Egypt's draft constitution: an analysis

The text of the Egyptian state's new constitution is reaching a critical juncture. How does it measure up to fundamental rights and principles, and accord with recent constitutional practice elsewhere in the world? Zaid Al-Ali inspects the document.

Zaid Al-Ali
8 November 2012

Egypt’s draft constitution is firming up. It includes 231 articles, and includes most of the sections that one would expect (such as fundamental rights, separation of powers, and decentralisation). At this stage, it has become likely that the draft will be complete by December 2012 - which is when the assembly is due to complete its work, in accordance with the interim constitution - and that a referendum will take place shortly thereafter. While the results of the referendum are uncertain, the draft (and the process through which it was prepared) provide a good indication of how the Egyptian state is likely to evolve in the short to medium term.

The draft is not as controversial as many people assumed it would be. For better or worse, it is generally in line with Egyptian constitutional tradition. Whereas the Egyptian revolution has accomplished a number of its political objectives (notably the end of one-party, or even one-man, rule), the draft constitution will not bring a legal revolution to Egypt. The draft uses the same terminology and tone as the constitution of 1971, it is generally organised in the same manner, and contains few major substantive departures. It resolves some of the previous text’s deficiencies, maintains some and creates yet others. 

Nevertheless, public debate on the draft has so far been acrimonious. Many political forces that are opposed to the Muslim Brotherhood-affiliated Freedom & Justice Party have in the media described the draft in terms (“unacceptable”, “rejected”, “Islamic”) that might be taken to imply the process is on the verge of collapse. It seems clear that Egypt’s various political forces will not see eye to eye and that the draft will not enjoy unanimous support, come what may.

What is surprising about this is that the vast majority of political forces in Egypt share similar or identical positions on the vast majority of issues. The constituent assembly (which is responsible for drafting the new constitution) is made up of many Islamists and some liberals. The complaints that have been made to the draft they have produced relate to a few key issues, including the role of Al-Azhar (the high religious authority), the place of women in society, and a small number of fundamental rights (including media freedoms); but issues such as most aspects of the system of government, decentralisation, and the role of the military have not featured prominently in the public debate. The lack of trust between Islamist political parties and just about everyone else is so great that it has clouded what could otherwise have been a fairly straightforward process.

The drafting process has reached a critical juncture. Depending on how matters evolve, the new constitution could either serve as a basis for a new commitment to the rule of law in the country, or for deep political division in years to come. Much rides on how the debate is managed over the coming period, and on how many of the draft’s deficiencies are resolved from now till the end of the drafting process. The purpose of this article is to comment on some of the major areas of the latest draft (dated 22 October 2012) that require improvement, and not to debate the political aspect of the drafting process itself.

The question of fundamental rights

The main issue of contention with respect to rights has been the relationship between religion and state. From the start, it is worth recalling that religion played an important role in the 1971 constitution, to the extent that Islamic Sharia was recognised as a principle source of legislation (Article 2). The draft constitution does not depart from that general framework: Article 2 is maintained verbatim; but in a sign of the times, Article 219 provides that Sharia will be inspired by “Sunni” theology. There are however some important changes to the detail, some of which are very unclear and could do with some rewording. For example, Article 4 provides that the Azhar’s opinion will be sought out for “matters relating to Sharia”. This is a cause for concern because the draft provision does not indicate who should seek out the Azhar’s opinion or in relation to what matters specifically. The suggestion is that the Azhar should be called upon to ensure that future legislation is in conformity with Sharia, but the wording leaves the matter open to interpretation, which means that it is open to abuse.

Another provision that needs attention is Article 40, which prohibits the act of “defaming the messengers and prophets”. This is problematic because “defamation” in this context is left totally undefined. For example, would mere criticism of a particular prophet amount to defamation? Or would the defamation in question have to be designed to incite hate or religious strife to be prohibited?  If interpreted widely enough, Article 38 could be used in the future to ban all sorts of behaviour that are considered acceptable today. Also, the standard according to which blasphemy should be measured is not indicated. For example, recently a protester at a demonstration in Cairo burned a copy of the bible. Would that constitute a prohibited act under Article 38? It is impossible to say under the current wording.   

Outside the scope of religion, the draft constitution provides for a large number of fundamental rights, including social and economic rights that are in line with Egyptian tradition and that are very progressive in comparison with comparative practice. Unsurprisingly, and in line with what is considered a hallmark of Arab constitutional tradition, many of these rights may be regulated by future legislation in ways that remain unclear under the current draft. This is the case, for instance, with freedom of assembly (Article 47), and the right to form unions (Article 49).

This has been a hallmark of Arab constitutional tradition for decades: constitutions in the region have almost always granted generous rights that initially appear progressive, but also explicitly call for the law to regulate the manner in which those same rights are to be exercised in practice. Parliaments (having been previously dominated by unaccountable and opaque elites that were obsessed by a desire to dominate their populations) would then pass legislation stripping those rights from any meaning. Many modern constitutions (including texts that have been recently approved in Latin America and Africa) now include wording that limits the scope and extent to which the executive and legislature can restrict rights. Arab constitutional tradition has yet to adopt some of the lessons that have been learned elsewhere.

Another important restriction on rights is the status of women. The 1971 constitution aimed to force women to be active in the workplace and also imposed on women specific responsibilities towards family, parents, husbands and children (men were under no such obligation). This matter has been of great concern to the constituent assembly: many hardline Islamists have been adamant on maintaining a strict distinction between men and women based on their version of Islamic Sharia, while secular and liberal members have sought either to eliminate all forms of gender discrimination in the text altogether or at least to moderate the previous text’s wording. The result has been an unhappy compromise which is probably no better than the 1971 constitution. 

The only concession that liberal members appear to have received is that Article 30 of the current draft bans gender discrimination, which is an innovation in comparison to 1971. However, Article 68 undoes any potential progress by specifically granting women a secondary status in society. It reproduces verbatim the wording the 1971 constitution had used on this issue, and once again forces upon women obligations towards family and society without imposing any such role on men. Article 68 also indicates that women are to be equal to men on the condition that such equality does not violate the “principles of Islamic Sharia”, which will impact on a number of areas, including inheritance rights.

The system of government

Egypt’s new system of government is a critical issue that deserves significant attention. One of the revolution’s rallying-calls was the need for a more accountable and transparent government that responds more effectively to the needs of the people. In constitutional terms, this means that the institutional and individual responsibility of political actors must be streamlined to improve the state’s ability to formulate policy and the delivery of services to the people.

The draft provides for a mixed system of government that is skewed in favour of the president, although to a lesser extent than the 1971 constitution. Under the previous system, parliament was not given a role in the formation of governments. The constituent assembly has departed from that tradition, but only to a limited extent: the prime minister and individual ministers do not require the parliament’s confidence in order to assume their functions, but parliament does not need to approve the government’s programme (Article 143). In the event that programme is rejected, a new prime minister must be appointed, who must also submit a programme to the parliament. 

Regrettably however, there is significantly detail lacking in Article 143: it states that if the second programme is rejected, the president must form a government upon the parliament’s “recommendation”, and if this is not done, a referendum on the dissolution of parliament must be organised in accordance with the provisions of Article 128. In an innovation that was introduced by the constituent assembly in the last few days, however, if the dissolution of parliament is rejected by voters, then the president will be forced to resign. The combination of these provisions will introduce an interesting dynamic that will either encourage political forces to collaborate to avoid being fired from their positions, or will encourage a new form of high-stake political brinkmanship. The outcome will depend on how Egyptian political culture will conform to these new rules, which is impossible to predict at this stage.

What is certain, though, is that Article 143’s current wording raises a number of important questions and concerns:

* What form does the parliament’s “recommendation” have to take? Does the parliament have the right to nominate a prime minister, individual ministers or merely to determine the government’s programme?

* To what extent does the president have to abide by the government’s “recommendation”? If the president only partially adopts the parliament’s recommendation, will that suffice?

* According to Article 143’s current wording, the president’s third attempt at forming a government does not require the parliament’s actual approval. It merely says that the president must act on the parliament’s recommendation but does not mention any subsequent vote in parliament. This strongly suggests that the president may be able to form a government without actually referring back to parliament. It is unclear whether this is actually the drafters’ intent

* Article 143 states that if the president fails to form a government during this third attempt, parliament is dissolved. What this strongly suggests is that, although Article 143 purports to give the president a third attempt to form of a government, there is absolutely no obligation for him to do so

* Although Article 143 grants the parliament significant clout in the government formation process, the threat of dissolution is a powerful disincentive to objecting too strenuously to the president’s attempts at forming a government.

In the current highly charged political context, Article 143 could easily lead to political deadlock, where the president and the parliament both insist on controlling the government formation process. This is a cause for concern, given that Egypt cannot afford to live through yet another period during which the state is prevented from functioning effectively. The constituent assembly must work to clarify these matters to reduce opportunities of abuse and of a breakdown in relationship between Egypt’s elected bodies.

On the power to withdraw confidence after a government has assumed its functions, the draft also gives the parliament more power but once again imposing conditions that will inevitably limit opportunities for parliamentary action. Thus, although the 1971 constitution did give parliament the power to withdraw confidence from the government, this could only be done with a two-thirds majority in parliament. The current text reduces that threshold to a majority of the members of the Council of Representatives (Article 126). However, parliament may not withdraw confidence from a minister on a matter that “relates” to an issue that has been decided during the ongoing parliamentary term. Although it is important to ensure that parliamentary powers are not abused to the extent that government is completely paralysed, Article 126 is so vague that its impact is impossible to predict, which is not in anyone’s interests.

The draft’s provisions on law making authority are also a cause for concern. One of the oddities of the 1971 constitution was that the power to draft legislation belonged to all parliamentarians, even at an individual level. One of the reasons why that system could function is that it existed within the context of a virtual one-party state. Although that power has been maintained under the current draft, it sets out a detailed process that has to be followed in order for parliament to initiate legislation (which amongst other things requires for all drafts to be approved in committee before being discussed in plenary). The impact of that process is that the major parties will most likely seek to control parliamentary committees in order to prevent the parliament from taking the initiative on legislation (which is what transpired during the previous parliament’s short lifespan).

Also noteworthy is that there are some contradictions in the text on how various bodies should relate to each other. For example, Article 156 provides that the president is responsible for formulating the state’s policy “in conjunction with the government”. However, Article 171 provides that that responsibility belongs solely to the government. This difference in wording is problematic, and is compounded by the absence of any guidance as to which of the two senior officials will take the lead on the formulation of policy.  This lack of clarity will likely cause significant problems in case the president and the government are from different political trends. Significantly, it is also unclear where the boundary between legislative and executive power lies under the draft. The nature and scope of the executive’s power to issue “decrees” is hardly mentioned in the draft.

Finally, the section on the judiciary is still very incomplete as it stands today, for a number of reasons.  Judicial independence is not properly defined or protected, given that too much is left to future legislation, opening the door to abuse. Another important issue is the absence of a body to oversee the functioning of the judiciary, which is contrary to a trend amongst developed and developing nations (over 60% of constitutions worldwide provide for the existence of a judicial council of some kind or another). Finally, the provisions relating to the public prosecutor are wanting: there is hardly any information on how the prosecutor is to be nominated or removed, and no detail is given on its powers. This omission is particularly surprising, given the ongoing tensions between the current prosecutor and president.

The Supreme Constitutional Court has been outspoken about the draft, ostensibly because the draft seeks to remove some of the court’s powers. The draft currently calls for electoral laws to be reviewed prior to elections and prevents electoral laws from being challenged after electoral results are issued.  Although the wording could be tightened to prevent some uncertainties, the draft’s proposed wording would have prevented the 2011 parliamentary elections from being organised in the way that they were and would also have prevented the dissolution of the parliament that was eventually elected. The court has argued that the draft restricts its powers by preventing subsequent appeals to the court on the basis of an electoral law’s constitutionality. The current wording merely changes the order of events, in a way that would prevent waste of Egypt’s scarce financial resources (elections are expensive) and avoid the public disillusionment that necessary follows a cancelled election. In addition, there is nothing in the current draft that suggests that subsequent claims cannot be brought to prosecute electoral fraud or other such matters. 

An earlier draft also called for various bodies within the judiciary to be involved in appointing the court’s members. The current system (in place since last year only) provides for the court to be entirely self-perpetuating. The court strenuously complained that the proposed wording is an affront to its independence, and it appears to have had its way. The most recent version of the draft provides that the president will nominate the court’s members only after having obtained an opinion (or the approval, this matter is left open in the current draft) of the court’s general assembly.

The issue of decentralisation

Egypt’s 1971 constitution provided for the election of what was referred to as “local people’s councils”, but no information whatsoever was given in the text itself on the powers that those councils would enjoy. Also missing was the type of powers that provincial governors should enjoy or how they should be appointed.  The result was a deeply flawed and undemocratic system of decentralisation in which the central government controlled (directly and indirectly) virtually all aspects of local administrative functions. The current draft provides more detail than the 1971 text, but also codifies a number of troubling practices that are likely to prevent decentralisation from having any genuine meaning. These shortcomings should be addressed in the little time that remains for the constituent assembly.

For example, although Article 187 purports to list the local assembles’ powers and mandate, the wording does not provide for a clear division of authority, which will likely lead to significant tensions and perhaps even a breakdown in the delivery of local services. In addition, Article 188 provides that the central government may supersede a local assembly’s decision in the event that decision violates the “public interest” (a very vague term that will clearly serve to limit the local assembly’s authority). Even worse is the fact that the draft is essentially silent on the powers and nomination of governors, merely indicating that this will be determined by the law (Article 194). 

Along those same lines, the draft does not provide any detail on the circumstances in which a local council may be dissolved. These are precisely the types of omission that were abused under the previous system; this should be resolved in a way that provides significant authority to directly elected local officials as a matter of urgency. Finally, although Article 190 provides that there should be some form of redistribution of public resources between Egypt’s various provinces, no detail is provided as to how that will be organised or even what standards will be used to decide how resources will be redistributed.

Civilian-military relations

This is clearly one of the areas that has attracted the most amount of attention in the media and amongst constituent assembly members. Generally, although the draft provides for greater control of the military by civilian authorities, a line appears to have been drawn in the sand that will not be crossed in the near or medium term.

One clear sign of progress is that Article 199 clearly prevents civilians from being tried before military courts (although note that a proposal was introduced into the official draft a few days ago that would reverse this advancement). In addition, the National Defence Council will now be populated in large part by civilians (including the ministers of foreign affairs and of finance). However, many of the military’s prerogatives are maintained in the text. For example, the minister of defence must in all cases be a military officer (Article 198). Also, surprisingly, the Supreme Council of the Armed Forces (SCAF’s) proposition that was introduced in the “Fundamental Principles” document in November 2011 year - according to which the military’s budget should be introduced as a “single figure” in the annual state budget law - has been introduced to Article 196. In light of Egypt’s history of ineffective spending of public monies, some form of mechanism that would have guaranteed more public oversight of the military’s budget and of its various activities would be welcome.

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