Egypt’s Draft: A Constitution of Conditionals

Constituent Assembly AFP.jpg

Talk to many policymakers and analysts in Washington and you will hear them praise the comprehensive and holistic nature of the latest version of Egypt’s draft constitution. Talk to an Egyptian or someone who has worked on the ground however and they will talk of a document that underhandedly deprives the people of their full rights and is a travesty to a post-revolution nation.

Are the two groups reading different documents? Unlikely, although the English translations of the draft have admittedly been unimpressive and a number of versions have been circulating online. What then explains this discrepancy?

A superficial versus a contextual reading.

To a literal reader, Egypt’s constitution has the necessary features. It labels the nation as an independent and democratic one; respects the human rights of its citizens; protects private economic pursuits; and sets up a bicameral semi-presidential system that is comparable to that of many nations. The draft goes into hefty detail and boasts 46 pages and 232 articles which touch on everything from the role of the judiciary to human trafficking.

While there is no doubt that all of the aforementioned is true, it is absolutely necessary for us to read Egypt’s draft constitution in the context of the rise of the Muslim Brotherhood and their attempt to enshrine their religious approach into the document. It is also necessary that we read the document with an understanding of how the law works.

In the American context, ambiguous words and phrases like “reasonable,” “foreseeable,” and “in good faith,” have single-handedly been the cause of endless case law and a long history of legal disputes and battles. While legal language is often the farthest from succinct, the Egyptian draft boasts ambiguous and conditional statements that will not only be the cause of legal debates for decades to come, but also create a worrisome and problematic vacuum that can grossly be abused by those in power.

In the realm of ambiguity, take for example, Article 10 which calls upon the state to protect general morals and manners and empower Egyptian traditions. While it is possible that this Article may not have much of an impact on the future of Egypt, merely serving as filler in an already-extensive document; one could easily imagine a scenario where, in an extreme example, the same Article is used to uphold the establishment of a religious or moral police. Furthermore, the morals and manners of one group may not necessarily be the morals and manners of another, thus raising serious legal questions on whose morals will predominate.

Beyond Article 10, ambiguity can be found throughout, including phrases like “human dignity,” “national security,” and “Islamic sharia,” all of which can be interpreted in countless different ways.

Conditional statements in the constitution are also equally problematic. Article 39 strongly states that “freedom of belief is inviolable”; however, it quickly tacks on a conditional statement that such freedom will only be extended to adherents of the three Abrahamic faiths. Regardless of your personal beliefs on religion, from a legal perspective, it is problematic for a state to explicitly write out some of its citizens. Egypt boasts a diverse population that includes agnostics, atheists, Bahai’s, and Shia Muslims (which some sheikhs have written out of the Islamic faith). This Article raises questions on the status of these individuals and whether the state will owe them any duty or even recognize their existence.

On the equality of men and women, Article 68 includes conditional phrasing which suggests that although men and women are equal; this is contingent upon the provisions of Islamic sharia. Although this phrasing has existed in earlier versions of the constitution, it becomes highly problematic in a context in which more conservative interpretations of Islamic jurisprudence are becoming prominent and arguably infiltrating long-standing institutions like Al-Azhar. If one believes that Islam grants equality, or at least equity, between men and women, the conditional statement is completely repetitive and begs questions on its utility. One can easily imagine a scenario in which this phrase is eventually used to bar women from pursuing roles of leadership like that of the presidency. Rather than truly addressing the issue, the Constituent Assembly appears to be sidestepping some of these ambiguities by simply removing entire articles. A recent version of the constitution, published in Al-Masry Al-Youm, suggests that Article 68 may be removed completely.

Another ambiguity comes in the form of Article 43 which guarantees citizens the right to information as long as it does not threaten “national security.” While there is no doubt that preserving national security is one of the primary goals of the state, ambiguous phrasing like this opens the floodgates of highly problematic reasoning. A scenario in which certain television channels, revolutionary blogs, and Facebook posts are blocked under this Article is not far from the imagination; in fact, the Mubarak regime often used similar reasoning when arresting and targeting bloggers and journalists. The phrase “national security” has historically been a convenient shield by which to manage information and there is no reason for us to think that this has changed.

And the list goes on.

Historically, constitutions that are short, succinct, and explicit have been the most successful and have provided the strongest protections for the citizens of the state and the state itself. Egypt’s draft constitution, although superficially touching on a comprehensive set of topics, does little to prevent against the abuse of power. The ambiguous and conditional nature of the phrasing throughout the document is suspect and will certainly allow for the speedy rise of an oppressive majority, whether the Muslim Brotherhood today or a different group tomorrow.

To complicate matters further, a strict deadline for a final version of the draft has been set for November 19. Thus, it is unlikely that much will be changed in the interim, despite a recent Salafi protest demanding the implementation of Sharia, prominent disagreements on the phrasing of Articles 2 and 68, and the threat of 30 Constituent Assembly members to walk out on the body if not granted an extension. Egypt’s constitution seems to be the farthest from a consensus document and only paves the way for a problematic future that is in direct contradiction with the principles of the revolution.

Note: The author has relied on the 10/24 Arabic version of the draft constitution taken from the official website of the Constituent Assembly to write this piece. 

Mai El-Sadany is a law student at the Georgetown University Law Center, with an intent to focus on international and human rights law in the context of Middle East politics. She is a graduate of Stanford University and formerly worked as a research assistant in Washington, DC.

Photo Credit: AFP

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