The Middle East Channel

Egypt’s constitutional morass

Egypt's Interim President Adli Mansour issued a new constitutional declaration on July 8 following President Mohamed Morsi's removal from office. This declaration laid out a three-step process for amending Egypt's constitution. First, a 10-member technical committee would be given one month to propose changes to the 2012 constitution. Following that, a 50-member constituent assembly (which will have only six political party representatives and which shall consist mostly of representatives from state institutions) will have two months to debate the proposed changes. Finally, a referendum will be organized to ratify the new constitution, followed by parliamentary and presidential elections.

The first step in that process has now been completed, and the results are profoundly disappointing. The technical committee, which consisted of six judges and four academics (three of whom are retired), finalized its proposals on August 20. An official version of its proposed changes has not yet been released, but what looks like a final version has been circulated to various news outlets, and gives a good idea of what the technical committee has planned for the country's future. While a few of the changes that the technical committee offers are significant, the vast majority are not. The draft constitution that the committee has prepared merely tinkers with the 2012 constitution, which itself offered only minor departures from the 1971 constitution.  

If the committee's draft changes are adopted, the new constitution would be firmly placed within Egyptian constitutional tradition, which is very conservative, religiously inspired, corporatist, and not particularly democratic. Although the 50-member constituent assembly may decide to make changes of its own in the following few weeks, it is highly unlikely that any major departures will be introduced, which means there is likely to be yet another unsatisfactory constitution for the foreseeable future. The 2012 constitution (which had been prepared by a political body of drafters) was disappointing for all the opportunities that it missed, and this new draft (prepared by non-political judges and academics) is essentially the same. The few changes that are offered will not make any significant differences to the way people live their lives or to the state's behavior.

The entire approach to constitutional reform can be described as "anti-modern," for at least three reasons. Firstly, it ignores the evidence that has accumulated over decades that Egypt's existing constitutional framework is failing. Any genuine effort to turn a corner and salvage state and society will require much more than just amending minor details here and there; an entirely new framework and a new approach to the constitution is needed, but that is something that most of Egypt's mainstream politicians and most of its leading constitutional experts are not willing to even consider. Secondly, it ignores all the progress that has been made in other countries, including in many African countries, at precisely the same time as governance in Egypt has been regressing. Their constitutions have advanced by leaps and bounds in recent decades, while Egypt has remained static.

Thirdly, the Egyptian state's approach to constitutional reform is designed to prevent any real reform. It insists that the act of redrafting the constitution is the state's obligation and must be carried out within the context of existing state institutions. As such, the judiciary, the military, the police, universities, state sanctioned trade unions, etc. are all given a stake in the process, and their respective clout allows them to defend their territory like a series of tribes; even political parties are treated like just another institution that have interests to defend, rather than as the people's representatives. Within that context, anyone who does not have significant power within the state's existing structure, including the majority of the Egyptian population, mostly notably the weak and vulnerable who live on the margins of society, is essentially ignored. In addition, visionary parties who do not have any specific interests to defend but who do have an interest in exploring overarching solutions to the state's endemic problems are left without a role to play. A more modern and democratic approach to constitutional reform would prioritize those two groups to the exclusion of the entrenched interests that are currently dominating the process.

The manner in which the 2012 constitution was adopted was controversial and divisive for a number of reasons including the role that had been attributed to religion in the constitution. Article 2 of the 1971 constitution provided that the principles of Islamic sharia were the principle source of legislation; that provision was interpreted by the Supreme Constitutional Court (SCC) very narrowly, which had long frustrated many Islamists. The 2012 constitution added two provisions, one which stated that al-Azhar should be consulted to interpret what "principles of Islamic Sharia" should mean (article 4) and another which broadened the scope of the term "principles of Islamic Sharia" to include just about all Sunni Islamic jurisprudence (article 219). Those two provisions did not survive long enough for their implications to become apparent. However, their wording was sufficiently vague such that they might have remained purely symbolic just as easily as they could have led to a legal revolution in which archaic rules from hundreds of years ago may have found their way into Egyptian positive law.

One result of the change that took place in July is that we will probably never know what impact those two provisions might have had on Egyptian constitutional traditions. The technical committee has proposed that articles 4 and 219 be eliminated, which was widely expected given the context. The proposal has already stirred up some controversy given that the (Salafi) Nour party's support to the new ruling authorities was conditioned on those provisions remaining in place. The proposed changes will not have any impact in the immediate term on the way in which Egyptians live their lives, but they remove a tool that hard-line Islamists might have tried to use in the future to impose a harsher vision of society. It is worth noting however that the technical committee maintained article 2, which imposes the principles of Islamic sharia as the main source of legislation in the country. It also kept the distinction that was first introduced in 2012 between "heavenly religions" (Islam, Christianity, and Judaism) and the rest, whose right to practice rituals is curbed. The technical committee also proposed to reestablish the ban on religious parties, but also indicated that political parties cannot "undermine public order," an incredibly vague term that is subject to abuse (article 54).

In terms of women's rights, the 1971 and the 2012 constitutions were both not particularly generous. They both included vague references to morality, to traditional family values, and to women's "obligations towards family and society." The technical committee, which was dominated by men, has essentially maintained the same wording and the same principles in relation to this issue. Women are therefore equal to men within the limits of Islamic sharia, the state is still responsible for protecting the "original values of Egyptian families" (article 10), and the state will also still provide assistance to women to satisfy their "obligations towards family and society" (article 11). This is precisely the wording that caused so many liberals to denounce the Muslim Brotherhood-led process in 2012.

Egyptian constitutional tradition has not been particularly impressive on human rights. Both the 1971 and the 2012 constitutions included long lists of rights, but indicated that each right had to be exercised in accordance with the law, without actually indicating how far the law could go in restricting those rights. The result was that the law was so restrictive that it removed all meaning from these rights for decades. The modern approach to constitutions requires for some detail to be provided on how each right should be exercised, and by providing a list of the types of exceptions that can be made to each right. So therefore, while all constitutions recognize freedom of expression, modern constitutions clearly indicate that free expression does not mean that people are entitled to damage the reputation of others, or to call for ethnic warfare, genocide, etc. They also tend to clearly indicate that the categories of exceptions are exhaustive, which means that governments and parliaments cannot curb expression outside that scope of what is permitted by the constitution. None of Egypt's past constitutions have provided any guidance as to how freedom of expression should be exercised, leaving the matter entirely to legislation, meaning that whoever controls parliament essentially controls what people are allowed to say in public. Amongst other things, even speculating about the president's health in public has been forbidden.

Unsurprisingly, the technical committee did not propose to make any significant changes to that framework. Its draft still maintains that freedom of expression, freedom of association, the rights to strike and to participate in demonstrations are all absolute, but insists that they must be exercised in accordance with the law. No guidance whatsoever is given as to how far the law can restrict those rights. Freedom of the press is theoretically guaranteed but it says in the same breath that it can be restricted for all sorts of vague reasons, including to "protect rights and freedoms and public obligations," and "the requirements of national security" (article 51). The right to publish and distribute newspapers is also supposed to be guaranteed, but it says that the law must regulate the matter, leaving open the possibility that the right may be completely eclipsed (article 52). The state is also given the prerogative to dissolve associations; no criteria is provided but it says that a court order must be obtained prior to dissolution (article 55). Finally, although the right to unionize is supposedly guaranteed, the draft maintains the 2012 constitution's wording on this issue according to which there can only be one union per profession, a regressive rule which threatens to empty the right from all meaning (article 56).

The 1971 constitution was heavily loaded in the president's favor against the parliament. The president had enormous power (including the right to choose anyone he wished to serve as prime minister), but could not be held accountable for his actions. There were no term limits and electoral laws were designed and implemented in a way that rigged the outcome in favor of the incumbent. The 2012 constitution redressed that balance but still granted unfair and undemocratic advantages to the president. Amongst other things, the 2012 constitution gave the parliament a determinant role in appointing and dismissing government, and also granted the prime minister a number of new key powers. On the other hand, the 2012 constitution gave the president unfair and undemocratic leverage over who should head the independent agencies, and also did close to nothing to reform the judicial sector. The 2012 constitution's framework was never implemented as parliamentary elections were not organized in the six months in which it was in force.

The technical committee's proposed changes maintain most of what the 2012 constitution provided, with one or two significant changes. Firstly, the Shura Council, which acted as the upper chamber of parliament and was long regarded as a useless and costly distraction, has been eliminated. Secondly, the president now no longer has any leverage over who will head the independent agencies. Both of those changes are welcome. Therefore, under the technical committee's draft, the president's powers are relatively restricted, and the parliament is given wide discretion to form and dismiss governments, without necessarily having to resort to fresh elections on each occasion. If implemented, it could allow more diversity in policy formation and decision making, both of which are desperately needed in Egypt.

The provisions on the judiciary are somewhat more surprising. Although nominally independent, Egypt's judicial system has been criticized for some time for having accumulated significant privileges within the state without necessarily being independent from political pressure. This is therefore an area that could do with significant reform, starting with the constitution, but the technical committee's proposed changes will likely prevent reform rather than encourage it. In particular, the committee proposes that any legislation on judicial reform that is opposed by the judicial sector must be approved by a two-thirds majority in parliament, effectively granting the judiciary a veto on the matter (something that even the military does not have under the proposed changes) (article 158). Given how accustomed the courts have become to their status quo, if this proposed measure is instituted, it could very well be used by entrenched interests to prevent effective reform of their sector.

Egypt has little genuine decentralization to speak of, and strongly favors its major cities (Cairo and Alexandria) over virtually all other areas, which suffer from severe neglect in terms of infrastructure and services. The technical committee's proposed changes will not make any difference in that regard. It maintains the 2012 constitution's wording, according to which the appointment and powers of the governors will be determined by law. The law, as it currently stands, and there is no prospect of it changing any time soon, provides that the central government appoints governors at will. While the 2012 constitution was still in force, Morsi was heavily criticized for having selected a series of incompetent governors, including one who was said to have ties to terrorist groups. However there is nothing in the 2012 constitution or in the law that prevents the types of appointments that he made. If Egyptians would like to prevent that type of phenomenon from recurring, they would be advised to campaign in favor of a new article in their constitution that would require for governors to be elected and that would clearly define their powers. Maintaining the constitutional framework as it currently stands means that decentralization will never be achieved in Egypt.

On civil/military relations, the technical committee has essentially maintained all of the 2012 constitution's innovations, with only superficial changes. Prior to the 2011 revolution, the military enjoyed a significant amount of privileges within state and society, but the constitution was mostly silent on its status, leaving the matter to be determined by law or custom. The 2012 constitution codified a number of those practices. Amongst other things, it provided that the minister of defense had to be an officer, that the military's budget should only appear as a single figure in the annual state budget law, and that civilians could be tried in military court. The technical committee maintained all of those principles and any changes it made serve only to strengthen the military's privileges. For example, according to the draft, the minister of defense should not only be drawn from the officer class, but must also be approved by the Supreme Council for the Armed Forces (article 170).

Time will tell when Egypt will break out of this morass, but the hope that many shared (myself included) at the start of 2011 that the revolution would allow for Egypt's constitution to make a huge leap forward and to serve as a shining light for the rest of the world has essentially receded for now.

Zaid Al-Ali is a senior advisor on constitution building at International IDEA. Follow him on Twitter @zalali.



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