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Nathan Brown: Quick Reactions to Egypt’s New Draft Constitution

–Nathan Brown, George Washington University

A verson of the new draft Constitution has been published this morning in Egypt. Al-Shuruq says that it is still undergoing linguistic correction, and the draft as published has some gaps, so it is not clear how authoritative it is. While I have not gone through the draft in careful detail, here are some quick preliminary reactions. No doubt others will offer fuller analyses as events unfold (my advice: keep an eye out for Zaid al-Ali of IDEA for careful analysis that combines legal knowledge that I lack with a realistic but dispassionate political perspective.) But with those caveats, here goes:

1) The changes are so extensive that it does not make much sense to call this an amended 2012 constitution; it looks at first glance to be as different from the 2012 constitution as the 2012 constitution was different from the 1971 constitution. (In fact the 2013 draft restores some of the 1971 constitution, and not always in wholly bad ways from a liberal or democratic perspective).

2) One of the aspects of the 2012 constitution that I found problematic was a presidential authority to call referenda the results of which were binding, which would in effect allow the president to override the constitution. The 2013 draft allows the president to call referenda (an authority he had in earlier documents) but no longer makes the results binding on all state institutions. The SCC had ruled under Awad al-Morr that referenda could not violate the constitution, so this device for extra-constitutional action may have been removed. (Article 132 is to operate “without violating the provisions of the constitution.”)

3) Regarding parliamentary elections, it has been widely reported that the 2013 draft would institute an individual candidacy system. True, but this is only for the next parliamentary election; this is a transitional provision. Subsequent parliamentary elections will be run according to whatever law is written, and there is no permanent requirement for any particular electoral system. As I’ve written elsewhere, electoral law has been a real mess. The Supreme Constitutional Court was supposed to be reviewing a draft electoral law submitted by the now-defunct upper house of the parliament, the Consultative Council (the third attempt by the Council to get something approved by them) against the 2012 constitution. One of the reasons the Council was having such trouble was that the SCC was very clear on what was NOT constitutional, but it gave little guidance (on the matter of districting and apportionment) of what would pass constitutional muster. We don’t know the status of this review, or of al-Sisi’s declaration requiring to the SCC to speed up the process of review. My guess is that the 2013 constitution will be treated as overriding that declaration. So I would guess we’ll see a new law issued by decree, instead of the SCC approving (or asking for changes in) the June 2013 Council draft. As for whatever law emerges being constitutional, we don’t know. And with the SCC having a history of never finding an election law constitutional, we may be in for a surprise some time down the road…

4) The constitutional text now enshrines the provision of the 2011 SCAF decree-law allowing the SCC to select its own president from its most senior members. This removes one of the most significant tools the old regime had for controlling the court–but also makes the court unusually self-perpetuating. Such a judicial-friendly provision might make one think that some judges drafted this document.

Stay tuned for more in days ahead…

Suggested citation: Nathan Brown, Quick Reactions to Egypt’s New Draft Constitution, ICONnect blog, August 22, 2013, available at http://www.iconnectblog.com/2013/08/nathan-brown-q…t-constitution/

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Published on August 22, 2013
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