Egyptian Court Declines to Rule on the Legality of Drafting a New Constitution

The decision, which referred the case to a higher court, seemed to ensure that the current group of authors will have time to finish its work.

The drafting of what will serve as Egypt’s fundamental charter has been marked by arguments over the makeup of the committee and pitched battles over pages of text, including articles dealing with women’s rights, Islamic law, executive power and the proper role of the state.

Liberal groups and others that asked the courts to dissolve the committee on legal grounds have been concerned that its Islamist majority is trying to create the basis for an Islamic state. Ultraconservative Muslims have argued that, on the contrary, the constitutional drafts so far have been insufficiently deferential to their concerns.

The decision to refer the case left an uncertain landscape. While the judges of the Supreme Constitutional Court have a history of ruling against Islamists — as they did by dissolving the Islamist-led Parliament in June — many analysts said the court was unlikely to act in time to stop the drafting committee from completing the text.

Just two months before a scheduled public ratification vote, there is still no clear picture of what the final document will say, and on Tuesday committee members said many of the most contentious articles were still being deliberated.

“I think it’s all in dispute, and I think it looks like it will come out in the end,” said Nathan J. Brown, a professor of political science at George Washington University who studies the Egyptian legal system.

Members of the Muslim Brotherhood, Egypt’s main Islamist movement, called the decision on Tuesday positive. “The constituent assembly has a major chance to finish its work and to allow for real participation,” said Ahmed Sobei, a spokesman for the group.

The assembly is supposed to complete its work by Dec. 12.

Apart from Islamic law, there have been arguments about minority rights, the role of the judiciary and the powers of the president. There are also persistent complaints that the draft articles released so far are too timid and hardly reflect the change envisioned by Egypt’s revolutionaries and their demands for justice, social rights and the dismantling of former President Hosni Mubarak’s authoritarian state.

Though some of the draft language that has been released hews closely to Egypt’s 1971 Constitution — including on women’s rights — women’s groups have argued that the changed political context since Islamists took power requires stronger guarantees.

In a worrying sign for liberals and other secular-leaning figures, ultraconservative Muslims known as Salafis said on Tuesday that they were feeling more comfortable with the draft after the insertion of language meant to clarify references to Islamic law.

In language borrowed from the 1971 Constitution, Article 2 of the latest draft says that “the principles of Islamic law are the main source of legislation.” While Salafis initially wanted to drop “principles of” from that clause, a spokesman for the largest Salafi party said they had settled for an additional clause that elaborated on what the principles were, language that some believe would make the law more rigid.

“We have an obligation to God,” said Younis Makhyoun, a Salafi member of the drafting committee. “We’re facing a fondness of anything coming from the West. We must have independence and pride in our belief, legacy and religion.”

But Gaber Nassar, a constitutional scholar on the committee, said, “Nobody is going to commit to this article.” He said Salafis on the committee, and not members of the Brotherhood, were responsible for making Islamic law a contentious issue.

“They have an understanding of the issue that nobody could approve,” Dr. Nassar said.

Given the controversies, some have suggested creating a temporary constitution and trying again later in a less charged political environment.

“We’re constructing the second republic,” said Zakaria Abdul Aziz, a prominent former reformist judge. “If we keep the same institutions, it’s going to be exactly like the first republic, without a new philosophy.