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PDFTens of thousands of Egyptians protested against President Mohamed Morsi, Reuters reports, after an Islamist-led assembly raced through approval of a new constitution in a bid to end a crisis over the Islamist leader’s newly expanded powers.
Many liberal and secular Egyptians fear that the constitution, which independent observers suggest has a pronounced Islamist bent, will allow the Muslim Brotherhood to consolidate power while threatening freedom of expression and the rights of women and minorities.
“This is a sad day in the history of Egyptian law and a big setback to the dream of establishing a state based on law and justice,” said Ziad Bahha, an official of the opposition Egyptian Social Democratic party. “We are faced by a constitution drafted by an invalid constitutional assembly protected by an illegal immunity given to its decisions amidst a dangerous split in society. …. It takes us back many years and dismantles many of the foundations of the modern Egyptian state.”
The constitution raises questions about Morsi’s commitment to adopt an inclusive approach to governing.
“Egypt needs a president who shows statesmanship, not seeks sectarian advantage,” notes one observer.
“The draft constitution has an Islamist bent,” AP reports:
It strengthens provisions that set Islamic law as the basis of legislation, gives clerics a still undefined role in ensuring laws meet Shariah and commits the state to enforce morals and ‘‘the traditional family’’ in broad language that rights activists fear could be used to severely limit many civil liberties.
But Morsi’s Muslim Brotherhood defended the document.
“This constitution represents the diversity of the Egyptian people. All Egyptians, male and female, will find themselves in this constitution,” said Essam el-Erian, a Brotherhood representative. “We will implement the work of this constitution to hold in high esteem God’s law, which was only ink on paper before, and to protect freedoms that were not previously respected,” he said.
The Brotherhood’s stance found some support from independent analysts.
“The draft constitution will end the state of political division, because it will cancel the constitutional decrees that the president issued,” said Dawood Basil, a Cairo University constitutional law expert. “I feel overwhelming joy after hearing the final wording of the articles.”
But others fear the new constitution would push Egypt in the direction of an Islamic Republic rather than a civil state.
The preceding 1971 constitution was “more open and protective of individual rights,” said Mustapha Kamel Sayed, a professor of political science at Cairo University.
One clause insists that sharia should be interpreted in accordance with orthodox schools of Sunni Muslim doctrine, limiting judicial discretion in applying a modernist interpretation. Another article stipulates that scholars of Al Azhar, the theological center of Sunni research and scholarship, be consulted on issues of sharia interpretation.
Both articles are dangerous, says Michael Hanna, a fellow at The Century Foundation.
“What that does is begins to shift all the terms of discourse away from the civil law system and toward religiously-based strictures,” he says. “Al Azhar is enshrined in the text. Sunni jurisprudence is enshrined in the text. It begins to shift the terms of reference and privileges a certain discourse that is religiously based.”
Protesters said they would press for a ‘no’ vote in a constitutional referendum, which could take place in mid-December.
“If the declaration is not withdrawn we will call for civil disobedience,” said Adel Rabie, a leading member of the Social Democratic Party. “How can we pass a constitution written in the absence of representatives of 80 per cent of Egyptians – workers and farmers?” he asked.
“We fundamentally reject the referendum and constituent assembly because the assembly does not represent all sections of society,” said Sayed el-Erian, 43, a member of a party set up by Nobel laureate Mohamed ElBaradei, who predicted the constitution would be short-lived.
“I am saddened to see this come out while Egypt is so divided,” Peace laureate Mohammed ElBaradei told Al-Nahar TV. “It will be part of political folklore and will go to the garbage bin of history.”
But several independent analysts said the hasty way in which it was prepared led to more problems than any ideological agenda, The New York Times reports:
Instead of starting from scratch and drawing on the lessons of other countries, the deadline-conscious drafters tinkered with Egypt’s existing Constitution, without trying to radically remake Egyptian law in any particular direction, said Ziad Al-Ali, who has tracked the assembly for the International Institute for Democratic and Electoral Assistance, an intergovernmental organization in Sweden.
In some places, the charter also provides for “society” as well as the state to play a role in upholding family values or moral standards, which critics said could open the door to vigilante pressure from self-appointed moral guardians. “Is ‘society’ me and my friends in my neighborhood?” asked Ali.
“This constitution that is being written …. under the protection of the interior ministry and the legitimacy of the Brotherhood and dictatorial immunity does not and will not represent me,” wrote Rasha Azb, a prominent activist.
But constitutional expert Zaid Ali said charges that the new constitution gave Morsi the powers of a pharaoh were exaggerated.
“Limitations on the president’s and the government’s power come from a stronger parliament which now has far more authority than it did under the previous constitution of 1971,” he said. “He still, though, has a lot of power. For instance he nominates the head of the [monitoring] authority which audits him and the government. He should not have that power.”
Nevertheless, “a major opportunity was missed to really study what went wrong under the previous system” and try to address those problems, said Ali, a Cairo-based adviser on constitution building for the Institute for Democracy and Electoral Assistance:
While focusing on disagreements between Islamists and secularists, the drafters missed an opportunity to address issues like decentralization of power, effectiveness of governance, and corruption. Others had hoped the constitution would do more to achieve social justice and alter what they say is a state structure that contributes to the growing gap between rich and poor.
Heba Morayef, the Egypt researcher of Human Rights Watch, highlighted an article that bans “insulting or showing contempt to any individual” as a limitation in free speech.
“Under this will one for instance be able to say that the president is a failure or a dictator?” said Heba Morayef, the Egypt researcher of Human Rights Watch. “I see this as a deterioration in freedom of expression over previous drafts. Also there is no ban on custodial sentences in cases against the press.”
“Women, who were barely represented in the assembly, have the most to lose from a constitution which ignores their aspirations, and blocks the path to equality between men and women. It is appalling that virtually the only references to women relate to the home and family,” said Hassiba Hadj Sahraoui, Amnesty’s deputy director for the region:
The draft also preserves much of military’s immunity from parliamentary scrutiny, putting its budget in the hands of the National Defence Council, which includes the president, the heads of the two houses of parliament and top generals.
The text fails to offer guidance on how to balance its clauses protecting freedom of expression against other provisions protecting people or religions from insults, said Morayef.
“These contradictions were either intentional or based on ignorance of how rights should be protected, or both,” she said.
The proposed constitution only promises freedom to practice the Abrahamic religions – Islam, Christianity, and Judaism – denying other religious sects, such as Egypt’s Bahai’is, the right to publicly practice their faith.
“To say that they can’t even practice their religious rights is terrifying,” says Morayef.
