Constitution for an elitist state

Ibrahim El-Houdaiby , Saturday 17 Nov 2012

Egypt's constitution keeps the country's authoritarian foundations intact, focusing on regulating relations between state institutions, rather than restructuring relations between the state and the people

Despite all the hard work that went into drafting Egypt's new constitution to "reform" the authoritarian July state by removing any obstacles hindering its institutions from functioning effectively, it still does not in any way express a desire to "change" the regime’s structure by empowering society and protecting society’s rights as hoped by the January 25 Revolution.

There have been several drafts of the constitution with a variety of alternate provisions but overall they have left intact the authoritarian foundations of the state. 

Although the constitution upholds the principle of the people’s sovereignty (Article 5 of 22 October draft) and repeatedly confirms the joint responsibility of state and society to maintain public order, citizen rights and national security (for example, Articles 9, 10, 28, 61 and 77), these provisions lack language that empowers society to partner with the state in this role.

Elements of reform are apparent in the constitution when lawmakers have tried to restructure the relationship between state institutions to ensure an equilibrium, such as Articles 128 and 143 which regulate the relationship between the president and parliament to guarantee that neither monopolises power.

There are also provisions regulating the media and press. Articles 215 and 216 create an independent body to manage the media and regulate its mandate and relationship with other institutions but they do not state how it would be formed or the democratic and professional guarantees it provides.

The overall provisions are primarily focused on regulating relations between various state institutions, instead of restructuring relations between them and the people.

The provisions keep these institutions beyond popular sovereignty by preventing the public from holding parliamentarians to account since only their councils can strip them of their membership (Article 111). 

The articles also provide alternatives to avoid resorting to popular sovereignty to resolve conflicts among various institutions (Articles 103, 104).  

Popular referendums will only occur when a decision is needed on the dissolution of parliament or constitutional amendments - otherwise calling a referendum is the "right" of the president (Article 155). Neither do they require referral to the people regarding disposing of state-owned land instead only parliament’s approval is needed (Article 150).

Meanwhile, Article 77 states that protecting national security is "the duty of both society and state" leaving the concept ambiguous and only the state, not society, can define and possess the necessary tools to protect national security.

This gives the state – specifically security agencies – legitimacy to operate outside the law and in the absence of a clear definition of national security allows it to continue withholding information, data, statistics and documents from public access by using the excuse of national security, as described in Article 43 of the draft.

Articles pertaining to the Egyptian Armed Forces also curtail popular sovereignty by stripping MPs of the right to discuss the military budget or how to make the country safe and giving this mandate only to the National Defence Council (Article 195). It also limits the authority of civilians through a strange stipulation that the Minister of Defence must be chosen from within the ranks of the Armed Forces (Article 197).

There are other articles that reinforce the domination of the state over society, such as Article 11 that appoints the state guardian of "cultural, civilisational and linguistic unity of Egyptian society" (assuming such a thing actually exists and can be protected).

Article 213 opens the door to state control by not articulating how to form the Supreme Commission for Endowments, which permits the state to interfere in endowments under the pretext of guaranteeing wise economic management.

Meanwhile, Article 52 commits all academic institutions "public, private, civil and other to the state’s education plan and goals" but there is nothing said about the mechanisms of formulating such a plan and ensuring that it is diverse and not subject to the executive authority.

Overall, these provisions embed the state’s guardianship over society (which is a pillar of the July regime) and in actuality strips society of all rights to defend itself against this (although this right is theoretically a given).

In parallel with these conservative politics that keeps policy-making away from the influence of the people, the provisions are economically and socially conservative overall. 

They also use vague language that does not specify responsibilities and duties of the state regarding economic and social rights (Articles 52, 56, 57, 60).

The constitution is also void of any mechanisms to obtain these rights and fails to outline what society should do to defend itself if those in power violate or neglect rights, as has occurred in the past. This problem was addressed in some modern constitutions (such as in Brazil) by outlining the mechanisms needed to obtain these rights.

The legislator’s bias towards the elite is evident when defining those who are entitled to rights and the right to participate in athletics (Article 61) which focused on the state’s duty to "discover and sponsor talented athletes" (which is primarily the role of the private sector) instead of its responsibility to provide infrastructure to expand participation (the duty of the state if it was focused on the rights of the majority not the few).

On Al-Azhar, the highest authority in Sunni Islam, the constitution proposes not the independence of the institution but only the independence of its Grand Imam, by giving him immunity against being deposed even by his own organisation (Article 4).

Nonetheless, the constitution also contains positives such as the notion of "national wealth" that can never become privately owned (Article 16) and easing restrictions on creating associations and political parties (Article 48).

However, these also serve the elitism of the constitution since national wealth is limited to Nile water and water resources but ignores social problems resulting from the privatisation of the entire North Coast, for example. Also, while Article 48 makes it easier to form labour unions, it does not stipulate the plurality of trade unions.

The writing of the constitution comes after a revolution in which Egyptians exercised their political power without a proxy, in parallel with a social protest movement – perhaps the largest in modern history – that demanded collecting economic and social rights and shattered the domination of the state by the elite.

Nonetheless, the structure of the constitution is very conservative, which accurately represents the dichotomy between politicians (whether Islamists or civil) and society.

It also confirms the ongoing conflict, not between Islamists and civil forces, but between the people on the one hand and a state of experts together with the privileged of the deposed regime on the other hand.

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