The winners and the losers in the Egyptian constitution

The Egyptians did not have the chance to follow the discussions of the constitution committee, which were held behind closed doors, in keeping with the new-old “transparency”. However, some coincidences give us hints about what has been going on behind those doors.

We were destined to find out about the clause stipulating the need for Supreme Council of the Armed Forces approval of the Minister of Defence nominee, a clause formulated by the panel of ten individuals formed by the president to consider the proposed amendments to the suspended 2012 constitution. There is no other explanation for adding this clause except that it was a reflection of the reversed balances at the historic moment that this panel was formed. The Defence Minister appointed the head of the Constitutional Court as the interim state president so it seemed illogical for a constitution issued under such circumstances to provide for the president to be the person who appoints the defence minister, as he does any other minister.

I was one of those who hoped that the “liberal” members of the committee would correct this odd clause in line with constitutions in democratic countries. Those who gave the liberals the benefit of the doubt thought that they would also cancel the clause that allows civilians to be tried in military courts (it is claimed that 12,000 young Egyptians have been tried in military courts since the military council took over) and that they would address the issue of the military budget, the details of which are hidden from the People’s Assembly. However, these hopes faded with the passing of time, although I was even more surprised by something worse. Before the final voting session, the clause that stipulated the approval of the armed forces over the appointment of the minister of defence was changed to make sure that only the military could also remove the minister. This means that the Egyptian state has no authority over this matter and that the military as an institution has been declared over and above the State, which has no authority over the generals.

On 1 December, Al-Shorouk newspaper reported the details. It noted that some of the committee members were surprised by the amendment and said that they had no knowledge of it. According to quotes attributed to Mohamed Salmawy, a spokesperson for the committee, such surprise is illogical; it is not realistic for the appointment of the defence minister to depend on the approval of the military without his removal also being dependent on the generals’ approval.

At the time of writing, the committee hadn’t finished voting on the rest of the articles in the new constitution, the formation of which bypasses the constitutional declaration that provides for the amendment of state constitutions, not drafting a new one. Nevertheless, we know that the armed forces are the biggest winners as they got what they wanted, while the Brotherhood and the Islamic parties are the biggest losers, as a clause was passed banning religious parties. It is worth noting in this context that in Sweden, a non-Muslim country in almost every sense, an Islamic Party has been established since 1999.

This result is no surprise to us because it is an expression of the current balance of power. This opens our eyes to a fact pointed out by Tarek El-Bishry in his book “Egypt between disobedience and fragmentation”, wherein he noted that the Constitution is a mirror of the fait accompli. He also noted that the 1923 Constitution allowed for a transfer of power, and its purpose was not only administrative but also, because at the time, the community had a number of political and social forces involved in the institutional organisations and formations, and none of these had the authority to eliminate any of the other forces from the political scene. The constitution allowed for this pluralism due to the reality of Egypt at the time, but if there hadn’t been pluralism, then the constitution wouldn’t have provided for the circulation of power.

El-Bishry added that the legal and constitutional representation depends on the actual distribution of the social and political forces that have crystallised in the form of organisations, parties, unions or institutions, and this is what we are missing in Egypt. We do not find such formations in Egypt at the moment, except for the Egyptian state institutions and their branches, and even then the state is dominated by one individual. There aren’t many precedents for the current situation in Egypt in the state’s modern history; even Muhammad Ali Pasha only had such power for a few years.

Dar Al-Shorok published this book in 2006 during Mubarak’s rule, and it not only explains the past, but also presents a new reading of the present.

This is a translation of the Arabic text published by Al Shorouk newspaper on 2 December, 2013

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.