The Armed Forces and the Constitution: Amendments grant the military unchecked powers
 
 

Among the proposed amendments to Egypt’s Constitution currently making their way through Parliament is an unprecedented change to the defined role of the Armed Forces in the country. In all nine constitutions* since Egypt’s first in 1882, the military’s role was limited to a single task: protecting the country and preserving its security and territorial integrity.

The constitutional amendments put forward by parliamentarians in February grant the Armed Forces additional responsibilities for the first time: “preserving democracy and the Constitution, protecting the basic principles of the state and its civilian nature, and protecting people’s rights and individual freedoms.”

The broad and vague wording of the amendment raises questions about what impact it could have on the future role of the military in Egypt. Military officials, judges, historians and researchers who spoke to Mada Masr offered different interpretations about their significance and ramifications, from establishing the military as the highest authority in the state and effectively granting it unchecked governing authority to a mere official recognition of the de facto status quo.

Mostafa Kamel al-Sayed, a professor of political science at the American University in Cairo, says the vague language of the amendment opens the door to endless interference in politics by the military. The use of terms such as “preserving democracy” and “people’s rights” was intentional, Sayed says, to allow the military to intervene in political affairs at any time.

Sayed also says the granting the military the role of protecting the country’s “civilian” nature grants it a wide berth to interpret and determine what constitutes a threat to the civilian nature of the state. This might allow the military to cancel election results if, for example, an Islamist party wins a plurality in Parliament or a presidential candidate with Islamist sympathies is elected to office.

Amr Abdel Rahman, director of the civil liberties unit at the Egyptian Initiative for Personal Rights, says that granting the military unspecified powers over democracy, the Constitution, the civilian nature of the state and individual rights and freedoms may lead the Armed Forces to become the final arbiter of the Constitution, a prospect he describes as “frightening.” The role of safeguarding the Constitution should be the responsibility of the people and all state bodies, not a single authority, he adds.

Although the current Constitution already has articles that grant undemocratic powers to the National Defense Council and military courts, Abdel Rahman explains that the proposed changes go explicitly further.

Meanwhile, a deputy chief justice in the Supreme Constitutional Court (SCC), who spoke to Mada Masr on condition of anonymity, points out that the SCC protects the Constitution from any violations of its articles, but it can only play this role when it is presented with legal disputes over laws that might be deemed unconstitutional.

He stresses that expanding the military’s mandate to include safeguarding the Constitution raises questions about what such phrasing means, how it will be interpreted, and what role the military will subsequently assume. He says he hopes the changes will not grant the military monopoly power over interpreting the Constitution, a situation that would dangerously compromise the separation of powers and leave the Constitution subject to the whims of top military generals.

The deputy chief justice also says that, during the drafting of the 2014 Constitution, a proposal was submitted to the committee of 10 legal experts that would have granted the SCC the ultimate authority to interpret the Constitution, as is the case in many foreign countries. The committee chose to reject the proposal, stressing that the Constitution has to be drafted in a way that is accessible to all people.

The amendments also enshrine veto power for the Supreme Council of the Armed Forces (SCAF) over the choice of defense minister, a role that had been set to expire with Sisi’s second term in 2022. The new changes remove any time limit on the need seek SCAF’s approval for the appointment.

In response to the fears surrounding the military’s new constitutional powers, Major General Ahmed al-Awadi, the deputy head of Parliament’s Defense and National Security Committee, says that the amendments do not introduce anything new to what the military has been doing on the ground since July 3, 2013, when Sisi ousted then-President Mohamed Mosri from power. He adds that the new provisions to the military’s mandate will not have any consequences under normal circumstances.  But in the event of any danger to the civilian nature of the state or the democratic system, the Armed Forces will have the right to immediately intervene at the discretion of their commander-in-chief, the minister of defense — without having to wait for a decision by the president.

Awadi, who is also deputy chairperson of the Support Egypt bloc that introduced the amendments to Parliament, did not specify the coalition’s intention behind drafting the new military-related amendments, nor the “dangers” that he suggested the Armed Forces would keep at bay using their new mandate.

Major General Yehia al-Kedwani, another member of the Defense and National Security Committee, says that the current political moment requires that all powers be handed over to the Armed Forces because they are the only entity capable of preserving the highest interests of the state in the face of anyone who attempts to infringe upon its national security or its civilian nature.

Sherif Younis, professor of history at Helwan University, says the amendments related to the military are the “focal point” and characterizes them as more important than the changes to extend Sisi’s time in office. In a published analysis of the amendments, Younis claims that the military’s expanded authority would grant it a “constitutionally legitimized power to safeguard the mandate of 2013.”

In his second speech after announcing the overthrow of Morsi, Sisi called on citizens to take to the streets on July 26, 2013, to give him a mandate to “fight terrorism.” In response, thousands of people poured into Tahrir Square in Cairo and in other squares across the country.

Younis argues that the amendments are aimed at preventing any “relapse to the past” and deterring any threats to the state by “institutionalizing” the legitimacy of the mandate. This is done by constitutionally fortifying the military’s role in preventing the return of a religious state, he says.

Sayed, the AUC professor, drew parallels between granting the military these vague powers and the Turkish precedent, when the Armed Forces of Turkey were committed to defending the “Ataturkian heritage” [referring to Mustafa Kemal Ataturk] that espoused a very narrow interpretation of secularism and resulted in a series of coups of elected governments formed by Islamic parties. The broad interpretations of the “protection of secularism” gave the Turkish military huge leeway to continuously interfere in political life under the pretext of fighting terrorism in the 1970s. Sayed says that this model served as an inspiration for those who drafted Egypt’s constitutional amendments, even though Turkey later backed away from this policy due to its desire to join the European Union — the EU forced Turkey to take this power away from the Armed Forces in order to meet the necessary conditions to have a democratic political system.

Sherif Younis also reiterated this point, explaining that the amendments concerning military powers strongly resonate with Turkey’s 1921 Constitution, which granted the Turkish military the power to quash all attempts to restore the caliphate for decades.

* Since 1882, Egypt has had nine constitutions (1882, 1923, 1956, 1958, 1964, 1971, 2012, and 2014). With the exception of the 1882 and 1923 constitutions, which were written during the time of the monarchy, all the constitutions included an article for the Armed Forces stipulating that they only have one task: protecting the country and preserving its security and territorial integrity. The 1964 Constitution added another task: protecting the gains of the popular socialist struggle, which was removed when the Constitution was amended in 2007 under former President Hosni Mubarak.

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Randa Mostafa