As I am writing these lines, Egyptian security forces are actively repressing a protest that was organized by the “No to military trials” opposition movement; a group of young activists calling for an end to military tribunals for civilians. It seemed to be an appropriate moment to comment on Egypt’s modified constitution. A committee of fifty unelected members were handpicked by the military to redraft the Muslim Brotherhood’s 2012 constitution, and not surprisingly, this amended constitution gives greater power to the military than the previous version.
My focus is going to be on the articles related to the military, and rather than follow a liberal interpretation of law, where law is seen as apolitical, this analysis will be based on a realist interpretation of law, where law is seen as the codification of a political relationship backed by force. Although still subject to change, the draft constitution can tell us volumes on the current power relations within the Egyptian polity.
The first article that merits attention is article (171), which states that the minister of defense should be selected from the officers’ corps of the armed forces. This might seem harmless on the surface; however, it effectively means that the military has shielded itself from any possible civilian oversight by having “one of their own” at the helm. Effectively, allowing the military to remain an independent power centre that heavily penetrates the state and whose activity remains an enigma to the public. When this is read in conjunction with article (121), which states that the parliamentary majority can form the government, however, the president has the right to pick the ministers of defense, interior and justice, one can see that this is an attempt to limit any possible civilian oversight over the security apparatus in general and the military in particular. The parliament has no power over the ministry of defense.
The most visible article that has provoked substantial controversy is article (174), which allows military tribunals for civilians. The proponents of this article have argued that it has been severely restricted, compared to earlier versions, and that it will only apply to cases of "terrorism". This argument, however, does not stand the test of scrutiny. The danger of this article is that it allows military tribunals to be held for “transgression against the public property of the military”. Considering that the military has an extensive economic empire that some experts estimate reaches up to 40% of the economy, this places the Egyptian working class in severe peril. In other words, if workers in those military establishments go on strike, perform acts of civil disobedience or occupy the factories, they can easily be deemed to be “transgressing” the property of the military, and sent to military tribunals, where the presiding judge is also an officer. This effectively means that the largest “capitalist” in the country has the power to send his workers to jail without the right to appeal. Needless to mention, the military's vast economic empire is not mentioned in the draft constitution, nor does it require civilian oversight and it is not subject to taxation. The military economic empire remains intact and protected.
Finally article (195), which states that the Supreme Council of Armed Forces (SCAF), has to approve the appointment of the minister of defense for the next two presidential periods. In other words, the military will select its own head for the next eight years until the social and political unrest has subsided. The military wants to maintain the status quo, and protect its vast economic and political empire in case of any unforeseen events.
The above clearly shows that the military aims to maintain the status quo, and the current draft of the constitution shows the primacy and popularity of the military. However, in order to gain a deeper understanding one needs to look at those clauses in conjunction with other clauses, that will shed light on what amounts to the revival of a full-scale military dictatorship.
Areas related to national security and foreign policies are deemed to be within the president’s domain with little or no parliamentary oversight. The military seems to be keenly aware that with the collapse of popularity and power of its old allies, namely the Muslim Brotherhood and the crony capitalist class represented by the National Democratic Party (NDP), it will be more difficult to populate the people’s assembly. Thus, some power has been delegated to parliament, while control is maintained over key areas it considers vital to its interests. It is further assumed that the president will either be from the ranks of the military or sanctioned by the military. Most importantly, foreign policy has been traditionally dominated by the general intelligence agency; this is critical for continued American support to Egypt, seeing that it plays a pivotal role in securing American policy goals in the region. This also remains off limits.
Chapter six in the constitution deals with the creation of a high council to regulate the media. The council’s aim is to develop the media according to standards of “professionalism”, “ethics” and following the prerogatives of “national security”. This, combined with the leaked video of El Sisi planning a media clampdown and the shutting down of Bassem Youssef’s popular satirical show, do not bode well for freedom of media in Egypt. It is already extremely difficult to come across any media outlet that’s willing to take a critical stance towards the military. This control is now being codified into law.
All of the above supports the conclusion that the Egyptian constitution, in its current form, is a blueprint for legalizing the supremacy of the military and its continuation as an independent power centre heavily penetrating the state. The military is also trying, if possible, to ensure the president comes from within its own ranks, and in any case, necessary precautions are in place in case it fails to do so.
Billboard in Tahrir Square encouraging people to vote 'yes' in the upcoming constitutional referendum
The situation seems bleak: with an increasingly securitized rhetoric and the surge of nationalist and anti-Muslim Brotherhood sentiment, it is very likely that this constitution will pass. A ‘yes’ vote on the amended constitution is being portrayed as not only a vote for stability, but also as a vote against the Muslim Brotherhood. It's important to note that billboards are erupting around Cairo encouraging people to vote 'yes' if they are "in support of the January 2011 and June 2013 uprisings". Moreover, it is argued that the failure to pass this constitution will cast Egypt into the abyss. The increased levels of violence, particularly in the Sinai Peninsula, is playing into the hands of the military as it continues to successfully polarize the Egyptian political system.
As dire as the situation may appear, there are glimmers of hope appearing on the horizon. As the military starts to embark on its campaign of repression, which has now extended beyond the Muslim Brotherhood, most recently in the protest law, the initial euphoria is starting to fade away. As I have argued elsewhere, the ability of the military to maintain “false consciousness” is limited by the inevitable clash of interests between the military and the urban middle classes. Some might argue that signs have started to appear showing the disintegration of this “false consciousness”. The spontaneous protest that emerged in support of “No to military trials” is a sign of this. In the end, one needs to remember the 1850s quote from de Tocqueville about the continuation of upheavals in France after 1789 “I do not know when this journey will end, I am tired of thinking time and again, that we have reached the coast and finding it was a misleading bank of fog. I often wonder whether that solid ground we have long sought really exists, or whether our destiny is not rather to sail a storm tossed sea forever”.
The Egyptian Revolution is only beginning!