A Constitution ”For All Those Determined”

In an article last month, I wrote that the new Egyptian constitution must accomplish these three aims: prevent presidential autocracies, limit the authority of the military, and provide more rights for more Egyptians. Given that the draft constitution has been finalized, and a national referendum on the draft will commence on the 14th and 15th of January, I believe it is necessary to examine the degree to which the amended constitution accomplishes the lofty aims set forth in my December article. Although the draft constitution of 2013 takes some positive steps in the realms of protecting rights and freedoms and preventing presidential autocracies, it ultimately fails to limit the power of the military. Instead, it appears to pave the way for greater military involvement in politics as an unchecked, quasi-government entity.

A Rough Start
It is safe to say that the final draft of the 2013 constitution has gotten off to a rocky start. On December 15th, a press conference held to generate support for the new constitution appeared to have precisely the opposite effect. Behind the panel speakers, among whom sat Amr Moussa, head of the 50 member constitutional committee charged with amending the constitution, hung a banner expressing support for the draft constitution. The rest of the story closely resembles a transcript from a Bassem Youssef episode, but sadly this is no joke. The banner misspelled the Arabic word for “Egyptians” and instead used a word meaning “(those) determined”. Second, the banner featured five pictures of people meant to symbolize the diverse Egyptian people whom the constitution ostensibly protects. Unfortunately, only two of the pictures depicted actual Egyptians. Of the other three, one was an American doctor who fixes stretch marks, another showed an Irish businesswomen, and the third was a young American man with Down syndrome. While the banner itself represents little more than a minor controversy of major oversight, it nevertheless highlights concerns as to whether the new constitution adequately represents and protects Egyptians.

A Mixed Bag
Despite the rocky start, the draft constitution makes some definite strides in providing more rights to more Egyptians, such as women. Article 11 of the draft constitution clarifies the unclear language of the 2012 constitution regarding the state’s responsibilities towards women. In addition to clarifying the state’s responsibility to achieve equality between men and women, the draft constitution mentions, “the state commits to the protection of women against all forms of violence, and ensures women empowerment to reconcile the duties of a woman toward her family and her work requirements.” In addition to promoting equality and protection of women, the constitution also contains a clause granting women “appropriate representation” in parliament and the “right to hold public posts and high management posts”. While many consider this language long overdue, these developments nevertheless represent real progress, however small, in defining the state’s responsibilities towards female citizens. It remains to be seen how successful the state will be in carrying out these responsibilities.

The constitutional committee also made minor changes to the article concerning freedom of belief. In the 2012 constitution, freedom of belief was described as an “inviolable right”; however, the wording of article 64 in the new constitution states, “freedom of belief is absolute”. It is unclear to what degree this change in language will affect the state of freedom of belief in Egypt. The other clause in the article reads, “The freedom of practicing religious rituals and establishing places of worship for the followers of revealed religions is a right organized by law.” This limited definition of religion is essentially the same as that used in the 2012 constitution, and it does not go far enough to protect practitioners of religious traditions that fall outside of the revealed, or Abrahamic, religions. 

In my December article, I wrote that creating a legal framework for preventing presidential autocracy served as an important goal to be accomplished by the new constitution. There has been some minor success in this regard. The draft constitution delegates some executive power to the prime minister, creating more of a semi-presidential system. At the same time, the draft constitution hampers the president’s ability to declare a state of emergency. A state of emergency must be presented to the parliament within seven days of enactment, and it must be approved by a majority vote in parliament. This means that a state of emergency can only last for a week before its fate is determined by parliament. This is especially important considering that past Egyptian presidents took advantage of their authority to enact states of emergency lasting for decades. For this reason, many observers have heralded this aspect of the draft constitution as the most promising of the amendments.

The role of the military, as defined in the draft constitution, is unfortunately less promising. First, the draft constitution failed to end military trials of civilians. Article 204 of the draft constitution prohibits military trials of civilians, but it then includes a massive list of exceptions, which essentially negate the aforementioned prohibition. The exemptions include “crimes that represent a direct assault against military facilities, military barracks, or whatever falls under their authority; stipulated military or border zones; its equipment, vehicles, weapons, ammunition, documents, military secrets, public funds or military factories; crimes related to conscription; or crimes that represent a direct assault against its officers or personnel because of the performance of their duties”. These exceptions provide the military with a great degree of flexibility to try civilians.

Second, the draft constitution takes the responsibility of appointing the defense minister out of the president’s hands. Instead, the Supreme Council of the Armed Forces (SCAF) is responsible for appointing and approving the defense minister. Moreover, the draft constitution describes the president as Supreme Commander of the Armed Forces and the defense minister as Commander-in-Chief of the Armed forces. This confusing language begs the question as to who ultimately controls the military. This is especially important given that it is the SCAF, which appoints the defense minister. Third, the draft constitution stipulates that the National Defense Council determines the military budget, a body composed of and heavily influenced by members of the military. These three aspects of the draft constitution demonstrate a strengthening of the military as an unchecked, quasi-governmental institution.

The Devil’s in the Details
The situation is further complicated when discussing the role of religion in the state as defined by the draft constitution. With respect to Sharia law, the newly drafted constitution is essentially no different than the 1971 constitution created by President Anwar Sadat and the more recent 2012 constitution. Just as in the older constitutions, article 2 stipulates, “The principles of Islamic Sharia are the principle source of legislation.” The Nour Party representative, one of the only Islamist members of the committee, lobbied unsuccessfully to change the term “principles” to “rulings”, which would have resulted in the facilitation of a stricter version of Islamic law. The 50 member constitutional committee also fiercely debated article 219, which strictly defined these principles of Sharia law. Ultimately, the committee members decided to completely remove article 219, and it does not appear in the new draft of the constitution.

The committee also decided to ban religious parties in article 74 of the draft constitution. The full article reads: “Citizens have the right to form political parties by notification as regulated by the law. No political activity may be exercised or political parties formed on the basis of religion, or discrimination based on sex, origin, sect or geographic location, nor may any activity be practiced that is hostile to democracy, secretive, or which possesses a military or quasi-military nature.” This article serves as an inherent contradiction. On the one hand, its goal is to exclude the Muslim Brotherhood from official participation in political parties. On the other hand, the article seems to ignore the fact that another religious party, the Nour Party, was active in drafting the constitutional and is urging their supporters to vote in favor of the draft. How can a fair constitution exclude one religious party and include another? Clearly, the Nour Party believes that they may be exempted from the ban because of their willingness to cooperate with the interim government following the removal of former President Mohamed Morsi. Yet, if that is the case, then it appears all the more likely that this new constitution will not represent all Egyptians but rather only those who supported the military intervention on July 3 and the consequent interim government.

A scandal over one word in the finalized draft may provide some insight into the future of this draft of the constitution and the greater consequences for Egypt. After the final vote on the draft constitution, members of the committee pointed out that the phrase “civilian rule” had been secretly changed to “civilian government.” Some observers believe that since “government” is often understood as the cabinet in Egypt, the word change leaves open the possibility for members of the military to run for higher offices like the presidency. The current defense minister, General Abdel Fattah al-Sisi, has not dispelled rumors that he may run as a presidential candidate, and this small word change may just provide him with enough legal leeway to make a successful presidential bid. Others believe that the change is meant to prevent religious figures, especially those from the Muslim Brotherhood, from participating in government.

Whatever the case may be, this controversy serves as another example of a rushed and unnecessarily secretive constitutional process that is unlikely to result in a lasting success. The composition of the constitutional committee did not adequately represent the Egyptian people, though a great effort was put forth to portray the members in such a light. Moreover, some of these members were even absent from major votes, like the vote over abolishing the Shura Council. High aspirations for a lasting political tradition quickly deteriorated into acceptable standards for a transitional period of recovery from Muslim Brotherhood rule. This time around, perhaps good enough is good enough, but it doesn’t necessarily have to be that way.

By Robert Mogielnicki
Robert Mogielnicki is a political and economic analyst who focuses on the MENA region. He is currently pursuing a graduate degree at the University of Oxford in the field of Middle Eastern Studies. He can be contacted at mogielnicki.robert@gmail.com


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