Drafting Discord

In the midst of violence and counter-revolution, Egypt’s military-backed government is about to present a new constitution to the people — the country’s second in a year. On Dec. 1, a 50-member committee, tasked by the government with making "revisions" to the 2012 constitution, voted on the final draft and will submit it to President Adly Mansour this week for ratification. Later this month or next, the Egyptian people will be asked, again, to approve the constitution in a referendum.

Political infighting among secularists, Islamists, and remnants of the old regime has defined Egypt’s transition since it began nearly three years ago, and these tensions have played out vividly on the battlefield of constitution-writing. Instead of delivering a much-needed national consensus, the tortured constitutional process has only deepened political rifts.

The Islamist-dominated Morsi government rammed through a new constitution in December 2012. That constitution, however, largely ignored the concerns of secularists, liberals, and Christians, so its adoption merely intensified polarization. The current effort has also made little pretense of inclusivity. Indeed, the constitutional committee has operated in a manner almost divorced from politics — hardly a recipe for lasting constitutional success. The current draft is an operational document that limits some of the worst aspects of the Morsi constitution but doubles down on others. While the new constitution reduces the role of Islam, the document is still religiously infused. The revisions also enhance the already privileged position of the military and fail to enshrine important human rights. On a brighter note, the new text does include a nod toward gender equality missing from the last constitution, and also has new articles mandating much needed improvements in education.

Gone from the revised constitution is Article 219, a particularly controversial provision of the Morsi constitution that spelled out acceptable sources of interpretation for sharia. Some saw this as a critical first step on a path toward theocracy. Salafis have been particularly outspoken about this change: the inclusion of Article 219 was their signal achievement in the last constitution, although it was never clear how that article would be implemented or, correspondingly, what its impact would be. The new constitution also departs from the previous version by banning religious parties and depriving Al-Azhar, Egypt’s leading religious institution, of its authority to vet laws. In an important step forward, the new constitution in Article 65 guarantees freedom of belief, although this article was also hotly contested by Islamists. Despite the full-blown backlash against the Muslim Brotherhood specifically and Islamism in general, Article 2, which dates to the 1971 Constitution and states that the "principles of Islamic sharia are the principle source of legislation," remains intact. Though the new constitution downgrades the role of religion, Islam still retains a central role.

Another revision denounced by the Islamists is new language included in Article 11 that commits the state "to achieving equality between women and men in all of the civil, political, economic, social, and cultural rights mentioned in this constitution." In recent weeks, Salafists have denounced this language for, among other things, opening up the possibility of political quotas for women — something that women’s groups have been unsuccessfully demanding since the early days of the revolution. Recent moves to create quotas for women at the municipal level no doubt add to Salafist concerns that other quotas are in the offing. While a parliamentary quota for women at this point seems unlikely, the new equality language is certainly a step forward from the previous constitution, and does indeed open the door to other types of quotas. Women’s empowerment, also referred to in Article 11, is still clearly defined within the framework of motherhood and "the duties of a woman toward her family," but the insertion of gender equality at least creates a constitutional framework on which to build. The same is true of the new Article 93 on international law, which obligates the state to uphold the "rights and freedoms listed in the international agreements, covenants, and instruments of human rights ratified by Egypt." That includes the United Nation’s Convention to Eliminate Discrimination Against Women (CEDAW). Egypt ratified the convention in 1981, although with some significant reservations. Savvy Egyptian activists in coming years will no doubt use the new language on international law to contest those reservations and push for legal expansions of women’s rights.

The constitution’s new Articles 19 and 20 on education also provide a basis for positive change. One clause commits the government to develop technical education and vocational training "in line with the needs of the labor market." Another declares that education is mandatory through secondary school and says that the state can spend no less than 4 percent of GDP on education. Other countries (notably Brazil) have used constitutional guarantees on education as a foundation for substantially improving educational outcomes. In its 1988 constitution, Brazil fixed minimum spending levels on education that over the past quarter century have translated into significant educational gains. Egypt, which suffers from a weak public school system (spending on education in recent years has hovered below 4 percent of GDP), desperately needs an education upgrade, especially one that is tied to the needs of the marketplace. Over the long term, these new education-related articles could be the most positive development for the country to come out of the current revisions.

The military’s entrenched powers are the most negative aspect of the new constitution — and yet they hardly come as a surprise. Given the popularity of the armed forces in Egypt now and the military’s firm grip on the constitutional drafting process, any rollback in military privileges was highly unlikely. The constitution implemented by the Morsi government already gave the military many of the concessions it wanted, including a clause ensuring that the minister of defense would be a military man; military control over the use of military force; and, perhaps most important, a specific stipulation against civilian oversight of the (generous) military budget. The military also received a right to try civilians in military courts if those civilians were accused of harming the armed forces — sufficiently broad language to ensure the military held full legal sway.

Indeed, under the post-Mubarak transitional government, the military put 12 thousand civilians on trial in special military courts. The new constitution preserves those privileges, including the controversial provision to try civilians in military tribunals — one of the most glaring human rights deficiencies of the new constitution. Egyptian liberals recognize how dramatically this article, above all, negates the democratic dreams of the revolution. Some have vehemently protested the clause; others, capitulating to the reality of military control, have held their noses and supported it. Mohamed Abdel-Aziz, a member of the constitutional committee and one of the co-founders of the liberal opposition Tamarod movement that was instrumental in bringing down the Morsi government, explained his begrudging approval on his Facebook page: "This is the best we can achieve in this critical time in Egypt. One day things will settle down and we will have a real democracy, and a two-thirds majority in parliament can amend the article."

Even the government recognizes that it is producing a flawed document, so it is depicting the constitution as a realistic manifestation of what is possible in the deeply divided society that is Egypt today. Anticipating low turnout for the upcoming national referendum to approve the new constitution, the government has been running public service radio spots urging citizens to vote, even though a date has not yet been set. The spots candidly admit that while the constitution will not be the best, it also is not likely to be Egypt’s last.