Blog of the International Journal of Constitutional Law

Egypt’s Third Constitution in Three Years: A Critical Analysis

–Zaid Al-Ali, International IDEA [Cross-posted at & International IDEA]

Egypt’s new draft constitution includes a number of important improvements. It contains clear language on the issue of discrimination and violence against women; it grants significant rights and affords protection to children and the disabled; the list of socio-economic rights has been lengthened and is more detailed than it has ever been. Efforts were made to close some of the loopholes in the system of government that had been created in the 2012 constitution, and the useless Shura Council was eliminated, therefore simplifying the legislative process. Finally, more secular-minded Egyptians will be comforted that many of the references to religion that had been included in 2012 were eliminated. Most importantly, the infamous article 219 from the 2012 constitution was removed, allowing a large number of nervous Egyptians to breathe a collective sigh of relief.

On the other hand, the 2013 draft maintains, and on occasion worsens, many of the negative characteristics that have plagued Egypt’s constitutional practice for decades. State institutions are granted impressive amounts of independence and privileges despite that they do not deliver adequate services to the people. In addition, although the list of socio-economic rights is more detailed than in the past, more basic rights such as speech and association are hardly improved. Even the de-Islamization of the text is not new: The constitution drafting committee of 50 (C50) introduced changes that merely take the state back to where it was prior to the 2012 constitution. The constitution does not offer any convincing mechanism for the enforcement of rights, meaning that the additional rights provided will almost certainly remain unprotected. Just as worryingly, the new constitution tilts the balance of power firmly back in the president’s favor.

In post-conflict or transitional environments, constitutions can be an important tool in the effort to achieve national reconciliation. What should not happen is for a constitution to serve as a weapon in a political conflict, particularly in countries that are highly divided and volatile. In Egypt, the short lived 2012 constitution, and now the 2013 draft were all drafted in the context of a social, political, and economic revolution that had as one of its core demands a renewed focus on social justice. A revolutionary environment demanded a revolutionary constitution. Instead, both documents were drafted in a context of widening distrust between rival political camps and were used as means for parties to reinforce political alliances and seek to extend their advantage over rivals.

When the Muslim Brotherhood and its allies drafted the 2012 constitution, they were principally motivated by a desire to preserve their own position at the heart of the new state. Their chosen strategy was to significantly increase the powers of parliament (which they assumed they would continue to dominate in the future) and provide concessions in favor of the Salafi Nour party and the military (which the Brotherhood regarded as powerful political forces). Liberals and secular Egyptians were considered to be little more than a political irrelevance and were treated as such in the drafting chamber.

The drafters of the 2013 draft had little in common other than that they shared a desire to exclude the Brotherhood from Egypt’s political calculus in the near future. Hence, whereas the 2012 constitution favored parliament, the new text strongly favors the president (under the assumption that the Brotherhood has little chance of winning the presidency any time soon). It also grants impressive amounts of authority and independence to the military, police, and judiciary, which are considered to be bastions of anti-Brotherhood authority.

The C50 was composed almost entirely of individuals who represent special interests. Many observers were rightly satisfied that the C50 included representatives from the Coptic church, al-Azhar, and other recognized institutions; the difficulty however was that those representatives are only interested in a very narrow set of issues. Outside of those special interests, most representatives had very little to contribute. What does a religious scholar have to say about how local administration should be organized and what types of oversight mechanisms should be in place? What view does a representative of state media have on the best type of implementation mechanisms on fundamental rights based on comparative experience? In most cases, these individuals essentially remained disinterested throughout the discussions or contributed close to nothing that was of value. The C50 did include around seven individuals who were interested in broader issues, and who were capable of formulating a vision for reforming the state. However, those individuals were not in control of the drafting process; they were not asked to present an alternative vision to the current constitutional framework.

It should therefore not come as a surprise that the 2013 draft is little more than a reformulation of the 2012 constitution based on the negotiations that took place between special interests, and that it does not offer a new vision for the state or for the protection of the weak and vulnerable. Some would no doubt argue that excluding organizations such as the Brotherhood from authority is a worthwhile objective. The problem with that approach, however, is that it has left Egypt’s many other concerns unattended to, including its desperate need for social justice. In their defense, the drafters of both the 2012 and 2013 constitutions pointed to their ever increasing lists of social and economic rights in their respective constitutions. However, Egypt’s main problem has never been that the laundry list of rights in its constitutions was not long enough (even the 1971 constitution nominally provided for generous social rights such as free education amongst others). The problem was that the mechanisms for enforcement of these rights were completely inadequate. On fundamental rights, Egyptian constitutional tradition has for many decades set the trend for the region — dishonest constitutional provisions which claim to grant full rights, but provide no protection against abuses by the executive branch of government.

Freedom of opinion is a crucial benchmark. The 1971 constitution provided that “freedom of opinion is guaranteed” and indicated that individuals were free to express their opinions “within the limits of the law.” But over the years, a very significant body of law was built that prevented Egyptians from expressing views on many issues, including vaguely defined national security issues (which extended so far that it was prohibited to discuss the former president’s health). The Muslim Brotherhood-led constituent assembly in 2012 did remove the reference to limitations on free speech as determined by law, but the constitution contained many limitations on expression: blasphemy was explicitly prohibited; another provision indicated that one could not engage in “crimes against the armed forces,” which presumably meant that one could not impinge the army’s reputation through accusations of mismanagement or corruption; and finally, a very badly drafted provision prohibited defamation. Incredibly, the 2013 draft adopts exactly the same approach on this issue as the 2012 constitution.

To make matters worse, that same approach was adopted with respect to other rights, such as freedom of association and of assembly — both provisions are almost exactly what they were under the 2012 constitution, which itself paraphrases the 1971 constitution. Possibly the most flagrant example of the drafters’ failures on rights is article 15, which simply provides that: “Striking peacefully is a right which is organized by law.” The entire substance of that right has been left to the legislator, in a country where the law-making process has not been particularly successful at protecting the rights of the citizen.

A real reform effort would have involved more detail in relation to each fundamental right. It is remarkable that the provision on freedom of expression is still only two sentences long, particularly given that these same two sentences were on the books for decades and never provided any protection to the individual citizen. It should have offered more detail on what freedom of expression actually includes, namely the types and categories of speech that are allowed, including the right to criticize public officials, which has been under threat. Instead, it is necessary to dig through the 2013 draft to try to ascertain the many types of limitations on speech. According to article 71, incitement to violence or discrimination is prohibited, but the details are entirely left to law. Article 31 ominously indicates that the state is required to preserve the “security of information space,” which is considered to be a function of national security. Details are, as always, left to legislation. Finally, article 204 states that civilians can be tried before military courts for crimes against the military, which presumably can include limitations on speech. The difficultly, as always, is that these limitations on speech are both unclear and non-comprehensive.

The constitution drafters also should have made a serious effort at drafting a limitations clause. Many modern constitutions include these in an effort to guide legislators and courts on the type of limitations on rights that are permissible, and also establish a set of criteria against which laws are to be measured when determining if the limitations that they establish are constitutional. Although Egypt’s new constitution does include a limitations clause according to which legislation cannot limit rights and freedoms in a way that “infringes upon their essence and foundation,” — the wording is very weak.

The new draft contains significantly more detail on socio-economic rights, including health and education. While the 1971 constitution was silent on health, the 2012 constitution clearly indicated that all citizens were entitled to health care, and that treatment should be free for indigents (article 62). The 2013 draft goes much further, obligating the state to ensure that health facilities are distributed geographically across the country, and even indicating that the state must allocate no less than 3 percent of GDP to health in its annual budget (article 18). The right to free education was obligatory and primary education was mandatory under the 1971 constitution (article 18). Under the 2012 constitution, in recognition of the terrible state of public education, the drafters indicated that “every citizen has the right to high quality education,” and also provided that the state must allocate a “sufficient percentage of the national revenue to technical education,” without indicating what that sufficient percentage should be (article 58). The 2013 draft provides even more detail, explaining that the purpose of public education is to “build the Egyptian character, maintain national identity, plant the roots of scientific learning … of tolerance and non-discrimination.” It also clearly indicates that no less than 4 percent of GDP should be allocated to education, and also indicates that the state should “gradually” increase that until it reaches “global rates” (article 18).

Many observers (particularly neo-liberals) have complained that forcing the state to invest a certain proportion of its budget on particular areas could constrain it at times when funds would be better invested elsewhere. While there is logic to those complaints, they ignore several aspects of Egypt’s reality. Firstly, the health care and education sectors are in deplorable states precisely because they have been neglected by an uncaring and corrupt government for decades, which is why the C50 feels that the state should invest a portion of its budget on essential socio-economic rights. Secondly, the idea that major policy considerations should be left entirely to the ordinary political process in a country like Egypt is seriously outdated. There is no such thing as normal politics or genuine policy debates within government, and so it should be welcome that within the C50 a consensus was reached that health and education concerns should be obligatory regardless of political developments.

With regard to the political system, the primary concern of the drafters appears to have been to strengthen the president at the expense of parliament, and to protect a number of existing institutions (such as the courts and the security sector) from accountability and oversight. The 1971 constitution (which was a deeply flawed and undemocratic text) incorporated a heavily presidential system of government. The president, who was not subject to term limits, had sole authority to appoint officials and could dissolve parliament at will; meanwhile the parliament could only withdraw confidence from government with a two-thirds majority of its members, and had no mechanism to remove the president from office.

The 2012 constitution shifted the balance of powers in favor of parliament in ways that many members of the Brotherhood do not appear to have realized. Parliament was given ultimate authority over the government’s composition; it could withdraw confidence from government through a majority of its members; it could only be dissolved through a popular referendum; and finally, the government was given significant powers in article 141, according to which the president “exercised his authority through the prime minister and his ministers” apart from a limited number of areas. The importance of that provision only became apparent in March when the administrative court cancelled the president’s signature of a decree, on the basis that the prime minister should have signed it. Although the president and his advisors complained at the time, there was no other way to understand article 141.

The 2013 draft decisively swings the pendulum back in favor of the president, although not to the 1971 constitution’s extent. Although parliament still plays a major role in the government formation process, its hand has been weakened with the process cut from three stages, as under the 2012 constitution, to two under the new draft. If the two-stage process fails, parliament is to be dissolved (article 146). In addition, the draft grants the president authority to choose the ministers of justice, interior, and defense; worryingly, the constitution’s wording does not make it clear if these three ministers have to be granted confidence by the parliament. In addition, the draft gives the president the power to exempt the government from carrying out its obligations, provided that a “majority” of parliament agrees (article 147). This new provision is highly problematic, as it leaves a number of questions open. For example: What will the legal consequences of such an “exemption” be? Does an exemption simply mean that the president will be responsible for stepping into the government’s shoes in a specific area or will the government be considered to be dismissed? The provision also provides that a majority of parliament must agree without specifying what type of majority is required. More dramatically however, article 141 from the 2012 constitution has been eliminated from the 2013 draft, which means that the president can presumably exercise authority over all areas directly, and it gives him a distinct advantage over parliament in all cases.

The 2012 constitution set out to establish a number of safeguards to prevent abuse by the executive, after Egypt’s very negative experience with states of emergency under former President Hosni Mubarak. This included limiting the possible length of a state of emergency to three months, and mandating that a renewal be approved in a popular referendum. Under the 2013 draft, although the same time period has been maintained, the requirement to hold a referendum has been replaced by a requirement that a majority of members of parliament accept (article 154). The only new leverage that parliament appears to have gained over the president is that it has the ability to initiate a “recall” procedure, through which the president can be removed from office during his term for reasons other than treason and criminal offenses (article 161). Although this new procedure was hailed as an important democratic advance, and was clearly introduced with former President Mohamed Morsi’s tenure in mind, parliament is required to meet a threshold that is so high (two-thirds of its members) that the procedure is unlikely to be implemented any time soon.

Egypt desperately needs a dynamic environment for policy formation. Instead, the C50 and its predecessors in 2012 satisfied themselves with merely tinkering with the separation of powers to favor one side of the political spectrum to the detriment of another. The 2013 draft’s reinvigoration of presidential powers is actually very worrying in that context: Once again, if the next president turns out to be ineffectual (not unlikely in the circumstances), then the entire system will run aground for at least four years, ruining the opportunity to engage in necessary reforms.

That is why the C50’s failure to seriously reform the vertical system of government is so disappointing. The Egyptian state has long been heavily centralized, to the extent that governors are still appointed by the central government at the president’s discretion. The mere concept of decentralization is so alien to Egypt that many senior policymakers do not appear to understand it (the drafters of the 2012 constitution certainly did not), and are prepared to accuse its proponents of treason for even suggesting that it should be tested — based on the flawed reasoning that decentralization would damage national unity. The reality, however, is that centralization has been a major contributor to Egypt’s current predicament: Services in the capital and Alexandria may be bad, but they are far worse in the provinces, with no prospect of genuine improvement any time soon. And yet, despite the people’s deep dissatisfaction with their situation, they are helpless given that local officials are appointed by Cairo and are therefore not accountable to the people who live in the provinces. A common sense and very basic partial solution to this problem would have been to require for governors to be elected, or at least for them to be indirectly elected by local councils. That very simple and obvious reform would have increased local government’s accountability immeasurably. Even better would have been to clearly specify what local government is responsible for, including possibly ensuring that health care and educational facilities are providing effective services.

On that point, the 2013 draft, just as its predecessor, is quick and to the point. It provides that: “The law regulates the manner in which governors and heads of other local administrative units are selected, and defines their mandate” (article 179). In other words, the current appointments system will continue with no prospect of change in the near future. The only saving grace is that local councils (which are elected) are empowered to withdraw confidence from the heads of local units (article 180), but those decisions can be overturned by the central government if they are considered to “damage the public interest” (article 181). The 2013 draft does not provide any indication for which areas governors and local councils will be responsible. The 2012 constitution provided very slim guidance, providing that local councils are responsible for “local facilities, economic, social and health-related activities, as well as other activities.” In comparison with modern constitutional systems that are being set up across the world, that level of detail was very wanting, but even that was too much for the C50, which removed any reference to a clear mandate for the country’s local administrations.

The 2013 draft shows little interest in reforming the judiciary. Instead, the courts have managed to portray themselves as one of the heroes of the constant struggle against the Muslim Brotherhood, and therefore successfully argued that the only reform that the new constitution should bring to their institution is to strengthen their independence. Thus, whereas under the 2012 constitution the public prosecutor was selected by the Supreme Judicial Council and the president together, under the 2013 draft the council acts alone (article 189). Additionally, the 2012 constitution left the Supreme Constitutional Court’s composition to legislation, whereas the 2013 draft clearly indicates that the court’s assembly will select its president and the number of judges entirely on its own (article 193). Finally, the 2013 draft provides that the judiciary’s budget will, for the first time, be incorporated into the annual state budget as a “single figure” (article 185), making it for now the only institution to enjoy that privilege apart from the military. Some observers have argued that increasing judicial independence is a positive development. However, in a country like Egypt where courts are generally seen (with notable exceptions) as failing the people, increasing judicial independence before operating wholesale reform means that the negative practices of the past will become much more difficult to change.

Given all of the above, it should come as no surprise that the C50 was incapable of bringing meaningful reform to the security sector. Instead, the 2013 draft builds on the very generous amounts of independence and privilege that were granted to the security sector by the 2012 constitution. Amongst other things, the military is alone amongst all state institutions in not being required to defend the constitution (article 200); its budget is discussed in a special council that is dominated by the security forces (article 203); and the minister of defense must be an officer (article 201), who for the first years of the constitution’s application must be approved by the Supreme Council of the Armed Forces (article 234). Finally, the right to try civilians in military courts has been maintained; although some observers noted with satisfaction that the new provision contains a detailed list of circumstances in which civilians can be tried before military court rather than broad and vague provisions as under the 2012 constitution, the list is in fact so long, and at times so lacking in detail, that it probably will not make any difference in practice (article 204). Indeed, a senior officer explained on national television on December 3 that if a civilian enters into an altercation with an attendee at a military owned gas station, he can and should be tried before a military court.

The last two rounds of constitutional reform have shown painfully that none of the groups that have been steering the reform process since February 2011 have a convincing vision of reform. The time has come to give an opportunity to the only group that has not been given a front row seat in the effort to salvage the state, namely Egypt’s progressives. These individuals clearly do not have much electoral legitimacy, but they are amongst the only people who are capable of presenting a convincing vision for the future, and that have been calling for deep seated reform that could bring improvements to the lives of ordinary Egyptians, and therefore for society as a whole. In any future constitutional revision process, a committee of experts composed of genuine progressives should be given the reins and should be allowed to develop its own vision for the future. Inevitably, it will have to work in tandem with a larger assembly of individuals who represent the broader society. This poses many problems of its own — but the failures of everyone else suggest that it would be worth the effort.

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