Egypt’s ‘new’ constitution: Repeating mistakes

Egyptians will go yet again to the polls to vote on a “new” constitution. There is little doubt that it will pass. The question now is whether this constitution will lead to a new Egypt that is democratic and equitable.    

The constitution developed by the committee of the 50 is somehow an improvement from modern constitutions of Egypt; namely the 1971 and 2012 constitutions. There are articles that clearly state rights to education, health-care, and shelter. Equality between man and woman in political, economic and social rights is granted within the framework of the constitution. Articles in the 2012 version that were deemed a threat to freedom of speech disappeared in the 2013 version.

However, if we use the 1971 or 2012 constitutions as benchmarks, we are clearly missing the whole point of writing a “new” constitution; one that comes after a popular revolution. There are two essential benchmarks that could be used as guides to assess whether this is really a “new” constitution for a different Egypt than the one on the eve of January 25th, 2011.

The first benchmark is whether this constitution is a constitution that brings a new social contract with freedom, dignity and social justice as its main pillars. Like its predecessor, the 2013 constitution comes after a flawed process that represents a winning coalition not national consensus. Last year, the Muslim Brotherhood and its allies used their electoral majority to exclude others from the process. This year, secularist liberals and leftists, official religious institutions, and the Nour party Salafists, along with state institutions repeated the same mistake.

The common denominator (and partner) in the two processes is the military institution. Repeating old mistakes does not lead to different results. Also, it is not a new social contract whereby there is a new type of relationship between the state and citizens and among citizens themselves. There are indeed some new rights that are listed for the first time in an Egyptian constitution. Yet again, like previous constitutions, there are no guarantees or mechanisms to fulfil these rights.

What is the guarantee that the government would spent 4 percent of GDP on education? What if it does not? The only plausible mechanism is to challenge the government’s budget in the constitutional court. Such processes have a lifespan way longer than an annual fiscal budget. Even worse, in line with the Egyptian constitutional tradition, what is given as right in one hand is taken by the other.

Freedom is a right. But there are no restrictions on time limits of detentions pending investigation. Access to information is a right. Yet, legislation should balance this right with an undefined concept of “national security”. International human rights agreements are upheld but, at the same time, civilians could be tried in impartial courts like the military courts. Social justice is noted in several articles. Likewise, free markets and fostering an investment-friendly environment.  

The second benchmark is whether the constitution presents a clear departure from the past’s flawed political and economic systems. The core of the constitution has the spirit of 1971 constitution: strong president, police state and independent army. It has a presidential system where the balance of power tilts towards the president to the extent that the president has the right to appoint 5 percent of the members of the legislative body. The parliament has the right not to grant its confidence to a government headed by a prime minister appointed by the president. Consequently, the party holding the majority may choose a prime minister. In this case, however, the president appoints the key posts of ministries of interior, defence, foreign affairs and justice. The president may also call for a risk-free referendum to dissolve the parliament. It is less probable that the president could reign like former President Hosni Mubarak did. Yet, almost all powers are consolidated in the hand of one person without strong checks and balances and a counter-balancing power.

An unelected body of senior police officers has to be consulted in all legislation related to police affairs. This almost closes the door to any plausible reform for the mighty ministry of interior that was (and remains) one of the iron fists of authoritarian regimes in Egypt.

All of the above may lead to a flawed and unbalanced democracy. Some may argue that it can be improved or reformed in the foreseeable future. However, the articles related to the military are what broke the deal for a new democracy in Egypt. Similar to the 2012 constitution, the military retained its economic privileges, its political say in national security and its ability to try civilians in military trials. The 2013 version asserts the military autonomy within the Egyptian state by granting its approval of the minister of defence for a transitional period of eight years. This renders the military institution with its privileges, political and economic interests, as the main obstacle to transforming Egypt into a real modern democracy.

Ultimately, a clear break from the past can only be achieved with a clear plan for transitional justice. The one article referring to transitional justice is extremely weak. It fails miserably in enforcing guarantees for a real transitional justice that brings forward those who committed the crimes of the past. But most importantly, a transitional justice that ensures that what happened in the past will not be repeated in the future. 

The 2013 constitution fails on both benchmarks. It is far below aspirations for a new contract for a new Egypt. It does not pave the road for a new future that reflects the new reality. On the contrary, it is an attempt to repackage the old reality. Its place in history will not differ substantially from its predecessors.   

Samer Atallah is an Assistant Professor in the Economics Department at The American University in Cairo. He is currently a visiting scholar at the University of Chicago centre in Paris.

Follow him on Twitter: @samer_atallah