Blog of the International Journal of Constitutional Law

The Real Winner in the Egyptian Constitution? The Military

[cross-posted from the HuffingtonPost]

              As Cairo’s streets fill with protestors after the rushed passage of the new draft Constitution, all eyes are on the confrontation between the newly re-energized opposition and the supporters of the Muslim Brotherhood.  Yet, while controversy swirls around the reach of Islam and the scope of presidential power in the proposed constitution, the primary beneficiaries of the new Constitution—the military—are flying under the radar.  Instead, the leaders of Egypt’s military are comfortably sitting in their barracks, knowing that whatever the outcome of the latest round of political conflict, their privileged status has been protected.

               The Egyptian military could not have hoped for a better outcome from the Constituent Assembly.  Dominated by representatives of the Muslim Brotherhood, the constitution-making body has alienated Mubarak’s political party, liberals and Christians, but was careful not to offend the military, the one group that can keep the Islamists from realizing their vision for a new Egypt. Instead, they left military powers largely intact, and in fact added language that clarifies military self-governance on important issues.  In both symbolic and material terms, the military did well.

The draft Constitution retains a lot of language from the Mubarak-era document.  The President still serves as Supreme Commander and appoints both military and civilian personnel. But the new draft explicitly stipulates that the Minister of Defense will be a military officer. In addition, the old National Defence Council has been bifurcated into two different bodies: a civilian-led National Security Council, which sets overall strategy for the country, and a new National Defence Council composed of a majority of military officers, counting the Minister of Defence. This body is to be consulted on laws concerning the military and decisions to declare war or send armed forces overseas. Even more importantly, it is responsible for the military budget.

In short, the military can be sure that civilians will not interfere too much in internal military affairs nor easily enter into external conflicts the military prefers to avoid. The obscure provisions on the National Defence Council, buried deep in the draft, may be the most important in terms of keeping the cold peace with Israel intact, for the Brotherhood political leaders cannot order a war on their own.

Another important issue to many Egyptians concerns the jurisdiction of the military courts. Mubarak regularly used his power to refer civilian legal cases to be heard in the military courts. Military judges tried tens of thousands of civilians during his reign and one might have expected that the new constitution would prohibit military trials of civilians altogether. But the draft allows civilians to be tried before military judges for crimes that harm the armed forces, as defined by law. This might be construed to include, for example, civilian protestors in Tahrir Square who get into physical or even verbal confrontations with military personnel. Military judges also retain the benefits and status of civilian judges. The military judges are now another constituency who will be pleased to learn that the revolution wasn’t very revolutionary.

By laying low in the constitution-making process, the military got all it could reasonably have expected from a civilian-drafted document.  What happens if the draft Constitution fails to gather majority support at the referendum on December 15?  That unlikely eventuality would probably lead to yet another attempt at constitution-drafting, in which the Brotherhood is forced to be more inclusive of the Copts, liberals, women, and others now in the streets.  But any such new round of constitutional negotiation will likely focus on the most controversial provisions of the draft, chiefly concerning the reach of Islam and the power of the president.  Few are talking about the military prerogatives that are of central importance to Egypt’s future economy and society.

The Constitution’s preamble notes that the Armed Forces helped to bring about the country’s revolution and have a special place in the minds of the Egyptian people. It turns out they have a special place in the new post-Tahrir constitutional order as well.  Egypt’s two-year-old revolution looks to have been won by the old guard.



One response to “The Real Winner in the Egyptian Constitution? The Military”

  1. Andrew Arato Avatar
    Andrew Arato

    Excellent piece, even if disheartening, for now at least.

    Here is a confirmation.

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