Democracy Lab

Drafting Discord

Why Egypt's next constitution won't fulfill the democratic dreams of the revolution.

In the midst of violence and counter-revolution, Egypt's military-backed government is about to present a new constitution to the people -- the country's second in a year. On Dec. 1, a 50-member committee, tasked by the government with making "revisions" to the 2012 constitution, voted on the final draft and will submit it to President Adly Mansour this week for ratification. Later this month or next, the Egyptian people will be asked, again, to approve the constitution in a referendum.

Political infighting among secularists, Islamists, and remnants of the old regime has defined Egypt's transition since it began nearly three years ago, and these tensions have played out vividly on the battlefield of constitution-writing. Instead of delivering a much-needed national consensus, the tortured constitutional process has only deepened political rifts.

The Islamist-dominated Morsi government rammed through a new constitution in December 2012. That constitution, however, largely ignored the concerns of secularists, liberals, and Christians, so its adoption merely intensified polarization. The current effort has also made little pretense of inclusivity. Indeed, the constitutional committee has operated in a manner almost divorced from politics -- hardly a recipe for lasting constitutional success. The current draft is an operational document that limits some of the worst aspects of the Morsi constitution but doubles down on others. While the new constitution reduces the role of Islam, the document is still religiously infused. The revisions also enhance the already privileged position of the military and fail to enshrine important human rights. On a brighter note, the new text does include a nod toward gender equality missing from the last constitution, and also has new articles mandating much needed improvements in education.

Gone from the revised constitution is Article 219, a particularly controversial provision of the Morsi constitution that spelled out acceptable sources of interpretation for sharia. Some saw this as a critical first step on a path toward theocracy. Salafis have been particularly outspoken about this change: the inclusion of Article 219 was their signal achievement in the last constitution, although it was never clear how that article would be implemented or, correspondingly, what its impact would be. The new constitution also departs from the previous version by banning religious parties and depriving Al-Azhar, Egypt's leading religious institution, of its authority to vet laws. In an important step forward, the new constitution in Article 65 guarantees freedom of belief, although this article was also hotly contested by Islamists. Despite the full-blown backlash against the Muslim Brotherhood specifically and Islamism in general, Article 2, which dates to the 1971 Constitution and states that the "principles of Islamic sharia are the principle source of legislation," remains intact. Though the new constitution downgrades the role of religion, Islam still retains a central role.

Another revision denounced by the Islamists is new language included in Article 11 that commits the state "to achieving equality between women and men in all of the civil, political, economic, social, and cultural rights mentioned in this constitution." In recent weeks, Salafists have denounced this language for, among other things, opening up the possibility of political quotas for women -- something that women's groups have been unsuccessfully demanding since the early days of the revolution. Recent moves to create quotas for women at the municipal level no doubt add to Salafist concerns that other quotas are in the offing. While a parliamentary quota for women at this point seems unlikely, the new equality language is certainly a step forward from the previous constitution, and does indeed open the door to other types of quotas. Women's empowerment, also referred to in Article 11, is still clearly defined within the framework of motherhood and "the duties of a woman toward her family," but the insertion of gender equality at least creates a constitutional framework on which to build. The same is true of the new Article 93 on international law, which obligates the state to uphold the "rights and freedoms listed in the international agreements, covenants, and instruments of human rights ratified by Egypt." That includes the United Nation's Convention to Eliminate Discrimination Against Women (CEDAW). Egypt ratified the convention in 1981, although with some significant reservations. Savvy Egyptian activists in coming years will no doubt use the new language on international law to contest those reservations and push for legal expansions of women's rights.

The constitution's new Articles 19 and 20 on education also provide a basis for positive change. One clause commits the government to develop technical education and vocational training "in line with the needs of the labor market." Another declares that education is mandatory through secondary school and says that the state can spend no less than 4 percent of GDP on education. Other countries (notably Brazil) have used constitutional guarantees on education as a foundation for substantially improving educational outcomes. In its 1988 constitution, Brazil fixed minimum spending levels on education that over the past quarter century have translated into significant educational gains. Egypt, which suffers from a weak public school system (spending on education in recent years has hovered below 4 percent of GDP), desperately needs an education upgrade, especially one that is tied to the needs of the marketplace. Over the long term, these new education-related articles could be the most positive development for the country to come out of the current revisions.

The military's entrenched powers are the most negative aspect of the new constitution -- and yet they hardly come as a surprise. Given the popularity of the armed forces in Egypt now and the military's firm grip on the constitutional drafting process, any rollback in military privileges was highly unlikely. The constitution implemented by the Morsi government already gave the military many of the concessions it wanted, including a clause ensuring that the minister of defense would be a military man; military control over the use of military force; and, perhaps most important, a specific stipulation against civilian oversight of the (generous) military budget. The military also received a right to try civilians in military courts if those civilians were accused of harming the armed forces -- sufficiently broad language to ensure the military held full legal sway.

Indeed, under the post-Mubarak transitional government, the military put 12 thousand civilians on trial in special military courts. The new constitution preserves those privileges, including the controversial provision to try civilians in military tribunals -- one of the most glaring human rights deficiencies of the new constitution. Egyptian liberals recognize how dramatically this article, above all, negates the democratic dreams of the revolution. Some have vehemently protested the clause; others, capitulating to the reality of military control, have held their noses and supported it. Mohamed Abdel-Aziz, a member of the constitutional committee and one of the co-founders of the liberal opposition Tamarod movement that was instrumental in bringing down the Morsi government, explained his begrudging approval on his Facebook page: "This is the best we can achieve in this critical time in Egypt. One day things will settle down and we will have a real democracy, and a two-thirds majority in parliament can amend the article."

Even the government recognizes that it is producing a flawed document, so it is depicting the constitution as a realistic manifestation of what is possible in the deeply divided society that is Egypt today. Anticipating low turnout for the upcoming national referendum to approve the new constitution, the government has been running public service radio spots urging citizens to vote, even though a date has not yet been set. The spots candidly admit that while the constitution will not be the best, it also is not likely to be Egypt's last.

GIANLUIGI GUERCIA/AFP/Getty Images

Democracy Lab

Ceasefire Capitalism

Why Burma's rebels have every reason to be suspicious of government emissaries talking peace.

In early November, negotiators from the Burmese government traveled to the northern town of Myitkyina to confer with representatives from a conglomeration of ethnic rebel groups. It was the first time in decades of warfare that government officials sat down with the combined leadership of Burma's rebel movements, inspiring praise from the United Nations.

But the optimistic news coverage neglected to question the presence of another interest group at the meeting: the Chinese. With billions of dollars invested in energy, mining, and logging projects in Kachin state, China has a lot at stake in the outcome of this conflict, which has threatened its access to the area's abundant resources. Its involvement served as a palpable reminder (as if anyone needed it) that peace talks between the government and ethnic rebels aren't just about political differences. They're also very much about business.

That's a hard truth that's all too often neglected in coverage of the continuing efforts to find a practical agenda for peace. China is but one of many players in the scramble to capitalize on the fantastically abundant natural resources in Burma's border regions, which run the gamut from teak to minerals to hydropower, not to mention Kachin state's $8 billion jade industry. The Burmese government used past ceasefires as an opportunity to plunder areas inhabited by local ethnic groups, prompting additional armed conflict while complicating efforts to resolve it. Indeed, the government's recent reform push may be attempting to do the same thing. All signs suggest that the government is hoping to exploit the bounty of Burma's periphery as it opens to foreign investment.

This issue is one of the primary irritants underlying the government's fight with the rebels in Kachin state. Among Burma's many ethnic groups, the Kachin have particular experience with the Burmese government's malformed "peace." In 1994, the government managed to broker a peace agreement that ended decades of civil war. But the ceasefire did not mean that the regime began to take the Kachin's interests into consideration. During the 17-year ceasefire period, the Kachin watched as their state was carved up and sold to regime-aligned corporations -- usually with little benefit to the people who lived there.

Following the 1994 deal, Burmese and Chinese firms moved in to control the local economy, whittling small businesses down to nothing, and bringing in thousands of migrant workers who forced the Kachin out of jobs. The influx of migrant workers and rising poverty rates had a corrosive effect on Kachin society. At the same time, the Kachin's land was cordoned off for corporate exploitation. Nearly 20 percent of the state's land was allocated for mining, while nearly 200,000 acres of land in the Hukawng Valley Tiger Reserve were set aside for biofuel crops. Shortly after the 1994 agreement, the government rolled out plans to build seven dams along the N'Mai and Mali Rivers to be financed by China. When they are completed, most of the output will go to China, ignoring local energy needs. This will only ramp up anti-business feelings among the Kachin.

And in 1994, the exploitation of the ceasefire didn't stop at business. The Burmese army used the ceasefire period to bolster its presence in Kachin state. This meant that when the Burmese troops launched an assault on Kachin rebels in June 2011 -- intentionally rekindling the war -- they had a strategic advantage. Battalions were already stationed en masse across the state, ready to widen the conflict. Moreover, because the ceasefire had blurred territorial boundaries, government troops were able to block fleeing civilians reentering rebel-controlled areas. In the face of violent conflict, these civilians could not get home. This nightmare scenario continues today, as evidenced by the thousands of civilians who fled after fresh clashes broke out less than a fortnight ago. Conversely then, the ceasefire period allowed greater militarization of the region, and eroded the security of its people.

It's no coincidence then that the Kachin faction is reluctant to sign a deal before knowing what the Burmese government plans for the state's resources. Doing so may presage a repeat of the destructive business practices that have steadily eaten away at the state. The Kachin have noted the eerie parallels between this round of talks and those in 1994. The presence of Chinese observers at this week's ceasefire talks suggests that Beijing's interests in the outcome of the conflict are as pressing as they were 20 years ago. Despite various rounds of talks this year where the Kachin Independence Army (KIA) pressed the government to come clean on its plans for the state after the proposed ceasefire, the two sides have continually failed to cement a political deal that would demarcate territory and delegate rights to resources.

For an ethnic group that has long called for autonomy, the prospect of another ceasefire without a political resolution to these chronic problems is unthinkable. In that respect, foreign governments who used the Myanmar Peace Center -- widely considered a mascot for the government's reformist agenda -- to hurry ethnic armies into laying down their arms either do not understand the source of the Kachin's reluctance, or are practicing willful, perhaps even strategic, denial. Burma's border regions have a reputation as a final untapped energy market, and that is a tough incentive to ignore.

If the Kachin had any doubts that the government is prioritizing business, last year's talks in Karen state would dispel them. In early 2012, the government was able to hammer out a ceasefire agreement with the Karen National Union (KNU) following decades of conflict -- but only by encouraging pro-business Karen officials to deviate from the more hard-line faction. These pro-business officials agreed to open a liaison office in exchange for development assistance that would open the door to large-scale investment in the region, which is rich in gold, hydropower, and possibly even shale gas.

This same pro-business group participated in ceasefire talks with the government in 2011 that included delegates from Dawei Princess, a local partner in a massive deep-sea port project under construction close to the Karen's territory. The delegates were invited despite resistance from the KNU. The make-up of these early meetings offered an early indication of the business dimension to the ceasefire talks.

Opening the doors for foreign development has had serious consequences for the people of Karen state. A 2012 report by Physicians for Human Rights spotlighted the link between extractive projects and rights abuses in the region. It warned that people who lived near a dam, pipeline, or mine were "almost eight times more likely to have been forced to work for the army and over six times more likely to have been uprooted or had restrictions placed on their travel." (A useful National Geographic map offers visual evidence for this.) The half a million people displaced by war in eastern Burma hope to return to their land soon, but as the Kachin who returned after the 1994 ceasefire found, this land may now belong to someone else.

Rather than working to compromise with the KNU, the government decided to open a fissure in the one entity that commands respect across Karen society. The Burmese government may have won a flimsy ceasefire, but the prospects for lasting peace in a region familiar with the duplicity and abusive tactics of the Burmese army are slim.

On top of all this, the parliament passed a new foreign investment law earlier this year that offers attractive incentives for business in Burma. It also conveniently places the regulation of harmful practices in the hands of the Burmese government, which has historically shown no inclination toward responsible investment. It is likely that companies will be free to operate in the same way they have for years, and with the same consequences.

Everyone from corporate clients, to foreign governments, to the Burmese military seems to be entering the fray to advocate for what Kevin Woods calls "ceasefire capitalism" -- that familiar shadowy nexus of military, political, and business elites that has dominated Burma's economy for 50 years, exploiting periods of calm to assert control over land. Everyone, that is, except for the ethnic groups at the center of these talks. It certainly seems that Burma is in danger of repeating history by tainting its peace negotiations with the interests of those who do not prioritize peace. Away from the optimistic talk greeting the ceasefire negotiations lies the ugly side of the reform process. All told, civilians face many of the same dangers they did during wartime.

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