Skepticism Surrounds the Revised Egyptian Constitution

Middle East Policy Council

A fifty member panel has finished work on a 247-article draft of a newly revised Egyptian constitution. The panel’s responsibility was to propose and make changes to the existing constitution drafted during the tenure of the now-jailed former president, Mohamed Morsi. Understandably, the revisions have been roundly rejected by the Muslim Brotherhood’s supporters, who argue that the existing constitution received the people’s imprimatur following its ratification by the Constituent Assembly and in a referendum in December of last year. However, concerns over the changes go beyond Morsi’s supporters, with many human rights advocates pointing out that the new law gives the military a free hand in the prosecution of military trials against civilians.

In one of the many assessments of the proposed law by Egyptian commentators, Al Ahram’s Gamal Essam El-Din holds a generally positive view of the new changes contained in the charter, arguing: “Egypt’s new constitution aims to shift the country from an authoritarian presidential system to a French-style political system in which the president of the republic and prime minister share power….The constitution strengthens freedom of speech by imposing a ban on the custodial sentencing of journalists convicted of publication offences. It also allows complete equality between women and men. Two independent councils, says Al-Sadda, will be set up to supervise state-owned media in Egypt and ensure they are independent and geared to serve the national interests of the country. A national independent council will be established to supervise the performance of public and private media. This council, says Salmawy, will supervise through sub councils state owned press organisations and the state television and radio union.”

In an op-ed for the daily Egypt Independent, Mohamed Salmawi is also of the opinion that the new constitution is a decidedly marked improvement from its predecessor and as such it should be welcomed by a large swath of the Egyptian population: “In the 2013 Constitution, the 39 new articles represent a quantum leap in the constitutions of Egypt, where we find the section on freedoms stating for the first time, the State’s commitment to rights and freedoms in the international agreements and conventions ratified by Egypt….Any reservations expressed by Egypt on some of these conventions are unrealistic. Saying that Egyptians have the right to enjoy freedoms like all other peoples in the world does not mean they will have sex parties!! Those hallucinations are strange and matter only for those preoccupied with jihad marriage and the marriage of minors.”

However, as it has been widely reported, the role prescribed for the military and provisions allowing military trials for civilians have drawn mostly negative reviews from both secular as well as religious individuals and organizations. For example, in a report for the Daily News Egypt, Rana Muhammad Taha writes: “The assembly meanwhile approved Article 204 of the constitution, with 41 votes for, six against and one abstention….The article also allows for the military prosecution of civilians who commit crimes concerning conscription or crimes considered a ‘direct attack on military officers or personnel as a result of carrying out their duties,’ leaving the definition of such crimes up to the law. The article was criticized by several human rights organizations and political movements, most notably the No Military Trials for Civilians group.”

The Daily Star’s (Lebanon) Jay Deshmukh also focuses on the military trials provisions and the reaction of international advocacy organizations like Human Rights Watch: “On Sunday the army came in for more criticism from Human Rights Watch, which accused it of ‘forcibly disappearing’ five top Morsi aides since his ouster. Article 234 stipulates that the defence minister be appointed in agreement with the Supreme Council of the Armed Forces, although panel spokesman Mohammed Salmawy told AFP this clause will only apply during the first two presidential terms. The constitution would also keep the military’s budget beyond civilian scrutiny….Political analyst Hassan Nafea said secular Egyptians would be angry over the constitutional provisions concerning the army.”

The most vociferous criticism of the draft proposal has come from the Mr. Morsi’s Muslim Brotherhood, whose leaders have declared they will not acknowledge the new constitution: “Their so-called ‘national’ charter is nothing but a ‘black’ document made ​​in the dark shadows against the January 25 Revolution and the masses of the Egyptian people’s will and certainly against the people’s rights. It nationalizes this homeland for the benefit of the junta. The latest leaked remarks by the military coup commander prove that he was working, from the first day he took charge of the defense ministry, to demolish or undermine all the gains of the January 25 Revolution, continuing the demolition work started by the Military Council (SCAF)’s General Tantawi (Parliament, President and Constitution). Indeed, they demolished all those completely in favor of the enemies of the Revolution.”

As long as the opposition to the proposed charter comes mostly from the ranks of the Muslim Brotherhood, Egypt’s new leaders should feel secure in moving forward with the formal approval of the constitution. But as Rasheed Hammouda states, the problem is that more moderate segments of the Egyptian society might come to think that in over-relying on the military to keep the Muslim Brotherhood at bay, they might have made a deal with the devil: “The military government continues to fail to provide even a semblance of legitimacy, and it seems doubtful a legitimate constitution would follow. The silver lining to all this is that if the military continues in the manner they have been, they may lose enough support to tip the balance in favor of populism….Now it has become increasingly a question of whether they think they can bloody the whole electorate into submission. Unless the past three years have been for nothing, the military is unlikely to succeed where their predecessors did not.”

Finally, it is important to remember that the process at times can be as important as the content of the document. Especially when it comes to legitimizing a document as important as a national constitution, the Khaleej Times editorial asserts Egypt’s new rulers need “to ensure that the participation is broad-based and the process is transparent enough to meet international standards. Only then can the verdict of the masses stand against the counter-arguments and reservations that are likely to flow from the Brotherhood and its likes. Egypt, a pillar of Arab civilisation, had enough of upheavals; now is the time to settle down with order at the helm of affairs. That is the way to restore stability and enable the economy, which is primarily based on tourism, to resurrect from the ashes.”

Seen from that perspective, it is not surprising that some consider the new draft constitution as perhaps the last best chance to bring the country back together and to heal the rifts brought on by the turmoil of the last three years. At least that is the sense that one gets from The National’s editorial which approvingly cites the head of the constitutional panel: “After nearly three years in which Egyptians have gone from the euphoria of overthrowing a dictator to the multiple disappointments that eventually led to the removal of Mohammed Morsi from the office of the president, they could be forgiven for having the lowest of expectations for the latest version of the constitution. Yet, the draft charter has been warmly greeted by many Egyptians….But…the overall issue was put in focus by the head of the constitutional panel, Egyptian statesman Amr Moussa. He called this process ‘the path of rescue’ from the events of the past year to a future of stability and security, in turn allowing for the nation’s economic recovery so that average Egyptians can provide for their families. That, above all else, is exactly what Egyptians crave and deserve.”

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