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© USIP 2013 • All rights reserved.

“The focus on the religious 

background and perceived 

mindset of the constitutions’ 

authors ignores the fact that 

the vast majority of the 236 

articles deals with the rights 

and liberties of citizens, the 

state’s accountability, and 

modern political institutions. 

The devil lies in the details of 

those technicalities rather than 

in religious statements.”

January 25, 2013

Egypt’s 2012 Constitution

Devil in the Details, Not in Religion

Summary

•	 Amid intense political contestation and deep rifts between Islamists and liberal political forces,

Egypt’s new constitution was adopted on December 22, 2012.

•	 Several articlesinclude stronger emphasis on religion than the 1971 constitution, yet its

character islargely secular.

•	 The constitutional text departsfrom Egypt’s authoritarian path, but also from a previous

consensus among political forcesto curb presidential powers.

•	 The state assumes a prominent role as a guardian of liberties and provider of human development, perceiving citizens as objects of thatstate rather than its ultimate authority.

Through a decree on November 22, 2012, President Mohammed Morsi allowed himselfsweeping

executive and legislative powers. Only few dayslater, a constituent assembly, consisting almost

entirely of the Muslim Brotherhood and different Salafi trends, issued a draft constitution which

was moved to a popular referendum on December 15 and 22, 2012. Egypt’s new constitution

was approved by 63.8 percent of the vote. Morsi’s acceleration of the constitution-writing process

reflectsthe increasing impatience of the President’s office and the Muslim Brotherhood with

the faltering transition processin post-Mubarak Egypt. Yet, the immediate consequence was an

escalation in the struggle between Islamists—emphasizing the legitimacy of their movesthrough

previous electoral victories—and a heterogeneous camp of liberal and secular forcesthat came to

re-unite in what they saw as a real danger of authoritarian renaissance. The short time period prior

to the popular vote and the seemingly intractable stand-off between Islamists and seculars did not

allow much room for discussions of the draft. Yet, a closer look at the textsuggeststhat the devil

liesin the details of politicsrather than religion.

Islamization through the Ballot Box, not the Constitution

The constitution envelopes a stronger emphasis on religion than previous constitutions; but its

religious content remains vague and does not qualify for a blue-print of a theocratic state. Only

seven of 236 articles contain an explicit reference to religion; a mere three refer to Islam. Articles 3,

43, and 44 establish the universal freedom of belief and religious minority rights. Article 60 callsfor

‘religious education,’yet with no furtherspecification of religiousfaith. Ofsome concern are those

articles upholding Islamic Sharia asthe‘principalsource of legislation.’Article 2 remains vague and

proposes only a minor change of that very article in the 1971 constitution. Article 219 comes as

Holger Albrecht

E-mail: halbrecht@usip.org

peaceBrieF139
© USIP 2013 • All rights reserved.

Egypt’s 2012 Constitution

page 2 • PB 139 • January 25, 2013

part of an amendment to the constitution’s main text and reflects—in a more specific, yet idiosyncratic manner—on those‘principles of Islamic Sharia.’1

Perhapsthe most controversial article is Article 4 which boosts al-Azhar as an autonomousinstitution observing the application of Islamic law. Al-Azhar is Egypt’s oldest university and arguably

the most eminent religiousinstitution in Sunni Islam. The article’sformulation invitesspeculations

about a substantial impact of al-Azhar in future law-making and censorship. Yet, it also indicates

the authors’priority in empowering al-Azhar as an institution autonomousfrom state control.

In future politics, it may wellserve as a mechanism to check Islamist partiesin power through

an independent body of religiousscholars. Islamization might increase in future politics, yet it

will ultimately depend on the relative mobilization capacities of political forcesrather than the

constitution’stext. Ifsecular forcesfail to sharpen their political profile and political programs, they

will likely witnessthe Islamists’protracted success at the ballot box. Islamists will then implement

their ideasirrespective of the formulation of those vague,still largely symbolic articles. On the

other hand, liberal politicians—once in power—could work well under the current constitution.

The Constitution is Conservative, Not Theocratic

The limited reference to religion issurprising because the constitutional assembly was almost

entirely composed of Islamists(Muslim Brothers, Salafis, and independent Islamists) after the

resignation of up to 22 liberals and leftists out of a total of 100 members. The Muslim Brotherhood

obviously anticipated a hawk-eyed probe of the draft and convinced the Salafi trend to accept

a document which came as a bitter pill to some Salafis because sovereignty was granted to the

people rather than God. The constitution mirrors a patriarchal and conservative worldview, mainly

in the subordinate role ascribed to women as‘sisters of men’(preamble), but also in the nebulous

ideal of public morality (Articles 8, 11, 12, and 71) and the pronounced role of the family as core unit

ofsocial organization (Article 10). While social conservatism isin concordance with Islamist thinking,

it does not constitute an exclusive realm for Islamists. Presumably a majority of the Coptic population and the greater part ofseculars would be sympathetic to these principles, making those an

indicator for the value system of modern Egyptian society rather than an Islamist power grab.

The focus on the religious background and perceived mind-set of the constitutions’ authors

ignores the fact that the vast majority of the 236 articles deals with the rights and liberties of

citizens, the state’s accountability, and modern political institutions. The devil lies in the details

of those technicalities rather than in religious statements. These flaws are significant and will

likely create a burden for policy makers of whatever ideological color or party background. The

constitution is amateurish; not immoderately religious. It reflects the authors’departure from

an earlier consensus among political forces in two major aspects: that the writing process is

based on a broad, inclusive agenda; and that presidential powers are curbed. Yet, despite some

problematic and contradicting articles, the text does not allow for a judgment on presumed

authoritarian intentions among its authors.

One of the major points of contention concernsthe document’s vagueness. Yet, the idea of a

constitution as a rough outline of the fundamental values,separation of powers, and institutional

framework has a strong advantage. It allowsfor competition among distinct programs without

forcing politiciansto renegotiate the constitution, that is, the fundamentals ofstate and society,

every time they come to power. The weakness of the Egyptian constitution does not lie in its

vagueness, but rather in the juxtaposition of extremely detailed provisions and, on the other hand,

vague announcements. Obviously the authors of the document had a clear understanding of

some aspects of political life while not interested in, or competent of, others. This predetermines
© USIP 2013 • All rights reserved.

Egypt’s 2012 Constitution

page 3 • PB 139 • January 25, 2013

the nature of unhealthy future politicalstruggles. While contention among those provisions

addressed in great detail will require a substantial engagement of political players with the body of

the constitution itself, other topics will initiate engagement in the halls of government, parliament,

and certainly the politicalstreet.

Emphasis on the State

Dozens of articles addressindividual rights and liberties of Egyptian citizens. The fact thatsix articles alone (35-40)—double the number of articles mentioning Islam—reference the protection of

prisoners and individuals prosecuted by the state mirrorsthe personal experience of the majority

of the constitution’s authors as Mubarak’s political prisoners. Yet, individual rights are accompanied

with strong emphasis of the state to deliver to its citizens who are portrayed astedious objects of

a caring, patronizing state rather than its ultimate authority. Again,some of the assignmentsfor

the state administration are quite specific, rendering a possible failure of political officialsto make

good on the constitutional pledge not an act of inefficiency, but anti-constitutional. Examples

include Article 61 which demandsto eradicate illiteracy within ten years; Article 66 requiresthe

state to provide opportunitiesforsports and physical exercise; and Article 184 instructsthe state to

assimilate living standards acrossthe country. In its greater part, the constitutional draft promises

to reinforce a social contract, reminiscent of the Nasserist period and subsequent governments. No

crystal ball isrequired to predict that future policymakers, whether Islamist orsecular, will fail that

mission, which will most likely result in their profound delegitimation rather than a judgment of

fair accountability.

In comparison to the detailed provisions concerning individual rights and statist obligations,

the constitution containssignificant ambiguity regarding major institutional components of the

state. There is a whole number of articlesspecifying membership and internal organizational

features of the legislature (Articles 82-115), but the constitution remainssurprisingly narrow in

outlining its mandate. Article 116 statesthat the first chamber of parliament haslegislative powers,

but the bulk of the subsequent articlesreflect on the chamber’s prerogativesto control the state

budget and the cabinet. Given that law-making powers are also granted to the executive branch

of government, the role of parliament in the legislative processremainssomewhat dubious.

The mandate of the second chamber of parliament is particularly unclear and the necessity of a

bicameral parliamentary system cannot be inferred from the constitution. Articles 193, 197, and

194 call for the creation ofseveral nationalsecurity councils, with different membership formats

(pitting civilian government officials and military personnel) but obviously overlapping and

diffuse mandates.

It is obviousthat the constitutional assembly emphasized a strong executive, represented in

the presidency. Established presidential democraciesindicate that this does not necessarily have a

negative impact on the value of democracy; and the constitution containssome interesting ideas

to control the abuse of power. The most important provisions here are in Article 152, regulating

the impeachment of the president, but also in Articles 126 (control of the prime minister through

parliament) and 127. The latter allowsthe president to dissolve parliament through a popular

referendum; yet, a negative result of the referendum requiresthe automatic resignation of the

president which provides valuable protection for parliament. Of greater concern are Articles 148

and 150 providing opportunitiesfor a would-be populist president to rule by decree and popular

referenda, effectively sidelining parliament. An intriguing example of the negligent way in which

the constitution was drafted isin the articlesregulating the amendment of the constitution.

Articles 217 and 218 establish high hurdlesfor amendmentsincluding two-thirds majority votes

in both chambers of parliament and a public referendum. While this helpsto bar the abuse of the
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Egypt’s 2012 Constitution

page 4 • PB 139 • January 25, 2013

About This Brief

Dr. Holger Albrecht is an assistant 

professor of political science at 

the American University in Cairo 

and Jennings Randolph senior 

fellow (2012-2013). His main 

research focus is on political 

opposition in the authoritarian 

regimes, transition to democracy, 

and civil-military relations in the 

Middle East and North Africa. 

His new book, “Raging Against 

the Machine: Political Opposition 

under Authoritarianism in Egypt,” 

is forthcoming with Syracuse 

University Press.

constitution, its authors neglected to add a passage on the irremovability of those articles. A party

commanding the necessary parliamentary majority might be tempted to amend Articles 217 and

218, rather than engaging in an arduous pick-and-chose ofsingular articles.

The lack of clarity in some articlesstandsin stark contrast with the specific provisions concerning other institutional bodies of the state. Some of the more detailed provisions clearly mirror the

strategic considerations of the constitutions’authors, rather than their ambition to craft functioning institutions. The substantial emphasis on the National Electoral Commission (Articles 208-211)

mirrorsthe Muslim Brotherhood’s attempt atsidelining their opponentsin the judiciary, e.g. in the

Supreme Constitutional Court (SCC) and the Judges Club. The SCC in particular wastargeted by

the constitution’s authors. Recruitment in that court wasreduced to the ten mostsenior judges,

which resulted in the exclusion of Tahaney El-Gebali—the 11th mostsenior judge, only female

member of the SCC, and staunch opponent of Islamists.

Outlook

The 2012 Egyptian constitution is not a blueprint for an Islamic state. Nor isthere enough evidence

to assume the intention of its authorsto re-erect an authoritarian regime. That may very well

happen as a consequence of the struggle between Egypt’s new rulers and its challengers. If the

authors of the constitution move to establish themselvesin power in a non-democratic fashion,

substantial efforts are necessary to adapt their own constitution. While putting an increased

emphasis on human rights, the rule of law, and the state’s accountability, the greater part of the

constitution remains a poorly drafted adoption of previous provisionsin the 1971 constitution

mixed with several articlesinspired by strategic and tactical consideration of those political forces

that came to dominate the writing of the document. This does not automatically render the

constitution’ssubstance anti-democratic, but it transportssome of the ills of the authoritarian past

and the current transition processto Egypt’sfuture. The constitution in its current form will most

likely cause more trouble than guidelinesfor the political process, in part because of the way in

which it was proposed but also because of itsidiosyncratic character.

Notes

1.	 On article 219,see Clark Lombardi and Nathan Brown,“Islam in Egypt’s New Constitution”

(Foreign Policy, 13 December 2012).