Egypt’s new constitution – born amidst bloodshed and aimed at curtailing the influence of Islamism – is starting to take shape, setting the stage for yet another confrontation within the country’s increasingly fragmented society.
Officially, the new draft constitution mandated by the military-led interim government has yet to be released. In recent days, however, several academics and researchers have taken a look at the document before it becomes public. What they found is a constitution stripped of almost all the Islamist clauses inserted during the one-year reign of ousted president Mohammed Morsi.
It also contains many of the same potentially authoritarian elements, leaving Egypt’s constitution once again facing criticism for doing little more than enshrining the powers of whichever group or institution happens to be in power when the document was drafted.
“This is not a process by which a society tries to form a consensus on set of shared values,” said Nathan Brown, a political science professor at George Washington University and senior associate at the Carnegie Endowment for International Peace . “This is a group trying to ... maintain its continued existence.”
Mr. Morsi remains in detention, and the Egyptian government now labels the Muslim Brotherhood that supported him a terrorist organization.
Where the new constitution differs most significantly from the old one is on issues of Islam’s role in governance and law. The 2012 constitution included three articles that broadly defined and significantly expanded the role of Islamic jurisprudence.
Article 2, which dates back to the 1971 constitution, establishes the Sunni branch of Islamic jurisprudence as the basic guideline for legislation. The 2012 constitution added two others: Article 4, which stated that Al Azhar, Egypt’s highest institution of Islamic learning, should be consulted on how to define Islamic law, and Article 219, which effectively includes all Sunni jurisprudence since Islam’s founding as relevant to Egyptian legislation. Secular activists and constitutional experts have harshly criticized Article 219, saying it was open to overly broad interpretation and could effectively be used to affect every aspect of Egyptian law.
In the new draft constitution, Articles 4 and 219 have essentially been deleted.
Not surprisingly one of the few state institutions that would see its powers expanded under the new draft constitution is the military. In 2012, the Morsi government attempted to appease the military apparatus by including a clause in the constitution that required the country’s minister of defence to be chosen from the ranks of the armed forces. In the new constitution, that restriction is tightened further – the minister of defence will now also have to be approved by Egypt’s Supreme Council of the Armed Forces.
Constitutional guarantees effecting personal and political freedom could also be limited. Several clauses establish certain rights and freedoms, such as freedom of expression and assembly. But they include stipulations that these rights can be overruled for reasons of “national security” or “public obligations,” which are not specifically defined.
“What a constitution should be doing is protecting the weak and vulnerable from the state,” said Zaid Al-Ali, senior adviser on constitution building at the International Institute for Democracy and Electoral Assistance. “If the constitution doesn’t limit the state’s power, it does not achieve anything.”
Jill Goldenziel, a research fellow in the International Security Program at the Harvard’s Belfer Center for Science and International Affairs, said the new constitution removed most of the controversial provisions favoured by Islamists, while maintaining many of the pro-military clauses. But it also includes new, potentially worrisome changes – including the removal of a ban on members of former president Hosni Mubarak’s political party, who under the 2012 constitution were barred from political office.
“Ironically, the document also bans public protest as grounds for removal of a president,” she said.
Coming on the heels of some of the worst bloodshed in Egypt’s modern history over the last month – including a government-led crackdown on pro-Brotherhood supporters that left more than 1,000 people dead – the creation of the new constitution may represent the next major flashpoint in a country already rocked by civil strife.
“We don’t know what the Brotherhood’s real weight is in the country, but clearly they are not on board, and they’re going to be resisting the results [of the constitutional process] regardless,“ said Mr. Al-Ali. “I expect there’s going to be some problems, especially if it turns out they do represent a large segment of Egyptian society.” According to the military-appointed government’s self-styled “roadmap,” presented after Mr. Morsi was removed from power, the draft constitution is to be ratified by a 50-member committee before going to a public referendum. Not all the members have been named – and few, if any, are expected to be Islamists – but it is not expected to substantially change the draft.