2012 Egyptian constitutional referendum

The Constituent Assembly was originally elected by Parliament in March 2012, before being dissolved by a court in April after it was deemed unconstitutional.[9] A second Assembly was elected by Parliament during the summer.[10] The second Constituent Assembly produced on 30 November 2012 a 234 article draft constitution,[11] after it approved each article individually during a 19-hour meeting starting on 29 November.

The draft constitution ended Egypt's all-powerful presidency, instituted a stronger parliament, and contained provisions against torture or detention without trial. But it also gave Egypt's generals much of the power and privilege they had during the Hosni Mubarak era.[17] Human Rights Watch noted that it provided for basic protections against arbitrary detention and torture and for some economic rights, but failed to end military trials of civilians or to protect freedom of expression and religion.[18] The organization also stated that the Chapter II draft, entitled Rights and Freedoms, provided for strong protection against arbitrary detention in article 35 and torture and inhumane treatment in article 36, and for freedom of movement in article 42, privacy of communication in article 38, freedom of assembly in article 50, and of association in article 51, but deferred to objections from the country's military leadership and removed the clear prohibition of trials of civilians before military courts.[18]

Article 2, defining the relationship between Islam and Egyptian law, remained essentially unchanged from Egypt's old constitution. The new charter said that the legal code stems from "the principles of Islamic law," wording that is broad enough to allow for individual rights and freedoms.[19] But in an attempted compromise between the ultraconservatives and their liberal opponents, the proposed constitution added a new article defining those principles in accordance with established schools of Sunni Muslim thought.[17]

Article 50 preserved the right to assembly but required "notification" of such gatherings.[19] The constitution called for freedom from discrimination, but did not specify whether women or religious minorities were protected. A provision on women's equality was left out to avoid a dispute after ultraconservatives insisted that women's equality should be qualified by compliance with religious laws.[17] One article that passed pertained to arbitrary arrest and detention rights. The article said that no person may be "arrested, searched, incarcerated, deprived of freedom in any way and/or confined" unless it is ordered by a "competent judge". Another article stipulated that anyone jailed must be told why in writing within 12 hours, and the case must go to investigators within 24 hours. Detainees cannot be interrogated without their attorney or one appointed to them being present, the article also stated. Phone conversations, electronic correspondence and other communication cannot be listened to without a warrant.[20]

The new constitution limited the President to two four-year terms,[21] marking a clear shift away from the era of Mubarak, who ruled for 30 years. But other checks on presidential power remained ill-defined.[19] The defense minister would be chosen from the military's officers. Insulating the armed forces from parliamentary oversight, a special council that included military officers would oversee military affairs and the defense budget.[17] Ziad al-Ali of the International Institute for Democratic and Electoral Assistance noted that another article in the document called for the election of local councils in each province but kept all the power in the hands of federally appointed governors. And even though Egypt's pervasive public corruption was a major complaint by those who forced Hosni Mubarak from power, the assembly declined to borrow any international models to promote transparency, Ali said. "There won't be a huge improvement in the way government works and the way services are delivered, and that is a setback for democracy."[17]

After the referendum, President Mohamed Morsi said in a speech on television that the Egyptians voting against the constitutional referendum were within their rights, "because Egypt of the revolution – Egypt's people and its elected president – can never feel annoyed by the active patriotic opposition. We don't want to go back to the era of the one opinion and fabricated fake majorities."[40] With regard to the referendum, Morsi went on to add that "there have been mistakes here and there, and I bear responsibility", but that "no matter what the hardships of the past [were], I see it as the pain of birthing the new Egypt ... It is truly the dawn of [a] new Egypt, which has risen and is now shining."[40]

In a response to the referendum, the United States Department of State issued a statement noting that "[m]any Egyptians have voiced deep concerns about the substance of the constitution and the constitutional process" and further stating that "President Morsi, as the democratically elected leader of Egypt, has a special responsibility to move forward in a way that recognizes the urgent need to bridge divisions, build trust, and broaden support for the political process."[41]