fine print

The biggest problem with Egypt’s new constitution is that it will probably be ignored

January 10, 2013
January 10, 2013

I spent the holidays with family—Egyptian family. I was born in Egypt, into a Coptic home, a member of the small Christian minority in a predominantly Muslim country.  The recent election of Mohammed Morsi, a Muslim Brotherhood leader, as president, followed by the passage of a new constitution ramrodded through the process by a Muslim Brotherhood-dominated constitutional council has my family on edge. They see the election as a step towards the Islamization of Egypt. So far as I know, every member of my extended family (well over 100 of them) voted against Morsi and then voted against the new constitution.

The US press sees it the same way, reporting on the events in Egypt as steps towards the creation of a new Iran.

Having read the new constitution, I have a different perspective. The risk to Egypt is not that the new constitution will lead to the creation of a theocracy.  Rather, the risk to Egyptian freedom and democracy is that the new constitution, which provides a number of good defenses against tyranny, will be ignored.

The constitution is flawed, yes.  It fails to separate church and state. It mentions Islam far too often. It is at times needlessly vague and at other times inconsistent. Yet it also, to the surprise of many, provides the sorts of constitutional protections that we enjoy in the United States: freedom of thought, of speech, of movement. It provides protection against government invasion of privacy, against unreasonable search and seizure, against torture and coercion, against arrest without due cause. It guarantees freedom to assemble. It states that health care and basic living needs are fundamental rights. In contrast to the image of an Islamic screed, it provides a constitutional protection of one’s individual faith.

And perhaps most importantly, it places limits on the power of the president.

Let’s look at a few important sections of the new constitution, courtesy of a translation to English by Nariman Youssef of the Egypt Independent.  (All emphasis below is mine.)

Freedom of Speech

The new constitution guarantees freedom of thought, opinion, and expression:

Article 45
Freedom of thought and opinion shall be guaranteed.

Every individual has the right to express an opinion and to disseminate it verbally, in writing or illustration, or by any other means of publication and expression.

Freedom of the Press

Multiple clauses protect freedom of the press.

Article 48
Freedom of the press, printing, publication and mass media shall be guaranteed. The media shall be free and independent to serve the community and to express the different trends in public opinion, and contribute to shaping and directing in accordance with the basic principles of the State and society, and to maintain rights, freedoms and public duties, respecting the sanctity of the private lives of citizens and the requirements of national security. The closure or confiscation of media outlets is prohibited except with a court order.

Control over the media is prohibited, with the exception of specific censorship that may be imposed in times of war or public mobilization.

Privacy

The new Egyptian constitution protects the privacy of individuals in their own homes, and the privacy of communications.  Indeed, Article 38 provides stronger protections of electronic communications for Egyptians than Americans have.  (Compare the text of article 38, below, to the US Senate’s renewal of warrantless electronic eavesdropping as part of FISA).

Article 38
The private life of citizens is inviolable. Postal correspondence, wires, electronic correspondence, telephone calls and other means of communication shall have their own sanctity and secrecy and may not be confiscated or monitored except by a causal judicial warrant.

Article 39, which protects the privacy of the home from police, may also be stronger than US constitutional protection, in that it includes the word “monitored”.  It also guarantees that anyone in a home entered or searched is alerted, something that’s not true in the US since the advent of ‘sneak and peek’ warrants in the Patriot Act.

Article 39
Private homes are inviolable. With the exception of cases of immediate danger and distress, they may not be entered, searched or monitored, except in cases defined by law, and by a causal judicial warrant which specifies place, timing and purpose. Those in a home shall be alerted before the home is entered or searched.

Transparency

The new Egyptian constitution provides citizen access to government documents in a manner similar to the US Freedom of Information Act:

Article 47
Access to information, data, documents and statistics, and the disclosure and circulation thereof, is a right guaranteed by the state, in a manner that does not violate the sanctity of private life or the rights of others, and that does not conflict with national security.

Arrest and Torture

Under Hosni Mubarak, Egyptians were rounded up for mere political dissent.  By contrast, the new constitution provides protection against causeless arrest, the guarantee of a lawyer, and a speedy trial.

Article 35
Except in cases of flagrante delicto, no person may be arrested, inspected, detained or prevented from free movement except under a court order necessitated by investigations.

Any person arrested or detained must be informed of the reasons in writing within 12 hours, be presented to the investigating authority within 24 hours from the time of arrest, be interrogated only in the presence of a lawyer, and be provided with a lawyer when needed.

The person arrested or detained, and others, have the right of appeal to the courts against the measure of arrest. If a decision is not provided within a week, release becomes imperative. […]

For decades, Egyptians have known that they could be hauled away, forced into confessions, or tortured simply as a threat to keep them inline.  The new constitution prohibits that. It also invalidates any confession produced under duress, and makes inflicting “physical or moral harm” to prisoners a crime.

Article 36
Any person arrested, detained or whose freedom is restricted in any way, shall be treated in a manner preserving human dignity. No physical or moral harm shall be inflicted upon that person.

Only places that are humanely and hygienically fit, and subject to judicial supervision, may be used for detention.

The violation of any of the above is an offense punishable by law.

Any statement proved to have been made by a person under any of the aforementioned forms of duress or coercion or under the threat thereof, shall be considered invalid and futile.

The constitution stipulates that defendants are innocent until proven guilty, are entitled to face those accusing them directly, and are entitled to a lawyer if they can’t provide their own.

Article 77
No criminal action shall be made except under an order from a judiciary body, save for cases defined by law.

A defendant is innocent until proven guilty in legal trial, and granted the right of defense. Every person accused of a felony shall be provided with a defense lawyer. Minor offenses, in which a defense lawyer is also required, are determined by law. […]

Article 78
The right of defense in person or by proxy is guaranteed.

The law secures, for financially incapable citizens, means to resort to justice and to defend their rights.

Limits on the President

The real purpose of a constitution is to limit the power of government.  Egypt is emerging from more than 50 years of dictatorial rule by three successive dictators.  And so it’s no accident that the constitution places limits on the power of the President.

First, real lawmaking authority is spelled out (across a great many articles) as belonging to the two chambers of the legislature, which must both agree.   Other powers are divided among the two legislature chambers, the President, and the courts, providing checks and balances in power previously absent in the country.

Second, while Mubarak was in power for nearly 30 years, and the old constitution had no term limits on the presidency whatsoever, the new constitution limits the President to two 4-year terms, just like the United States:

Article 133
The President of the Republic shall be elected for a period of four calendar years, commencing on the day the term of his predecessor ends. The President may be reelected only once.

Many of the abuses that happened in Egypt over the last 30 years were done under the guise of a ‘State of Emergency’ that lasted for decades. The new constitution addresses this explicitly.  It allows for the creation of a state of emergency (which, perhaps, it shouldn’t) but requires that both chambers of the legislature (the House of Representatives and the Shura Council, roughly equivalent to the US Senate) approve the measure.

Moreover, for the emergency to last more than six months, a six month extension must be approved by a public referendum of the people.

Article 148
The President of the Republic shall declare, after consultation with the Cabinet, a state of emergency in the manner regulated by law. Such proclamation must be submitted to House of Representatives within the following seven days.

If the declaration takes place when the House of Representatives is not in session, a session is called for immediately. In case the House of Representatives is dissolved, the matter shall be submitted to the Shura Council, all within the period specified in the preceding paragraph. The declaration of a state of emergency must be approved by a majority of members of each Council. The declaration shall be for a specified period not exceeding six months, which can only be extended by another similar period upon the people’s approval in a public referendum.

The House of Representatives cannot be dissolved while a state of emergency is in place.

Religion

Of course, the real complaint about the constitution is that it is Islamist. It blends the church and state. It gives a special place to Islam.

This is all too true.  The second article of the constitution makes this clear:

Article 2
Islam is the religion of the state and Arabic its official language. Principles of Islamic Sharia are the principal source of legislation.

This is made worse by Article 219, near the end of the constitution, which pulls in a non-specific set of other documents and doctrines as the sources for Sharia.

Article 219
The principles of Islamic Sharia include general evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community.

This troubles Egyptian liberals and secularists who point out that the historical Islamic doctrines that make up the foundations of Sharia very explicitly treat women and non-Muslims as underclasses, undeserving of the rights afforded to Muslim men.

The constitution, troublingly, also makes it illegal to insult any religion:

Article 44
Insult or abuse of all religious messengers and prophets shall be prohibited.

The constitution also talks specifically about Al-Azhar, the primary Islamic university and seat of Islamic thought in Egypt.

Article 4
Al-Azhar is an encompassing independent Islamic institution, with exclusive autonomy over its own affairs, responsible for preaching Islam, theology and the Arabic language in Egypt and the world. Al-Azhar Senior Scholars are to be consulted in matters pertaining to Islamic law.

The post of Al-Azhar Grand Sheikh is independent and cannot be dismissed. The method of appointing the Grand Sheikh from among members of the Senior Scholars is to be determined by law.

The State shall ensure sufficient funds for Al-Azhar to achieve its objectives.

These are the clauses that have generated the most fear that Egypt’s constitution is an Islamist tract and a step towards the next Iran.

Yet even here, there are counteracting forces.  Article 4 gives Al-Azhar no real power.  It promises funds to the Islamic religion and gives scholars a ‘consulting’ role, but nothing else.  And while Article 2 states that Islam is the religion so the state and that Sharia (as vaguely defined in Article 219) is the principle source of legislation, it’s immediately followed by Article 3.

Article 3
The canon principles of Egyptian Christians and Jews are the main source of legislation for their personal status laws, religious affairs, and the selection of their spiritual leaders.

So Christians and Jews in Egypt have their own sources of legislation.  Many have interpreted this article as itself discriminatory because it doesn’t protect the rights of believers of other faiths, such as the Bahá’í.  That’s a fully legitimate point.

Yet the document is clearer and more to the point later on:

Article 43
Freedom of belief is an inviolable right.

The State shall guarantee the freedom to practice religious rites and to establish places of worship for the divine religions, as regulated by law.

And indeed, throughout the document, in the pre-amble and at least 4 other articles, the constitution protects the equality and freedom of individuals without discrimination.

For instance, the Pre-Amble very clearly calls out equality and equal opportunity for all citizens, and specifically men and women.

Pre-Amble Principle 5
Equality and equal opportunities are established for all citizens, men and women, without discrimination or nepotism or preferential treatment, in both rights and duties.

Article 6 bans the creation of political parties that discriminate:

Article 6
[…] No political party shall be formed that discriminates on the basis of gender, origin or religion.

And Articles 9, 33, and 34 all assert freedom and equality without discrimination for all citizens.

Article 9
The State shall ensure safety, security and equal opportunities for all citizens without discrimination.

Article 33
All citizens are equal before the law. They have equal public rights and duties without discrimination.

Article 34
Individual freedom is a natural right, safeguarded and inviolable.

Undoubtedly these inconsistencies between the very general statements about Islamic Sharia and the more specific statements about equality and freedom will at times come to a head.  They’ll be tested in court and in the political process.  Much depends – as with the US Constitution – on how the documented is interpreted in later years.

Yet a simple word count is perhaps illuminating. “Sharia” is mentioned three times in the document. By contrast, “equality” is mentioned 11 times.  And “freedom” is mentioned 32.

On the Whole

Egypt’s constitution is far from perfect. It places too much emphasis on Islam, and doesn’t go as far as one might like in safeguarding individual rights.  It guarantees a trial, but not a trial by jury. It allows military trials for civilians in crimes that affect the military. It contains a troubling clause which makes insults of other people a crime – and which could be used against criticism of those in power. It doesn’t go far enough in spelling out the exact criteria along which people cannot be discriminated against. It has other clauses that are ambiguous or which open the door to state interference in personal matters.  The mentions of Sharia as the principle behind the law are vaguely menacing, and leave the door open to assertions that, because Sharia discriminates against women and non-believers and bans many activities, Egyptian law should as well.

Yet when read as a whole, the new Egyptian constitution is far more progressive than has been widely reported. It places limits on the powers of the president. It quite clearly prohibits discrimination, in multiple clauses. It guarantees the freedom of belief, of thought, and of expression. It protects individuals against spurious surveillance, arrest, torture, and other abuses of the police. It enshrines freedom of the press.

As Omar Ashour at the Brookings Institute noted, “the 2012 draft is the least authoritarian [constitution] that Egypt has ever had. Whereas all the other constitutions guaranteed, on paper, a minimum of basic freedoms and elements of social justice, the 2012 draft limits presidential authorities and divides powers between the state institutions.”

On the whole, we should see the constitution as flawed but as very real progress from the state Egyptians lived in under Mubarak and his predecessors.

The real threat is that the constitution—with its expansion of civil liberties for Egyptians and its unprecedented constraints on the Egyptian presidency—will simply be ignored.  If that happens, Egyptians will find that they’ve traded one dictatorship for another.

If, on the other hand, Egyptians decide that their constitution is more than just a string of words—if they treat it as the highest law of the land, and as a document whose purpose is to constrain the power of their rulers—then Egyptians will find themselves more free than they’ve ever been.

We welcome your comments at ideas@qz.com

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