Does Egypt's Draft Constitution Provide for Religious Freedom?

IIRF Research and Analysis Report - 12/2012

The Constituent Assembly of Egypt came out with a draft constitution on Nov. 29, and a referendum will be held for its adoption on Dec. 15. The draft prepared by the Islamist- dominated assembly shows where the Muslim Brotherhood stands on the role of Shari'a in public life and human rights as understood by the international community.

President Mohamed Morsi, who is from the Brotherhood's political wing, is going ahead with the constitutional referendum despite an ongoing uprising over his Nov. 22 declaration that no one - not even the courts - can challenge his decisions until a new constitution is in place. Morsi wants people to believe that the constituent assembly hurried to prepare the draft, and the referendum is being held in haste, so that the period of his newly acquired supreme authority is short.

However, anti-Morsi protests increased after the date of the referendum was announced. The president did not want to give enough time to the people to discuss the proposed provisions.

On Nov. 18, a day before Tawadros II was officially enthroned as the new pope of the Coptic Orthodox Church, the interim pope announced the withdrawal of all church representatives from the 100-member constituent assembly lest the draft constitution had the church's stamp of approval on it. Non-Islamist parties also pulled out, decrying marginalization.

While the draft the assembly has prepared is not entirely according to the demands of the nation's ultra-conservative Salafi forces, its provisions are a cause for serious concern for those who care for religious freedom.

Salafi representatives pushed for re-wording of Article 2 as "the rules of Sharia are the main source of legislation." While their calls were not fully heeded, the article does say that "the principles of Shari'a" will be the basis for law. "Islam is the state religion, its official language Arabic, and the principles of Islamic Shari’a are the main source of legislation," it reads as per an unofficial English translation.

Salafis also wanted Article 5 to say that "Sovereignty is for God alone." The article, however, states, "Sovereignty belongs to the people who exercise and protect it, safeguard national unity, and authority is derived from them, all in the manner set out in the constitution." The previous constitution under former President Hosni Mubarak stated, "Sovereignty is for the people alone." The word, "alone," has been dropped.

According to Article 3, Christians and Jews will have their own religious laws concerning personal and religious matters. However, the Baha'i community has not been included in this article. "For Egyptian Christians and Jews, the principles of their religious laws are the main source of legislation in personal and religious matters as well as in the selection of their spiritual leaders," the article states.

Salafi politicians also advocated for giving the Al Azhar Islamic university the final say in defining Shari'a. Their demands were not fully met, but Article 4 does provide that the institution will have an advisory role. This is problematic given that a body that is purely Sunni and not elected by the people will have a key role in deciding what constitutes Shari'a. The article states: "Al-Azhar is an independent Islamic body and it alone addresses its internal affairs. Its scope covers the Muslim nation and the entire world. It spreads religious studies and the call to Islam. The state guarantees sufficient funds for it to achieve its goals. The law determines the method for selecting Al-Azhar’s Grand Imam, who shall be independent and cannot be removed from office. The opinion of Al-Azhar’s Council of Grand Scholars shall be taken in matters related to Islamic Shari’a."

According to Article 6, "shura," which is not elected, will be the basis of the political system. It also revokes a ban in the former constitution on political parties based on religion. It instead prohibits parties based on discrimination. "The political system is based on the principles of democracy and shura (counsel), citizenship (under which all citizens are equal in rights and duties), multi-party pluralism, peaceful transfer of power, separation of powers and the balance between them, the rule of law, and respect for human rights and freedoms; all as elaborated in the Constitution. Political parties may not be established on basis of discriminating between citizens on grounds of sex, origin or religion," it states.

Article 11 defines Egyptian culture and society in Arab terms. "The state protects the cultural, civilizational and linguistic unity of Egyptian society, and works towards Arabisation of sciences and knowledge," the article reads.

Article 43 limits religious freedom to "heavenly religions" - Islam, Christianity, and Judaism, recognized as "heavenly" by the state. "Freedom of belief is an inviolable right. The State shall guarantee the freedom to practice religious rites and to establish places of worship for the divine religions, as regulated by law," it states.

Article 44 carries a provision for an anti-blasphemy law. The article reads: "Insult or abuse of all religious messengers and prophets shall be prohibited."

The previous constitution gave the right to "statutory bodies" to petition in the name of a collective. Its mention has now been removed in Article 54 in an apparent attempt to exclude the church. "Every individual has the right to address public authorities in writing and under his own signature. Addressing public authorities should not be in the name of groups, with the exception of juridical persons," states the article.

The previous constitution stated that one of the duties of the president is to protect national unity, which has traditionally been understood as Muslim-Christian relations. However, Article 132 removes that as a presidential duty, and reads, "The President is the Head of State and chief of the executive authority. He looks after the interests of the people, safeguards the independence and territorial integrity of the motherland, and observes the separation between powers."

Article 212 provides for the formation of a new body with wide powers to regulate and oversee both public and private endowments. This can be seen as an attempt to put the church under Islamist control. "The High Authority for Endowment Affairs regulates, supervises and monitors public and private endowments, ensures their adherence to sensible administrative and economic standards, and raises awareness about endowments in society," the article states.

The Muslim Brotherhood has claimed that it wants to Islamize the nation only gradually and peacefully, and with the consensus of Egypt's citizens. However, the way the constituent assembly functioned, the provisions the draft constitution carries, and the haste in which the constitutional referendum is being held, all point towards a covert and crafty attempt to undermine religious freedom for minorities against the wishes of the people.