Egypt's new constitution: Reshuffling old cards

14 January 2014

The new draft constitution whose fate Egyptian voters will decide in a few days is a relatively better document than its short-lived predecessor, but is ultimately disappointing and less than what could have been realistically achieved to enhance the civil, political and economic rights of Egyptian citizens.

The document is underwhelming for human rights defenders, some of whom wrongly expected a vast improvement over the Muslim Brotherhood-driven 2012 constitution.

Many Egyptians struggled as much as they could to influence the text through small windows of public participation that were allowed by the appointed 50-Member Committee charged with amending the charter. These interventions made a marginal difference in articles that handle issues such as civil liberties, the right to access information, the right to food and the rights of the disabled, to name a few. However, the new text is simply a reshuffle of conventional building blocks that have long served to perpetuate the rule of a state over the people, rather than to establish a state to serve its citizens and protect their rights.

The draft constitution puts in legal code what has been informally practiced for several years, namely turning state institutions into fiefdoms and undermining the very concepts of the public good and checks and balances.

The draft reflects the conviction that granting broad powers to the military and official religious establishments is the primary guarantee for the protection of the Egyptian state.

Despite some improvements over the 2012 constitution, especially with regards to personal liberties, the draft regrettably subjects civilians to military trials, an anachronism that is gradually vanishing from the rest of the world. Such trials can be held on vague grounds, and could be easily used against political opponents or innocent civilians.

For example, there are no clear definitions of what are these military sites or operations that interference with could subject a civilian to military proceedings that is short of various basic guarantees for a fair trial. For example, a chief military judge told reporters that army conscripts working in military-owned gas stations serving civilians around the country (part of the vast military economic enterprise) are protected by this constitutional article. This means a dispute with a soldier filling up one’s car tank could easily land one in a military court. Several thousands suffered the tragic experience of a military trial over the last three years. It is a setback that this practice could now be constitutionally protected.

Not only the military, other state institutions too acquired more autonomy to regulate their own affairs in a twisted application of the concept of separation of powers when checks and balances are already in short supply.

The text lost some of the esoteric language that the Muslim Brotherhood inserted to placate the more conservative elements in their ranks and their Salafist allies, such as an article incriminating whatever could be construed as an insult to prophets and religious messengers. However, the new text gave a nod to almost the same Salafists (a large part of whom joined the post-Muslim Brotherhood political process, represented by El-Nour Party) in its preamble regarding the scope of Sharia and the "civil" nature of the state.

Though the new constitution provides some more guarantees, or details the implementation of certain social and economic rights (such as the allocation of a certain GDP percentage for health and education in the state budget), it does not address issues of social injustice and labour rights any differently from previous legal frameworks. Social justice and economic rights were largely relegated to ostensibly unregulated market forces as the draft constitution adopted a conservative neoliberal approach that is totally inadequate for addressing deepening socioeconomic inequalities in Egypt, hoping, it seems, that the invisible hand of the market would take care of what in essence led to the January 2011 uprising.

The constitution lacks guarantees to prevent elected legislators from undermining rights included in it. Many articles indicate that parliament will regulate the exercise of such and such a right through the law, opening wide the door to restrictions and limitations on various rights, extending from unionisation to building houses of prayer.

Over the past three years, the Egyptian people have repeatedly affirmed their overwhelming desire for a state that respects their liberties, protects their dignity, achieves effective political participation and upholds their economic, social and cultural rights so that no regime can arbitrarily infringe on them. This constitution, despite improvements, shows that the old world is dying but the new one is not yet born.

The writer is Executive Director of the Egyptian Initiative for Personal Rights.

It was published on Ahramonline on 12 January 2014