of opposition against the Morsi government rather than writing a new one from scratch. According to Saleh this may be “up to the Committee of Fifty,” even though they remain bound by Monsour’s decree that devised the current process. Starting from scratch could potentially create attrition between the executive and the high end of the Egyptian judiciary.
After this initial process, the constitution will be most likely be subjected to a popular referendum. However, the initial phases are even more important in light of the dramatic consequences caused by the lack of transparency in Morsi’s drafting process last December. Needless to say, if the 60 men in charge of putting forward the new constitution are not able to aim for a proper balance between all the arguments on the table, the new constitutional draft may only end up deepening the divides and tension that are currently shaping the Egyptian political system.
What Will Probably Change
Constitutional Adviser to the President Awad Saleh was interviewed by Al-Shorouq.
The main discussion is likely to revolve around those articles that inject Islamist notions into the document. For example, Article 4 currently states that Al-Azhar’s Council of Senior Scholars must be consulted when dealing with “issues related to Islamic Sharia,” which can comprise basically anything as Sharia connotes any part of one’s lifestyle. Other parts that will probably be revised are Article 10, which promotes religion and patriotism as the inherent “basis of society,” Article 11, which promotes “public morality,” a dangerous notion in this context that can be used to infringe on individual freedoms, and Article 43, which indirectly places Islam, Christianity, and Judaism on a higher level than other religions.
Furthermore, according to an exclusive by Youm 7 published by the Arabist, other issues of media, presidential, and judicial nature will also be at the center of the debate of the committees.
Article 48 states that the press will have to face “requirements of national security,” which sets a very fragile basis for complete freedom of speech as the judiciary may be able to be manipulated into shutting down media through this clause depending on political interests. This is likely to be amendment, hopefully.
Another key issue regards the powers assigned to the president. According to many, the current constitution grants even more power than the 1971 paper, as the president is currently able to appoint the heads of the oversight bodies that oversee the president’s office.
Finally, the size and scope of the Constitutional Court are also going to be point of discussion. The current constitution reduced the amount of members on the court while also enhancing presidential powers for appointment. Considering the weakness of the judiciary in Egypt, it is likely that the Committee of Ten will tackle this issue.
As the committees begin their work, Egypt remains highly fragmented
We wait. Skeptical of the process devised by the July 8 decree, the media must pay close attention to the results of the consultations and the debate. The basis for the new constitution remains the one created by Morsi’s executive and there are uncertainties as to which intermediate revisions the draft will undergo before being presented to the public. This makes for an uncertain judicial future in the country.
Many have suggested the process be revisited to include members of the Muslim Brotherhood, which remains a political current regardless of Morsi’s individual status. However, others question why including the ones who will clearly be arguing for an unchanged document may be productive. Either way, what comes out of the two committees is likely to set the basis of Egypt’s near future. While timing is definitely key, Egypt cannot afford another divisive constitution and a weak judiciary built on top of it.