Since the fall of Mubarak in February 2011, Egyptians have carried the thought of a new constitution in the forefront of their minds.
The issue polarised the country during a referendum on amendments called by Egypt's ruling military council, the Supreme Council of the Armed Forces (SCAF), in March 2011.
Then, in February 2012, the issue reclaimed headlines when the SCAF asked a newly-elected Parliament to select the members of a constituent assembly to draft a new legal charter in February 2012.
The build-up
Anticipation is at a peak right now, with Egyptians awaiting the constituent assembly's eminent final draft on the constitution and the subsequent plebiscite 15 days later to pass or reject that draft.
Struggles between various warring political forces over the shape and substance of the constitution will undoubtedly persist all the way to the finish line.
The fight will revolve around a limited number of controversial points: first and foremost, however, forces hope to take advantage of the current political upheaval to secure political hegemony.
According to Amr Hashem Rabie, the well-known political analyst at the Ahram Centre for Political and Strategic Studies, the status of the armed forces has been the most contentious issue in penning the language of any country’s new constitution – and Egypt is no exception.
Naturally, says Rabie, a struggle ensued after Mubarak was ousted, between the old military regime (SCAF) and social and political forces, who are fighting for change.
In sum: the military establishment is fighting to keep its 60 years of privileges and sacred status in the aftermath of an unexpected revolution. Meanwhile, the Muslim Brotherhood and the Salafists see the moment as a golden opportunity to (finally) effect huge changes in the country and gain considerable political advantages, especially now that they control 65 per cent of the constituent assembly.
The political analyst says, shrewdly, that the best way to settle such a conflict is to strike a deal that would allow both warring sides to walk away satisfactorily, maximising their gains.
Opportunely, a "consensus constitution" could spare both sides a confrontation, which could have dreadful consequences for all.
Plan A
What kind of a deal could be brought up between the strong Islamist forces and the deeply-rooted high military officers?
An expert in political science, who asked to speak anonymously because he works closely with decision-making circles, says that this much-speculated deal has, indeed, been brewing for some time.
Both the military council and the Muslim Brotherhood have, according to the source, completed their own, separate versions of a constitution that lays out their distinct visions and goals. Furthermore, they are negotiating over which articles to encrypt in a new charter and who they want to send to the constituent assembly in order to push their desired proposals.
The military would protect itself by forming an additional national security council. Headed by the president of the republic, it would include the prime minister, and ministers of foreign affairs, defence and interior, as well as key leaders of the armed forces, such as the chief of staff of the armed forces and the head of military intelligence.
Such a military-heavy national security council would allow the military council to determine decision-making processes, according to our political science expert.
The national security council would also assume the power of appointing all leaders in the armed forces, set and debate the defence budget and decide on questions of war and peace.
Entrenching themselves with the civilian government in the decision-making body, the military establishment could exact a "safe exit" for itself and maintain the utmost levels of immunity from parliamentary supervision in a new constitutional arrangement.
Our expert believes that the SCAF will push in the initial phases of talks for more articles in the constitution to put them out of reach of the judiciary.
For example, our source says, the SCAF might allow the Supreme Constitutional Court to decide whether to try civilians charged with crimes pertaining to the military or to national security issues in civil or military courts. However, the SCAF could insist that military courts would be the sole body responsible for prosecuting members of the armed forces for any crimes pertaining to similar military or security issues.
What makes the SCAF have reason to believe that it will ultimately reach their goals?
Our expert reveals that the SCAF has a detailed plan to exert pressure on political forces that will play a key role in drafting the constitution.
SCAF has divided these forces into four categories and it developed a methodology to deal with – or use – each of them: 1. Islamic fundamentalists, such as the Salafists and their supporters, 2. Islamic moderates, such as the Muslim Brotherhood and their supporters, 3. Liberal forces that demand a secular democratic state in all their ideological shades, 4. Powerful unofficial or semi-official institutions especially Al-Azhar and the Coptic Church.
Although these categories seem obvious, SCAF has tailored the categories based specifically on what they can offer each one of them in order to sign on the deal with the generals.
Pivotal to their strategy; the SCAF is expected to use article two of the constitution as a carrot with some forces, and as a stick with others.
For example, the easiest way for the SCAF to ally with Islamist forces could be to promise the Muslim Brotherhood that it would support the preservation of article two of the 1971 constitution, which stipulates that the religion of the state is Islam, Arabic is its official language, and Islamic law is the primary source of legislation.
The SCAF would ensure that the majority of the members of a constituent assembly would be of the persuasion who would abort any attempts by representatives of the secular forces or the Church to propose amendments to article two.
The SCAF, however, also intends to oppose any attempts by Islamic extremists to reword article two towards a more explicitly Islamic Egypt, i.e. the implementation of a regressive form of sharia.
If all goes well SCAF would be empowered and legitimated by political forces based on their belief that the SCAF will guarantee the Islamists from secularising Egypt and guarantee liberals and Christians that it won't go more Islamist.
The SCAF could trade article two with both political forces in exchange for articles in the new constitution, including a brand new security council that would safeguard the independence of the military establishment.
Secondarily, the SCAF would avert any major internal social and political confrontations between opposite forces by cleverly playing both sides of the article 2 controversy against one another.
There's still room for things to go wrong in the SCAF scheme, however.
What happens if Islamists of different shades decided to unite against the SCAF’s demand that the military establishment be virtually independent?
In another scenario, what happens if Islamists decide to guarantee liberals and the Coptic Church themselves that they will preserve article two of the constitution as is, surpassing the SCAF's bargaining power altogether and therefore no political force needs to give them immunity?
Or scenario three: what happens if these Islamist forces decide they want to reword article two in a way that makes Islamic sharia the sole, and not just a primary, source of all legislation?
Our source reveals to us that the SCAF has prepared a two-pronged Plan B to deal with these possible scenarios.
The SCAF has methodically prepared tactics to manage various political forces in this saga by meticulously keeping tabs on the media war that breaks out periodically between the liberals and Islamists, and also among Islamists, around article two.
The SCAF payed close attention, for example, when Salafists announced that they would settle for nothing less than replacing the word "principles" with "strict rules" of Islamic sharia in the article, as Ahmed Khalil, a leading Salafist, told the media some time ago.
Similarly, the SCAF stays tuned to statements by the Muslim Brotherhood leaders, such as Ahmed Abu Baraka, which rejects Salafist ultimatums, and insist that the Brotherhood is satisfied with article two as it stands.
Plan B
First, the SCAF is ready to use scare tactics to coerce the liberal members of the constituent assembly into believing that without an independent military establishment the Islamists would enforce their hegemony over the police, the judiciary and the military itself.
Liberals could use various leverages, despite their minority on the committee, such as boycotting it and calling for disbandment. They have already walked out once, stating that the committee is illegitimate.
Another case in point: the SCAF leaked reports recently to the media claiming that the Muslim Brotherhood has asked the ministry of interior for a quota for its members in the ranks of police officers.
In another tactic, SCAF is prepared to push some members of the constituent assembly to propose an alternative to article two which would stipulate, as Ahram Online learned, that "Islam is the religion of the majority of the citizens, Arabic is the official language of the country, and the principle of the Islamic sharia is [simply] a source of legislation."
Such a proposal would create serious confrontations between various Islamist tendencies, on the one hand, and the rest of the non-Islamist groups, on the other.
These tensions would allow the SCAF to regain the upper hand by interfering to resolve the disagreements between warring cliques, and, with the country seeming to need a strong hand, would ensure that all of its preferred constitutional articles would be adopted.
This would end, once and for all, any quibbles over the status of the military establishment and the Islamic sharia in a new constitution. Or would it?
The head of the Department of Information in the People’s Assembly General Assem El-Geneidy, says that an end to the fight over the status of the military and sharia in the constitution will be immediately followed by an argument over who has the right to pass constitutional amendments in the future.
The SCAF will never agree to the notion that any one body, especially one controlled by the Brotherhood, could control the right to amend the constitution in the future, since this could one day endanger any immunity the generals might gain in the short-term.
In fact, Muslim Brotherhood leaders have given the SCAF reasons to worry about the contentious issue of who could amend what in the constitution.
For example, Essam El-Erian, the deputy chairman of the Freedom and Justice Party, as well as Ahmed Abu-Baraka, have reiterated the Brotherhood's intentions to fight to expand the powers of parliament (which benefits the Brotherhood, since they have parliament majority) over those of president in any new constitution.
Therefore, the SCAF will, most likely, surprise the other players with proposed articles that will prevent any one party or political current, including a majority bloc in parliament or government, from owning the right to amend the document, a position that would find support among those who fear an Islamic-dominated parliament would be able to change the constitution in the future.
The SCAF remembers very well that it failed last November to push through a proposal of supra-constitutional articles by Ali El-Selmi, the former deputy prime minister, which could have granted the generals a special status – above accountability – in a future Egyptian constitution.
However, as General El-Geneidy says, the SCAF will continue to fight to achieve the same goal employing all available means.
In short, all political forces will mobilise in their own ways to impose their version of the constitution on the country as it is being formed in the following weeks.
However, the renowned Egyptian constitutional expert Ibrahim Darwish, who has contributed to the drafting of several constitutions worldwide, believes that all the wrangling that has taken place over the writing of the constitution in recent months could be described as a media show.
"Despite talk of different scenarios, which could determine various outcomes and so on, there is definitive information that the final version of the draft was written maybe a month ago," Darwish reveals.
"Both the military council and the Islamists will, in the end, get what they want, because their interests are not contradictory."
"I would never take part in writing this constitution. I might work on the following constitution. This document will have a short life because it will be a product of a political deal based on short-term special interests," concluded the constitutional expert.
