Analysis: Who’s Afraid of the Egyptian Constitution?

Critics contend that the proposed charter is too Islamist and may curb freedoms. But democracy can thrive without a constitution—and a vibrant democracy can even reshape a flawed charter

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MAHMOUD kHALED / AFP / Getty Images

Members of the Muslim Brotherhood and supporters of Egyptian President Mohammed Morsi run for cover as they clash with anti-Morsi demonstrators on the road leading to the Egyptian presidential palace in Cairo, Dec. 5, 2012.

On Dec. 15, 2012, Egyptian voters will be asked to cast ballots in one of the country’s most important votes ever, a referendum on a new constitution. Egyptians — and people all over the world — are asking, “Will this document chart a way forward that lives up to the sacrifices of the people and the promise of the revolution? Will it uphold universal values and norms?”

The prospective constitution has polarized the country, dividing it between well-organized and disciplined Islamist political forces and their supporters who are for it, on one side, and disjointed and divided secular and liberal forces who are against it, on the other. The debate has generated massive demonstrations — with many bouts of violence.

(MORE: Egypt’s Constitutional Endgame: Where Confusion is the Rule)

Many here agree that the draft of the constitution that will come to a vote is far from perfect — though it has a number of groundbreaking articles. For example, Article 6 states that “No political party shall be formed that discriminates on the basis of gender, religion or origin.” Others promote the general guidelines for a free market including article 29 that limits when the government can nationalize companies and industries. Other articles make torture and the detention of civilians illegal. One calls for the eradication of illiteracy. A new article stipulates that members of parliament must provide financial disclosures annually in an effort to combat the country’s tradition of corruption.

But the language of it can often read ambiguously, reflecting the political realities that created it — though those origins are the very reasons the document is important and historic.

First, a look at what liberal critics call its glaring shortcomings. The assembly chosen to write Egypt’s constitution was selected by a parliament dominated by Islamist parties. Though that parliament was dissolved by the courts due to a technicality, the Constituent Assembly it created continued its work and reflected the Islamist bent of the body that appointed its members. By the time the Constituent Assembly voted, at least 15 out of the 100 members had boycotted the final reading and vote on the draft. Not a single Christian participated in the vote and out of the 85 total who did vote only four were women. All four could be described as Islamists. Liberal and secularist opinions were barely reflected. That, say the critics, is a decided dearth of diversity.

Already the draft constitution has drawn criticism from human rights organizations because of the limited protections against abuse of powers by the state and the failure to protect religious freedoms and other individual liberties. Many people are alarmed that some articles even pave the way for government intrusion into personal freedom. They point, for example, to Article 11 which stipulates that the “State shall safeguard ethics, public morality and public order, and foster a high level of education and of religious and patriotic values…”  Another article says the President is the Supreme Commander of the Armed Forces while another article then says the Minister of Defense is the Commander in Chief of the Armed Forces.

(MORE: TIME’s Interview With Egyptian President Mohamed Morsi)

The constitution also misses the opportunity to organize the country’s myriad court systems that span nearly half a dozen of different judicial bodies including the Supreme Constitutional Court, the State Council, the Court of Cassation, State Affairs and the Administrative Prosecution. Human rights advocates, meanwhile, fear that some articles may be interpreted in such a way as to enforce the domesticity of women rather than promote their presence in the workforce and the world beyond hearth-and-home.

Finally, many of those opposed to it say there really isn’t much time for Egyptians to hold public readings, debate and educate themselves about how they want to vote. They will have just about two weeks to study and decide before voting on Dec. 15. (You can read a full English translation of it here.)

However, while Egyptian secularists — and Western observers — may despair at the situation, others here believe the legitimacy of the document should not be viewed in a vacuum and the final document, flawed as it may be, should not detract from the process that produced it. There have been edifying elements and lessons in transparency for ordinary Egyptians. Most if not all of the sessions of the Constituent Assembly were broadcast on TV; the inner debates of the body were widely publicized and published in local press and media. The constitution was a purely organic Egyptian exercise of sovereignty. There was little outside interference or pressure. Despite calls for international technical expertise, this was an Egyptian Constitution written by Egyptians for Egyptians. For a country that is new to politicking and consensus-building, Egypt’s constitution writing process reflected that reality — one where proponents of the democratically prevailing ideology, in this case Islamist, drafted a charter that they felt they were given a mandate to do.

Like other draft charters at the time of their writing, including that of the United States, Egypt’s serves as a snap shot of where the country is, not where it can and should go. That will be the task of future interpretations of the constitution. It took close to a hundred years for the U.S. to abolish slavery and give women the right to vote. Many Egyptians may not like what they see today — a country that is impoverished, chaotic and dominated by Islamist political currents. But this is the reality that exists — and the one that produced the document. And, looking at the way Egyptian democracy is developing, the document itself is not impervious to change.

(MORE: Why Egypt’s Constitution Matters)

Indeed, many Egyptians believe their country’s constitution doesn’t have to be perfect. Not right away. Getting the constitution passed may be part of a political end game by President Mohamed Morsi, but it is not the end of the process. It is the beginning of a political and social evolution. Amendments to the Constitution can be initiated by Egypt’s parliament or the President. They require two-thirds vote in parliaments houses and must be approved by national referendum. Furthermore, almost every article in the proposed charter ends with the words “as regulated by law” — an indication that, going forward, laws must be formed to frame and embody the idea of the article. Some observers believe that this simply gives Islamists more legislative clout. However, it can work the other way around. If Egypt’s liberal forces get their act together and start winning seats in parliament, they too can shape those laws. Egypt’s so-far steadfastly secular judiciary also has the ability to shoot down legal interpretations of the constitution that the judges disagree with.

It’s also worth noting that many functioning democracies, including the United Kingdom, that have no explicit constitution. A constitution does not ensure the state will abide by it nor will it prevent a dictatorship from emerging. Egypt had a constitution in place for decades and yet despite that, Mubarak and his predecessors managed to co-opt it to build their authoritarian regimes. A constitution does not guarantee a democracy. And while Egypt may end up with a flawed constitution, that does not mean its future will be bereft of a vibrant democracy.

11 comments
E.silla
E.silla

This a reply to Mr BrahmandamLakshmiNarasimhaMurthy comment. 

We concede that Egypt is an ancient civilisation. We must also acknowledge that universal human rights are not a monopoly of Western Nations. Consequently the minimum requirements for all and sundry is to enshrine in the constitutional document these rights for the Egyptian people: 

TO ASSOCIATE FREELY; 

TO SPEAK FREELY; [FREEDOM OF SPEECH]

TO WORSHIP FREELY; [FREEDOM OF WORSHIP] REGARDLESS OF RACE, CREED, OR GENDER, ABILITY OR DISABILITY. THESE ARE FUNDAMENTAL TO OUR VERY EXISTENCE. 

EDWARD

TutAnkhAmon
TutAnkhAmon

Egypt’s Draft Constitution Allows For Saudi-Style Islamic Religious Police…If this thing passes it’s lights out for Egypt’s Christians.One of Egypt’s most prominent ultraconservative Muslim clerics had highpraise for the country’s draft constitution. Speaking to fellow clerics,he said this was the charter they had long wanted, ensuring that lawsand rights would be strictly subordinated to Islamic law.“This constitution has more complete restraints on rights than everexisted before in any Egyptian constitution,” Sheik Yasser Borhamiassured the clerics. “This will not be a democracy that can allow whatGod forbids or forbid what God allows.”According to both supporters and opponents of the draft, the charter notonly makes Muslim clerics the arbiters for many civil rights, it alsocould give a constitutional basis for citizens to set up Saudi-style“religious police” to monitor morals and enforce segregation of thesexes, imposition of Islamic dress codes and even harsh punishments foradultery and theft — regardless of what laws on the books say.

BrahmandamLakshmiNarasimhaMurthy
BrahmandamLakshmiNarasimhaMurthy

Most balanced view of the constitution and its making. I hope westerners understand that Egypt as an ancient civilisation has its own way of doing things over the centuries and should not be viewed through the prism of so called western values which themselves are still evolving ( for ex. Abortion , Gay rights etc).America with two contradictory ideologies of Democratic and Republican Parties , particularly the outdated republican ideology should desist from interfering in other country's thought processes.

Absurdistania
Absurdistania like.author.displayName 1 Like

Mr. Ayman, please do some research so then replying to you won't be frustrating as this article shows that basic homework was not done before attempting to write such! 

TarekNaga
TarekNaga

This article fails miserably in describing th true situation and circumstances surrounding the drafting of the new constitution of Egypt. The author, in a very unprofessional and non-challant way, ends his flawed argument with: "while Egypt may end up with a flawed constitution, that does not mean its future will be bereft of a vibrant democracy."!!

How presumpteous and ignorant of history, specifically the modern history of Egypt. Egypt went through some very violent "constitutional crises" in 1923, 1930. 1935 and later on in 1954, 1971 and the struggle continues.

One expects a writer to do the minimum amout of research before attemptimg to write about such critical issue especially about a country that is still going through completing a popular revolution that the rewriting of its constitution is one of its fundamental consequences...... 

QuaribC
QuaribC

First of all, why are you comparing Egypt in 2012 to the US in 1776?  The comparison doesn't make sense.  That almost alludes to that you would like women not have to vote and the minorities have no rights.  Maybe you should have done some research and compared it to the birth of another Muslim country, like Bangladesh.When Bangladesh was born from it's 9 month war with Pakistan in 1971.  It's constitution gave rights for women and minority groups.  The constitution gave all citizens the right to vote regardless of gender.  That would be a better example.

A country cannot flourish on its own without all its people given an equal chance.  You are right in that there is no such thing as a perfect constitution, but the government Egypt can at least as fair as possible to start with.t

SulaymanF
SulaymanF

Excellent points. Many don't realize that the US Constitution was originally passed under similar contentious circumstances. It did not originally have a Bill of Rights, causing many in the Constitutional Convention to oppose it. It was only added by Congress later.

Egypt is going through a transition to democracy, and should be viewed in that light. Go back to the 1790s in America for comparison. The place was unstable as heck, the central government under Articles of Confederation was collapsing, Shays' Rebellion was so powerful that states could not stop it, and various states were trying to print their own currencies and compete with one another. France had public riots over their transition from King Louis XVI. Egypt is only 1 year into their democracy and doing a pretty impressive job so far, trying to keep order and move forward.

yorgosmalama
yorgosmalama

@SulaymanF Good points, but one major obsticle was removed early on in our formation of a republic.   Our founders removed religion from government.   Religion did not rule the constitution, wording that might have  religious bearing have been used, used, 'in God we trust', etc etc., but religion was/is not the governing factor.   In case of Egypt, it is.    The big problem Egypt is facing is the number of people who follow like sheep, what ever comes out of the mulahs.   Those who question that authority are in minority, and brave enough to try and move the country out of the 7th century.   Then and only then, will democracy of any kind, will work for Egypt.      I lived there for 11 years, and have 'some' experience.

soul_rbl
soul_rbl like.author.displayName like.author.displayName like.author.displayName 3 Like

Ayman - over the course of the 18 days, almost two years ago, I was limited to receiving my English news on Egypt from Al Jazeera - where you figured prominently from Tahrir Sq.  I had my issues with some of the reporting - namely that which was done by your colleagues from a far - but your accounts of events seemed slightly more reliable. 

Now, as you've made a move away from the Middle East and Al Jazeera (a network that is increasingly being seen as pro-Muslim Brotherhood by the Egyptian people), I am surprised not only by the lack of facts to complete the picture, but also with the general tone of your article as it lacks any connection with events (or sentiments) on the ground. (ie. bias seems prevalent in the article - not to mention the associated picture)

To be more specific, a cornerstone to the upheaval in Egypt is surrounding the presidential decree which ensures that the president's decisions currently have no judicial oversight.  Meaning, rather plainly, that Morsi holds powers beyond those ever held by Mubarak and is 'constitutionally' (as per his decree) a dictator.  Once the masses (yes, the masses) expressed anger over this decree, the constitutional committee (which was granted 2 months to complete the document) rushed the completion of the constitution over a 19hr all-nighter.  A televised all-nighter that felt much like anyone's days in college - some falling asleep, others fighting, the leader demanding that it be completed, a few meal breaks and plenty of coffee.  In case you any reader lost track - this is how the new constitution of Egypt, a hetrogeneous nation of over 80million individuals that plays a critical role in Africa and the Middle East.  Reason for the rush -  to snooker the opposition with a referendum.

I realise you may claim that your article aimed at limiting discussion to the constitution itself - but, that should not mean that the background is omitted.  And even then, the facts and sentiments presented in the article are lacking.  For instance, stating that "at least 15 [members] had boycotted" is extremely misleading.  Nearly half of the members of the constitution committee had resigned their posts a week earlier.  The 85 voters came about as a result of the constitution committee bringing in their 'replacements'.  So, 'replacements,' who had just joined the committee were making decisions on articles they had minimal contact with prior to the vote.

The lack of emphasis on the human rights issues is another thing.  For a constitution committee that discussed various issues pertaining to women's rights not to include any protective clauses is worrying (note: there was opposition to these clauses by Islamist members).  Even the topic of Sharia was placed in a sufficiently ambiguous context to satisfy the extreme conservative Salafists (closer to the Muslim Brotherhood than any secular party).  The texts in two clauses basically provide sufficient opportunity for Sharia's punishments to be implemented so long as credible past examples exist.  Plenty such historic texts exist in religious texts.

I could certainly keep going but the situation in Egypt begs for broader attention from foreign media as opposed to arguing a sub-topic - one which is illegitimate in the eyes of many Egyptians.  

This is not democracy.  This is not what the revolution you voiced sought.  This is not what so many have died for - and continue dying for this very minute.

AhmedAbouzeid
AhmedAbouzeid

@soul_rbl @soul_rbl : I completely agree with you . The original article is full of twisted facts , which leads me to question the professional ethics and the true motivations of the Times itself ... Shame on them