Constitutional amendments: Repeating past mistakes?

Last month, amid the political turmoil in Egypt, interim president Adly Mansour issued a decree tasking a 10-member judicial committee to propose amendments to the suspended 2012 constitution and submit their amendments to the presidency. The decree has stirred up debate and divided civil society between political movements like 6^th of April which advocate drafting a new constitution rather than amending the 2012 version, and those such as Tamarod which advocate moving forward by amending the constitution. However, any debate was overridden when the committee started working and produced their proposed changes, which were presented to the public at the end of August and will be passed over to the constituent assembly to finalise before putting the constitution up for a referendum.

The amendments merged articles and rephrased others, cutting their number from 236 to 198. The committee seems to have heavily edited the 2012 constitution and removed many literary parts that did not carry constitutional significance. The proposed draft divides the constitution into six chapters, borrowing the format of the 1971 constitution five chapters and adding one more for the general and transitional rules.

Commentators and politicians from across the political spectrum have criticised the final draft of the proposed amendments for different reasons. Some describe the draft as a setback, paving the way for the return of the remnants of the Mubarak regime, particularly politicians, since the draft cancels the ban on their participation in political life.

Islamist politicians claim the draft has diverged from Egypt’s Islamic identity due to the cancelling of articles and clauses that empowered the religious institutions such as Al-Azhar. It is true that such articles will still be discussed by the constituent assembly, but the overall mixed indicators signal minimal modifications to come.

The state and its identity

In the first chapter of the new draft, Article 1 emphasises Egypt’s indivisibility, but takes out the references to Africa and Asia that were added in the 2012 constitution. In the same chapter, the controversial Article 2 stipulating that the “principles of Islamic Sharia are the main source of legislation” was untouched. Nevertheless, its significant explanation in Article 219 was removed, leaving the final word about the issue to the constituent assembly.

The Salafi Al-Nour Party (the second biggest Islamist party represented in the dissolved parliament of 2012) declared its objection to the initial removal of the article in a statement explaining that the removal is based on a misinterpretation of the article. The party also asserted that there was an agreement among most political factions not to change such articles. Currently, some online campaigning is taking place to remind Egyptians of the importance of this article and its relation to their Islamic identity.

In Article 4, still a controversial one, the clause that Al-Azhar’s Association of Senior Scholars should be consulted on issues related to Sharia law was removed. Again, Islamists parties and particularly Al-Nour announced their objection to this removal with the justification that it will minimise the role of Al-Azhar. The article is now placing Al-Azhar solely as an independent religious institution that does not hold power over legislative matters.

Rights, civil liberties and freedoms 

Overall the new draft retains much of the rights and freedoms that were included in the 2012 constitution, with slight changes in the wording. This is noticeable in Article 11 which mandates the state to guarantee equality between men and women in political, social, economic and cultural fields without breaching the principles of Islamic Sharia.

A minor change was made in Article 59 on children’s rights. The amendment removes the clause allowing child labour on the condition of finishing preparatory school. However, like the 2012 constitution, the new draft bans child labour if it hinders the child’s education. The Egyptian Coalition on the Rights of the Child opposed the amendment because it was only a change in the wording, which opens the door for abuse.

Articles discussing the role of the state in protecting the morals and the heritage of Egyptian society were removed for their literary nature and irrelevance. Additionally, all references to the 25 January Revolution were omitted and replaced with the word “revolution.” Though this has drawn the ire of the 25 January Revolution youth, the removal could be an attempt to include the protests on 30 June as a “second wave” of the Egyptian revolution. However, this is to be approved and explained by the constituent assembly.

Articles on freedom of religion and belief were slightly changed with the cancellation of Article 44, which prohibited offending prophets and messengers. Article 47 emphasises that freedom of belief is protected and that the state shall facilitate establishing houses of worship for the three Abrahamic religions; Judaism, Christianity and Islam. This stipulation would still pose challenges for other religious minorities in Egypt.

The right to information in the 2012 constitution stipulated that accessing information is a right for every citizen except if the information went against national security, but it gave people the right to plea. Though the new draft keeps the original stipulation as is, it retracts the clause about pleas with regards to blocking information from the public. This represents a setback, because without a plea system, nothing will guarantee the right to access public information.

The 2012 constitution allowed judges to derive legal penalties from the penal code and the constitution. Using the constitution as a legal reference for penalties was criticised particularly due to its referencing of Sharia principles, and thus legal penalties might have enabled Islamic punishments to be applied. In Article 69, the new draft limits legal penalties to those mentioned in the penal code.

Political representation

With regards to political representation and legislative powers, many amendments were made.

On party formation, Article 54 stipulates a ban on forming political parties on the basis of religion. This will pose question marks for the already existing political parties such as the political wing of the Muslim Brotherhood, the Freedom and Justice Party, and other Salafi parties such as Al-Nour and Al-Fadeela.

Surprisingly, the amendments removed Article 232, which imposed a ban on the politicians of the National Democratic Party (the party of the deposed president Hosni Mubarak) from running for elections for 10 years. Removing this article confirms the fears that many political and revolutionary factions have about the return of remnants of the Mubarak regime to political life.

The draft cancels the articles concerning the Shura Council (Egypt’s upper house), which means that the Shura Council will no longer exist. This was a long-sought demand since the council costs the state much with no clear mission. To account for this change, the draft proposes increasing the number of representatives in the lower house which is renamed “the People’s Assembly” from 350 to 450. Most notably, the stipulation that at least 50 % of the People’s Assembly should be workers and farmers is discarded from the new draft. Although this was a popular demand, after parts of the new draft were leaked out to the public, some politicians went back to criticise that scrapping this quota would be detrimental to the representation of the people.

Additionally, parliamentary elections will be carried out according to the single vote, single candidate system. The cancellation of proportional lists is now causing a rift among political parties who used to complain about the lists system. However, each system has its pros and cons for Egypt’s political life and only the constituent assembly would be the one finalising which system fits most putting an end to the debate.

Unchanged, unchallenged

Among the unchanged articles are some of the most vital. Perhaps unsurprisingly, the status of the military in the draft did not change significantly. In fact, if anything, the status of the military’s independence from the state has only been reinforced financially and structurally. Structurally, Article 170 stipulates that the defence minister is chosen from among armed forces officers and must be approved by the Supreme Council of the Armed Forces. Financially, Article 172 specifies that the armed forces budget is included in the state’s budget as a total figure without detailing out its expenditure or revenues.

Article 173 bans military trials for civilians except in the condition of “direct assault on the armed forces.” This is a slight modification from the 2012 constitution which was vague about this condition using the statement “harming the Armed Forces.” However, this remains a major disappointment for the many revolutionary groups and organisations that have been demanding the abolition of military trials of civilians since the 25 January Revolution.

The president’s powers for the most part remain the same. Little procedural changes were made in electing a new president in case the incumbent president resigns, dies, or is unable to perform his duties. In the new draft, the period for elections is extended to 120 days instead of 90 in the 2012 constitution. The controversial articles that required the president to appoint heads of independent institutions, like Article 202, have been removed without yet being replaced.

Another unchanged stipulation was in Article 56 with regard to having one syndicate for each profession. In the 2012 constitution, a big debate commenced over this article because professionals want to have their freedom in creating several syndicates. Article 56 still keeps this option out of hand for professionals and workers.

The Journalists’ Syndicate demanded adding a clause in the article on the media about the status of journalists and jailing them; however the draft proves disappointing in that sense, with no such clause.

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Now that the amendments have been submitted to the presidency, they have been criticised and it is up to the Constituent Assembly to have the final say. This week the Constituent Assembly  members have been chosen and announced. The composition of the committee was received with mixed reactions because different parties and groups consider the committee exclusionary, particularly Islamists and women. The committee will be commencing its meetings to discuss the proposed amendments on Sunday 8 September. A “social dialogue” and a platform will follow the discussions for people and civil society to debate what the assembly finalises and presents. However, will there be much change in those proposed amendments? Will the constituent assembly amend the drawbacks of the 2012 constitution or repeat the same mistakes? The answer will unfold over the next two months.