The queue outside a polling station in Cairo during the referendum on the new Egyptian constitution in December, 2012. (Mahmud Khaled/AFP/Getty Images)[/caption]On August 27, the Muslim Brotherhood released a statement engaging with the constitutional amendments proposed by the interim government, claiming that these amendments would mean Egypt’s return to the Mubarak era. According to the statement, the amendments would empower the judiciary to a degree that immunizes them from the system of checks and balances crucial to maintaining a democratic civil state—thus betraying the aims of the January 25 revolution. More crucially, according to the statement, the amendments would place the army “above the constitution,” thus contravening the principles of a civil state.
The statement came in reaction to several key developments in Egypt’s constitutional process. On August 20, a committee of ten legal experts submitted an amended constitution to the interim president, Adly Mansour. This draft is to be discussed, and most likely further amended, over a period of two months by the so-called committee of fifty, at which point the draft will be submitted to a referendum.
The new constitutional process has created controversy since the proposed amendments were leaked to the press two weeks ago. Contention has focused on both the amended content and the selection of the committee of fifty. Adly Mansour announced the list of fifty delegates on Sunday, comprising mainly secular delegates, and no-one from the Muslim Brotherhood. The selection of previous constitutional assemblies was a hugely controversial matter through 2012, witnessing multiple boycotts and legal challenges before the final draft of the 2012 constitution was produced. It is yet to be seen whether the committee of fifty will face similar obstacles.
The amendments to the constitution suggested by the committee of ten are considerable and their possible ramifications have provoked a wide range of responses, from the frightening pessimism of Nathan Brown to the cautious optimism of Dina Guirguis. But what truth is there to the Brotherhood’s charge that the constitution represents a regression to the Mubarak era and a betrayal of the January 25 revolution? There is some mileage in the Brotherhood's claims, but their framing of the situation is problematic. While the group is correct to highlight the degree to which the judiciary has been empowered, the historical role of the judiciary under Mubarak makes this an awkward criterion on which to base any claims of regression to the Mubarak era. Equally, while the privileged role guaranteed to the military in the new amendments threatens the emergence of a truly civil state, the Brotherhood cannot make the claim that this reversal was initiated by the interim government.
The judiciary will benefit if the proposed amendments concerning it are enacted. First, the amended Article 158 provides that the judiciary will be able to protect itself from any perceived threats to it as a body, such as the earlier Freedom and Justice Party (FJP) attempt to remove hundreds of judges by lowering their mandatory retirement age.
Equally, it will become the responsibility of the public prosecutor to indict the president if he is impeached—a responsibility Egypt's last public prosecutor, Abdel Meguid Mahmoud, who had been serving since the Mubarak era, would have relished in his ongoing struggle with Mursi, as the latter attempted to fire the former. Most importantly, the section of Article 4 that guaranteed Al-Azhar a consultative role in deciding whether legislation was commensurate with the principles of the Shari’a has been excised. This is likely to return to the Supreme Constitutional Court (SCC) the ability to apply what Clark Lombardi and Nathan Brown call its “quite liberal” and “idiosyncratic” interpretation of the Shari’a.
However, using the empowerment of the judges to demonstrate that the amendments threaten to return Egypt to the oppression of the Mubarak era is problematic. Of the three arms of government, the Egyptian judiciary has historically been the most independent, especially towards the end of the Mubarak era. In light of the perceived authoritarianism of ex-president Mursi, a more empowered judiciary may not be a bad thing.
What is more problematic about the new amendments is the degree to which they render the military independent of civilian oversight. However, the Brotherhood’s contention that this is an innovation by the interim government is hugely disingenuous. The article in question, Article 197, which limits civilian oversight of the Egyptian armed forces by allowing the military’s budget to be entered as a single figure in the national budget, is actually a retention of an article in the 2012 constitution, the drafting of which was managed by the FJP. For the Brotherhood to complain that the proposed constitution puts the army “above the constitution” is evidence either of its opportunism or its collective amnesia.
In fact, since the 2012 constitution gave the army more independence than it enjoyed under the amended 1971 constitution used under Mubarak, a reversion to the Mubarak era in this respect would be better than the precedent set by the 2012 constitution.
