Third time lucky? Egypt struggles with another constitution

Egypt has issued a draft constitution, its third attempt since the 2011 revolution. The latest expands protection of some civil rights, but also entrenches the powerful military. 

Heba Khamis/AP
A protester is enveloped in tear gas fired by riot police to disperse a demonstration in Alexandria, Monday, Dec. 2, 2013. Rights activists and protesters are unhappy about a new law that curbs the right of Egyptians to hold street protests.

Egypt's constitutional assembly has finalized a new charter that maintains privileges to the military while cutting much of the Islamist framework adopted under deposed former President Mohamed Morsi.

Adopting a constitution would mark a major step in a planned transition to elected rule after the July coup that ousted Mr. Morsi, Egypt's first freely elected president. Rights advocates say the document is an improvement over the previous one, though there are areas of significant concern. But for a large segment of the population, the exclusion of Islamists during the drafting process undermines its legitimacy, underscoring the deep divisions nearly three years after the fall of a dictatorship. 

Violence is still a daily occurrence. Police used tear gas Sunday to disperse demonstrators who gathered in Tahrir to oppose the military-backed government, while students gathered at universities throughout Egypt to protest the death of a Cairo University student killed last week during clashes last with police.

Members of the assembly, who finished an article-by-article vote late Sunday night, said they would send the document to Egypt’s interim president Tuesday. He will then set a date for a national referendum on whether to adopt the charter.

The constitutional assembly was appointed by the interim government set up in July by the military. There are only two Islamists on the 50-member assembly, and no members of the Muslim Brotherhood. The document was written as the authorities continued a brutal crackdown on the Brotherhood and its supporters. Thousands have been arrested and detained, with some already sentenced to harsh prison terms. Since July, security forces have killed more than 1,300 people, including hundreds in an assault on two sit-ins by Morsi supporters in August. At least 43 security personnel also died in clashes at the time.

The Brotherhood-led Anti Coup Alliance rejected the document, and in a statement called the assembly “illegitimate” and said it aimed “to produce a constitution for the junta only.”

One potentially significant shift in the military’s road map is the sequencing of elections under the new charter. The assembly rejected an article that would have seen parliamentary elections held first, followed by a presidential vote. Instead it will fall to Egypt’s interim president, Adly Mansour, to decide on elections. Some activists claim that the assembly, stacked with military supporters, may be preparing for a snap presidential run by Gen. Abdel Fattah el-Sisi, the Army chief behind the coup.

Mohamed Aboulghar, head of the Egyptian Social Democratic Party and a member of the assembly, said some members reasoned that holding presidential elections first could stabilize Egypt, since it would have an elected president under a new constitution before embarking on parliamentary elections.

Dr. Aboulghar, who supported the military's removal of Morsi, says he has reservations about some articles in the proposed constitution, including a heavily criticized measure allowing civilians to be tried in military tribunals. But he calls it a  “major improvement” over the 2012 constitution. Under this document, “freedoms and rights are as advanced as in the French Constitution,” he says.

Three assemblies, two constitutions

Since the February 2011 uprising that topped former President Hosni Mubarak, Egypt has held three constitutional assemblies and produced two constitutions. Each time the process has been fraught with controversy. In April 2012 a court dissolved the first assembly, elected by an Islamist-dominated parliament, after complaints over Islamist bias. Most non-Islamist members walked out of the second body after complaining that the process was not inclusive, which failed to stop the charter’s adoption. Morsi declared the assembly immune to judicial review and rushed to hold a vote before the courts could rule, sparking protests that culminated in his ousting.  

As expected, the newly proposed constitution is favorable to the military. It allows the Supreme Council of the Armed Forces to choose the defense minister, who would serve for eight years after the charter’s ratification. The new charter does away with previous Islamist additions, such as sharia (Islamic law) interpretations and a consultative legal role for the religious institution Al Azhar. It also outlaws political parties based on religion.

Rights advocates cite some areas of improvement: the charter obligates Egypt to abide by its international treaties, establish a commission on discrimination, and outlaw human trafficking and torture. All of these measures were absent from the 2012 document. The assembly also dropped the criminalization of blasphemy that Islamists inserted into the 2012 constitution.

But Amr Abdel Rahman, head of the civil liberties unit at the Egyptian Initiative for Personal Rights, says the proposed constitution “is still lagging behind international standards of human rights that are enshrined in the treaties Egypt is party to.”

While the proposed constitution declares freedom of belief “absolute,” it also restricts the practice of religion and the freedom to build houses of worship to followers of Islam, Christianity, and Judaism, as did the 2012 document. This has “major negative repercussions” for followers of other religions and unrecognized sects, says Mr. Abdel Rahman. It also allows security forces to harass citizens at home on the grounds that their houses are being used for worship.

On women's rights, the proposed constitution, like the 2012 document, includes language that declares it a state duty to ensure reconciliation between women's rights and the principles of sharia. Rights activists say these measures are a way to restrict women's freedoms. Abdel Rahman says the article can be used to “escape the commitment of the state to abide by the international treaties it has ratified,” including freedom of assembly and association.

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