Photo Credit: The Atlantic Council
The Atlantic Council’s Rafik Hariri Center for the Middle East held a panel discussion on December 11 titled, “Egypt’s New Constitution: Fulfilling the Revolution’s Goals?” Sahar Aziz, Associate Professor of Law at Texas A&M University and Dr. Nathan Brown, Professor of Political Science and International Affairs at George Washington University spoke as panelists. Mirette Mabrouk of the Rafik Hariri Center moderated the event. A full video can be found here.
For full event notes continue reading or click here for the pdf.
Mirette Mabrouk opened the discussion with a brief statement in which she noted the similarities that exist in the writing of the 2012 constitution and the 2013 draft: a drafting process that was dominated by a single group amid accusations of exclusivity. She added that though the original transitional mandate called for amendments to the suspended constitution, the final 2013 draft was written as an entirely new document. She then noted the advances that the constitution made, including positive strides in the freedom of belief, gender equality, and education, but also commented on the troubling articles that amounted to large power grabs by the military and judiciary.
Dr. Nathan Brown started his comments by pointing out that constitutions operate within a context of political events and that during the drafting process of a constitution politics never stop. The power stakes, he suggested, are “unusually high,” therefore people and institutions usually operate with their own interests in mind. He also explained the oddities of the process in which a team of legal experts wrote the initial amendments and then turned the document over to a committee of fifty that was supposed to represent Egyptian society, but they threw out the work of the first committee. He also said that it was interesting how many of the members of the fifty-member committee drew their salary from the Egyptian state. He said that it was striking that many state institutions included strong protections for themselves guaranteeing a certain degree of autonomy. Examples of these included the al-Azhar sheikh’s protection from dismissal, the military’s ability to choose the Defense Minister and the jurisdiction of military courts, and the Constitutional Court’s right to choose its head member. He commented that the interim cabinet may be one of the best that Egypt has seen, but added that it had not held any real power or oversight over the developments of the transition. He said that this led to the growth of the security apparatus’s power, using the example of the creation of a Police Council that would have the power to influence any laws that affect the police, essentially making reform impossible. Looking forward, he said that the constitution allowed for the possible return of another strong president, and noted that if General Abdel Fattah al-Sisi becomes president it would recreate the Mubarak era with popular sentiments. He closed by noting that constitutions often contain “dirty and ugly compromises” and that although there is the possibility that Islamists, and especially the Muslim Brotherhood, will choose to participate with this document, that chance is very small. According to Dr. Brown, the constitution itself will not be what heals Egypt’s political wounds.
Ms. Sahar Aziz spoke next suggesting that the important parts of a constitution are its legitimacy and its enforcement. She pointed out that the inclusion of “clawback clauses”—which specify that rights or articles be regulated by future laws—leaves options for the party in power to oppress citizens’ rights, while staying within the framework of the constitution. However, she noted several positive steps in the constitution, including the articles that limit the president’s power to establish a state of emergency, during which the rights to due process are canceled. She also pointed out positive advancements in articles guaranteeing the rights to access information and allowing the appointment of women to judicial bodies. Though she noted that the latter would be a cultural battle. Regarding military trials for civilians, she pointed out that although the specificity of cases where civilians can be tried is an improvement, the problem remains that the military owns approximately 40 percent of the economy. What this entails is largely unknown, so civilians could fall under the jurisdiction of the military trials without knowing it. She finished by suggesting that a clause that allows the president to appoint up to five percent of the members of the Parliament could be used to bolster the number of his supporters or to make up for the lack of a quota by appointing members of underrepresented demographics.
During the Q&A, the speakers were asked about the dangers of a judiciary that has the ability to nominate its own members. Dr. Brown responded that while judiciary independence is usually a good thing, the problem with a judiciary that is totally unaccountable is that it can go off in any direction, as well as creating a type of “judicial caste.” Ms. Aziz pointed out that a conflict of interests exists in a system where the prosecutor general is a part of the judiciary, but said that the increased independence would be a benefit to fair rulings because under the new system, the Ministry of the Interior will not have the means to punish or reward judges for verdicts. The panelists were then asked to summarize their central thoughts in approximately 140 characters. Dr. Brown answered: “Key parts of the Egyptian state got the constitution they wanted.” Ms. Aziz said, “Egypt constitution: positive step forward, but be leery of loopholes and selective enforcement.” She was then asked about the constraints that are placed on revolutionaries in the new constitution, to which she responded that the next big battle is going to be the shift into the legislative arena as revolutionary groups will have to stop taking to the street and become more formal political parties or official civil societies.
Next, a member of the audience asked about the place for Islamism in the new constitution. Dr. Brown said that though there is a ban on political parties formed on a religious basis, the existing parties were formed under a similar law and, in addition, parties cannot be dissolved without a court order, so the question of religious parties will probably come down to individual legal challenges. He added that though al-Azhar’s consultative role has been removed, it will probably not make a large difference because an unofficial connection will still remain. The last question regarded the ramifications of the clause stipulating the interim president choose if presidential or parliamentary elections would take place first. Ms. Aziz answered that it was problematic for a constitution to include articles that address one-time issues. She also pointed out that a conflict of interests exists for President Adly Mansour’s decision, positing that all his decisions must be cleared by the military, and therefore with General al-Sisi, who could be a presidential candidate. She expressed concern that Mansour may decide which election should take place first based on what will best serve al-Sisi, rather than the Egyptian people.