Since the 25 January Revolution that took place in Egypt two years ago, there have been labour pains in politics and society that have not allowed the country to rest on new foundations, and it will not do so until society is restructured on a new basis. These labour pains have included the restructuring of the regime and the preliminary outcomes during the transitional phase, when the Supreme Council of the Armed Forces (SCAF) was in charge of the country, until the presidential elections in May and June last year brought the Muslim Brotherhood candidate to the country's top job. With the election of President Mohamed Morsi in June a new stage of the transitional phase began, and today the group that he represents, the Muslim Brotherhood, is declaring its victory in the battle over the constitution and the reconvening of parliament, dissolved by the Supreme Constitutional Court (SCC), this time in the form of a Shura Council full of Brotherhood figures. These include Essam Al-Erian, Sobhi Saleh and Gamal Heshmat, who are setting the tempo of the council and will act to speed up legislation that completes Brotherhood control of the state and its elected and non-elected bodies. However, from the beginning of the uprising that brought down ousted former president Hosni Mubarak, the Brotherhood was not at the forefront and it was at first only marginally involved. Once political gains were to be had, it parachuted itself into the foreground of political action and was able to reap political gains disproportionate to its participation in the 25 January Revolution. The Brotherhood won the presidential elections because it was the best organised and most experienced party, had financial resources that others did not, was able to capitalise on the religiosity of Egyptian society, and presented itself as a united camp against multiple players. All these factors enabled it to win a small majority in the presidential race over those promoting themselves as wanting to build a civil state. The results were accepted as representing the will of the people despite some violations in the elections themselves. They were also accepted because they seemed to indicate that reconfiguring power should not be done through authoritarian decisions, but should come about through the people's wishes as steps on the road to restructuring political life and reconfiguring state institutions. After Morsi became president he took the powers that were in the hands of the SCAF, and a constituent assembly was formed with an Islamist majority to write a new draft constitution. During the period between the presidential elections and the referendum on the draft constitution, Morsi took decisions that annulled the previous decisions by the SCAF and dismissed the country's prosecutor-general. Some of the president's decisions came in the shape of constitutional declarations, and some were annulled by the administrative and constitutional courts. This in itself was a positive sign that the institutions in Egypt were deeply rooted and could not be dissolved by authoritarian decisions under the pretext of reconfiguring power. This confrontational stance tainted the progress of the assembly, however. The Brotherhood majority could approve articles by majority vote, and many representatives of civil society and religious forces and parties withdrew from the assembly because they did not agree with the Brotherhood's vision of restructuring state institutions and running public affairs based on the group's ideological and political outlooks. This has now plummeted Egypt into another crisis about the new constitution. Although the draft constitution as a whole, containing more than 250 articles, is not in itself controversial, several provisions in it certainly are, notably those designed to boost the powers of the president. These give Morsi powers that are at least as wide as those given to Mubarak before the revolution, if not wider.
ADDING FUEL TO THE FIRE: Before he even saw the draft constitution, Morsi issued several constitutional declarations that exempted his actions from judicial review. This added fuel to the fire on the domestic scene and triggered demonstrations similar to those at the beginning of the revolution. This widespread mobilisation was led by nationalist forces, liberals and civil society groups, as well as by prestigious religious institutions, which, despite their religious character, support a secular state, notably Al-Azhar and the Coptic Church. This has given the most recent conflict a new dimension about the identity of the state. The amount of opposition to the draft constitution and its drafting to paint the state in religious colours has shown that mass action in Egypt is alive and well. The dynamism of the street has been expressed through democratic means, whether on the formation of the constituent assembly, discussion of the constitutional clauses, the withdrawals from the assembly, objections to the presidential declarations, or, finally, the possibility of protesting to prevent the passage of the constitution as it has been written. This has indicated three main considerations. The first of these is that what divided the political and mass opposition during the presidential race took a back seat in the conflict over the identity of the state, objecting to the draft constitution and rejecting it in form and content. This was a positive step for the opposition because the management of public affairs in Egypt is linked to the general order outlined in the constitution. Thus, the battle over the constitution is more important than the battle for the presidency because the latter is about the temporary management of power, while the former is about the identity of the state itself and its overall legal basis. Secondly, the Brotherhood, which, thanks to its superior organisation, was able to win the presidential race, showed itself unable to win the battle to restructure the state institutions according to its own vision and political project quite as easily. Even if it was able to pass the draft constitution through a popular referendum, the results can be appealed and the political and legal battle can continue. This is so because of the many possible legal and administrative violations that took place during the referendum, because the constitution cannot be approved by just a small majority that relies on the balance of power at a certain point in time, given that it is the fundamental law of the state, and because manipulating a transient political element, such as the momentum Morsi received after mediating a security solution during Israel's assault on Gaza, should not be used to expedite a domestic process of a constitutional nature. The constitution should not protect personal interests, but should protect public ones, and when the Brotherhood resorts to passing a constitutional text that protects its powers and position, then it is aiming to protect its interests and not the general interests of the Egyptian people or the overall majority of the country. Thirdly, the Egyptian state is of course much older than the political forces that are currently at the forefront of the political scene. The institutions in Egypt are the anchors that the state relies on to perform its tasks effectively, and a good example of them is the judiciary, which took decisions to annul decrees and declarations that it viewed as conflicting with the constitution and therefore as being outside the legal order. Moreover, the current political activism on the streets, a reminder of the 25 January Revolution, is a very significant development because it has proved that the street is still alive and kicking and demonstrated that Egyptian society has reserves of political energy that is capable of putting matters back on track.
THE ROLE OF THE OPPOSITION: However, the question arises of whether this in itself is enough to steer Egypt towards a new political order. The political forces resisting the creation of a religious state in Egypt must quickly organise in order to become capable of gathering these forces and energies into a single movement. In this way, they will be able to play the role of the people's overseer through democratic means. Change in Egypt is still going through its transitional phase, as seen in the labour pains over ratifying the constitution. It is in the interests of Egypt and the whole Arab nation that the outcome of these labour pains should be the rebirth of an Egypt that is able to restore its pivotal role in Arab national issues. The new Egypt should also be a state rebuilt on the foundations of civil citizenship and one that can serve as an example for the Arab world at a time of intensifying attacks and calls to revise the constitutional order along sectarian and doctrinal lines. Egypt, with its patriotic, nationalist and democratic forces, is facing an immense challenge, but it is one that should see it laying the foundations of a new institutional state. The country's patriotic and nationalist forces have understandable concerns about many of the articles passed in the referendum on the constitution, the latter being a vital part of building a civil state and restoring stability to the political scene and thus also to the economy. Reviewing these articles, the degree of fear of a religious state being at the door is also understandable, based on the way they reflect the aspirations of a large sector of the political Islam current. There are also concerns about the obligations of the state towards the rights to citizenship in vital sectors, which should reflect an overall consensus and not the views of a particular group. Article 62, for example, stipulating that the state must allocate an appropriate percentage of GDP to healthcare, does not indicate the percentage that this should represent in the overall budget. This is ambiguous phrasing that could open the door to a continuation of the status quo, in which government spending on education and healthcare together are no more than a third of the Ministry of Interior's budget. Article 64 also seems to open the door to cheap labour protected by law. Furthermore, Article 202 states that the president shall appoint the heads of the oversight bodies in charge of monitoring state institutions, when instead the independence of these should be guaranteed. Article 48 allows for the shutting down of newspapers and media outlets by court order, which is almost unprecedented in the laws of democratic states. Instead of the courts acting to shut down newspapers, individual media figures or journalists should be penalised for their mistakes. All citizens have the right to information from the media, and the constitution could be seen as unjustly penalising the people by controlling access to information. Article 216 places the boards of the national newspapers, owned by the people, under the supervision of the National Press and Media Authority, which is an appointed entity although it is unclear who appoints it. But instead the boards of these institutions should be elected bodies, in order to guarantee their independence. Article 215 also gives regulation and oversight of broadcast, print and electronic media to the authority, detracting from the power of the Press Syndicate and its elected council. This further threatens the independence of the media, which will be regulated and monitored by an authority apparently appointed by the executive. Article 176 gives the president the power to appoint the members of the Supreme Constitutional Court, which goes against the principle of the separation of powers and represents interference by the executive branch in the judicial branch of the state. Article 198 makes it legal for civilians to stand trial in front of military courts for crimes harming the Armed Forces, without specifying what these crimes are. All international human rights charters, to which Egypt is signatory, ban prosecuting civilians in military tribunals, especially since judges in military courts are army officers, not judges. Article 128 gives the president the right to appoint one tenth of the members of the Shura Council, the upper house of the parliament, and this body is given full legislative powers unlike the council created by the 1971 constitution. The previous constitution gave the Shura Council powers to amend articles in the constitution, to pass complementary legislation, and to oversee treaties. But it reserved legislative powers to the People's Assembly, the parliament's lower house. Article 104 gives the president the power to object to any law and return it to parliament for a vote by a two-thirds majority and not just a simple majority. This obstructs the powers of the legislative branch, and it allows the executive power to intervene in the powers of the legislative branch. Article 53 bans the creation of more than one union in the same profession, which contradicts international human rights covenants and aims to undermine independent unions, which play a vital role in defending the rights of workers. It also takes us back to unions that the regime can control. Article 197 puts the National Defence Council, mostly made up of military officers, in charge of discussing the Armed Forces budget and blocks elected bodies from monitoring how public money is spent, the ways in which it is spent and the priorities used, notably with regard to contracts, fees and bonuses. It also requires that the council be consulted on any legislation pertaining to the Armed Forces. This is further interference in the powers of the legislative branch, which is supposed to express the will of the people. Article 210 states that 10 years after the constitution is adopted, elections and referendums in Egypt will be supervised by employees of the Supreme Elections Committee and not by members of the judiciary. This compromises the impartiality of those overseeing elections. Article 42 prohibits forcibly displacing citizens out of the country, but it does not ban displacing them within the country, something that happened often during the recent sectarian disputes. Citizens could thus be forced to migrate from one location to another and be prevented from returning to their homes. Article 52 allows for the dismantling of unions and cooperatives by court rulings, which contradicts the right to organise and allows for all union or cooperative members to be penalised because of a mistake by the board or a board member. Article 147 gives the president the power to appoint civil servants working in the military, which threatens the independence of this institution. It opens the door for its possible subjugation to the president, instead of its remaining independent and working for the benefit of the people.
NEED FOR DEBATE: The constitution does not stipulate the appointment of a vice president, which was a popular demand before the revolution and then became one of its demands. Article 219 also says that the principles of Sharia should serve as the basis for legislation, without specifying what the sources of these principles will be taken to be. This could make it easy to manipulate interpretations of religious law in favour of the regime, and it seems to contradict an edict by Grand Imam Sheikh Mahmoud Shaltout on the schools of law. It also contradicts a ruling by the Supreme Constitutional Court regarding the principles of Sharia, saying that these should be “rulings backed by conclusive proof and conclusive evidence”. Until there is a mechanism to revise these controversial articles and reopen debate on them in order to eliminate the real fear about the civil character of the state and the state's commitment towards its citizens, the streets will remain heated and the present strikes, protests, sit-ins and confrontations will continue. This in itself could also lead to a new revolution, particularly if economic conditions worsen or do not move forward.
