Egypt: a tale of two constitutions

Reading the 2012 and 2013 Egyptian constitutions together is less a tale of successive steps towards constitutional democracy and more an illustration of how the revolution was lost in two successive jolts – first Morsi’s Islamism without legitimacy, and then the violent militarism that accompanied Morsi’s removal from power.

Heather McRobie
16 January 2014

After three years of political instability and an economy in slow-motion free-fall, it is unsurprising that exhausted Egyptians will vote in favour of the constitution during this week’s referendum. Referendums rarely return a ‘no’ vote in contemporary Egypt, although the opposition to Morsi’s 2012 constitutional referendum undermined their own position just over a year ago, by focusing their energies on demands for a referendum boycott.  This time round, even opposition voices who have expressed their concerns about the 2013 constitution drafted by the Committee of Fifty have joined in the widespread call for Egyptians to vote in favour of the constitution.  While the political leadership of post-June 30th Egypt frames the constitutional referendum as an opportunity for Egyptians to participate in democracy, many also read the votes as a retroactive endorsement of Morsi’s removal from power last summer. 

The 2013 constitution that has been put to voters this week was explained in pro-government media in terms of its improvements on the 2012 constitution that Morsi passed under tense circumstances and from which his Presidency never recovered. In particular, the 2013 constitution reversed the controversial addition of Article 219 in the 2012 constitution, which was seen – particularly in the context of its passing under Muslim Brotherhood authority – as widening the remit of shari’a in Egyptian law. 

By doing this whilst keeping the historical Article 2 stating that Islam is the state religion and a source of legislation, the 2013 constitution has been positioned by its proponents as reversing the irregular, interim period of a Muslim Brotherhood-style constitutional conception of the role of religion in the state, which had been so alienating to many of the civil society movements crucial in the 2011 revolution that it significantly contributed to President Morsi’s removal from power. 

In other words – if read from the starting-point that the 2012 constitution and Morsi’s rule were, solely, an aberration of the intended trajectory of a democratic, pluralistic post-Mubarak Egypt – the 2013 constitution sets the revolution back on track.  Similarly, parties pushing for a 'yes' vote in the January 2014 constitutional referendum have argued that the inclusion of greater freedoms for the media and minorities have built in constitutional safe-guards in the 2013 constitution that were disappointingly lacking in the short-lived 2012 document. 

All of this works with the narrative preferred by the military leadership that June 30th – both the removal of Morsi from office and the related army clampdown, from the mass civilian deaths to the curfew – were a necessary interruption which worked to put Egypt back on the right post-2011 path towards constitutional democracy.  And the ‘improvements’ brought by the 2013 constitution are not all merely window-dressing – the new articles criminalising torture, and the explicit statement that women are equal to men and allowed to hold judicial and official posts are both inherently progressive steps, and also do genuinely demarcate the post-June 30th power as different from the Muslim Brotherhood government period in which women were quickly and effectively marginalised from official power, and allegations of torture and arbitrary detention threaded through the Morsi period.


Image: Demotix / Sniperphoto Agency

The re-framing of the executive-legislative relationship in the 2013 constitution, compared to the ‘Morsi’ constitution of the previous year, also read at first sight as hopeful measures of instituting meaningful checks and balances, from the new right of parliament to impeach the President if he breaches the conditions of the (2013) constitution, to the language of the 2013 preamble, which speaks of the new Egypt as a “modern democratic state with a civilian government” – that is, neither Islamist as the brief 2012 regime could be characterised, nor military as the regimes of Mubarak and his predecessors clearly were.

This generous reading of the 2013 constitution works to differentiate from the 2012 period, in which the constitution was drafted predominantly by Islamist groups and to the increasing exclusion of minority, secular, and civil society voices.  And this reading attempts to retroactively legitimise the overthrow of Morsi – a move orchestrated, after all, because of popular outcry at Morsi’s undemocratic mishandling of the constitution drafting process, constitutional referendum, and the exclusivist and Islamist nature of the 2012 constitutional text itself.

However, reading the 2013 constitution as a remedy to the ills of the 2012 constitution (and the 2012 Morsi era and Muslim Brotherhood) evades two main problems of legitimacy with the 2013 constitution when taken on its own terms, and not just in juxtaposition to the flawed 2012 document.  The first is the status of the military in the 2013 constitution (perhaps unsurprising given the events that ignited the rewriting of the constitution during the military clampdown and curfew of late 2013).  The second is the primary issue of the 2013 period itself, tangled in irreconcilable narratives variously of ‘saving’ the revolution and a brutal coup in which many hundreds were murdered. 

The increased role of the military in the 2013 constitution obviously jars with the high-minded preamble asserting ‘democratic and civilian’ rule, with the continued inclusion of military trials and military exceptionalisms (also present in the 2012 constitution, in order – it was argued – to maintain public order in the first years after the revolution) made more problematic in reality in the 2013 version due to the practical fact that, this time, a military force had been deployed to depose Morsi, the democratically-elected post-revolutionary President.  In the 2013 constitution, the role of the military within the government, and the still dominating strength of the President, are reminiscent of the constitutional decrees of the Nasser era and the Sadat constitution that Mubarak reworked again in his favour – and remain in reality a larger cause for concern given the conditions under which the 2013 constitution was drafted, by a committee appointed by interim President Adly Mansour in which the military was again dominating public and political life.

Celebration after Morsi's election. Demotix / Sniperphoto Agency

Celebration after Morsi's election. Demotix / Sniperphoto Agency

This reading of the 2013 constitution as ‘saving’ the true legacy of the 2011 revolution from the aberrant, undemocratic and Islamist 2012 constitution of Morsi is only half of the picture, reflective of the degeneration of the framing of the post-June 30th political landscape into ‘Morsi vs Sisi’ or ‘do you back the Brotherhood or do you back the coup?’ in which pluralist civil society voices, minorities, women, the student groups crucial to the 2011 revolution, and – in general – those who were not served by either paradigm had no space to articulate their own position.  Like the deadening ‘Morsi or the coup’ binary narrative that drove out voices of pluralism and dialogue after June 30th of last year, the two constitutions are presented as two dishes – all that is on the constitutional menu is Islamism (2012) or militarism (2013).

Part of this is deliberate mischaracterisation of the two constitutions by increasingly polarised opponents and a product of the highly contested political discourse, but part is also a reflection of the fact that both the 2012 and 2013 Egyptian constitutions can be read as constitutional mosaics built, in large part, on the legacies of the twentieth century Egyptian constitutions, from the 1923 constitution onwards.   Both the 2012 and 2013 constitutions drew to a large extent on the Sadat-era so-called Permanent Constitution, and to a lesser extent the constitutional decrees of the Nasser era are reflected in the emphasis on economic, social and cultural rights.  And by drawing on this twentieth-century constitutional heritage, the two constitutions, representing two political poles, embody – and continue – the central challenge of Egyptian twentieth-century politics: the twin orbits of secular authoritarianism and the cultural power of political Islam, and attempts by authoritarian power to either quash or co-opt the latter’s cultural power.

Supporters of ousted President Morsi, Aug 2013. Demotix / Nameer Galal

Supporters of ousted President Morsi, Aug 2013. Demotix / Nameer Galal

Constitutions are significant in what they contain in their text -- the balances of power between and within branches of government, the state-citizen relationship, conceptions of the nation, citizenship, and so on – but they are also significant in terms of how they speak to the heritages and legacies of the legal system, and significant for the context in which they came about, both in terms of the official drafting process and who was included and excluded in the drafting, and in terms of the wider political situation that enabled (or necessitated) the drafting of the new constitution.  The 2012 and 2013 constitutions cannot be separated from their context, not only inasmuch as the wider context permeates the texts of the constitutions themselves, from the significance of Article 2 in the 2012 constitution to the preservation of military trials for civilians and the military role in government defence in the 2013 constitution, but also inasmuch as the conditions under which the constitutions were born are bound into the fabric of the constitutions’ place in Egyptian society, and into any claims of legitimacy. 

Both Morsi and the post-June 30th regime have shown that they are comfortable with making up the rules as they have gone along.  An inherent tension within transitional justice in post-authoritarian societies – that institutional exceptions (such as Morsi’s November 2012 Presidential decree, it could be argued) must be made to create the frameworks for rule of law to eventually function and flourish – does not fully account for the extent to which all post-2011 Egyptian regimes or systems of governance have arbitrarily deployed their power.  One striking example is the ebbing and flowing of freedom of expression in reality, which – when observed over the period from 2011 to 2014 – charts the gap between the declarations by, variously, SCAF and Morsi, on the one hand, and the reality of the post-revolutionary clampdown on the other.  Similarly, the recent targetting of secular leaders of the 2011 uprising such as the leaders of the April 6th youth movement show the post-June 30th regime is not merely locked into the twentieth-century cycle of authoritarianism against Islamism, but also using its power to stifle dissent across the board. Assertions of rule of law and government for the people by the same political powers who enacted these clampdowns necessarily beg the question of their legitimacy.

In other words, even if there was nothing to be concerned about in the texts of the 2012 and 2013 constitutions themselves (and this is not the case, for either of the constitutions), the conditions under which they came into being necessarily undermine the legitimacy that the constitutional texts are seeking to assert.  Morsi’s mishandling of the 2012 constitutional referendum was a political suicide through which he negated his earlier claims to democratic legitimacy through his misguided November decree, and the legitimacy of the 2012 constitution fell with it.  And, of course, this is then the argument evoked by the defenders of the 2013 constitution -- the illegitimacy of the 2012 constitutional drafting process, the problematic 2012 constitutional text, and the Mubarak-like arbitrary rule of Morsi's November decree.  

This argument against the 2012 constitution would, however, also be a more convincing defence of the 2013 constitution if the 2013 constitution itself was not written in the wake of some of the most brutal mass killings in Egypt’s modern history, if the drafters of the 2013 constitution had not been appointed by the interim President seen as a puppet for the military regime, and if the power to rewrite the constitution – and to overthrow Morsi – was not, itself, also bound up with the brutal mass violence of Rabaa al-Adewiya, which continues to be contested and minimised on ideological grounds in spite of the clear mass acts of human rights violations that were committed during the clearance of the Morsi supporters.  And it was through these two successive waves of violence and arbitrary rule that the revolution was lost and broken in stages.

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