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The timing and method of the writing of the new constitution has emerged as a contentious issue in the Egyptian transition. All parties believe that timing and method will affect the content of the document and thus push for the approach they deem most likely to produce the constitution they want. In general, liberal parties would like the constitution to be written before elections take place, fearing that a post-election constitution-making process will be dominated by Islamists. Conversely, the Freedom and Justice Party and other Islamist organizations believe that the constitution should be written after the elections, arguing that voters in March already approved the constitutional amendments needed to safeguard the next elections and that further changes can only take place after the polls.
In an attempt to bridge the increasing divide, Major General Mohsen al-Fangary of the Supreme Council of the Armed Forces (SCAF) suggested in a speech on July 12 that all parties should agree on a set of supra-constitutional principles to be embodied in the new constitution no matter when and by whom it is drafted. Such fundamental principles would not be open to amendment. (In June, Mohammed ElBaradei had suggested to the SCAF that parties should reach agreement on a Bill of Rights before the elections.) The SCAF then appointed constitutional law professor Osama Ghazali Harb, president of the Democratic Front Party, to head a committee to draft the supra-constitutional principles document. Ghazali Harb likened the supra-constitutional principles idea to the American Bill of Rights or the English Magna Charta as bulwarks insuring the protection of individual liberties from government incursion no matter who controls the government in the future.
Al-Azhar, the oldest institution of Islamic thought and education for the Sunni Muslim world, had already issued a set of principles in June 2011 that met the acclaim of Islamists and secularists alike. Rather than flatly declaring Islam as the official religion, the document detailed the aspects of the faith that further the aims of a modern and democratic state. These principles, as well as drafts of supra-constitutional principles by various political parties and civil society activists, were incorporated into the drafting of the final SCAF document. Despite the efforts by many, including ElBaradei, the Muslim Brotherhood continued to reject the concept of supra-constitutional principles, noting that any constitutional agreement before the elections was un-democratic and harkened back to the Mubarak era.
On August 14, the SCAF presented the set of supra-constitutional principles to the political parties. According to al-Masry al-Youm, the document embraces the standard human, political, and religious rights of privacy, free speech, press, and the right to private property and healthcare. It also declares Egypt to be a civil democratic state, but also upholds Islam as the state religion, with Islamic law as the main source of legislation. Nevertheless, the Democratic Alliance, which includes both the Freedom and Justice Party and the Wafd in addition to over 30 other parties, rejected the documents because the principles would supersede a constitution written by an elected body and because, to some Islamists, the term “civil state” was a barely disguised substitute for “secular state.”
In attempt to bridge the divide, the SCAF called upon al-Azhar to bring the parties together to reach an agreement. Al-Azhar issued what became to be known as the “Al-Azhar Document,” which largely mirrored the supra-constitutional principles issued by SCAF. The Coptic Church and all liberal parties that would later form the Egypt Bloc endorsed al-Azhar’s document. The Muslim Brotherhood and its allies in the Democratic Alliance—while noting they did not necessarily oppose the text of the document—refused to agree to its imposition before elections. Parties in the moderate Islamist trend, such as al-Wasat and al-Adl, praised the document, but still did not endorse its imposition before elections because it would polarize the political scene. Complicating matters, a coalition comprised of the April 6 Movement, al-Wasat, al-Jama’a al-Islamiya, the Salafist Front, and other groups issued yet another set of principles they deemed should be supra-constitutional.
The issue of whether to adopt supra-constitutional principles before the elections has brought to the fore a serious divide in Egyptian politics. Liberals claim that the refusal of Islamists to accept such principles, even when endorsed by al-Azhar, raises doubts about their claims of moderation and about the constitution they would write if they won the upcoming elections. The Muslim Brotherhood’s Freedom and Justice Party continues to see supra-constitutional principles as a “red line” that cannot be crossed without undermining democracy. The gap between the two positions has proven impossible to bridge.
