Analysis: Who’s Afraid of the Egyptian Constitution?

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 Members of the Muslim Brotherhood and supporters of Egyptian President Mohammed Morsi run for cover as they clash with anti-Morsi demonstrators on the road leading to the Egyptian presidential palace in Cairo, Dec. 5, 2012.

On Dec. 15, 2012, Egyptian voters will be asked to cast ballots in one of the country’s most important votes ever, a referendum on a new constitution. Egyptians–and people all over the world–are asking, “Will this document chart a way forward that lives up to the sacrifices of the people and the promise of the revolution? Will it uphold universal values and norms?”

The prospective constitution has polarized the country, dividing it between well-organized and disciplined Islamist political forces and their supporters who are for it, on one side, and disjointed and divided secular and liberal forces who are against it, on the other. The debate has generated massive demonstrations—with many bouts of violence.

Many here agree that the draft of the constitution that will come to a vote is far from perfect—though it has a number of groundbreaking articles. For example, Article 6 states that “No political party shall be formed that discriminates on the basis of gender, religion or origin.” Others promote the general guidelines for a free market including article 29 that limits when the government can nationalize companies and industries. Other articles make torture and the detention of civilians illegal. One calls for the eradication of illiteracy. A new article stipulates that members of parliament must provide financial disclosures annually in an effort to combat the country’s tradition of corruption.

But the language of it can often read ambiguously, reflecting the political realities that created it—though those origins are the very reasons the document is important and historic.

First, a look at what liberal critics call its glaring shortcomings. The assembly chosen to write Egypt’s constitution was selected by a parliament dominated by Islamist parties. Though that parliament was dissolved by the courts due to a technicality, the Constituent Assembly it created continued its work and reflected the Islamist bent of the body that appointed its members. By the time the Constituent Assembly voted, at least 15 out of the 100 members had boycotted the final reading and vote on the draft. Not a single Christian participated in the vote and out of the 85 total who did vote only four were women. All four could be described as Islamists. Liberal and secularist opinions were barely reflected. That, say the critics, is a decided dearth of diversity.

Already the draft constitution has drawn criticism from human rights organizations because of the limited protections against abuse of powers by the state and the failure to protect religious freedoms and other individual liberties. Many people are alarmed that some articles even pave the way for government intrusion into personal freedom. They point, for example, to Article 11 which stipulates that the “State shall safeguard ethics, public morality and public order, and foster a high level of education and of religious and patriotic values…”  Another article says the President is the Supreme Commander of the Armed Forces while another article then says the Minister of Defense is the Commander in Chief of the Armed Forces.

The constitution also misses the opportunity to organize the country’s myriad court systems that span nearly half a dozen of different judicial bodies including the Supreme Constitutional Court, the State Council, the Court of Cassation, State Affairs and the Administrative Prosecution. Human rights advocates, meanwhile, fear that some articles may be interpreted in such a way as to enforce the domesticity of women rather than promote their presence in the workforce and the world beyond hearth-and-home.

Finally, many of those opposed to it say there really isn’t much time for Egyptians to hold public readings, debate and educate themselves about how they want to vote. They will have just about two weeks to study and decide before voting on Dec. 15. (You can read a full English translation of it here.)

However, while Egyptian secularists – and Western observers – may despair at the situation, others here believe the legitimacy of the document should not be viewed in a vacuum and the final document, flawed as it may be, should not detract from the process that produced it. There have been edifying elements and lessons in transparency for ordinary Egyptians. Most if not all of the sessions of the Constituent Assembly were broadcast on TV; the inner debates of the body were widely publicized and published in local press and media. The constitution was a purely organic Egyptian exercise of sovereignty. There was little outside interference or pressure. Despite calls for international technical expertise, this was an Egyptian Constitution written by Egyptians for Egyptians. For a country that is new to politicking and consensus-building, Egypt’s constitution writing process reflected that reality – one where proponents of the democratically prevailing ideology, in this case Islamist, drafted a charter that they felt they were given a mandate to do.

Like other draft charters at the time of their writing, including that of the United States, Egypt’s serves as a snap shot of where the country is, not where it can and should go. That will be the task of future interpretations of the constitution. It took close to a hundred years for the U.S. to abolish slavery and give women the right to vote. Many Egyptians may not like what they see today—a country that is impoverished, chaotic and dominated by Islamist political currents. But this is the reality that exists—and the one that produced the document. And, looking at the way Egyptian democracy is developing, the document itself is not impervious to change.

Indeed, many Egyptians believe their country’s constitution doesn’t have to be perfect. Not right away. Getting the constitution passed may be part of a political end game by President Mohamed Morsi, but it is not the end of the process. It is the beginning of a political and social evolution. Amendments to the Constitution can be initiated by Egypt’s parliament or the President. They require two-thirds vote in parliaments houses and must be approved by national referendum. Furthermore, almost every article in the proposed charter ends with the words “as regulated by law”—an indication that, going forward, laws must be formed to frame and embody the idea of the article. Some observers believe that this simply gives Islamists more legislative clout. However, it can work the other way around. If Egypt’s liberal forces get their act together and start winning seats in parliament, they too can shape those laws. Egypt’s so-far steadfastly secular judiciary also has the ability to shoot down legal interpretations of the constitution that the judges disagree with.

It’s also worth noting that many functioning democracies, including the United Kingdom, that have no explicit constitution. A constitution does not ensure the state will abide by it nor will it prevent a dictatorship from emerging. Egypt had a constitution in place for decades and yet despite that, Mubarak and his predecessors managed to co-opt it to build their authoritarian regimes. A constitution does not guarantee a democracy. And while Egypt may end up with a flawed constitution, that does not mean its future will be bereft of a vibrant democracy.

TIME

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