Egypt's New Constitution: Greater Freedom - Subject to Military Approval

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Makram Mohamed Ahmed has seen a lot of things in his lifetime. The renowned Egyptian journalist has witnessed a number of regimes change. He headed the influential publishing house Dar al-Hilal; edited the weekly magazine Al-Musawar; and was chosen a number of years ago to head the Journalists' Syndicate, from which he resigned after former Egyptian President Hosni Mubarak was deposed in 2011.

Last week, after the committee drafting the new Egyptian constitution presented its final version to President Adly Mansour, Ahmed published two consecutive articles in the largely government-owned newspaper Al-Ahram.

He titled the first piece, filled with praise for the new constitution, “A Great Constitution?!” The day after its publication, he explained what the question mark was doing in the headline: “I pity the government that sorely lacks the generosity the constitution offers, as the funds needed to implement the rights included in it far exceed what the Egyptian treasury is capable of raising.”

Now, when the new constitution determines that Egyptian citizens are entitled to a good and equal education and to proper health-care services, someone will have to pay for them.

The gap between Egypt's new charter and reality does not end with the ability to finance the vision and commitments included in the constitution. It also exists in the compromise between the goals of the Egyptian revolution and the military edict calling for the constitution to be drafted within a limited time so as to move on to the election stage. The new constitution offers greater rights to religious minorities, forbids torture, and promises freedom of speech and the independence of the press; the section that deals with defining Egypt as a religious state remains in place as it was under the regimes of Anwar Sadat and Mubarak: Religious law remains the central source of authority for legislation.

However, many of the constitution's liberal sections make these rights contingent on “the way in which they will determined by law.” For example, the clauses concerning the arrest of citizens say, among other things, that “the conditions for preventive arrest will be determined by law.” The state’s ability to intercept electronic or regular mail will also be determined by law, and the ban on disconnecting means of communication - such as the Internet - will be conducted “within the framework set in law.” “The law” has always provided a safe escape from implementing the rights granted to citizens in the constitution -- and it leaves the government plenty of room to act as it wishes without that being considered a violation of the constitution's principles.

The new Egyptian constitution contains important new ideas, such as protecting the rights of children, a requirement to implement human rights treaties that Egypt has signed, and rights for religious minorities that are defined as “absolute.” But the constitution also states that such rights -- for example, building houses of worship -- will also be regulated by the law, and the law has already proved it is not inclined to approve the construction of new churches or synagogues. Two issues that symbolized the hopes of Egypt's protest movement -- ending military trials for citizens and the demand not to jail journalists for expressing their opinions -- will not be fully realized. In principle, the new constitution states, citizens will be tried in civil courts, but under special circumstances, such as damage to military facilities or soldiers or civilian employees of the military, it will be possible to try those defendants in a military court.

As for journalists, the new constitution states they can be arrested and jailed -- after trial -- if they harmed national security or the economy, but not for expressing an opinion. Defining what threatens national security or the economy is, of course, up to the prosecutor general.

One gets the impression that the constitution was drafted by a group of 50 lawyers, intellectuals, representatives of the Salafi movements led by Amr Moussa, former foreign minister and secretary general of the Arab League, under three dictates: Removing the Muslim Brotherhood from the political arena, preserving the military’s supremacy, and advancing the elections so as to create political stability.

Contrary to the constitution drafted under former President Mohammed Morsi, in which every comma drew widespread press coverage, debates and even petitions to the courts, this time tthings seemed to progress on a well-oiled track. The Muslim Brotherhood did not participate at all and are boycotting the version that has been approved. The Salafis who took part in drafting the charter did express reservations and objections, but found themselves in the minority during votes on the individual sections -- to the extent that they considered abandoning the constitutional conference.

While civil rights are subject to interpretation, the status of the military and its leader couldn't be clearer. The military budget will not be subject to parliamentary supervision and it will be based on need -- as defined by the military leadership. It was this way under Mubarak's rule and this is how it will continue to be. The prime minister no longer has the authority to appoint the defense minister, and the appointment will not require parliamentary approval. Instead, the defense minister will be appointed by the Supreme Council of the Armed Forces and can serve two consecutive terms starting from when the constitution is approved.

The question of elections and their order has been left vague, so as to pave the way for Gen. Abdel-Fattah al-Sissi to the presidency. It is unclear whether parliamentary elections will precede the presidential election, or whether the latter will come first -- as Sissi wants. If the presidential election comes first after the approval of the constitution, and Sissi runs and wins, then a general will be head of state alongside the defense minister he appoints. In this way -- through a democratic process -- the military’s takeover of the country will be complete, and the tradition set in the days of Gamal Abdel Nasser, in which former military leaders serve as president, will be revived. Sissi's election as president would provide him with great influence over the parliamentary elections, in which the Muslim Brotherhood will not take part anyway, at least not as a unified party, since the new constitution bans the participation of parties running on a religious platform. This will effectively end the short episode in which the Muslim Brotherhood, for the first time in its history, was a recognized political party that ruled Egypt.

For now, all we can do is wait for the forthcoming referendum to approve the new constitution and gauge the voter participation levels. In the previous constitutional referendum (under Morsi), only 33 percent of eligible voters participated. This meager turnout provided a cause to oppose it -- and Morsi. The legitimacy of the new constitution will soon be put to a difficult test among the Egyptian public. The Muslim Brotherhood and its supporters will abstain from voting or will vote against it, while many liberal activists view the new constitution as a product of the military that fails to fulfill the dreams of the revolution.

Police officers take part in sanctioned protest, in this case over their pay terms, Cairo, December 8, 2013. Credit: Reuters
Interim Egyptian President Adly Mansour, right, with head of the 50-member constituent panel Amr Moussa in Cairo, Dec. 3, 2013.Credit: AP

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