The misgovernment of Iraq

In April, Iraqi lawyer Zaid Al-Ali wrote a remarkably prophetic article arguing that Nouri al-Maliki, who had convinced many Iraqi voters in the just-concluded elections that he was a strong man, was actually presiding over a rapidly weakening state. The armed forces were a "paper tiger," he argued, sapped by corruption and politicization and unwilling to fight. Six weeks later the Islamic State struck and proved Al-Ali right, as Maliki's forces in the north melted away.

The full details of just how badly Maliki governed Iraq can be found in Al-Ali's book, The Struggle for Iraq's Future, an account of misrule in the country since 2003. One particularly cutting anecdote, in which Maliki kept in use a demonstrably fraudulent bomb detector, apparently to save face, at the cost of hundreds of lives, is excerpted on The Arabist here. Read in light of the fall of Mosul, the accounts dramatize how the same instincts that propel a political leader to extend control over all the institutions of state leave those very institutions fragile, led by opportunists and functionaries. That a ruthless leader does not make for a strong state is a lesson that the Arab world should have had ample opportunity to learn, yet many here still keep falling into the same trap.

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Egyptian constitutions galore

Courtesy of the International Institute for Democracy and Electoral Assistance (IDEA), a handy chart of Egypt's recent experiments with constitutions, including a partial draft of the current work-in-progress. Thanks to Zaid al-Ali for compiling.


 

English

Arabic

Commentary

Draft Constitution by the 50 member committee (C50)

 10 November 2013

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The 50 member committee (C50)'s rules of procedure
 
12 September 2013

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The presidential decree establishing a 50 member committee (C50) to prepare a final version of the draft constitution
  
1 September 2013

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The proposed changes to the 2012 Constitution by the 10 member expert committee (C10)
  
20 August 2013

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The Constitutional Declaration suspending the 2012 constitution and establishing a new road map for the country
 
8 July 2013

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The 2012 Constitution 

  25 December 2012

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The March 2011 Constitutional Declaration
  
30 March 2011

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Podcast #43: Minority Report

A manly president, a bride like the moon -- this is Egypt,  Americans!

A manly president, a bride like the moon -- this is Egypt,  Americans!

The Arabist podcast is back after a long summer break, hosted by regulars Ursula Lindsey and Ashraf Khalil and featuring Lina Attalah, editor of Mada Masr. We discuss terrorism and military operations in the Sinai peninsula; the Egyptian media's cheering of the army; and the shortcomings of Egypt's new constitution. 

Podcast #43  (MP3, 30.1 MB) - or subscribe on iTunes.

Show notes:

Constitutional Disorder

In my latest column for the New York Times' Latitude blog I look at the writing of Egypt's new new constitution -- a process that despite offering some promise of improvement, is rather dispiritingly familiar.   

The last assembly was drawn overwhelmingly from Islamist parties that had just performed well at the polls. Non-Islamists didn’t have the numbers to exercise veto power and complained about their marginalization; eventually almost all of them withdrew. The new drafting committee looks like a photo negative of the old one: It contains a single delegate from an Islamist party, and he has already walked out in protest over being ignored.

The Islamist assembly pointedly excluded prominent feminist, activist and secularist voices. It’s unclear to whom the current committee — appointed by an interim president, backed by the army, packed with the heads of official institutions — is accountable to beside the state itself. Organizations such as the Journalists’ Syndicate have already complained that their recommendations on press law and freedoms of speech have been overlooked.

 

Mrs. Lincoln’s Egyptian Constitution

Nathan Brown, in FP, asks: 

Can a constitution written in 2012 largely by people now decried as terrorists really be amended to serve Egypt in 2013? Isn't the new regime's "road map" to restore constitutional rule and elections superseded by recent events? 

No it is not. The process is likely to continue and the political logic behind the road map remains quite robust. The reason is that it offers a way to concretize and institutionalize the current political arrangements. Worrisome as they might be, those arrangements remain ones that the dominant military, security, and civilian actors have every interest in entrenching. Egypt will have a constitution again, to be sure -- but it is one that will be a codification of the will of the current regime, like all of Egypt's past constitutions. And Egypt's international partners are therefore likely to be confronted soon with a regime that looks very much like the present one but can present a formal democratic face.

We translated some of the measures proposed for the new constitution recently, here and here. Some of what has been announced largely reverses Islamist provisions in the 2012 constitution, but some surprising elements have also been introduced, such as a return to the Mubarak-era individual seat electoral system.

Ahmed Maher speaks out against army's role

April 6 founder Ahmed Maher in the Washington Post :

Our support for the transitional road map to new elections was predicated on the military’s pledge that it would not interfere in Egypt’s political life. The expanding role of the military in the political process that we are nonetheless witnessing is disconcerting.

...

Despite my support for the June 30 revolutionary wave, and despite the fact that it was a people’s movement before it was a military intervention, I now see much to fear. I fear the insurrection against the principles of the Jan. 25 revolution, the continued trampling of human rights and the expansion of restrictive measures in the name of the war on terror — lest any opponent of the authorities be branded a terrorist.

Unsurprisingly Maher has been vociferously attacked, including by some self-styled "revolutionaries", for his position. 

In Translation: How Egypt's constitution will be amended 2/2

This is the second of two translated articles selected from the Egyptian press on the process of amending Egypt's 2012 constitution, which according to Interim President Adly Mansour's Constitutional Declaration (CD) of July 8 will be amended and put to a referendum before new elections are held. This first article is an interview with Mansour's constitutional advisor, the second article contains possible amendments being considered. Both are translated by our long-standing partner, the most excellent Industry Arabic. Please give them translation jobs, you won't be sorry and you'll help them help us continue to provide this free service.

As explained, a committee of 10 scholars and judicial figures is now tasked with drafting amendments to Egypt's 2012 constitution. The dominant group backing the July 3 coup, composed of secular political forces, is likely to push for the reversal of the Islamization of the country's constitution carried out in 2012 by an alliance of Muslim Brothers and Salafists that dominated the Constituent Assembly then in charge of the process of drafting a new constitution. The lack of agreement between Islamists and secularists on a constitution, indeed, was a major catalyst for the current crisis. The tricky part is that the only major Islamist force that backed the coup, the Nour Party, was even more attached to the Islamist provisions in the constitution than the Brotherhood. Its rejection of the new amendments could undermine its support for Morsi's overthrow, and more generally push Islamists of all stripes into the Brotherhood camp in the name of saving Islam's role in the constitution.

This is why the article below – only a speculation, mind you, into what is being envisaged, published in the rather taboid and anti-Islamist Youm 7 newspaper – is interesting. As might be expected from a judicial source (in Egypt the judiciary, while conservative, has generally defended the modernist idea of judicial review and much leeway for judicial interpretation of Sharia, rather than its strict codification as  the 2012 constitution tended to lean towards, with a major role for theologians to, in effect, veto legislation)  it tends towards the stripping of many of the parts of the 2012 constitution Islamists were most attached to. Most notably those that introduced notions such as formal oversight by theologians, notions that Salafis embrace such as the "enjoining of good and prevention of vice", and stress on the state's role in regulating public morality. If it is representative of the changes to come, one can expect a major Islamist backlash in the weeks ahead.

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In Translation: How Egypt's constitution will be amended 1/2

This is the first of two translated articles selected from the Egyptian press on the process of amending Egypt's 2012 constitution, which according to Interim President Adly Mansour's Constitutional Declaration (CD) of July 8 will be amended and put to a referendum before new elections are held. This first article is an interview with Mansour's constitutional advisor, the second article contains possible amendments being considered. Both are translated by our long-standing partner, the most excellent Industry Arabic. Please give them translation jobs, you won't be sorry and you'll help them help us continue to provide this free service.

The July 8 CD calls for the formation of a committee of 10 constitutional scholars and judges tasked with preparing the amendments to the controversial 2012 text, which has approved hastily last December by an Islamist-dominated Constituent Assembly. These proposals will be then put to a second committee of 50 figures drawn from public life. While the committee of 10 (let's call it C10 for short) is appointed by the interim president, the committee of 50 (C50) is supposed to represent major corporate interests in Egypt, as per Article 29 of the CD which stipulates it represent:

...  all segments, sects and demographic diversities of society, especially parties, intelligentsia, labourers, peasants, members of trade unions, specialized federations, national councils, al-Azhar, the Egyptian Churches, Armed Forces, the police and public figures, provided that ten members at least be young people and women. Each institution shall nominate their representatives, and the Cabinet shall nominate the public figures.

There is a lot of confusion as to how this process might work as it was suggested the C10 would be the only body that can draft the text of amendments, which would mean the C50 is a talking shop with little power. The interview below, if reliable (because everything can change very quickly in Egypt), provides some clarification and at least an indication of the intentions behind this process, which has been criticized by many.

The amendment of the constitution is a key battleground for Egypt's transition, with differences not only between Islamists and non-Islamists but also within the secular camp that broadly backed the July 3 coup. There is of course whether the Islamists of the Nour Party will get to keep the conservative language of the original (the balance of power in the current pro-coup coalition makes that unlikely, unless they decide they need Nour too much in order to break Islamist unity, since the Muslim Brotherhood and some others reject the validity of this entire post-coup process). But then there are questions of the military's privileges, personal liberties and reining in the interior ministry, and much more. 

This interview provides some clarity, notably the surprise that the procedure laid out in the July 8 CD is not necessarily final. Some backers of the coup were disappointed that the CD called for presidential elections after parliamentary ones, and here it is indicated the order could still be reversed. It goes to show how so much is still at play, even beyond the immediate political crisis and assuming the coup and CD holds. 

Read on for the full text. 

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Morsi regrets constitutional declaration - kinda

From the Guardian's interview with Mohamed Morsi:  

In a rare moment of contrition, Morsi admitted for the first time in the English-language media that he regretted using unilateral powers to force through Egypt's controversial new constitution – a move that the opposition saw as dictatorial. This was the pivotal moment of his first year, sowing the seeds for widespread dissent against his administration.

"It contributed to some kind of misconception in society," Morsi said, distancing himself from one of the most divisive clauses in the new Islamist-slanted constitution, which allows for greater religious input into Egyptian legislation. "It's not me who changed this article. I didn't interfere in this constitutional committee's work. Absolutely not."

The president added that once MPs were finally elected to Egypt's currently empty lower house of parliamentary, he would personally submit constitutional amendments for debate in the house's very first session.

But Morsi's contrition only went so far. Amid opposition claims that the failure to achieve consensus had led to Egypt's current polarisation, Morsi blamed the refusal of secular politicians to participate in the political process for the impasse. He denied that his government was unduly loaded with Islamists. He went on to list numerous offers he claimed he had made to bring non-Islamists on board, while simultaneously defending the right of a popularly-elected president to promote his allies. "This is the concept of real democracy," he said.

Solving the Rubik's Cube of Egypt's court verdicts

Solving the Rubik's Cube of Egypt's court verdicts

​Nathan Brown has read the recent, controversial verdicts of Egypt's Supreme Constitutional Court (official text here) and has kindly sent this initial take — helping us common mortals make sense of the world's most constitutionally complicated political transition. My own basic take is this: legal victory for the Brotherhood and its allies, but much to use for the opposition for its campaign of delegitimization.  

On 2 June, the Supreme Constitutional Court (SCC) issued three rulings—one on the constitutionality of the Maglis al-Shura election law; one on the Constituent Assembly law; and one on a provision of the Emergency Law. It struck down all three, but the implications confused many observers. That is not urprising--the legal questions are so complicated (with constitutions, constitutional declarations flying through the air, cancelling, contradicting, and clarifying each other) that the Court had to spend a lot of time figuring out what the relevant constitutional text was and how to apply its rulings.  The judgment on the Constituent Assembly in particular reads a bit like a Rubik’s Cube. 

What follows are some brief notes based on an initial reading of the verdicts. This is a very quick set of reactions based on a first reading of the decisions.  I hope readers will forgive any resulting errors of emphasis or interpretation.

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Should the Egyptian army and police get to vote?

That is the question that has riled Egypt over the past week, as the Supreme Constitutional Court (SCC), in its latest bout of judicial jujitsu, has decreed that – in accordance with the new constitution – since the electoral franchise is supposed to be universal, the previous ban on uniformed services from voting should be lifted. This has triggered howls of outrage by Islamists, who see the judiciary giving the police and army the right to vote as tantamount to vote-rigging, and has been welcomed (to various degrees, and not by all means unanimously) by their opponents.

​The recommendation came as part of the SCC's review of a new elections law and a law on parliament – a review that itself is mandated by the new constitution. The SCC's ruling appears correct: since the new constitution guarantees equal rights for all citizens, and makes no mention of an exemption from voting for employees for conscripts, officers, and/or policemen, it stands to reason that they should not be denied the right to vote. Of course, there were no provisions preventing the military and police from voting under the previous constitution, so the SCC appears to have, in this case, made a recommendation that went against longstanding practice – or perhaps more simply it had never had the occasion to rule on this issue before, since it did not get to review legislation under the previous constitution.

​A first take to this decision is that it shows, yet again, how foolish the Muslim Brotherhood and other Islamists were to rush ahead with a constitution that has already come back to bite them in many respects. And their reaction is proving yet more foolish, notably in the shape of calls for the SCC to be abolished altogether because it is seen (despite having been purged by the new constitution of many of its most anti-Islamist components) that are escalating the crisis between the government and the judiciary (judges are now threatening a national strike in response to a draft judicial reform law).

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In Translation: How the Constitutional Declaration came to be

Much of the mayhem currently taking place in Egypt is a direct result of the Constitutional Declaration President Mohammed Morsi announced on 22 November 2012 and the political upheaval it caused. There has been much speculation as to why the declaration was made when it was (just after the end of the Gaza crisis), who had planned it and who was out of the loop and what its purpose was. Mohamed Basal, a reporter for al-Shorouk newspaper, has the inside story of how the Declaration came to be, shedding some light on some of these questions. We bring it to you in English thanks to the upstanding folks at Industry Arabic who make our In Translation series possible.

Basal's article is meticulously — though anonymously — sourced and provides a plausible narrative of how the Constitutional Declaration came to be. Some key points:

  • It was largely drafted by the Legal Affairs Committee of the Freedom and Justice Party, in consultation with Brotherhood leaders, but only with late input from presidential advisors.
  • Key judicial figures were only consulted late and opposed some of its provisions.
  • It was initially intended to include bringing the retirement age of judges down to 60 years old. Such a provision could still be implemented later this year to purge a large number of senior judges. The Vice-President threatened to resign over this.
  • The Minister of Justice and the Vice-President, both judges, fought against several of its provisions and did not think it was necessary — or legal — to "protect" the Constituent Assembly from a Supreme Constitutional Court decision.
  • Morsi and the Brothers believed a conspiracy was afoot (this much we know from their cryptic statements) for the Supreme Constitutional Court to launch impeachment proceedings against President Morsi — even though there are no constitutional means for this. They were also receiving information of a destabilization campaign from "sovereign bodies", meaning intelligence agencies.
  • The Constitutional Declaration was originally intended mostly to deal with the replacement of the Public Prosecutor and the extension of the Constituent Assembly, which by late November was far from finishing its work. It was the FJP's legal committee that added other provisions, backed by Morsi notably on the question of protecting the Constituent Assembly from dissolution and giving himself extraordinary powers (intended to deal with a perceived threat of unrest caused by the opposition).

Here's the quite long and detailed article for Egypt-watchers who want to understand the steps that led to the Morsi administration's biggest mistake to date.

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Is Egypt’s new parliamentary election law constitutional?

The following post was contributed by Nathan Brown of GWU and Carnegie — see Brown's previous posts on Egyptian constitutional matters here and here. (Updated with further commentary after the jump.)

The short answer is: Maybe. We’ll have to wait and see.

The quick retort: Not again?

The quick answer: Yes, it could be déjà vu all over again. But it might not.

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That Yasser Borhami video

As I'm clearing old tabs I didn't get around to reading/posting in December when I was traveling, this Jadaliyya piece on Salafi Sheikh Yasser Borhami's take on the constitution — and his explanation of why the text of Article 219 in particular is a triumph for hardliners — is worth reading. They've also translated a video that made the rounds last month and earned a rebuke from al-Azhar itself. Worth watching to catch up on this issue, and read this and this for context on al-Azhar.

The most dangerous 18 minutes that Borhami said about the Eg from nahdaproject1 on Vimeo.

Note also that Borhami uses the word "Nasareen" — "Nazarinthians" — to refer to Christians, which in Egypt is considered quite rude.

The problem(s) with Egypt's new constitution

The new Egyptian constitution: an initial assessment of its merits and flaws | openDemocracy

By Zaid al-Ali, who was recently a guest on our podcast. It's a very fair and balanced take that refutes both the unwarranted alarmism of its opponents and the ridiculous "best constitution evah" line of the MB:

The debate surrounding the new constitution has been acrimonious to say the least.  Many of the constitution’s most ardent critics have been scouring the text for evidence that the country’s Islamist movements are preparing to create a morality police or that the legal age of marriage is about to be lowered to 9.  Many of these accusations are either baseless or merely leftover provisions from the 1971 constitution and were never applied in any meaningful sense, which will likely to continue being the case under the new constitution.  The reality is that, when measured against Egyptian constitutional tradition, the new text brings a number of improvements to the protection of certain rights and to the system of government and is not the catastrophe that many have been so determined to identify. 

However, if the measure is changed, there are perfectly valid reasons to be opposed to the new constitution.  For example, considering recent developments internationally in the field of constitutional law, particularly in many African and Latin American countries, or considering even the aspirations that were expressed through the Egyptian revolution, the text leaves the reader disappointed. 

Apart from the fact that much of the drafting is vague, a number of important rights are also lacking, which has driven many activists to ardently oppose the text.  It also does not present a convincing vision in many areas, including decentralization, the role of independent agencies and civil/military relations.

The major question left unanswered in my view is the extent to which Articles 2, 4 and 219 will together change the way Sharia impacts the legal system and how they might be used by Islamist activist lawyers to force Azhar and the government to adopt retrograde measures.

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From Cairo to London to DC: Please, knock it off

This commentary was contributed by Dr H.A. Hellyer, non-resident Fellow at the Brookings Institution and ISPU, who previously held senior posts at Gallup and Warwick University. Follow him on Twitter at @hahellyer. Had I not been traveling in the last few days I might have written something very similar.

There are times that myths circulate so fast; it is hard to keep track of them. In the midst of an extraordinary amount of coverage on Egypt, I was asked for my evaluation of a particular piece, recently published in what I considered to be a respectable media outlet. As I wrote my assessment, I realised that I’d seen those same problems – the same narrative – time and time again in different places. Rather than keep my assessment private, I thought I would turn it into a plea to my colleagues and friends in the media and the think-tank/policy arena.

The plea reads: please knock it off when it comes to your Egypt coverage, and check your sources and facts before you publish in the interests of being ‘balanced’. Believe me: in the long run, you’ll be grateful you did. In the short-run, you probably will too: these Egyptian folks are not tameable, as a friend put it. When they’re misrepresented, except immediate and full retaliation with the full force of the Egyptian wit, sarcasm, and scorn. Trust me: you do not want to be on the other side of that.

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It really is the #referendumb

Concerns loom over referendum's legality | Egypt Independent

Nothing to see here, move along:

Hours before the referendum kicks off in Cairo, concerns are looming about the legality of the process. Unlike other referendums, it is taking place over two rounds staged a week apart, and there is also controversy surrounding the judicial oversight of the voting process.

Legal disagreements on conducting the referendum over two phases started after President Mohamed Morsy issued a law last Wednesday that allows the referendum to be held in multiple rounds of voting. Introduced at the request of the High Elections Commission (HEC), the law was intended to address the shortage of judges willing to participate in the process.

What the Brothers said about the constitution in 2011

A Muslim Brotherhood leader on bin Laden, Israel and Egypt’s elections - The Washington Post

From a May 2011 interview with Muslim Brotherhood leader Essam al-Erian:

Will the Muslim Brotherhood win the next election because it is so organized?

The next election must represent all political factions, even weak groups. We as the Muslim Brotherhood are keen to have a coalition to go to the elections together to have a parliament that represents all Egyptians, not only powerful groups. All Egyptians must be represented — Muslims, Coptics, leftists, liberalists, nationalists, Islamists — all must be there to have a neutral committee to write the constitution. This is very important for a real democracy.

[via Nour Nour]

Why Morsi's mess will have a long legacy

Egypt's Constitution Conundrum | Foreign Affairs

The bottom line from Nathan Brown's latest on the draft constitution:

It makes little sense to read such provisions in the abstract: mechanisms of accountability work quite differently depending on who is in government. And here there is cause for worry. As long as Islamists keep winning parliamentary and presidential elections, there will likely be no push to rein in the presidency. But if the two authorities fall into competing hands, the new constitution could produce gridlock rather than real oversight.

For too long, observers have analyzed the prospects for democracy in Egypt by speculating about the intentions of important politicians and movements. Now almost everyone in the country claims to be a democrat, even if they all have very tarnished credentials. But the viability of Egyptian democracy depends not on real or claimed intentions but on healthy processes, accepted rules, and well-designed structures. And that should give us little reassurance.

Of course a constitution produced in a rushed process that created extreme polarization and a sense of injury among large elements of society is not going to result in that.

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Issandr El Amrani

Issandr El Amrani is a Cairo-based writer and consultant. His reporting and commentary on the Middle East and North Africa has appeared in The Economist, London Review of Books, Financial Times, The National, The Guardian, Time and other publications. He also publishes one of the longest-running blog in the region, www.arabist.net.