Constitutional wrangling
 
 

As Egyptians wait for a final date to vote in the referendum on the draft constitution, advocacy and rights groups have time to take stock of the gains and losses that played out during the latest constitutional battle.

The highly divisive 2012 Constitution, rushed through and passed under deposed President Mohamed Morsi, was suspended when he was removed from office in July. A 50-member committee was then tasked with drafting a new constitution, which it finalized early in December.

The latest draft is expected to be put up for referendum in January, but the basic rights and freedoms granted — or withheld — in the document have already become an issue of contention.

One of the biggest victories in this draft is for Egypt’s Nubians, who gained the right of return to lands they were displaced from decades ago. Torture and discrimination have finally been criminalized, the issue of food sovereignty addressed, cultural diversity acknowledged and national heritage preserved.

On the other hand, the losses are significant, and are weighing heavily on the overall feeling toward the document: Freedom of belief has not been fully realized, civilians can still be subject to military trials, and freedom of information is still highly restricted.

While some advocacy groups were able to pressure the committee and walk away victorious, others left the battlefield empty-handed.

In this context, this draft of the constitution does not reflect a general will to preserve civil and personal freedoms as much as it reveals the power struggles within the 50-member committee, which is reflective of the broader political scene.

Hoda al-Sadda, coordinator of the freedoms committee, says the gains and losses can be linked to the balance of power that prevailed in the 50-member task force.

One of the major power players in the committee was the military, she says. Whilst there was no participation in the process from the Muslim Brotherhood — which is now a banned group — the hardline Salafi Nour Party was an active and influential player in the committee, solely representing the Islamist current.

“There was also a group of rights advocates representing the voice of the revolution,” who fought a fierce battle, says. “Some were won, others were lost,” she adds, pointing specifically at the military trials article.

Thinking about it now, she says, it may have been a long shot to expect a ban on the military trial of civilians. “All the circumstances were against us, including public opinion, as well as the wide influence and support the military has right now,” she explains.

On the upside, Sadda says, the fact that the issue at hand was widely discussed in the public debate “is a victory in itself.”

“We can at least use this in future battles.”

The winning teams

The constitution stipulates the preservation of cultural diversity and criminalizes discrimination of all kinds, including racial discrimination, which is seen as a notable gain.

According to Article 236, “The state ensures drawing and implementing a plan for a comprehensive economic and structural development for the border and deprived areas, including the South, Sinai, Matrouh and Nubia.” It further specifies the “participation of residents in development projects… in accordance with the local community’s cultural and environmental patterns,” which should be carried out within 10 years of the constitution’s passing.

“The state shall carry out re-population projects for Nubian residents within 10 years as regulated by law,” it adds.

Mazen Alaa, the spokesperson of a group called Constitution for Nubians, says that the role played by the Nubians representative Haggah Adoul is unprecedented. Adoul himself praised the 50-member committee’s “complete understanding of the Nubian issue” on his personal Facebook page.

Meanwhile, a group of academic researchers and rights activists have succeeded in making Egypt the first Arab country to grant its citizens the right to food by protecting food sovereignty, after having worked on the issue for three years.

Yasmine Moataz, PhD researcher in social anthropology, explains that Egyptians can now sue multinational corporations who control food distribution and access to food, as well as halting the process of selling state-owned agricultural land to international investors.

As Article 79 of the draft constitution stipulates, “Every citizen has the right to a sufficient amount of healthy food and clean water, and the state is obliged to secure nutritional resources for all citizens.

“The state guarantees the realization of food sovereignty in a sustainable way, and ensures the protection of agricultural biological diversity as well as national plantations to protect these rights for [future] generations.”

Moataz thinks the committee “was not fully aware of the ramifications of passing this article.”

“They understood it more as a means to protect national security. They felt it is not in the nation’s interests to be controlled by foreign multinational food corporations,” Moataz says.

In her assessment, the committee was concerned with proving that they “are not exclusivists like the Brotherhood.” She adds that there was a “limit to what they can give… I guess it was all about who could make the best deals in negotiations.”

Similarly, representatives of Masr al-Hurreya (Egypt Freedom Party), were able to pressure the committee into passing an article that preserves the country’s national and cultural heritage.

Article 50, which has no equivalent in the 2012 Constitution, pertains to the state’s commitment to preserve Egypt’s civilizational and cultural heritage. Included within this heritage is ancient, Coptic and Islamic history, as well as contemporary architectural, artistic and literary wealth.

According to the article, attacking heritage is a crime punishable by law, while obliging the state to preserve cultural pluralism.

Mohamed Menza, a member of the party and a professor at the American University in Cairo, says the party viewed the issue from a “civilizational” perspective, not a political one. They attended one of the committee’s sessions and their suggestions were taken into consideration.

“Our group was primarily concerned with preserving the country’s architectural heritage, especially in Heliopolis and Downtown Cairo,” he says.

Striking out

Perhaps the most devastating of losses was the committee’s failure to completely ban the military trial of civilians, despite mounting pressure over the past three years and a very active campaign against the practice that gained local and international media attention.

Article 204 approves the referral of civilians to military courts in certain cases, including direct attacks on Armed Forces premises, its camps, properties and factories, attacks on military zones and border areas, and attacks on military vehicles or personnel while they are performing their duties. Other cases that can be referred to military trials are listed in the article, including crimes related to military documents, secrets or funds.

A protest held by the No To Military Trials campaign in late November in front of the Shura Council — where the committee of 50 convened — was violently dispersed by security forces. It coincided with the passing of the controversial new Protest Law, and resulted in the arrest of tens of protesters.

This week, 25 protesters, including prominent activist Alaa Abd El Fattah, were referred to a criminal court for calling for the protest without notifying authorities, as the new law stipulates.

A representative of the No To Military Trials campaign, Mahmoud Salmani says that even though most of the committee’s members supported banning military trials, only a few of them voted against Article 204. In fact, according to media reports, only six committee members voted against it.

“This issue was widely debated publicly, but what happened during the voting was unknown. It seems that the military institution had huge influence over this issue,” he speculates.

Activists advocating for freedom of information were also left wanting with an article that is seen as overly restrictive. 

Ahmed Kheir, director of the Support Center for Information Technology, says the committee was fearful that opening the space for freedom of information would threaten national security.

Article 68 grants all “citizens” the right to knowledge and access to information, meaning that only Egyptian nationals will be entitled to request any information or official data from the government.

Kheir explains, “This deprives companies, researchers and non-Egyptians from accessing information, data and important documents.

“It also requires citizens to present their personal identification, which is a violation of privacy. Researchers will be reluctant to give their personal information to the government.”

The committee insisted on restricting information when it comes to issues of national security, but the term is broad, and can be used to hide any information the state does not want to release.

Article 31 stipulates that “the security of the digital space is an essential part of the economy and national security, and the state is obliged to take necessary measures to protect it.” Kheir is concerned that this article threatens digital freedoms and allows the state to control digital content using national security as a justification.

An intelligence representative even threatened to walk out of a committee session if the term “national security” was left out.

Overall, Kheir sees that the process of drafting the constitution fell in line with attempts by the military-backed government to silence dissent. He adds that these rights are cut down to size by the phrase “in accordance with the law.”

The interim government is rushing to issue laws that make any perceived victories in the constitution only cosmetic, he says, referring to an alleged draft law by the Ministry of Communications that restricts freedom of information.

“We can no longer consider food sovereignty, criminalizing torture and discrimination, Nubian rights or anything else as a victory when we cannot freely obtain government information regarding them, and where civilians can be easily referred to military trials,” he says.

Sadda was also surprised at the passing of the article related to cyber security and digital freedoms, saying it “was drafted one day before the final voting on the draft constitution.”

The end result, Menza says, mirrors the broader balance of power.

“Democratic forces maneuvered to win some victories for freedoms, [while] the military is the major player — it is all about what every side is willing to give up.”

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Mai Shams El-Din