Egypt’s Draft Constitution Rewards the Military and Judiciary

The draft constitution submitted to Egypt’s interim president, Adly Mansour, on December 2 settles a few important matters—it enhances the status of the state institutions that banded together against the Muslim Brotherhood, including the military, judiciary, and police. But it leaves other equally important questions unanswered. The sequencing, system, and timing for presidential and parliamentary elections remain unclear, for example, issues that are particularly fraught because Defense Minister Abdel Fattah El-Sisi, who removed Mohammed Morsi from power in July, might run for president.

The draft constitution submitted to Egypt’s interim president, Adly Mansour, on December 2 settles a few important matters—it enhances the status of the state institutions that banded together against the Muslim Brotherhood, including the military, judiciary, and police. But it leaves other equally important questions unanswered. The sequencing, system, and timing for presidential and parliamentary elections remain unclear, for example, issues that are particularly fraught because Defense Minister Abdel Fattah El-Sisi, who removed Mohammed Morsi from power in July, might run for president.

The new constitution offers better human rights protections than the 2012 version forced through by the then president, Morsi. Yet it also continues a pattern of leaving much up to the vagaries of implementing legislation. And that legislation may be written—and implemented—in an atmosphere of government and public indifference, even hostility, to human rights concerns.

Peculiarities of the new constitution can be understood as a reaction to the power struggles that took place not only during the year of Morsi’s presidency, but also during the nearly three years since the removal of former president Hosni Mubarak. The military, judiciary, police, and other groups have sought to protect themselves from the very sort of challenge they encountered from elected Muslim Brotherhood officials and secular revolutionaries. As one of the 50 members of the constitutional committee said, “We have a saying that once you have burned your mouth on hot soup, you will blow even on yogurt. That is what has happened with this constitution.”

A less generous interpretation is simply that the leaders of institutions of the pre-2011 state have seen in the current anti-Brotherhood, pro-military popular climate an opportunity to retake—and even broaden—the powers they enjoyed under Mubarak.

The Winners
The primary winners in Egypt’s new draft constitution are the state institutions that banded together to oust Morsi.

The constitution enshrines autonomy for the military, which had already been granted a considerable measure of autonomy by the now-suspended 2012 constitution. In effect, it is no longer treated as part of the executive branch of government but rather a branch unto itself.

The most significant change is the requirement that the military approve the defense minister for the next two presidential terms (article 234).

Provoking great controversy in Egypt is the continued, broad jurisdiction of military courts over civilians. In the 1971 constitution (in force until 2011), this matter was left to legislation; the 2012 constitution took a similar approach. The new draft does the same, though it works to restrict this jurisdiction to specific kinds of cases (article 204). The language is so broad, however, that the military courts are likely to have jurisdiction whenever they wish, such as in any area military officials declare a “military zone.”

Mubarak used the military courts to try political cases in which he wanted to be assured of a quick guilty verdict. That abuse may be less of a problem now because that right depended on a state of emergency, the imposition of which is now more tightly controlled. The real issue will instead become the military’s own actions in dealing with protesters and critics, not the president’s. The thousands of cases in military courts since 2011 have come from military prosecutors and courts acting on their own.

The judiciary, which strongly supported the military takeover from the Brotherhood, also won autonomy in the current draft. Judicial bodies receive their budgets in a lump sum, the judicial council selects the prosecutor general, and each judicial body is granted autonomy. Various judicial actors jockeyed to obtain specific mention in the draft constitution as well as independence from other actors; most got what they wished for, though some judicial bodies will inevitably feel slighted.

As in 2012, a Supreme Judicial Council is referred to in the constitution but not defined, leaving its composition and most of its duties to be codified by legislation. By contrast, the Supreme Constitutional Court, which decides cases in which the constitutionality of a law or regulation is challenged, got some specific provisions it had been seeking, such as the right to appoint its own chief justice.

A third state institution to emerge victorious was Al-Azhar, Egypt’s premier religious institution, though a superficial reading of the text may suggest otherwise. The 2012 constitution included a controversial article requiring that Al-Azhar be consulted in matters related to Islamic sharia; that has been eliminated.

But such a constitutional responsibility would have exposed the institution politically as attempting to assert a Sunni version of Iran’s clerically supervised system, and Al-Azhar never sought such a role. Its authority was already established in law. Al-Azhar’s current leadership seeks supreme moral authority and autonomy, and that is what the current draft offers.

Finally, the police as well as the wider security and intelligence apparatus won little-noticed victories. The police are loyal directly to the people (articles 206 and 207), the same definition of mission that the military used to intervene in politics in 2011 and 2013. They are supposed to honor human rights, but a reference to international human rights instruments was dropped from the final draft.

According to the new document, a Supreme Police Council—likely dominated by senior officers—must be consulted on any law affecting the police, effectively ensuring that much-needed security reform will run through existing police institutions. General intelligence officers are subject to the military courts, not to civilian justice (article 204), effectively providing them immunity from civilian oversight or prosecution. And article 237 requires that the state fight “terrorism,” a term deployed in an idiosyncratically broad manner by Egypt’s current rulers.

There are other possible winners, though it remains to be seen to what extent enhanced rights will be supported by future legislation and court rulings. Women gained much clearer and less qualified language on equality of the sexes (article 11) than in either the 2012 or the 1971 constitution. The draft document recognizes Nubians for the first time. Christians retained the provisions from 2012 that gave them a more explicit constitutional right to their own personal status law (article 3, though this right was long established in Egyptian law and practice). And they also won a new promise that the parliament will write a law on church restoration that will protect the freedom to practice religious rites (article 235).

The Losers
The biggest losers in the new draft are the Islamists, including the Salafi Nour Party, which supported Morsi’s ouster. Political activity based on religion is now banned, though it is not clear how that will be enforced. The Nour Party, as well as the Brotherhood’s Freedom and Justice Party, was founded when a ban on religious parties was written only in law, but at the same time the new constitution will allow parties to be dissolved only by a judicial order. It may take some time before the Islamist parties’ fate is clear.

The drafters stripped away much of the very conservative social and moral language of Egypt’s 2012 constitution. For the most part, this language seemed more symbolic than legal, though the Islamists had succeeded in blocking some clauses in 2012 (such as those on human trafficking and gender equality) that they feared would lead to contraventions of sharia. The authors of this document felt no such qualms.

In addition, one of the major changes worked into the 2012 constitution has been removed. Since 1980, all Egyptian constitutions have declared the “principles of Islamic sharia” as the main source of legislation. In 2012, a new provision (article 219) was inserted to define that phrase at the insistence of those who did not trust how the Supreme Constitutional Court had ruled on the subject in the past. The practical legal impact of article 219 was never tested.

The new document not only eliminates that clause. In the preamble—an integral part of the text, according to the constitution itself—it also refers to the authority of the Supreme Constitutional Court on the matter.

The autonomy granted to the armed forces in particular also means that the presidency and the parliament have lost relative power in the new draft, as the elected officials in those institutions will have no real authority over the military.

Other losers include workers and adherents of religions other than Islam, Christianity, and Judaism. Laborers lost the long-standing requirement that half of the parliament be composed of workers and farmers, and unions are specifically prohibited from organizing within government security agencies, a move already protested by a police officer’s club. The new constitution is more restrictive than its predecessors in explicitly stating that the right to worship and build places of worship is restricted to the three Abrahamic religions—bad news for Egypt’s small but deep-rooted Baha’i community.

Basic Rights and Freedoms
Egyptians have grown quite cynical about constitutions, seeing them as full of promises that are never enacted. The new draft may fuel that cynicism.

The document seems to provide more rights to citizens by deleting limitations that appeared in the 2012 constitution—which, for example, included a proviso that insults to religious prophets would not be tolerated but provided for freedom of expression and belief. But it is far from clear how those rights will be put into practice because so much is left up to implementation.

The device of constitutional language deferring important matters to legislation was invented in early European constitutions to place more control in the hands of the people’s representatives in parliament, rather than trusting the executive or the monarch (or judges they appointed). However, in the Arab world, with its weak legislatures, the effect has been just the opposite: rights are routinely defined nearly out of existence by rubber-stamp parliaments.

Members of the constitutional committee were aware of this shortcoming. Some tried to make rights more absolute and to take steps designed to avoid having the rights provided in the constitution diminished by subsequent laws. But most rights are still defined by law. Instead of eliminating that phrase, the drafters included the following provisions in the document:

-Laws that are written to implement constitutional principles require the approval of two-thirds of the parliament to ensure they have consensual and not just majority support (article 121). This bar may make it harder to define rights in a way that restricts them, but it will also make it difficult to modify many of Egypt’s existing authoritarian laws on such subjects.

-International human rights instruments ratified by Egypt are given the force of law (article 93). This is a potentially major innovation, but only over the long term and if used by ambitious courts.

-The draft adopts the innovation of the 2012 constitution stipulating that laws defining rights and freedoms cannot limit them (article 92). And it removes the 2012 requirement that rights be practiced in a way consistent with conservative preamble language pertaining to society and fundamental values.

The implementation of the latter two potential safeguards will depend on whether a robust Supreme Constitutional Court takes upon itself the protection of citizens’ rights. The current judicial pattern of backing the military and police fully in the crackdown on all dissidents, including the Muslim Brotherhood, is not promising. It remains to be seen whether Egyptian judges will in time recover their independence.

Next Steps
Regarding formal steps taken to pass the constitution, the interim government seems likely to observe the road map put into place in July. President Mansour will summon Egyptians to a January referendum on the constitution. As with last year’s document it will be considered approved if it is endorsed by a simple majority of those voting—a bar that was widely criticized, in Egypt and internationally, as too low when Morsi used it to ratify the previous 2012 constitution.

Whether the road map’s timing and sequence for subsequent parliamentary and presidential elections will be applied is a matter of controversy. While the July plan called for first parliamentary and then presidential elections to be held a few months after the constitution’s passage, there have been persistent reports that some quarters would prefer to hold the presidential election first. The constitutional committee chose not to decide this matter—perhaps because there appear to be ongoing debates among General El-Sisi, appointed civilians including President Mansour, and political parties that are allies of the current government, all of whom appear to be calculating which sequence and timing will best serve their various interests.

Technically it is left to President Mansour to issue a law by decree on the sequence of parliamentary and presidential elections. Procedures for whichever he designates first must begin between thirty and ninety days after the constitution goes into effect; procedures for the second elections must begin within six months.

The acting president must also approve an electoral law, which the draft constitution says may be based on a system of individual seats, party lists, or a mix. Press reports have suggested that the military and its political allies favor more individual seats, which would discourage the development of strong political parties and encourage the election of candidates who have money to spend and connections to the state. There were rumors of a compromise in which two-thirds of the new parliament (which will now have only one chamber) would be individual seats and one-third party-list seats, but the drafting committee rejected a proposal to include that compromise in the constitutional text.

Whichever system is chosen, court challenges are likely. The Supreme Constitutional Court (from which President Mansour comes) has struck down numerous election laws in the past and required the dissolution of parliament three times since the 1980s. In its most recent rulings, the court has begun to require that districts be drawn equitably, though it has not set down a definite standard of what precisely that means. The 2012 constitution required the court to review the election law in advance to prevent such an outcome; that procedure has been removed. The 2013 drafters considered but in the end rejected a proposal to bar the court from dissolving the entire parliament if it found the electoral law invalid.

While the acting president has the authority to issue these laws by decree, he is consulting leading political forces before moving forward. It is a mark of the opacity of Egyptian politics that nobody knows precisely who is being consulted and whose voice is heard, even in such critical matters.

The Shadow of the Coup
Egyptian voters might well be asked to approve the new constitution without knowing much about when their new president and parliament will be elected or what sort of system will govern the parliament. They may not know whether the defense minister who ousted Morsi will run for president or whether a malleable civilian will be put forward for the job. They may not even know whether the Brotherhood’s Freedom and Justice Party will be dissolved and therefore banned from running for seats in parliament.

All these are salient points, because the vote in January will be more a popular referendum on the July 2013 coup than one on the draft constitution itself, which few are likely to read.

Meanwhile, the new constitution and military-backed transitional government face increasing dissent from secular groups that supported the coup or were on the fence. Notable among them are the April 6 Youth Movement and the Strong Egypt Party, who have announced that they plan to mobilize for a no-vote on the referendum due to the constitution’s provisions on the military. Brotherhood supporters also continue to oppose the document and the interim government, while protests escalate on university campuses.

The current government’s next challenge is how to procure a voter turnout for the January referendum that surpasses the 18 million that Morsi drew a year ago, and an approval rate that exceeds the two-thirds that Morsi got, in order to prove that most Egyptians are still with the military’s plan. State media and officials are gearing up for a campaign not only to get out the vote, but to get out a yes-vote. Whether authorities allow groups to campaign freely for a no-vote or boycott of the referendum will be another indication of how much political space remains open in post-coup Egypt.

This article is reprinted with permission from the Carnegie Endowment for International Peace. It can be accessed online at:

Nathan Brown is a non-resident senior associate in the Middle East Program of the Carnegie Endowment for International Peace, and a professor of political science and international affairs at George Washington University.

Michele Dunne is a senior associate in the Middle East Program of the Carnegie Endowment for International Peace.