Egypt’s Stuttering Constitution

By Robert Joyce

Egypt’s first post-Mubarak constitution, approved by a 63.8 percent margin over two days of voting and signed into law by President Mohammed Morsi on December 26, marks a milestone in Egypt’s stuttering transition following the Revolution, touched off two years ago this week. Decried by some Western observers as overly Islamist, the document falls far short of what might be expected from the Taliban or Iranian mullahs. Still, the sometimes violent debates that marked its drafting and passage represent a serious misstep that has emptied Morsi’s political capital.

In the weeks preceding the vote, the opposition was undecided whether to boycott or vote against the measure. They decided, late, to vote against it. Though the document managed to win a majority, the large protests and low turnout suggest Morsi is far from reaching any national consensus. His bizarre, dictator-like behavior, such as a declaration giving himself the power to take any “necessary measures to protect the country and the goals of the revolution,” during the process has alienated many supporters.

The charter, and more importantly the process that created it, has been a debacle. The public shouting match in Egypt, often staged in Cairo’s Tahrir Square, has pitted overlapping social and political elements debating the role of religion, class, civil rights, economics, and foreign policy. Conflicts have been popular, with civilians protesting and counter-protesting each other, popular vs. government, and government on government. The constitution itself has at times been at the forefront of these debates, while at others it has blended into the background.

The process started after former President Hosni Mubarak stepped down. On March 19, 2011 a set of amendments to the existing constitution, drafted in 1971 under then President Sadat (Mubarak’s predecessor and fellow National Democratic Party member), was passed by a large majority. The changes answered some basic opposition demands of the Mubarak-era. Most important, the president was restricted to two four-year terms. Parliamentary and presidential elections were set to precede the writing of a new constitution. Civil liberties and human rights issues were ignored, left for the constituent assembly—a move that proved unwise considering the rise in military trials and arrests of protestors and journalists. Secular liberals condemned the vote, calling it rushed, giving an advantage to the better organized Muslim Brotherhood to sweep the Parliament, presidency, and control of the constitutional process. Their concern proved prophetic.

The first constituent assembly tasked with writing the constitution reflected the majority won by Islamic parties in the November 2011-January 2012 parliamentary elections. Out of 100 members, 66 were from Islamist backgrounds, with only five Coptic Christians and six women. After significant secular opposition, this assembly was dissolved in favor of a new formula in June. Women’s representation, however, dropped to four, all from Muslim religious parties. Secular liberals eventually dropped out of the process altogether, claiming that their concerns were not being addressed.

Months later, the constitution was returned to the forefront of the Tahrir demonstrators’ concerns. On November 22, 2012, President Morsi issued a decree excluding his future actions from judicial oversight. The declaration removed Egypt’s chief prosecutor, a Morsi opponent and Mubarak holdover, while promising new charges against former regime officials for violence committed during the Revolution. In light of the praise he gained from his diplomatic involvement reaching a ceasefire in Gaza, Morsi felt his hand strengthened enough for such a bold move. He underestimated his opposition. The judicial branch as a whole declared the decree illegal. In a rare act of unity, the secular opposition joined major political leaders to demand Morsi’s resignation.

Morsi was forced to back down from the decree in the face of popular outrage, but in that time the constituent assembly had hurriedly approved the draft charter. His retreat signified a win for the masses and for democratic precedent in Egypt. Given that the constitution was approved anyway, the win was moot. The resulting constitution is not, as some commentators have claimed, an “Islamist” dream—the codification of Shariah law—but rather a hastily produced and disappointing document.

From the onset, the controversial constituent assembly opted to start with the existing 1971 constitution as a base, as opposed to starting afresh. This decision was made, as experts have suggested, out of the fear from the controlling religious parties that the assembly could be dissolved anytime by the judiciary or public outcry.

The most controversial section, Article 2, reads: “Islam is the religion of the state and Arabic its official language. Principles of Islamic law are the principal source of legislation.” In the end, it was left unchanged. Secular opposition leaders sought to keep this article intact. Traditionally, the Egyptian judiciary has interpreted the term “principal source” very broadly, leaving this section toothless. Islam, nevertheless, leaves a strong mark on the constitution. “Insulting prophets and messengers” is explicitly outlawed, notable given the September 11 riots in Cairo ostensibly touched off by a film insulting the Prophet Mohammed. Al Azhar University, the leading Sunni Islam institution of higher learning and religious authority in Egypt founded in 970 AD, is specifically defined as “independent.” Further, the constitution provides that “scholars of Al Azhar should be consulted in all matters related to Sharia.” Under Mubarak, the head of Al Azhar was handpicked by the regime and issued politically based rulings. Secularists now worry that Al Azhar’s influence will grow politically, leading to more religious legislation and interpretation. It is unclear, however, whether Egypt’s political class, even the Muslim Brotherhood or Salafis, is willing to yield any real authority to the unelected scholars. 

Two other areas, women’s rights and indefinite detention, also drew protests. Article 10 states that the Egyptian state shall ensure “reconciliation between the duties of a woman toward her family and her work,” and then in the following article: “protect ethics, morality and public order.” Neither are significant departures from the 1971 text, but they are let-downs for women’s rights activists who saw the revolution as an opportunity for a progressive leap out of the traditional patriarchal system. As for detention, habeas corpus is preserved except in “flagrant” cases—a definition no one in the human rights community is comfortable leaving the Egyptian government or military to decide. 

Opponents of the constitution also cite the referendum process itself as undermining the document’s legitimacy. They point to the low turnout, only 33 percent of voters, as evidence that no national consensus exists. Lack of judicial oversight in many locations led to widespread, though unsubstantiated, complaints of fraud.

Still, while credible, these complaints will be ignored. The vote is over, and despite the grumblings of a large cross section of Egyptian society, the constitution itself rarely elicits the same furious response as the flawed process that passed it.

Looking ahead, Morsi will likely focus on small, relatively benign measures aimed at building domestic order. A significant portion of the votes in favor of the constitution can be read as votes for stability rather than for the document itself. People want the protests to end, trash to be picked up, tourism to return, businesses opening, and the economy moving again. After two years exactly, Egypt is weary. Morsi surely understands this and will aim to avoid contentious domestic issues for the time being. Abroad, expect involvement in issues like Palestinian unification, talks between Fatah and Hamas, as that is one of few foreign policies that will gain him support from both the secularists and religious parties.

Morsi has urged Egyptians to move on from the constitutional fiasco and instead turn to "the epic battle for construction and production." Yet in Egypt, the battle continues, while the outside world can and should do little to influence the direction this might take. There are enough domestic forces at play for the moment as the nation monitors closely the trajectory of the new president and the document he has produced. 



Robert Joyce, an editorial assistant at World Policy Journal, is a student of Near Eastern Studies at Princeton University.

[Photo courtesy of Moud Barthez]

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