As was to be expected, the drafting of Egypt’s constitution has produced an unsound text, filled with flaws. Among these many significant flaws, a number of articles have been included in the constitution for no other reason but to provide a means of appeasing certain political groups or to address certain segments of society. This political appeasement took many forms. Article 3 is an example of an artificial sectarian attempt to appease a religious minority, while Article 195 bestows unwarranted right to appoint the Minister of Defense from the military. Article 229 attempts to appease farmers and workers in the form of a 50 percent quota in the parliament – in essence an electoral bribe.
Article 3 states that the canon principles of Egyptian Christians are the main source of legislation for their personal status laws, religious affairs and the selection of their spiritual leaders. It is clear that this article was included only to give the appearance of appeasing Egyptian Christians. In fact, it is known that, for decades, Christian personal status laws have been applied in Egypt’s courts, without ever having been a source of conflict within society. The same can be said for the selection of spiritual leaders of the various denominations, as the church is free to organize its internal affairs.
There are two primary problems that stem from the text of Article 3. First, it deludes Christians into believing that the constitution will guarantee their rights. Secondly, it deprives them of what they, and Egypt’s Muslims, truly need, that is the full recognition of their rights and freedoms, not only written within the pages of the constitution, but also as a living reality for the people; a reality of justice, freedom and equality.
In any stable and democratic state, the armed forces must be subject to oversight by an elected civilian administration. In order for that oversight to exist, the elected president is also the Supreme Commander of the Armed Forces, and the Minister of Defense, in addition to being appointed by the civilian government, is a civilian figure rather than a military one. As a result of Egypt being under military rule since 1952, the Minister of Defense has always been a member of the military, a practice that stems from custom, and is not provided for in the constitution or the law.
While Egypt’s revolution may have succeeded in relieving the military of its leadership of the country, those writing the draft constitution insist on turning back the clock. It was not enough that the Minister of Defense should come from the military, instead, that very practice is being enshrined in Egypt’s constitution in the form of Article 195. It may be said that the current political conditions do not allow for a civilian to be selected as a defense minister. While this might be acceptable for the current political situation and the nature of the transitional period, why then is there a need for the constitution to protect this practice? Article 195 can only be seen as an effort by Egypt’s political leadership to appease the military.
Since 1964 up until the March 2011 declaration, Egypt’s constitution has always provided for the allocation of half of the parliamentary seats to workers and farmers. This practice has come under severe criticism by the majority of both jurists and politicians, stemming from two main issues.
First, the provision is an example of blatant discrimination, and is in direct contradiction with the principle of equality among citizens. On the one hand, the allocation of a certain quota in the parliament on the basis of religion, profession, gender or socio-economic standards is an assault on the rights and equality of other groups. On the other, it lays to waste one of the fundamental elements of democracy – and that is “election on the basis of merit.”
Second, the article does not guarantee workers and farmers, two segments of society whose condition has deteriorated over the last half century, any real protection. In fact, in reality the quota was simply abused. Members of parliament ran on the worker/farmer ticket, when they were neither, and were able to win, not only due to weaknesses within these two segments of society, but also due to the corruption of the entire electoral process.
Based on the above, the Constituent Assembly had settled on excluding the worker/farmer quota from the new draft constitution. The sudden change came, not in the final weeks or days of the drafting process, but rather in its final hours. At three in the morning, a member of the Constituent Assembly proposed to have the article reinstated, and after mere minutes of superficial discussions, it was decided that Article 229 would be included in the draft. I can neither accept nor understand the way in which this article was reinstated, or the reason for its return, other than seeing it as an attempt to appease a broad sector of Egyptian society. Article 229 is an electoral bribe that attempts to ensure the passage of the draft constitution in the upcoming referendum.
In a shrewd eleventh hour move, the Constituent Assembly, reinstated the article, knowing full well that its exclusion could affect the referendum results, and result in the success of a ‘no’ vote. One need only read the article to view the evidence that supports this argument: the quota will only be applied to a single parliamentary session, but this will be enough to deceive the workers and farmers, and ensure that the draft passes.
It is unacceptable that a new social contract for the Egyptian nation is open to bribes and political manipulations of this kind. A constitution serves the purpose of allowing the people to govern themselves, and does not serve as a tool for political bargains and backroom deals. It is not enough, in my judgment, to reject the draft constitution, but, moreover, to denounce its authors.
Yussef Auf is an Egyptian judge and 2012 Humphrey Fellow at American University’s Washington College of Law. He is currently pursuing a PhD in Constitutional Law and Political Systems at Cairo University. He can be reached at yussufauf@hotmail.com.
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