There
are many things you can say about constitutions but one thing you can’t say is
that they do not matter. While previous Egyptian governments have been less
than faithful to the 1971 constitution, the referendum on the much disputed
draft constitution will be a major event in the country’s history as the country
reconfigures its social contract. In theory, the drafting of the Egypt’s
politico-legal architecture should be rational process where all concerns are
heard and considered in the final document; however we live in a world of fact
and power struggles.
The draft
constitution, largely written by the Muslim brotherhood, as you might expect,
favour Islamic traditions and laws, secularist and liberals however see the
draft constitution as an affront to the principles they fought for in getting
rid of Hosni Mubarak and have subsequently boycotted talks with the brotherhood[1].
However
the concerns of secularists and liberals about the draft constitution soon to
be subject to referendum as the document, for the most part, merely adds
changes that further mainly Islamic interests while weakening traditional
liberal rights free speech as while the new constitution mildly deviates from
the 1971 constitution position stipulating that “the state shall guarantee the
freedom of belief and the freedom of practice of religious rites”, the new
constitution while enshrining free
speech in article 45 prohibits the “insulting (of) prophets and messengers” in
article 44[2].
The real
demarcations between the two constitutions are to be found over the rights of
women. Article 11 of the 1971 constitution, actually recognizes the rights of women
as the document ensures:
"The
state shall guarantee the proper balance between the duties of women towards
the family and their work in society, considering their equal status with men
in the fields of political, social, cultural and economic life without
violation of the rules of Islamic jurisprudence"[3].
While
the draft constitution recognizes the rights of Egyptians, it falls short of a “explicit
guarantee of women’s rights”[4].
To end on a good note, the draft constitution limits the ‘presidential mandate’
to four years from the 1971 constitution’s six while ensuring that presidents can
only serve two terms instead of the “unlimited number of terms” in the 1971
constitution[5].
In sum,
the power struggles will continue whether the draft constitution is ratified or
not with pro-brotherhood forces calling for greater enshrinement of Islam in
the constitution while liberals will demand more rights. In the end, as
suspected, both sides will probably be disappointed with the results.
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