The following is a guest post by George Sadek, a Senior Legal Analyst at the Law Library of Congress. George has previously written posts on Egypt’s constitutional referendum, elections in Saudi Arabia, and the trial of Seif al Islam al Gaddafi in Libya.
The development and adoption of a new Egyptian Constitution has received a lot of attention in the news in recent months. Having moved to the U.S. from Egypt in 1999, and having subsequently conducted research work relating to the laws of the Middle East in various academic and governmental institutions, I have been following the legal developments in the Arabic speaking countries very closely. I thought it would be useful to pull together some information about the drafting process and the content of the Egyptian Constitution of 2012 for In Custodia Legis readers. In a second post, to be published next week, I will cover various perspectives on the constitution–including those in support of it and those that criticize it.
On March 26, 2012, in accordance with article 60 of the Constitutional Declaration of March 2011, a Constituent Assembly was established to draft a permanent constitution for Egypt. However, on April 11, 2012, the Administrative Court suspended this Constituent Assembly, stating that the Assembly did not reflect the diversity of the Egyptian society as it was only dominated by members of parliament who are affiliated with the Islamic political movements. Following the suspension of the first Constituent Assembly, a second Constituent Assembly comprising 100 members was elected by the parliament in June 2012. The second Constituent Assembly included members from the following groups: thirty-nine representatives of political parties in the People’s Assembly (lower house); six judges; thirteen representatives of labor unions; twenty-one public figures; five representatives of Al-Azhar (the largest Islamic institution in Egypt); four representatives of the Coptic Orthodox Church, one representative of the Ministry of Justice; one representative of the Ministry of Interior (in charge of homeland security); one representative of the armed forces; and nine legal scholars. Judge Hussam Al Ghariani, President of the Supreme Council of Justice, was elected by the members of the Assembly to oversee the constitutional drafting process.
In October 2012, the Constituent Assembly announced that it had finished the first draft of the constitution and launched a public awareness campaign called “Know your Constitution” to educate the public about the constitution. On November 29, 2012, the Constituent Assembly of Egypt finalized the drafting process of the new Egyptian Constitution. One week later, on December 8, 2012, Egyptian President Mohamed Morsi issued a new constitutional declaration announcing that the constitutional draft would be voted on in a national referendum.
In accordance with article 60 of the Transitional Constitutional Declaration of March 2011, a special judicial commission was formed to supervise the referendum process and monitor vote counting. The referendum took place in two rounds on two different dates: December 15 and 22, 2012. The majority of Egyptians voted in favor of the newly drafted constitution.
The new Egyptian Constitution includes four parts and 236 articles. It strengthens the role of Islam in the legislative and judicial process by adding new provisions on the implementation of Islamic law in the Egyptian legal system. It also addresses the political, social, ethical, and economic principles of the nation, and identifies the rights and freedom of individuals including personal, moral, political, economic and social rights. The new constitution also covers the guarantees by the state for the protection of rights and freedoms of Egyptian citizens.
The constitution discusses the mission and objectives of the three branches of the government. It defines the functions of the legislative branch, which consists of the People’s Assembly (the lower chamber) and the Shura Council (the upper chamber). It sets forth the powers of the executive branch, encompassing the President and the Prime Minister. Finally it describes the authority of the judiciary, including the Office of Public Prosecution, the Administrative Court, and the Supreme Constitutional Court. Additionally, the structure of local administration of the state, which includes Egypt’s administrative divisions and local councils, is covered by the new constitution.
Under the title of National Security and Defense, the Egyptian constitution defines the mission and objectives of the National Security Council, the Armed Forces, Military Judiciary, and Police Forces.
Finally, the constitution identifies two types of government entities: 1) regulatory agencies and 2) independent bodies. Regulatory agencies include the National Anti-Corruption Commission, the Central Auditing Organization, the Central Bank, the Economic and Social Council, and the National Electoral Commission. Independent bodies under the new constitution consist of the Supreme Authority for Endowment Affairs and three new bodies: the Supreme Authority for Heritage Conservation, the National Council for Education and Scientific Research, and the Press and Media Organization.
The Law Library and the Library of Congress have a number of primary and secondary resources related to Egyptian constitutional law and the role of Islamic shari’a in the Egyptian legal system, including materials in Arabic and English:
- Muḥammad Rifʻat ʻAbd al-Wahhāb, Constitutional Principles under the Egyptian Constitution (1990) (in Arabic);
- Court Decisions rendered by the Egyptian Supreme Constitutional Court (in Arabic);
- Ṣalāḥ al-Dīn Ḥasan al-Sīsī, Culture of the Egyptian Constitution (2007) (in Arabic);
- Jasmine Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights: International law and the Reform of Shari’a-Derived Legislation (2011);
- General Organization for Government Printing Offices, The Constitution of the Arab Republic of Egypt, September 1971, and the amendments, May 22nd 1980 (1995) (unofficial translation);
- The Rule of Law in the Middle East and the Islamic World: Human Rights and the Judicial Process (Eugene Cotran & Mai Yamani eds., 2000);
- Islamic Council of Europe, Concept of Islamic State (1979).
There are also some relevant new items currently in processing:
- Bilāl Amīn Zayn al-Dīn, The Principles of Islamic Law and Administrative Reform in Egypt (2012) (in Arabic);
- Ṭāriq al-Bishrī, The Historical and Cultural Background of the Codification of Islamic Shari’a in Egypt (2011) (in Arabic).