Egypt: Tailoring Constitutions for the Ruling Military

by Rana Allam

Dictatorships tend to treat the constitution with even less respect than they do their people, changing and amending articles according to their changing wills. Egyptians are no strangers to this fact. Between 1956 and today, Egypt has had seven constitutions, plus many amendments to each one over the years. The most durable Egyptian constitution was during former President Hosni Mubarak’s time, but the amendments he made in 2005 were the beginning of his fall from power. He made changes to the election process, the supervision of the judiciary, and several restricting articles on opposition, but the most damaging one—until this day—was allowing military trials for civilians. This change is the only one that lasted through the years and stood its grounds against the revolutions.

The current constitution was passed in 2014. On paper, it looks good over all, except of course for the military trials of civilians. But paper is not enough. I wrote at the time that the government and the security forces never respected the provisions that protected people. In the 2016 elections, despite the constitution, President Abdel Fattah Al Sisi ran unopposed after jailing his opponents. He even imprisoned one of the most powerful military figures, Sami Anan. Dictatorships only use constitutions when it suits them, for instance when they prosecute civilians in military courts. Based on an article in the constitution, Sisi passed a law expanding the jurisdiction of the military courts. In less than two years, over 7,400 civilians were tried in military courts.

This month will come another round of amendments to the 2014 constitution. The outcry from Egyptians is quite loud, but it’s falling on deaf ears. The intelligence community formed the parliament, charged with protecting the people and overseeing the government, to be the right hand of Sisi. It is going through the motions of approving these amendments, with the extension of the presidential term limit as the headline topic for most Egyptians, as well as the international media. Basically, the article allows Sisi to remain in power until 2034.

But it is not the most dangerous article. Those articles related to elections, civil rights, women and minority representation, and the like are not the most important, given the tendency of the Egyptian people and the ruling regime to completely ignore them. Most damaging are those articles pertaining to the powers of the president and the military. These are very hard to change by rewriting the constitution, and the ruling junta treats them with the highest respect.

These largely unnoticed and little-discussed changes are:

• Establishing a high council for the judiciary, presided over by the president, which puts the latter above the law, officially and literally.
• The president will appoint the head of the constitutional court. Sisi effectively appointed the current head, but the amendments would establish it as a constitutional right given to the president. Which means that Sisi gets to pick the person who will rule whether his new laws are constitutional.
• The president will also appoint chiefs of justice as well as the attorney general. Thus, the judiciary will no longer be officially and constitutionally independent. The Egyptian judiciary has not been fully independent in many decades, and even less so since Sisi took power and removed any opposition from the judiciary, but this move will make that constitutional and legal. In 2017, a new law was introduced to give the president such powers of appointing judiciary figures, but it has been challenged. A hearing by the constitutional court was scheduled for February 17, 2018. The amendment would eliminate this challenge.
• Diminishing the role of the state council, the administrative judiciary body tasked with reviewing decisions taken by the executive branch. The new amendments stipulate that the opinion of the state council will be optional and non-binding. The state council will also no longer be responsible for reviewing contracts done by the government. The council, for instance, declared the handover of the Tiran and Sanafir islands to Saudi Arabia to be illegal. Moving forward, the state council will not make such determinations, giving the president the power to hand over any land and sign any contracts regardless of the damage to Egypt and its people.
• The current constitution stipulates that civilians will be tried before military courts when there is “a direct assault” on military personnel. The new change will remove the word “direct.” This slight change greatly expands the military’s constitutional rights against civilians.
• The most dangerous of all is the article saying that the military is the “protector of Egypt’s democracy and constitution.” Basically, future coup d’états will be constitutional.

These damaging amendments are interspersed with some pertaining to women’s rights, youth empowerment and representation, and support for the Christian minority, the disabled, and Egyptians living abroad. Given that the Sisi regime has undermined the constitution every step of the way when it came to protecting women, minorities, speech, assembly, due process and civil rights, the amendments on these articles will just be more ink on paper.

The real problem lies with the sweeping powers given to the president and the military. Stamping them with constitutionality sets the ground for a future of more impunity, autocracy, and military authority. Taking away powers from the military has been a losing battle for Egyptians, who were able to overthrow a dictator of 30 years but were never able to take one inch of military power away. Securing democracy, justice, and freedom has always been a Herculean task in Egypt. But now it’s become an even more impossible task.