Egypt: A Comparison between the 2012 and 2014 Constitutions

 *This assessment went to print prior to Egypt’s constitutional referendum on January 14, 2014.

With the constitutional referendum currently taking place, Egyptians have never been more polarized. As with the struggle accompanying the writing of the 2012 Egyptian constitution, most competing political forces in Egypt are not concerned with the constitutional provisions themselves, but with the people writing the constitution. Ironically, with the exception of a few amended articles that now strengthen the influence of the state apparatus, the new draft constitution differs little from 2012’s “Brotherhood Constitution,” as it is referred to by supporters of the military coup.

To date, none of the constitutional debate in Egypt has been based on rational discussion, nor has it treated constitutional articles as benchmarks that will guide the political regime from an authoritarian to a democratic form of government that reflects the spirit of Egypt’s January 25 Revolution and the social, economic, and human rights awareness it embodied. Any careful assessment of the constitutional amendments will show that the political and media defamation targeting the 2012 constitution was actually addressing President Morsi and the Brotherhood, not the constitution. The process of promoting a new constitution and urging its approval, seems to suggest that the new regime is pursuing electoral legitimacy, in an attempt to do away with international accusations of a coup and get rid of the “legitimacy of the Egyptian people” and the “roadmap” that it has thus far relied on. In this way, the new electoral legitimacy can grant the regime a new cover for continuing its practice of exclusion in all of its forms, a process that started on July 3 and continues to date.

The 2012 Constitution: Catering for the State and the Opposition

There are two prevailing ideological views on the 2012 constitution and the recent amendments. The anti-military coup camp, led by the Muslim Brotherhood, claims that the Committee of Fifty in charge of amending the constitution is nothing more than a game engineered by the Egyptian military and its general, Abdel Fattah al-Sisi. The pro-military coup camp insists that the new draft constitution has saved Egypt from a Muslim Brotherhood constitution that would have been catastrophic for Egypt. In reality, both sides are incorrect; the 2012 constitution was not a Brotherhood document, although it bears some signs pointing to that interpretation. Likewise, the new draft constitution was not just dictated by the military authorities, but was also influenced by the desires of the traditional secular elite.^[1]

The political trend underlying the provisions for both constitutions cannot be understood without reviewing the process taking place in the 2012 Constituent Assembly. At the time, Islamic parties, headed by the Muslim Brotherhood, attempted to pass articles that would satisfy and win the elite’s support, including the police and the judiciary, a trend that has continued in the recent draft constitution. However, contrary to what the media promoted, the elected Constituent Assembly in 2012 conducted serious, constitutional discussions between the various social and political forces, addressing issues such as the military budget and judiciary, the structure of the government, the constitutional court, and public prosecution. This was before the Assembly was attacked by the constitutional media crisis in November 2012, causing a rift in the Egyptian political scene that compelled the Constituent Assembly to expedite the drafting of the constitution. The crisis also halted internal discussion after political polarization reigned within the Assembly.

The 2012 Constituent Assembly meeting minutes show that although most articles in the 2012 constitution were the subject of national consensus, some of them catered to centers of political power in Egypt, including the “deep state” institutions, the Salafis, and political forces affiliated with the revolution in an attempt to create an alliance between the “deep state,” Islamic forces, and civil forces. In spite of a popular referendum on the constitution, the percentage of approval exceeded 60% of voters. This tacit alliance collapsed on July 3, 2013.

The 2014 Draft Constitution: The “Deep State” Writes Its Constitution

The 2014 draft constitution, in contrast to 2012, was undemocratic. To start with, all members from the Committee of Fifty in charge of amending the constitution were appointed, not elected, and the opponents of the military coup were dismissed. The recent process of drafting a new constitution also lacked transparency, and was mostly conducted behind closed doors. The similarities between the two constitutions are indisputable, although the Committee of Fifty has taken extra care to reformulate a number of articles in form, but not in content. This can only be understood as a desire to undermine their former peers, or as an attempt to make it look as if there is a formulated draft constitution entirely different from the previous one. The main changes in this new amended constitution are made up of the following:

Egyptian Identity

Articles related to Egyptian identity were reconsidered, while the article on the Sharia was restored to what it was in the 1971 constitution. Specific reference preventing blasphemy against prophets was also deleted, demonstrating that the great pressure allegedly placed on the Committee of Fifty from the Salafi movements headed by the Nour party was exaggerated and little more than a stance taken on an issue. Ironically, contrary to their conduct in the 2012 Constituent Assembly, the Salafis did not disrupt the drafting of the new constitution or resort to the street, a far cry from their behavior in the 2012 constitution, where they insisted upon articles privileging its specific understanding of the Islamic identity in Article 219 and Article 44, which stipulated the prohibition of blasphemy against all apostles and prophets. Article 4, which empowered Al-Azhar to be a constitutional authority in matters relating to Islamic Sharia, was also deleted in the amended constitution.

The Egyptian Presidency

Restoring some powers to the presidency is one issue where the new draft differs from the 2012 constitution. Article 123 gives the president the right to appoint five percent of the members of the House of Representatives. Article 146 releases the president from having to appoint a prime minister from the largest party or coalition in the House of Representatives, meaning that the president has the power to undermine the success of a particular party in the elections and prevent it from forming a government. Article 147 also stipulates that the president, not the prime minister, will appoint several powerful ministers, including that of defense, foreign affairs, interior and justice. In the new amended constitution, the cabinet becomes closer to an executive council for policies dictated by the president or the Supreme Council of Armed Forces of the National Security Council. In 2012, the constituent assembly took care to distribute the power between the president and the prime minister, as is reflected in Articles 140 and 159, which require the presidency and the Cabinet of Ministers to participate in decision making and supervise their implementation in an effort to curb the tendency for presidents to shift toward authoritarianism.

At the same time, the new constitution has stripped the presidency of some power, thus entrenching the privileges of the “deep state”. In 2012, in an attempt to win the military’s loyalty, the military establishment was granted relative autonomy (Article 196). It was given the right to approve its own budget and be consulted about projects concerning it (Article 197). The military was also given the right to oversee the military judiciary and the power to pass sentences “on crimes that harm the armed forces—the law defines such crimes and reveals other specifics of the military judiciary” (Article 198). In addition, the State Litigation Authority and the Administrative Prosecution Authority, which were subject to widespread controversy within the Constituent Assembly due to their unnecessary burden on the state budget, were affiliated with the armed forces. The army, according to the new constitution, should also be consulted in the eventuality of declaring war.

The 2014 draft constitution maintains the above privileges and strengthens them to the point where the state is now at the mercy of its own institutions. In the new draft constitution, the military budget ranks first in the general state budget (Article 203), and the approval of the Supreme Council for Armed Forces has been set as a condition for the appointment of the defense minister for two presidential terms from the date the new constitution becomes effective (Transitional Article 234). The police force has been withdrawn from the president’s authority (Article 206), giving rise to the newly created Supreme Police Council which must be “consulted in any laws pertaining to it” (Article 207). These last two articles have essentially saved police officers and Interior Ministry staff from the possibility of “restructuring the Interior Ministry and Police,” a basic demand of the January 25 revolution.

The Judiciary

The new draft states that all the powers connected to the judiciary will remain as they were before the 2012 constitution. In contrast, the 2012 constitution censored laws governing political rights and presidential, legislative, and local elections (Article 177). This Article was written after the Constitutional Court interfered during the transitional period, prompting the dissolution of the House of Representatives and the Shura Council, and leading to that of the Constituent Assembly on the grounds that the laws regulating their privileges were unconstitutional, thus disrupting the democratic process during the transitional period. Retaining its previous powers implies that the new constitution has rewarded the Constitutional Court, which was a spearhead in the political struggle during the election period of the first president after the revolution. That same court was an instrument to “legally” disrupt the path of democratization. The article preventing the appointment of judges was amended (Article 170 of the 2012 constitution) and replaced by a transitional article that allows the cancellation of appointments to be delayed by a maximum of five years via a law issued by the House of Representatives (Article 239). It is worth mentioning that the manner of appointment to non-judicial bodies was an exclusionary means used by the executive branch against oppositional judges.^[2]

Separation of Political Party and Religion

Constitutional articles of a clear retaliatory nature were included in the amended constitution, and may be used against Islamist opposition. Article 74, which prohibits the establishment of political parties on a religious basis, was introduced along with another article that commits the state to confronting terrorism and cutting off the sources of its funding (Article 237).

Religious and Cultural Minorities

Articles have been introduced to reinstate the Nuba people, to take into account the cultures of local communities (Article 235), and to allow the renovation and construction of churches (Article 235). Undeniably, these provisions are positive and should have been articulated in the transitional laws prior to the coup; however, they also serve as a political maneuver that aims to strengthen a social basis for the coup.

National Democratic Party Members

The 2012 constitution provided an article preventing the leadership of the dissolved National Democratic Party from engaging in political work or running in presidential or legislative elections for 10 years from the date the constitution took effect.^[3] The new constitution makes no such mention.

On Rights and Liberties

A look at the articles of the new draft constitution regarding rights and liberties clearly indicates that they do not live up to the level of a constitution that promotes democracy. Instead, all of the provisions are restricted by the legal provisions issued to interpret them. This means they are limited by the details, procedures, and articles that will constitute the laws of associations, public meetings, political parties, and trade unions. One should recall here the law of public demonstration that was released after the military coup stipulated that a license must be obtained for peaceful protest.

Overall, with the exception of amending articles relating to state and its duties, it is clear that the rest of the amendments were made to strengthen the foundations of the existing deep state, including the army, the interior ministry, and the judiciary, and to strengthen their independence and immunity against any future elected body. The outcome of the ballot, therefore, will not influence the restructuring or reform of the state, thereby inhibiting a democratic path. Ultimately, the Committee of Fifty, ostensibly supported by the civilian majority, has sacrificed a civil state in favor of amendments of medium importance that fit the needs of the elite and their struggles with Islamists.

The Problem with Egyptian Constitutions: Lessons in their Application

Initial figures available from the Supreme Commission for Elections in Egypt reveal that about 15% of expatriated voters participated in the referendum for the 2014 draft constitution, representing around a third of the participants in the referendum for the 2012 constitution, which claimed a 42% turn out. This might suggest the citizens’ reluctance to vote, be it the result of boycott or political apathy. Regardless, the potential for a low turnout will cast a shadow of doubt on the new constitution’s legitimacy, especially since the percentage of voting was the Egyptian opposition’s justification for doubting the legitimacy of the 2012 constitution. In the past, the National Salvation Front has attacked the referendum on the pretext that voter turnout is low, since the results of the 2012 constitution revealed the approval of around two-thirds of voters. With the referendum boycott by the Muslim Brotherhood and its allies, the new constitution is expected to gain the majority of votes. This means that the majority of the voters are supporters of this constitution, not surprising given the Egyptian media’s “mobilization” urging citizens to approve a new constitution that will lead to “stability,” “rebuilding,” “development,” and “prosperity.”

The battle surrounding the new constitution will thus not be linked to the extent to which it is supported, but to the percentage of participation. Given the fact that the current regime primarily depends on numbers as one form of political conduct, such as the number of demonstrators, it can be expected to continue with its policy of “mobilization,” and manipulate the participation rates to lend legitimacy to the constitution.

The new regime will then face the first test of whether it will conform to its own rules. To illustrate, even though there are a number of articles detailing confrontation with Egyptian opposition, such as the anti-terrorism clause, a number of other laws issued by the government and Interim President Adli Mansour will automatically become unconstitutional, including the demonstration law and the decision to shut down a number of satellite channels. In the meantime, Arabs have grown accustomed to the constitutions of their countries failing to apply under tyranny. The extent to which the regime respects its own drafted constitution remains one of the most important indicators of the tyrannical nature of the regime. For over 60 years, Egyptians have been used to the victors drafting constitutions, but they have also been used to the victors failing to respect those constitutions should they turn into tyrants.

**This Assessment was translated by the ACRPS Translation and English Editing Department. The original Arabic version published on January 15th, 2014 can be found here.

[1] Concerning the conduct of the traditional Egyptian elite, see: Ahmad Zayed, “From Spying to Conflict and Violence: Surveillance mechanisms in the modern Egyptian state,” Omran, Issue 6 (Fall 2013).