Three Years after the Revolution: Mubarak’s Regime Reconstructed
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PhD in Law, Associate Transparency International-R lawyer, Assistant Professor of the Moscow State Law Academy
The restoration of Mubarak-era institutions, while still without a solution for dealing with the Muslim Brotherhood movement, threatens to push the country towards a new round of violence. Egypt’s transitional government made one serious blunder, declaring the Muslim Brotherhood a terrorist organisation, which then led to increased protests. This will remain for a long time one of the destabilising factors in the country.
The referendum on the amendments to Egypt’s 2012 Constitution took place on 14-15 January 2014. The key amendments to the Constitution mostly concern provisions that take the country back to a unicameral parliament, prohibit religious parties from being elected to parliament, lift the ban on old-regime functionaries engaging in political activities, and return Egypt to its state before the revolution. The restoration of Mubarak-era institutions, while still without a solution for dealing with the Muslim Brotherhood movement, threatens to push the country towards a new round of violence. Egypt’s transitional government made one serious blunder, declaring the Muslim Brotherhood a terrorist organisation, which then led to increased protests. This will remain for a long time one of the destabilising factors in the country.
In June 2013, a majority of Egyptians expressed their dissatisfaction with the policies of Mohamed Morsi [1], the president who in June 2012 won the first ever independent presidential election made possible by the Revolution of 25 January 2011. The defence minister, General Abdel Fattah el-Sisi, removed Morsi from presidential office, so that the military could set up an interim government, primarily to ensure a return to democratic rule and the endorsement of amendments to the 2012 Constitution.
The process for endorsing the amendments was set out in the Constitutional Declaration put forth in July 2013. Two committees were established by the July 2013 presidential decree.
The referendum was announced just one month before the deadline, and almost immediately the interim government began a massive campaign to promote the new Constitution [2].
On 26 December 2013, the interim government declared the Muslim Brotherhood a terrorist group [3]. The government justified its decision by arguing that the bombing of a police station on 24 December 2013 in the city of Mansoura, Dakahlia province, killing 19, for which Brotherhood members were held responsible, as well as other attacks on churches attributed to members of the group, constituted terrorism as defined by Article 86 of the Egyptian Penal Code.
Amendments Process
The process for endorsing the amendments was set out in the Constitutional Declaration put forth in July 2013 [4]. Two committees were established by the July 2013 presidential decree. The 10-member committee of prominent legal experts [5], in line with Article 28 of the Constitutional Declaration, took just one month to redraft all the constitutional provisions and reduce the number of articles from 236 to 198. The redrafted Constitution with its six chapters began to resemble the 1971 Constitution, which had five chapters, with Chapter six of the revised Constitution comprising the general and transitional rules.
Interim president of Egypt Adly Monsour
At the next stage, the draft prepared by the 10-member committee was submitted for finalization to the 50-member constitutional committee led by Abu Moussa, Egypt’s foreign minister from 1981 to 1999, then Secretary-General of the Arab League (1991-2001) for the next 10 years, and who also ran for the presidency in the first round of the 2012 presidential election. Under Article 29 of the Constitutional Declaration, the 50-member committee was to represent everybody in the Egyptian society: political parties, workers, intellectuals, and rural residents as well as trade associations and national councils. Working in subcommittees, it took the committee 60 days to draft the final version.
Observations at the Referendum
This author was in Egypt during the referendum as an international observer for Transparency International upon invitation by the interim government. The eight members of the group of observers (one each from Bahrain, Lebanon, Nicaragua, Guatemala, Russia, Republic of Maldives, Slovak Republic and Cambodia) between them, visited 16 provinces and during their 10-day mission talked to seven interim ministers, Nabil Salib, head of the Supreme Electoral Commission, and Dr. Amr Moussa, chairman of the 50-member committee. According to these individuals, the revised Constitution was a significant improvement over the previous one; they also maintained that they did not come under any pressure. Although electoral commissions were all led by effective judges to guarantee the legitimacy of the referendum held, we spotted street banners all over Cairo depicting judges advocating in favour of the Constitution, which can hardly be taken as a sign of their independence and lack of bias.
Representatives from political parties (New Wafd Party [6], Al-Tagmmu [7], Egyptian Social Democratic Party [8], Free Egyptians Party [9], Egyptian Socialist Party [10], Salafi al-Nour Party [11]) and non-profit organisations (Ibn Khaldun Centre for the promotion of education; Egyptian Centre for the Protection of Women’s Rights; Anwar Sadat Association for Social Development; Afro-Egyptian Human Rights Organisation; Carter Centre, etc.), while offering some criticism of the referendum process, were largely supportive of the new amendments in speaking with the observers. Akhmed Nagib from the National Civil Rights Committee, together with some representatives of the al-Nour Party, was critical of the composition of the 50-member committee. Since it was not an elected body, its legitimacy, they argued, was questionable. They were also critical of the decision banning political parties from sending their observers to this referendum and the subsequent elections.
Mass arrests among those affiliated with the Muslim Brotherhood, and political persecutions of those critical of the authorities and the new assembly law, showed a lack of security during the referendum process.
During the preparations for the referendum, those who opposed the constitutional amendments and called for a boycott of the referendum were persecuted by authorities [12]. Mass arrests among those affiliated with the Muslim Brotherhood, and political persecutions of those critical of the authorities and the new assembly law [13], showed a lack of security during the referendum process. Media coverage both by government channels and the private mass media was biased, and officials, speaking to observers, openly advocated for the amendments, thus undermining the principle of unbiased coverage of the electoral process or the independence of the officials responsible for the referendum.
At the same time of note are the openness and absolute willingness of Egyptians demanding peace, progress and stability. At numerous meetings with representatives from the various strata of Egyptian society, despite all the critical remarks about the referendum procedures, many voiced a readiness to support the transition to democratic foundations.
Post Referendum Period
The key amendments to the Constitution focus on the following provisions:
1. ‘Civilian’ government. The Preamble to the Constitution states: “We, who are writing this Constitution, confirm that this Constitution shall continue to build a democratic modern state with a civilian government.” The word “civilian” in Arabic means non-religious as well as non-militarist.
As a result, formally, the state may not be led either by a religious figure or an army officer. But, as with the case of General Abdel Fattah el-Sisi, we see that although he was nominated for presidency by the army, he pledged to resign the commission and become a civilian president.
Minister of Defence of Egypt Abdel Fattah Khalil
el-Sisi
2. haria Law. The principles of Islamic Sharia Law are the key source of legislation. The High Constitutional Court is authorized to interpret these principles. At the same time, in Article 4 of the 2012 Constitution, the clause that Al-Azhar’s Association of Senior Scholars should be consulted on issues related to Sharia law was removed.
3. In Article 64 of the Constitution, the freedom of belief now is declared absolute, whereas in the 2012 Constitution, this freedom was guaranteed. The difference between the two versions is hard to see but it should be viewed in conjunction with the removal from the Constitution of the restriction in Article 44 which prohibited “offending prophets and messengers.” At the same time, new amendments restrict both the freedom of religious practices and that of establishing Christian and Jewish houses of worship.
4. Article 74 of the Constitution stipulates a ban on political activities or forming political parties on the basis of religion, race, geography or sectarian ideology. It has thus banned the Muslim Brotherhood from political life, together with their Freedom and Justice Party that profess that the Koran is the state constitution. Also outlawed, as a result, is the ultra-conservative Salafi al-Nour Party, founded in the wake of the 25 January 2012 Revolution and one of the first to oppose the policies of Mohamed Morsi and support the army in unseating him. At the same time, the redrafting procedure cancelled Article 232, which banned the National Democratic Party, Hosni Mubarak’s party. This, together with the release of Hosni Mubarak from prison, has allowed the functionaries during the time of Mubarak’s presidency to return to the political stage.
The state may not be led either by a religious figure or an army officer. But, as with the case of General Abdel Fattah el-Sisi, we see that although he was nominated for presidency by the army, he pledged to resign the commission and become a civilian president.
5. International Treaties. The revised Constitution states: “the government shall be bound by international treaties signed by Egypt, including human rights conventions.” This amendment affects the meaning of Article 145 of the 2012 Constitution, which stipulated that no international treaty may be executed by the President or ratified by Parliament, should it contradict the Constitution.
6. The 2012 Constitution allowed judges to apply sanctions stipulated not only by the penal code, but also by the Constitution whose provisions made direct references to Sharia principles (Article 168 of the Constitution). The revised Constitution limits judges to sentencing only to those types of punishments that are allowed under the penal code [14].
7. The new amendments cancel articles concerning the Advisory Council (Shura Council), and hence the Egyptian parliament becomes unicameral, with just one Chamber of Representatives. In the 2012 Constitution, provisions concerning the upper chamber, or the Shura Council, were unclear and much criticized, and became a bone of contention in the conflict between Mohamed Morsi and the judges [15]. The Parliament was unicameral under the 1971 Constitution, and this seems to be yet another indication of a return to the pre-revolutionary political system.
The men's line during the constitutional
referendum in Egypt
The outcome of the referendum (98.1 per cent in favour of amendments [16]) differs from that of a similar referendum held in 2012 (63.8 per cent in favour of the new Constitution, and 36.7 per cent against [17]). Logically, this should be interpreted to mean that society has finally reached a consensus on the choice of its political direction. However, numerous clashes between supporters of Mohamed Morsi and those of the interim government, together with the killings of protestors after the referendum, suggest, in fact, that Egyptian society is still far away from agreement, and that the country may be at the brink of a civil war.
One of the key reasons for these developments was the incorrect decision by the interim government to declare the Muslim Brotherhood movement a terrorist group. The Muslim Brotherhood even now continues to enjoy massive support, which might have dwindled in the past year, but is still substantial [18]. As a result, marginalizing this movement by banning it from the political life in Egypt is only making it more radical and contributing to the exacerbation of socio-political problems.
With parliamentary and presidential elections looming, there could be even more protests not only by the supporters of the Muslim Brotherhood, but also by those who believe that a returns to Mubarak’s rule means a betrayal of the “25 January Revolution”. General Abdel Fattah el-Sisi will be running in the presidential election which, as announced by interim President Adly Mansour on 26 January 2014, will be held in March, while the parliamentary election is slated for June [19]. Obviously, the intention is to do the utmost to make sure that General Abdel Fattah el-Sisi wins the election and then is given full authority to form a parliament fully controlled by him.
Numerous clashes between supporters of Mohamed Morsi and those of the interim government, together with the killings of protestors after the referendum, suggest, in fact, that Egyptian society is still far away from agreement, and that the country may be at the brink of a civil war.
Hosni Mubarak being released from prison, the removal of restrictions banning old-regime functionaries from political life, a return to the tradition whereby the leader of the country is very likely to come from the army, the banning of religious parties (as under Mubarak), and a unicameral parliament as in Hosni Mubarak’s time - all these developments appear to suggest that after three years of revolution, Egypt is returning to a dictatorship similar to the regime the country had in the later years of Hosni Mubarak’s rule. The only liberalization concerns religion, with an attempt made to disallow proponents of a non-secular political regime from the government (and, most importantly, from parliament). At the same time, the provision that makes the Sharia principles the key source of law has been retained (note Article 2 of the 1971 Constitution (as amended in 1980) had a similar rule).
The revival of dictatorship or the return to the pre-revolutionary times could, with time, prompt another revolution, because the ban on religious groups from the political scene does not resolve the issue of Muslim Brotherhood supporters. In fact, it only makes them more aggressive, as they become separated from decision-making, which is bound to lead to destabilization, in particular in the poorer regions of the country (Upper Egypt and the Nile Delta).
1. See also: Primakov, D. Ya. Morsi’s Downfall / RIAC, 22 August 2013 (/inner/index.php?id_4=2245#top).
2. Cregg Cariston, Egypt president sets date for referendum // Al-Jazeera 14.12.2013. (http://www.aljazeera.com/news/middleeast/2013/12/egypt-president-sets-date-referendum-201312141146564381.html).
3. http://english.ahram.org.eg/NewsContent/1/64/90037/Egypt/Politics-/Egypt-government-declares-Muslim-Brotherhood-terro.aspx
4. Full Text of the July 2013 Egyptian Constitutional Declaration // http://egyptelections.carnegieendowment.org/2013/07/15/full-text-of-the-july-2013-egyptian-constitutional-declaration.
5. Mansour to form committee in charge of constitutional amendments // Egypt Independent 18.07.2013 (http://www.egyptindependent.com/news/mansour-form-committee-charge-constitutional-amendments)
6. http://english.ahram.org.eg/NewsContent/33/104/24940/Elections-/Political-Parties/Wafd-party.aspx
7. http://www.bbc.co.uk/news/world-middle-east-15899887
8. http://www.bbc.co.uk/news/world-middle-east-15899999
9. http://www.bbc.co.uk/news/world-middle-east-15899997
10. http://english.ahram.org.eg/NewsContent/33/103/26720/Elections-/Electoral-Alliances/Revolution-Continues.aspx.
11. The Rise and Fall of the Salafi al-Nour Party in Egypt // Jadaliyya, 14.11.2013 (http://www.jadaliyya.com/pages/index/15113/the-rise-and-fall-of-the-salafi-al-nour-party-in-e)
12. For details, see the report by Amnesty International: EGYPT: ROADMAP TO REPRESSION: FACTS AND FIGURES. 22 January 2014 (http://www.amnesty.org/en/library/asset/MDE12/006/2014/en/3c021a71-ca76-4da2-bd43-6e417aa2eb51/mde120062014en.html).
13. Egypt: Deeply Restrictive New Assembly Law // Human Rights Watch, 13 November 2013 (http://www.hrw.org/news/2013/11/26/egypt-deeply-restrictive-new-assembly-law).
14. Sarah el-Masri. “Constitutional amendments: Repeating past mistakes?” // Daily News Egypt. 04.09.2013 (URL: http://www.dailynewsegypt.com/2013/09/04/constitutional-amendments-repeating-past-mistakes/#sthash.kIRKA6cB.dpuf).
15. In November 2012, the High Constitutional Court looked into a legal challenge arguing against disbanding this body, but because of the protests, it had to postpone its judgment. Later, Mohamed Morsi, in his first Constitutional Declaration in November 2012, forbade the disbanding of the Shura Council, only to go back on his own decision later, when under the Second Constitutional Declaration in December 2012, the judges were allowed to do it. See: HCC to address constitutionality of Shura Council 2 December // Ahram Online 7.11.2012 (http://english.ahram.org.eg/NewsContent/1/64/57460/Egypt/Politics-/HCC-to-address-constitutionality-of-Shura-Council-.aspx) and ‘Politicians divided on Morsi's new constitutional declaration’ // Ahram Online 22.11.2012 (http://www.egyptindependent.com/news/politicians-divided-morsy-s-new-constitutional-declaration)
16. HEC: 98.1% votes 'yes' on constitution, turnout reaches 38.6% // Egypt Independent 18.01.2014 (http://www.egyptindependent.com//news/hec-981-votes-yes-constitution-turnout-reaches-386).
17. Egyptian constitution 'approved' in referendum // BBC News, 23 December 2012. (http://www.bbc.co.uk/news/world-middle-east-20829911)
18. Significantly, over 50 per cent of votes in the second round of the presidential election in June 2012 went to Mohamed Morsi.
19. Egypt to hold presidential polls first: Interim president // Al-Ahram 26.01.2014. (http://english.ahram.org.eg/News/92617.aspx).
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