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Egypt Will Regret Its New Constitution

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Jan. 15 (Bloomberg) -- Shortly before this week’s referendum on Egypt’s new constitution, which ends today, police beat and arrested citizens for hanging “No” posters. That says almost all you need to know about the supposedly fresh start this constitution represents.

This is a badly flawed document, which will enshrine military rule under the next president -- in all probability General Abdelfatah Al-Seesi -- and frustrate any hopes that Egypt will have a recognizable democracy any time soon.

It seems likely that the country’s third basic law in as many years will be approved easily, not least because the main opposition, the Muslim Brotherhood, is boycotting the vote in a bid to reduce turnout and therefore legitimacy. The sad part is that the constitution would have been approved even if Egypt’s military rulers had allowed a free campaign: This is the first nationwide vote since the military deposed former President Mohamed Mursi last year, and all sides see it as a referendum on the July 3 coup. After three years of turmoil, Egyptians just want the unrest to end and the economy to rebound.

The new constitution is not necessarily worse than the one it would replace. Unlike the one adopted under Mursi’s brief year of Muslim Brotherhood dominance, the new document guarantees equal rights for women. It also criminalizes the use of torture with no statute of limitations, and says the international human-rights conventions Egypt has signed should be translated into domestic law.

No one should be fooled. Far more important are changes the constitution makes to the status of the military, police and courts. The armed forces would for at least the next eight years be independent of civilian control, including over their budget, as they were under former President Hosni Mubarak, himself an air force commander. Military courts would remain autonomous and would have jurisdiction over civilians in many instances. The hated police would also get greater independence, while the Supreme Court would be able to decide its size and membership for itself.

These changes not only obliterate the balance of powers that is the usual goal of a democratic constitution. They also help maintain Egypt’s “deep state,” in which elected governments come and go, but power rests in the hands of self-regulating generals, judges and police chiefs. Because these institutions are unreformed and filled with the same people as during the Mubarak era, it’s unlikely that they will protect the very rights the new constitution guarantees.

Egypt’s problems after this constitution is adopted will be the same as they are now: restrictions on civil liberties and free speech, and arbitrary enforcement of the rule of law. This referendum takes place just days after the government declared the Muslim Brotherhood a terrorist organization, justifying harsh measures against as much as a quarter of the population. To understand what that declaration means, consider the Dec. 29 arrests of three journalists from Al Jazeera’s English language service on grounds that they belong to a “terrorist” group and had been disseminating information damaging to national security, more commonly known as news.

Given these flaws, the few international observers overseeing the referendum should take care not to legitimize this vote, which they have too few resources to verify. The U.S. and others should also try to hold the regime to its promise to hold parliamentary and presidential elections this year.

The military and its secularist supporters, who correctly raged against Mursi’s majoritarian manhandling of the constitutional drafting process last year, have produced an equally lopsided document. It’s not enough for a constitution to say all the right things, or even a lot of the right things. Without a balanced mechanism to enforce the rights it guarantees, Egypt’s new basic law is destined to become a tool of the military -- and undermine the very democratic ideals it claims to protect.

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