A Constitution to End All Constitutions

As Egypt struggles to navigate its political roadmap following the revolutionary events of 25 January 2011, the debate over the constitution is proving to be a major roadblock.

Many Egyptians and international observers believed that a ratified constitution built on consensus should have preceded elections, but parliamentary and presidential elections were nevertheless held before a constitution was agreed upon. As a result, responsibility for drafting the constitution was left in the hands of former President Mohamed Morsi and his Muslim Brotherhood. When the Supreme Council of the Armed Forces (SCAF) removed Morsi from power, the newly ratified Constitution of 2012 was suspended. The new interim government then created a 50-member committee responsible for drafting another constitution. This committee has had to reconcile competing demands from the military and judicial institutions as well as seek consensus among an Egyptian public that appears more divided than ever—a challenging job to say the least. While the constitutional committee cannot please all interested parties, it can achieve moderate success by focusing on three critical issues. The new constitution must provide protection from presidential autocracy, limit the power of the military, and grant more rights to more Egyptian citizens.

History of Islamist Influence
Before discussing the three critical issues regarding the constitution, it is necessary to examine the historical context that continues to shape the constitutional process. The current debate is primarily framed by the two constitutions of 1971 and 2012. Despite the radically different time periods that these constitutions occupied in Egyptian history, Islamists managed to exert substantial control over the constitutional processes in both instances. The Constitution of 1971 emerged in the midst of Anwar Sadat’s new approach towards Islamists. Consequently, the Islamists indirectly influenced the content of the constitution as part of Sadat’s political bargaining. In 2012, former President Mohamed Morsi and his Muslim Brotherhood were directly responsible for drafting the constitution. As a result, many argued that the Islamist-backed constitution deepened the religious divide in Egypt. In comparison to the two former constitutional experiences, the current constitutional process lacks both Islamist influence and representation.

The 50-member committee charged with drafting the latest constitution is headed by Amr Moussa, a prominent political figure, former presidential candidate and member of the National Salvation Front. Interestingly enough, the committee includes only five Islamists. Of the five, three members are representatives of Al-Azhar, a moderate religious institution that is often opposed to Muslim Brotherhood initiatives. The other two Islamist members are Kamal El Helbawy, a former member of the Muslim Brotherhood, and Bassam El Zarqa, a representative from the conservative Nour Party. This Islamist minority is strange considering that, until recently, Islamists controlled the presidency and secured majorities in many of the parliamentary elections following 25 January 2011. The overt exclusion of many Islamists from membership in the committee seems to make the job of building consensus that  much more difficult. Other committee members include three representatives of the Coptic, Evangelical and Catholic churches as well as representatives from various professional syndicates and human rights groups. This diverse committee is the body charged with creating the foundation for a new Egyptian political tradition.

High Constitutional Aims
First, the new constitution must protect Egyptian citizens from presidential autocracy. Historically, presidential autocracies in Egypt resulted from the re-election of military leaders in fraudulent elections. Presidents Sadat and Mubarak were allowed to be re-elected indefinitely because Article 77 of the Constitution of 1971 did not set a presidential term limit. Instead, the article explicitly states that “the President of the Republic may be re-elected for other successive terms”. The Constitution of 2012 limited the president to only two terms in office; however, the new language in this article did not eradicate the endemic problems associated with the position of president. This is best demonstrated by the millions of Egyptian protesters who called for and ultimately achieved the removal of former President Morsi from power in July of 2013.

The  new constitution must ensure that the next Egyptian president can serve as an effective leader while remaining within the bounds of mutually accepted presidential authority. A semi-presidential system, in which an elected president shares powers and responsibilities with a prime minister, would be a good first step in the right direction. The articles covering legislative oversight of the executive branch, though, are equally as important as power-sharing between the president and a prime minister.  In particular, the new constitution must stipulate how the legislature can directly remove the president from office or conduct an impeachment process. It is critical that the constitution clearly and fully grants this power to the legislative branch in order to prevent future interventions by the military in Egyptian politics. At the same time, it is important to note that a well-written framework for the legislative will not be a sufficient check on the powers of the executive. There also needs to be strong, organized political parties that are able to cooperate when serving as a check on executive power.

Second, the new constitution must limit the power of the military institution. In the past, the head of the SCAF automatically assumed the position of defense minister, and the Constitution of 2012 further consolidates this power  by  stating  that the defense minister must be a top military general. The constitution also ambiguously defines the role of the defense minister in relation to the president. Article 195 states that the Minister of Defense serves as Commander-in-Chief of the Armed Forces; however, Article 146 describes the president as Supreme Commander of the Armed Forces. This ambiguity not only undermines the powers of the president but also allows the military to continue to exercise wide-spread powers as a state within a state. These powers are also demonstrated by the military’s dominance over the National Defense Council, the body which controls the military budget and laws relating to the military. One of the laws that has received considerable attention lately involves military trials of civilians. Article 193 of the Constitution of 1971 grants the military the right to try civilians, and the Constitution of 2012 likewise permits these trials under certain circumstances.  

The new constitution must ensure that the president is the sole Commander-in-Chief of the Armed Forces. Alternatively, the title of Supreme Commander of the Armed Forces, or any similar title, should be removed from the position of defense minister. This will, at the very least, symbolize that Egypt is under civilian control, and consequently authority and legitimacy will ultimately reside with an elected official rather than a member of the military. At the same time, the new constitution should protect Egyptian civilians from military trials. For decades, the military judiciary has been used to intimidate opponents and stifle opposition. These limitations on military power, though, are unlikely to be implemented in the new constitution. If the Muslim Brotherhood, who were persecuted by the military for decades, were unable to place these basic limitations on military power in the Constitution of 2012, then it is difficult to imagine that the current constitutional committee will make much progress in this regard. This is especially true since the committee’s existence was enabled by the military’s removal of Morsi and installment of an interim government. 

Third, the new constitution must grant more rights to more Egyptians, especially those pertaining to religion. In order to accomplish this goal, the committee must first resolve the issues relating to the Islamic nature of the Egyptian state. Article 2 in both the 1971 and 2012 constitutions states that “Islam is the religion of the state and Arabic its official language. Principles of Islamic law [shari’a] are the principal source of legislation.” These principles are further explained in article 219 to be derived from the Sunni school of thought. The Salafist Nour Party, represented in the committee by Bassam El Zarqa, wants to replace the term “principles” with “rulings” in the text of the new constitution. This alteration in terminology would facilitate a stricter application of Islamic law, and consequently more moderate Islamic institutions like Al-Azhar support the original wording of the text. While the term “principles” is flexible in its application of the law, it is by no means flawless. The Constitution of 2012 only recognizes the Sunni schools of thought, which inevitably marginalizes Shiite Muslims. The new constitution should reuse the original, more flexible wording of “principles”, but it does not have to explicitly mention the Sunni schools of thought as the source of Islamic law.

The articles protecting freedom of belief are also a source of controversy in the constitutional debate. Unfortunately, neither the 1971 or the 2012 constitutions provide a useful framework for protecting religious freedom in Egypt. The 1971 constitution is extremely vague when describing the state’s role in protecting freedom of belief, whereas the 2012 constitution is perhaps too specific. Article 43 of the Constitution of 2012 reads, “Freedom of belief is an inviolable right. The state shall guarantee the freedom to practice religious rites and to establish places of worship for  the  heavenly  religions, as regulated by law.” Muslims, Jews and Christians are protected as practitioners of the heavenly religions, but it is unclear as to what degree followers of other faiths, like the Baha’i, would enjoy religious freedoms. The new constitution must clearly assert that freedom of belief is an inviolable right of all Egyptian citizens. At the same time, it should refrain from specifying which religions are protected as it will inevitably discriminate against religious minorities.

Hope for the Best, Prepare for the Worst
While the three constitutional aims mentioned above by no means serve as an exhaustive list, they are critical to the formation of an Egyptian political tradition. Egypt is in dire need of an elected government, but the country also requires an functional government. A constitution that clearly articulates executive powers will help protect against presidential autocracies without hindering the effectiveness of the president. At the same time, the constitution must redefine the role that the military has historically played in Egyptian politics. While the military played a large role in installing the interim government and creating the subsequent constitutional committee, this does not mean that they should be rewarded with excessive powers enshrined in the constitution. Instead, the committee may be able to gain additional legitimacy if it doesn’t capitulate to the military’s demands and instead limits the institution’s power to control the military budget and try civilians in military courts. Finally, the constitution must make a sincere effort to grant more rights for more people. This article only focuses on religious rights but that is not to ignore the countless other human rights issues that need to be addressed in Egypt. The degree to which these goals can be accomplished is unclear; however, it is clear that even a perfectly articulated constitutional framework will not translate into good governance without the consensus of the broader Egyptian public.


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