The return of the state

The halls of the Shura Council are host to the work of the committee tasked with amending the 2012 Constitution, initially drafted in 2012 by a predominantly Islamist committee, the second time in a year that constitutional drafting has taken place within its walls.  

According to the Constitutional Declaration issued by interim President Adly Mansour after the ouster of former President Mohammed Morsi, the 50-member committee will be following up on the work done by another committee of legal experts on amending the Constitution. 

The 50-member committee is expected to produce a constitutional draft to be put to public referendum within three months. Meanwhile, both its composition and the proposed amendments it inherited from the experts’ committee promise the return of a strong state, with limited responsibilities in terms of citizens’ social and political rights, all while undoing the power gained by Islamists over the last two years.

The committee composition

The Constitutional Declaration granted Mansour the right to choose the 50 members of the committee from nominations made by councils and unions identified by the presidency itself. The committee is headed by Amr Moussa, a Mubarak era minister of foreign affairs and a liberal figure.

The specialized national councils, whose heads are appointed by the state, along with cultural councils, and labor and industrial unions, whose heads are mostly dominated by liberals and leftists, have won the lion’s share of the committee with 18 seats. The Cabinet appointed 10 public figures, most of them prominent liberals, while the military and police are represented by one seat each. Al-Azhar and the main Egyptian churches are each represented by three seats. Two seats were granted to Tamarod, the movement behind the petition that gathered millions of signatures against Mohamed Morsi’s presidency this summer.  

This amounts to 38 seats out of the total of 50 allocated to individuals representing institutions close to the state, and most significantly opposed to the Islamist current and particularly the Muslim Brotherhood. According to the committee’s bylaws, articles are passed with a 75 percent majority, a threshold that can be covered by these 38 members.  

Party representation meanwhile is light, most notably that of Islamists, with one seat granted to the Nour Party represented by Bassam al-Zarqa, the Nour’s deputy head. Kamal al-Helbawi, a Muslim Brotherhood dissident, is also a committee member.

Amr Adly, a researcher in the field of political economy at Stanford University, says that the current composition of the 50-member committee reflects the active players on the Egyptian political scene who together with the military have sealed the Brotherhood’s fate.

“The state is trying to influence the course of events in Egypt through the bodies capable of adjusting the legal and political status of the country,” Adly explains.  

Proposed amendments 

The 50-member committee will review proposed amendments from the 10-expert committee, which included four professors of law and six members of various judicial bodies. They have recommended the removal of 33 articles and the amendment of a further 124. In the main, these amendments concern the political structure of the state, its expected role and the separation of powers, all of which were dividing issues between Islamists and their opponents in the 2012 drafting process. 

The 10-member committee’s recommended changes would mean a state with reduced responsibilities. For example, the committee recommended the removal of articles that commit the state to provide free mother and child care and eradicate illiteracy within a decade of the passing of the constitution. An article holding state officials accountable for refusing to cooperate in matters related to freedom of information, as well as articles guaranteeing fair pay to employees in state institutions and the public sector have also been slated for removal.    

Meanwhile, the committee has left untouched articles guaranteeing military privileges including freedom from public oversight over budgetary issues. It has also recommended reactivating the role of the Supreme Constitutional Court as the sole arbiter of the constitutionality of laws and the scrapping of articles that mandated Al-Azhar’s role as arbiter on issues related to Sharia.  

“The recommendations of the 10-member committee have two goals,” Essam Shiha, leading figure in the liberal Wafd Party, says. “These are reaching a political and legal arrangement on social rights and rectifying the mistakes of Islamists with regard to the role of state institutions and above all the judiciary.”

“The 50-member committee will certainly approve these recommendations,” Shiha predicts.  

The other issue that the new constitution is set to resolve centers on political representation and participation.  

The 10-member committee has recommended the return of a single candidate system for elections to replace a mixed system of both single candidate and proportional representation. The proposal is already raising tempers because proportional representation, which produces a greater presence of parties in parliament, is seen as necessary to strengthen party politics in Egypt. Additionally, a single candidate system is associated with clientelism, political favors and vote buying.  

The committee has also recommended the removal of the political isolation clause, which barred leading figures of the Hosni Mubarak era National Democratic Party (NDP) from participation in politics for a decade. Another recommendation proposes the mixing of a presidential and parliamentary system, whereby the parliamentary majority would participate with the president in forming the government.  

The contested issue of dissolving parties based on religion has however been left to the 50-member committee. Shiha believes that this issue will be used as a bargaining chip to negotiate with the Islamist players to pressure them to accept the proposed constitutional amendments in return for their very existence.

Political players in the coming period

Tamer al-Meehi, member of the Egyptian Social Democratic Party’s political bureau argues that for all the talk of political marginalization of Islamists, this would be hard to achieve on the ground. 

“It is difficult to keep the Islamists away from the political process because they are strong and have millions of supporters. I understand that the mood of the public is currently against them, and that any constitutional committee formed by the state and non-Islamist representatives would receive public support. Yet this support would not continue if the polarization and the Islamist-secular divide remain,” he says. 

“This is why I think that one seat to represent the Nour Party is insufficient. Members of the party who were camping in the Rabea al-Adaweya sit-in [along with the Brotherhood to protest the military’s ousting of Morsi] accused their leaders of plotting with the military. This meant the party experienced a heated internal debate, placing it in a tight space between limited participation and complete marginalization,” Meehi adds. 

But what would it take for the military to marginalize Islamists, despite their strong constituency?  

Meehi suggests that the Armed Forces have two options. The first one is to continue with a mixed system of single candidates with proportional representation in parliament, which could result in a parliament with a secular majority this time around. The risk for the military — and security apparatus — is that this secular majority might demand a larger margin of freedoms and democracy in order to liberate its political space.  

The second option would be to resort to allegiances to the old regime and rely on the re-election of NDP figures. These figures continue to have a large web of connections to senior state employees and would guarantee cooperation on the governmental and municipal levels in addressing security and logistic issues, thereby saving the military from focusing on internal issues. 

“I can see that the military has chosen the second option to ensure a stable regime that can control the state, but sadly it will come at the expense of the work of political parties in the near future,” Meehi says.  

However, Hassan al-Shazly, a former member of the 2005 parliament representing the NDP, says that it will not be all that easy for former regime figures to return. 

“I do not expect to see many prominent figures of the NDP in the next parliament. I, for one, will not be running for office even though I have a large popular base in my constituency. It is not as easy as it was during the Mubarak era. There is a broad sector of young people who do not accept us and describe us as ‘feloul’ [remnants] even though like any party, the NDP has both good and bad figures within it.”

Adly similarly does not predict an imminent return of figures from the old regime. “Adopting a single candidate system now would complicate matters, because it is not clear whether significant numbers of NDP figures will be running in elections or not. And even if we suppose that the feloul achieve a majority, it would be an unorganized majority. This means that proportional representation would be crucial to ensure a strong presence of liberal and leftist powers able to form a unified government. That’s why I expect the 50-member committee to negotiate drawing the political map with multiple parties.” 

It remains to be seen whether that map will indeed be drawn in a way that allows for pluralistic politics.

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Omar Halawa