Battle intensifies over Egypt’s constitution

Cairo, Egypt – Egypt’s constitution has entered the second phase of its reshaping, even though amendments made thus far still fall short of reaching consensus.

Reflecting the army-led government’s determination to proceed with the post-July 3 roadmap, interim president Adly Mansour announced on Sunday, a 50-member committee entrusted with altering an Islamist-tinted charter that was suspended with president Mohamed Morsi’s ouster.

Along with a committee of 10 jurists which undertook the amendments, both panels are tasked with changing a document criticised by some for favouring a conservative interpretation of Islam at the expense of civil rights. The goal is to create a document balancing civil rights and religious values but political compromise between various actors looks difficult at this point. 

Achieving the liberals’ approval should have been the easier part of the process, especially as the majority of political Islamists got sidelined since Morsi’s ouster through a security clampdown that killed more than thousand people. Even getting liberal support, however, seems challenging. 

“They [the amendments] are not satisfactory,” said Naguib Gabriel, head of the Egyptian Federation for Human Rights. He explained that while amendments banned the formation of religious parties – a popular demand for opponents of Morsi – the proposal “still failed to emphasise Egypt’s adherence to international covenants on human rights and secure Copts’ rights to build houses of worship”.

Sharia debates

Gabriel, who doubted proposals by human rights activists will be taken into consideration, also expressed concerns that the participation of the Salafi Nour Party in the constitution-drafting process means the return of article 219 which was scrapped off the original copy.

The contentious article was added by the Salafis in the 2012 constitution to channel their interpretation of the “principles of Islamic Sharia”, which are referred to in provision 2 as the country’s main source of legislation. This article, seen to give the term “principles” a more conservative connotation, was met with outcry from liberals, seculars and Egypt’s Christian minority, amounting to about 10 percent of the country’s population.

Fierce opposition to these proposals played an important role in ending Mohamed Morsi’s rule a year after he came to power. The charter still managed, however, to reap the majority’s approval in a national referendum.

After being reviewed by the 50-member committee from across the political and societal spectrum, the amended constitution is similarly expected to gain a majority’s endorsement when subjected to a national referendum, regardless of its flaws.

Agreeing that article 219 “will be the hardest challenge” facing the two committees, Hafez Abu Sa’ada, secretary general of the Egyptian Organisation for Human Rights, also agreed that “many amendments still need to be done”.

“Clauses pertaining to fair trials, ban of military trials for civilians, child labour, religious freedoms are some of those that still need tuning to meet our expectations,” he added.

Reversion debates

Despite amendments, the constitution still includes a clause allowing civilians’ trial before military courts, although it narrows that to crimes that directly assault the armed forces, as opposed to merely “harming” the institution as was in the previous copy. This is still a blemish, critics say, as it pays little heed to post-2011 protests demanding the halt of such trials for civilians.

“The most obvious changes are the reversion to the 1971 constitution in religion-state issues,” Nathan Brown, professor of political science and international affairs at George Washington University, told Al Jazeera. “The reversion is not total but it does cover the most controversial issues,” the non-resident senior associate at the Carnegie Endowment for International Peace, and author of “When Victory is Not a Option: Islamists Movements in Arab Politics,” said.

Brown refers to the cancelation of a clause referring to Al-Azhar, a leading instituition in Sunni Islam, for consultation in matters involving Sharia as well as the re-emphasis on women’s equality with rulings of Islamic doctrine. “The last clause is one that was dropped out of the 2012 constitution and has been put back in,” he said.

Other examples of scaling down the heavily religious document is through the removal of a clause prohibiting all insults to religious “messengers and prophets” as well as article 10, which was seen as potentially making way for the instalment of morality police.

But religious-based arguments won’t be the only ones marring this process, analysts say. Even though the document meets several popular political reforms, such as putting an end to the existence of the toothless upper house, as well as a 50 percent representation of workers and farmers in parliament, it also offers figures from Hosni Mubarak’s regime a gate back into the political arena.

“We are totally against the removal of the political isolation clause,” said Khalid el-Masry, spokesperson of the April 6 movement which played a major role in the 2011 revolt against Mubarak. The removed clause barred leaders of the formerly-ruling National Democratic Party from holding office for 10 years.

“We demand the reinstating of this article, and adding senior members of the Muslim Brotherhood convicted with incite and violence,” he said.

El-Masry also voiced his movements’ rejection to transitional alterations to the electoral system governing the next legislative ballot. The system based on individual candidacy rather than political parties is seen as a victory for Mubarak-era figures.

Civilian oversight

The National Salvation Front, which had supported the army-led ouster of Morsi, has expressed similar rejection to the return of Mubarak-era icons, who are deemed the main rivals of young revolutionaries after the fall of the Muslim Brotherhood.

Egypt’s Syndicate of Journalists joined a group of critics oppossing several constitutional amendments. In a statement posted August 26 on its website, the syndicate denounced the technical committee’s disregard to proposals it had submitted, including the prevention of newspapers’ confiscation and ending prison terms for journalists in press cases, in exchange for fines. Amendments made are a “replica” of the 2012 draft, the statement said.

One aspect that previously stirred much debate is now ground for mutual understanding: the army. Although Brown describes the draft at hand to “place the military beyond any effective civilian oversight,” little objection is heard. Amendments made by the technical committee have untouched articles stipulating that the military budget is to be reviewed in detail by only the National Defence Council, which encompasses the prime minister and head of parliament.

Morsi and his allies had preserved the military’s independence in the 2012 constitution to appease the junta, despite criticism from other political groups at the time, when the army apparatus was far less popular than it is today.

“We had thought from last year that articles put in place by political Islamists to address the army’s status in the country to be fair,” el-Masry said.

Tahani el-Gebali, former vice president of the Supreme Constitutional Court, said previous opposition to these clauses were “vexatious and baseless”. Meanwhile, Tharwat Badawi, a constitutional expert, said “one area where the 2012 [constitution] went wrong was to let the army be a state above the state”.

The announcement of the 50-member committee comes a day after the government pushed back a curfew imposed following the country’s worst violence in decades following the dispersal of pro-Morsi vigils.

Current political unrest and polarisation has steered Morsi’s supporters, including the Muslim Brotherhood which dominated last year’s constitution, away from joining the process of amending it. The Brotherhood was joined by the Strong Egypt party, headed by its ex-member and former presidential candidate Abdel-Moniem Aboul-Fotouh.

This leaves the Nour Party, the second-biggest conservative religious political group after Morsi’s Muslim Brotherhood and the only such party to support his ouster, as the only representative of this political segment on the committee. Such a small representation of a significant political viewpoint means the current constitutional panel could face the same crisis of legitimacy as the 2012 panel entrusted with the same task.

“It is near-impossible for one committee to placate all political entities, but the presence of Nour [party] would guarantee that demands of political Islamists are secured in the constitution,” el-Masry said.

However, the Nour party has threatened to withdraw from the process, citing “dissatisfactory proposed amendments” and little representation of political Islam in the 50-member committee. If the threat is carried out, it would likely increase the alienation of political Islamists, and raise the likelihood of the document drawing additional criticism.

“Our wager is on the 50-member committee,” said Abu Sa’ada. “I really do hope that we reach a consensual constitution, and turn this leaf once and for all. But, if it fails to meet expectations, we shall stand against it the same way we did in 2012.”