Egypt’s new constitution is flawed, but represents a significant improvement on the country’s 1971 constitution. Although it contains a number of illiberal provisions that will restrict personal freedoms, the constitution improves the ability of the parliament to check the power of the executive branch and provides for an independent judiciary that will ensure a greater degree of the rule of law. Additionally, Egypt’s powerful military establishment maintains a number of key privileges, ensuring stability within the country’s security forces and continuity in the role Egypt’s has played in Middle East security.
The draft constitution does not describe a fully liberal democracy that many among the country’s secular and liberal left hoped to create. It does, however, at least on paper, provide for some of the basic mechanisms of a functioning democracy: the separation of powers, checks and balances, an independent judiciary, and regular elections. Moreover it placates many of the most potentially disruptive key stakeholders among the Islamist camp and the military. As such, the draft constitution will most likely pass next Saturday, with an Islamist-led get-out-the vote effort that is already underway and a sizable portion of the population seeking stability delivering the required majority of votes.
Despite the improvements, the newly energized coalition of liberals, secularists, former regime supporters, and other anti-Islamists have focused their criticisms on the draft constitution’s ambiguous and contradictory language concerning freedom of expression, freedom of religion, women’s rights, and the influence retained by the country’s powerful military establishment. More importantly, the process which produced the draft has stirred outrage and brought deep suspicions of the Muslim Brotherhood and other Islamists to the fore.
However, much of the regressive language with regard to freedom of expression and religion does not deviate significantly from established Egyptian law. In his book Egypt After Mubarak, Bruce K. Rutherford points out that the Judiciary, which had a combative relationship with the former regime and is somewhat incorrectly portrayed as the guardian of secularism and liberalism, has established significant precedent that subordinates individual rights to what it viewed as the public good.
One administrative court ruling from 1984 held that “a person’s freedom of speech does not extend to offending the most deeply held beliefs of his fellow Egyptians. It also does not extend to raising doubts in them about their faith.” Another set of administrative court rulings held that non-Muslims have to practice their faith in a way that “does not disrupt the harmony of society” and the Supreme Constitutional Court held that they must worship in a way that “conforms to the traditional values of Egyptians, does not jeopardize national security, and does not violate accepted social norms.” Rutherford argues that Egypt’s Judiciary sees individual rights as inviolable insofar as they are used to contribute to the public good, not because individuals inherently possess them.
It is clear that the coalition of Muslim Brotherhood and Salafi Islamists who agreed to the language currently contained in the draft constitution conceive of rights similarly. It is unlikely that any representative assembly of Egyptians would draft a constitution that would wipe away these precedents and establish a truly liberal rights regime to satisfy the most ardent protesters currently coursing through Egypt’s streets. As Shadi Hamid has stated, a constituent assembly that includes an influential Salafi component will not produce a truly liberal constitution.
From this perspective it becomes clear that the Judiciary’s rejection of President Morsi’s November 22nd constitutional degree was not rooted in their principled stand against the constitution, but in their view that Morsi blatantly encroached on their privileges of judicial oversight, powers that Egyptian judges have spent decades cultivating. As Egyptian journalist Ahmed Aboul Enein predicted, now that Morsi has withdrawn his constitutional declaration, the Judges will most likely supervise the referendum as scheduled on December 15th.
On the other hand, the draft constitution contains a number of procedural reforms that, if implemented, will represent a significant step forward. Articles 35, 36, and 37 provide protections against arbitrary detention and describe due process much more explicitly than the previous constitution. The articles call for judicial oversight of detention centers and contain language that strictly disqualifies evidence gained from detainees under coercion, mandating that any interrogations be carried out only in the presence of a lawyer.
The constitution also introduces several new legislative checks on the executive, including Article 139, which essentially empowers a majority coalition in the House of Representatives to appoint a prime minister; Unless I have misread this article, it seems to empower a majority coalition to agree on a Prime Ministerial candidate and force the president’s hand by threatening to vote down any other selection.
The legislature also gains more control of the cabinet. Article 126 allows the House of Representatives to topple the cabinet in a vote of no confidence with a simple majority instead of a supermajority, as mandated by the 1971 constitution, and article 127 reduces the president’s incentive to dissolve parliament with the requirement that he resign if the referendum to approve the dissolution fails.
Lastly, the new constitution limits presidential terms to four years, with only one reelection possible, precluding a repetition of another 30-year president.
Compared to the 1971 constitution, these are significant improvements that both empower the legislature and check the power of the executive branch. They should not be ignored nor treated as insignificant. While the President does retain some important powers, such as the right to name the heads of independent authorities and regulatory agencies, the larger-than-life President of the 1971 constitution has been made significantly smaller. If elections remain relatively free and fair, the new Egyptian parliament will be more diverse and more responsive to the demands of the people than ever before.
Of course, Nathan Brown points out that the powers exercised by the parliament and the presidency are shaped by political context; continuing Islamist dominance of the legislature could provide a president with far ranging powers. In the case of a legislature at odds with the president, Brown argues that the new constitution could produce only grid-lock. However, Morsi and the Muslim Brotherhood, having expended much political capital rushing the draft to completion and confronting the political crisis that ensued, cannot expect to enjoy the same level of support in upcoming elections, and so the former scenario is less likely. Alternatively, grid-lock, in the case of a deeply divided society, could produce positive results, putting the brakes on heavily disputed reforms and forcing compromise within a more clearly defined institutional framework.
In the next post I will discuss the provisions in the draft constitution that pertain to the Egyptian Armed Forces and their implications for regional security.