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Comments on Egypt’s 2012 Constitution

By Henry D'Souza

Al-Jazeerah, CCUN, January 1, 2013


         The constitution of any country is important, especially of Egypt’s after the landmark January 25 Revolution. Events in Africa during British rule revolved round the Cape-Cairo axis. Egypt is also the intellectual center of the Sunni Muslim world.  Egypt therefore influences Afrabia, though in 2012 it is borrowing and adapting constitutions of other countries to suit itself.

         Most Islamic countries, including Egypt, look to the Turkish model.  The Turks think that their state is secular though the West thinks their secularism is rooted in Islam.  The Turks do not like the latter interpretation.  However Muslims are impressed with Turkey’s economic performance and its cooperation with the West, which suggests that Islam is compatible with modernization. 

Egyptians tend to copy just the titles of the Turkey’s majority party, the Justice and Development Party (JDP.)  Party names like the main Freedom and Justice Party (FJP), Building and Development Party, Change and Development Party, Reform and Development Party, Peace and Development Party, and Justice and Development Party sprung up like mushrooms.1   While the Egyptians were drafting their constitution they consulted the Turks in Cairo on methods of controlling, inter alia, street marches.2

The second foreign influence on the Egyptian constitution came from the USA.  Engineer President Mohammed Morsi was reportedly in constant touch with President Obama who is an expert on Constitutional Law.  Morsi’s speeches allegedly reflected many of Obama’s.  As a package and sometimes with conditions, the freedoms endorsed in the Egyptian constitution seemed to have come from America: freedom of speech in Article 12, of the media in Article 13, of residence in Article 14, of creed in Article 11, and, of assembly in peace by Article 16.  All citizens are created equal before the law is explicit in Article 6.  The Islamic catch phrase was “we like all colors.”  On this basis 46 women were included on their nominee lists, with the proviso that they had to balance family duties with public life.  Even a modified Habeas Corpus Act appears in Article 20.3

The Egyptians being products of an ancient civilization had the intellectual resources to rely on their domestic issues and talent.  Unlike Turkey, Egypt felt that they were a religious nation and were proud to declare in Article 2 that “principles of Islamic law (Shari’a) are the principal source of legalization.” Egyptians did not heed Turkish Prime Minister Recep Tayyib Erdogan’s advice of making the country secular. 

But owing to the input of the Nour Party, the constitution stresses that the Sunni interpretation of the Shari’a would be valid.  This means that the Shia and other Muslim sects will most likely join secularists, intellectuals, Christians, Salafists (the second biggest bloc) and Jihadists in the Opposition. One opposition leader Hussein Abdul Ghani thinks that the constitution endorses “autocratic tyranny in the name of religion.”4  Some of the prominent opposition leaders are El Baradei, a Nobel Peace Prize winner and former Head of the UN nuclear body, Amr Moussa head of the Conference party and Hamdeen Sabahi, the latter two being political rivals of Morsi for the Presidency.  These three leaders were allegedly accused of treason for trying to overthrow Morsi.  The three thought that Morsi’s Administration, by this charge, had returned to Hosni Mubark’s tactics.5

Internally the Muslim Brotherhood is more worried about the Salafists on their right than the liberals on their left.  Their worries are complicated by the fact that the Egyptian economy is weak and to gain IMF confidence they have to “focus on stability, security, and the economy, not on applying Islamic law or creating a mythical Islamic state.”6

The constitution reflects the experience of the Muslim Brotherhood (MB) Party.  Under the deposed Mubarak, MB leaders had been jailed and persecuted so that to survive they had to decentralize while providing basic services to the poor.  The MB vacillated from wanting a strong central government, to a decentralized one, to again a strong center.  But the MB knew that labor and peasants had to have representation to voice their concerns.  Consequently the People’s Assembly Council and the Shoura Council had to have a large number of seats for labor and peasants.  Article 32 states that the lower house will have at least 350 seats, half of whom will come from labor and peasants.  Article 35 notes that the upper house, Shoura, will have no fewer than 132 members and two-thirds will be elected by secret ballot, and at least half of these should be labor and peasants.  These clauses are unusual but beneficial as the poor are generally excluded from the legislative process.

The clauses of Article 26 set for electing a President are so stringent and nationalistic as to exclude anyone who does not have an Egyptian genome. A president-elect should “never have held another citizenship, born of two Egyptian parents who have never held another citizenship…not married to a non-Egyptian, and not falling under the age of 40.”7   These clauses would have excluded Mubark who has a non-Egyptian wife.

The FJP is conscious of the need to improve the economy and has started the Nahda Project.  Spokesman Dr. Mohamed Gouda noted that after a comparative study of development in Turkey, China, Singapore and other countries, his organization has designed a development plan.  The leaders are successful businessmen like Hassan Malik and Khairat El’ Shater.8   The latter is remarkable in his drive to manage 10 children, his vast business empire in Egypt and the MB, all from jail where he had been for 12 years.9   Spokesman for the Republican party and a staunch supporter of Israel Senator Graham said that he could live with a man like El Shater who wielded enormous power without holding a post; there were many like that in Chicago.10   Had he dug deeper he might have found many others in American cities.

One has to explain why Morsi was vehemently accused of being a dictator like his predecessor.  Mubarak’s court disbanded the legislative council with the result that no constitution could be passed.  Morsi had therefore to take on dictatorial powers to get the political process moving.  He transferred the upper house to the lower, sacked a few judges, and organized a referendum to approve the constitution, which was done by 64% of the vote.  Even if there were plausible accusations of rigging, most Egyptians felt that Morsi should be given a chance to lead the nation without hindrance.  Morsi, to his credit, explained this to the public.

The civil-military relationship is tremendously important when a country is converted to democracy.  Since 1923, Turkey’s revolutionary President Kamal Ataturk saw that the military was the guardian of a pro-western way of life.  But after the Ergenekon Trials starting in 2008 and the Balyoz coup plot which was discovered in 2010, the civilian authorities brought the military under their control.11   In Pakistan, after the passing of the 18th Amendment to the constitution the civilian government brought the military under control in theory, though in practice the intelligence agency, ISI, often acts independently of the government. 

In Egypt, the civilian government struck a deal which gave the military a great deal of independence, although Article 53 states that “the armed forces are the property of the people” and the following Article notes that the President of the Republic will chair the meetings of the National Defense Council (NDC).   The Minister for Defense has to come from the military. Article 197 states that the military will be in the majority in the NDC.  The next clause allows military tribunals to deal with civilians if their actions impinge on military issues.  To obtain the cooperation of the military at this early stage of the new Republic, a deal had to be struck.

The structure of the constitution is very sound, liberal and a credit to all parties that took part.  “Dialogue and conciliation” is the name of the game that the new Islamists chose.  Morsi played a dominant role in introducing democracy and pluralism in Egypt.  In a sense this so-called Second Republic is the First which has not been established by a king or imposed by the army.  Americans were pleased that Egypt recognized the existing peace Treaty with Israel.  But the reported that a MB official shunned Israelis at an international conference in Prague.12   Amr Darrag of the FJP explained this reaction by observing that Egypt is obligated to peace with Israel, not normalization.   





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