Phantom of Egypt’s democracy: What the new Constitution is all about?

Some of the protesters’ demands concerning the rule of Sharia law and army’s non-accountability to any one remain unchanged in the new Constitution, which casts doubts on the possibility of a democratic transition for Egypt.

98.1 percent of Egyptians said “yes” to the new Constitution in the referendum which took place on January 14-15. Egypt's High Election Commission reported on Saturday, January 19, that about 20 million people participated in the referendum. The turnout reached 38.6 percent - a figure slightly higher than the 33 percent that voted on the 2012 charter.

Actually, turnout was a hot issue during the referendum, since many Egyptians boycotted the vote. For instance, the Muslim Brotherhood, which was Egypt's most powerful political force after the ouster of Hosni Mubarak, and is now outlawed as a terrorist group, claimed the vote was illegitimate and boycotted it.

Another moot point is the atmosphere of intimidation and danger, as some independent experts have reported. There were no reports of any major irregularities during the voting process, but serving 30,000 polling stations with a mere 5,000 observers was quite a challenging task to say the least. At the same time Democracy International, a US-based organization aimed at promoting free and legitimate elections through monitoring, election administration strengthening and supporting democratic institutions, which had about 80 observers in Egypt, said that the very layout of some of the polling stations as well as a heavy security deployment could have deprived voters of the opportunity to feel secure while casting a ballot. Moreover, the fact that police arrested around 400 people campaigning for a “no” vote at the referendum, left little room for arguing against the new Constitution. Besides, both in the lead up to the referendum and during the very process some protests resulted in violent clashes with people killed and injured.

In general, this is the first vote since the military removed Egypt's first freely elected president, Mohamed Morsi, following massive civil unrest in July. The vote was considered to serve as a basis for legitimizing the current military-backed interim government and its plan for parliamentary and presidential elections. As Nabil Salib, head of the Supreme Election Committee argued, the vote was an “unrivalled success” and many Egyptians saw it as the first step towards restoring stability and security in Egypt.

Meanwhile, since the Constitution has been approved, Interim President Adly Mansour should announce within several days whether the presidential poll will take place before the parliamentary poll, which contradicts the initial transition plan announced by the army in July. General Abdel Fattah Sisi, who led the military coup against Mohamed Morsi, is expected to win, although he has not yet confirmed his intention to run for office.

New Constitution – new life?

The new constitution was drafted by a 50-member committee in December 2012. That special committee included only two representatives of Islamist parties, and this very fact should have prevented the document from getting any traces of Islamism. It consists of 247 articles, which makes it rather detailed and specific. In comparison, the 1971 Constitution comprised 211 articles, while the “Islamist” Constitution numbered 236 articles.

The 2013 Constitution makes a number of changes to the political system of Egypt. For example, it allows parliament to withdraw confidence from the president, and to force early elections by a 2/3 majority. It stipulates that the president, not the prime minister, appoints several powerful ministers, namely foreign affairs, interior and justice. The new Constitution also eliminates the Shura Council, the upper house of Parliament, and sets limits on the president’s powers: now he can serve only two 4-year terms, whereas in Mubarak’s time the president could serve for 6 years and be re-elected an unlimited number of times. Those changes in the political system are definitely important, but there are more significant issues to be pointed out.

The new law of the state starts with a pompous yet encouraging preamble, which puts emphasis on the historical role of the 2011 revolution and promises to assist in “building a modern democratic state with a civil government.” Nevertheless, the new Constitution is far away from being democratic, as well as from responding to the demands of Egyptian society. Many articles are the same as those of the Constitution which was legitimate during Hosni Mubarak’s rule. Moreover, some of the articles repeat those of the Muslim Brotherhood’s Constitution that was approved in December 2012 and was as short-lived as Morsi’s one-year tenure.

First of all, one of the main articles devoted to the foundations of the state was left unchanged in all the three last Constitutions. The article states that “Islam is the religion of the state and Arabic its official language. The principles of Sharia [Islamic law] are the principal source of legislation.” However, the new Constitution in terms of liberal values is considered to be an improvement on the Muslim Brotherhood constitution of 2012, as it eliminates various articles that gave legal and political authority to Egypt’s highest Islamic Institution, the Al-Azhar University, which is also the Sunni world’s preeminent theological institution. Although it’s written in the new Constitution that “Al-Azhar’s Grand Sheikh is independent and cannot be dismissed” (Article 7).

One of the biggest innovations is presented by a special article regulating the issues of minorities. Article 3 says that “the principles of the laws of Egyptian Christians and Jews are the main source of laws regulating their personal status, religious affairs, and selection of spiritual leaders.” This means that those communities have authority to resolve vexed questions in accordance with their laws and not Sharia. The Constitution also guarantees the construction and refurbishment of Christian churches. Obviously, through introduction of these regulations, the Egyptian authorities are trying to secure the rights and freedoms of religious minorities. At the same time, the new Constitution prohibits the formation of political parties based on “religion, race, gender and geography.” Such regulation prevents Islamists like the Muslim Brotherhood from taking part in the political process, although they were already labeled as terrorists.

The exclusion of Islamists from the political life of Egypt could be regarded by some as a noble impulse to protect society from possible Islamization, and a portion of Egypt’s population view this with relief. However, some parallels can be drawn here as well: It’s possible that the interim government decided to “indemnify” itself against the comeback of the previous rulers through prohibiting their activities. As everyone remembers, after Hosni Mubarak was ousted the National Democratic Party was banned by the new Constitution.

In terms of gender equality, the new Constitution can be regarded as a minor breakthrough. For instance, the "duties of a woman" were mentioned in the 1971 Charter but then removed from the Muslim Brotherhood's draft. The preamble to the 2012 constitution called women “the sisters of men”, while the 2013 charter is more explicit, stating that women are equal to men, and commits the state to “the protection of women against all forms of violence.”

Other considerable improvements concern the constitutionally fixed commitment of the state to fight against terrorism, corruption and human trafficking; moreover, all forms of torture are proclaimed to be “a crime with no statute of limitations.”

The flip side of the coin

The most controversial articles of the new Constitution are devoted to the role of the military. According to the law, the armed forces belong to the people and their duty is to protect the country, and preserve its security and territories. At the same time, the armed forces have a Supreme Council as regulated by law. It means that the army has its own constitutional institute which has not only military duties, but can interfere with the political process.

In Article 234, it’s says that “the Minister of Defense is appointed upon the approval of the Supreme Council of the Armed Forces. The provisions of this article shall remain in force for two full presidential terms starting from the date on which this Constitution comes into effect.” It’s important to note that the Minister of Defense is appointed from military officers (Article 201), which is a direct opportunity to take part in the formation of the state’s government and other political processes. Furthermore, both constitutions of 2012 and 2013 effectively shield the military budget from legislative oversight: the National Defense Council, not the Parliament, debate its contents.

The 2013 Constitution also states that “the Military Judiciary is an independent judiciary that adjudicates exclusively in all crimes related to the armed forces, its officers, personnel, and their equals, and in the crimes committed by general intelligence personnel during and because of the service,” adding that “members of the Military Judiciary are autonomous and cannot be dismissed.”

The most important thing to note is that neither Egypt’s former Constitutions, nor those of any Arab country, have ever contained articles that determine the status of military institutes giving them authority to intervene in non-military spheres. Such statutes of the Constitution endow the army with autonomy and huge powers, making it even stronger than in the times of Mubarak and Morsi.

It’s a big question whether the adopted Constitution will be able to resolve all the political and socio-economic problems, as well as to unite Egyptian society and further its prosperity. The prospects for the nearest future are rather gloomy: either the army will take power, or it will choose a puppet while holding the strings of authority in its hands; and this would be protected by the “democratically approved” Constitution.

So the question remains, after all the terrible consequences of the coup, including death and injury to thousands, the destruction of houses, schools and hospitals and a poor economy, whether such a Constitution signifies the failure of the hopes and aspirations of the great revolution. Once again!

Irina Sukhoparova, RT

The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of RT.