The text certainly 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 to the disabled; the list of socio-economic rights has been lengthened and is more detailed than it has ever been...
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... The constitution also does not offer any convincing mechanism for the enforcement of rights: apart from even more independence than before, the judicial sector remains unreformed and no additional mechanisms have been created, meaning that those additional rights that are provided for will almost certainly remain unprotected.
Thus, those seeking stronger rights for vulnerable groups will find significant comfort in this text. However, anyone hoping for specific mechanisms for those rights to be enforced will be sorely disappointed. After all, without democratic, effective, transparent and accountable institutions to enforce rights, they will remain just as theoretical as they did under the 1971 constitution, which is something that Egypt can ill afford today.
The philosophy behind the new constitution
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.
Some would no doubt argue that excluding organisations such as the Brotherhood from authority is a worthwhile objective, and that there is nothing wrong with a constitutional framework being designed with that in mind. 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 defence, 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.
Fundamental rights
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 which provide no protection whatsoever against abuses by the executive branch of government. The 1971 provided that “freedom of opinion is guaranteed” and indicated that individuals were free to express their opinions “within the limits of the law”. Over the years, a very significant body of law was built that prevented Egyptians from expressing views on a large number of areas, including vaguely defined national security issues (which extended so far that it was prohibited to discuss the former president’s health). When the Muslim Brotherhood-led constituent assembly set itself to amend the constitution in 2012, their only contribution to freedom of expression was to remove the reference to limitations as determined by law. This gave the very false impression to many that expression was suddenly now absolute.
How is it possible to know that the 2012 constitution’s provision on freedom of expression was false and dishonest? Firstly, because the constitution itself contained very 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; finally, a very badly drafted provisions prohibited defamation. The second indication was much broader, but also very obvious: in all countries around the world, there are always limitations on speech, including prohibitions against defamation and incitements to violence; the question is therefore not whether there should be limitations, but which limitations will exist. The Brotherhood-led drafting committee therefore either missed the point or deliberately sought to mislead Egyptians by fooling them with promises of the type of free, unlimited speech, that does not exist anywhere in the world, and was certainly not about to come into existence in Egypt.
So what did 2013 constitution’s drafters contribute to this issue? Close to nothing. The wording that was introduced in 2013 is exactly the same wording as under the 2012 constitution. The same empty promises therefore, and the same determination to avoid genuine reform of Egypt’s constitutional framework. To make matters worse, that same approach was adopted with respect to the freedom to 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. Fundamental rights are not in good shape in Egypt.
What would a real reform effort in this area have looked like? At a very basic level, it 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 have been on the books for decades and never provided any protection to the ordinary citizen. A real effort at reform would have required explaining in more detail what freedom of expression actually includes, namely the types and categories of speech that are allowed, including the right to criticize public officials, a right that has long been denied or under threat in Egypt and across the Arab region. It would also have required an admission in the constitution itself that speech will be limited, and it would have required a debate amongst the constitutional drafters as to what categories of limitations are permissible in a country such as Egypt.
As with the 2012 constitution, one has to dig through the text to try to ascertain the types of limitations that might exist on speech, and there are many...
It would also have been good for the constitutional drafters to make a serious effort at drafting a limitations clause. Many modern constitutions included limitations clauses 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 (which can obviate the need for detailed exceptions in relation to some rights). Although Egypt’s new constitution does include a limitations clause, its wording, according to which legislation cannot limit rights and freedoms in a way that “infringes upon their essence and foundation”, is very weak and would be appropriate only for countries that have a strong tradition of judicial interpretation and independence.
It is remarkable that the Egyptian state has to be forced to spend 3 to 4% of GDP on essential socio-economic rights when other countries spend several times that amount every year.
The problem, as always, is that the people will invariably have to rely on government to transform these aspirations into concrete improvements in their standards of living, and on the courts to oversee government action. Indeed, the 1971 and 2012 constitutions both included generous rights, most of which remained theoretical. The problem was never that the list was not long enough, but that the state did not offer any effective implementation mechanisms.
The system of government
According to article 146, the president nominates his own candidate for the prime minister’s position. If that individual does not obtain confidence from parliament, the president must nominate the largest parliamentary bloc’s candidate. If that individual also does not obtain confidence, then parliament is dissolved. Previously, under the 2012 constitution, a third step allowed for parliament on its own without any involvement from the president to try to set up a government. The new two-step process as established by the 2013 draft is high risk, and clearly subject to abuse: the largest parliamentary bloc is not necessarily a majority, and so therefore one can imagine many scenarios in which that bloc’s candidate would not be granted confidence. Under the new two-step process however, parliament will be under enormous pressure to accept the nomination, given that it will not have the opportunity to form a government on its own. To make matters worse, the president has been granted the 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.
The president maintains the power to appoint 5% of the parliament’s members (article 102), giving him a very unfair advantage at all stages of the legislative process. Under the 1971 and 2012 constitutions, this appointment power was justified on the basis that the president would only use it to ensure that minorities and vulnerable groups were properly represented in the legislature. The difficulty with that justification was always that the president was never under any constitutional obligation to use his power for that purpose, and that in any event anyone that he appointed would automatically rally to his side at crucial junctures.
here has been for some time a global trend towards decentralization for a very obvious reason: it brings policy formation and democracy closer to the people, and often allows for local problems to be resolved far more efficiently than through a centralized system of government. 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 policy makers 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. The reality however is that centralization has clearly 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 to change their situation given that local officials are appointed by Cairo and are therefore not accountable to the people who live in the provinces themselves. A common sense and very basic partial solution to this problem would have been to require for governors to be elected by the people, or at least for them to be indirectly elected by local councils.
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 any 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). To make matters worse, the 2013 draft does not provide any indication whatsoever as to what areas governors and local councils will actually be responsible for.
Government and parliament are unlikely to provide relief, and local government is essentially hopeless, leaving the courts as one final possibility to seek redress. Prior to 2011, the courts were generally regarded as being ineffective, were often accused of corruption, and were not usually regarded as being an adequate means to protect rights (with some notable exceptions). 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). On the Supreme Constitutional Court’s composition, whereas the 2012 constitution left the matter to legislation, the 2013 draft clearly indicates that the court’s assembly will select its president and even the number of judges who will sit on its bench 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. Although other countries (including Australia) also follow similar practices, it is on the condition that the judicial sector is accountable in other ways, including through submitting an annual report that justifies its expenditure to parliament; no such condition is imposed under the 2013 draft.
n general, there is no question that judges, courts and judicial councils should be independent from the other branches of government. However, in a country like Egypt where courts are generally considered to be ineffectual, increasing judicial independence before operating wholesale reform means that the negative practices of the past will now become much more difficult to change.
Amongst other things, the military is alone 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); the minister of defense must be an officer (article 201), who for the first 8 years of the constitution’s application must be approved by the Supreme Council of the Armed Forces (article 234).
What is to be done?
The C50 was composed almost entirely of individuals who represent special interests. Many observers were rightly satisfied that representatives from the Church, al-Azhar, and other recognized institutions were included; the difficulty however was that those representatives are only interested in a very narrow set of issues. Representatives of religious institutions have an interest in religion and national identity; representatives from Egypt’s agricultural community are equally only interested agricultural issues and in their own representation in parliament, etc.. 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 6 or 7 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 in any way to present an alternative vision to the current constitutional framework. If and when they sought to introduce something entirely new, their ideas would sometimes be entertained, sometimes ignored or rejected, and in the end they were mostly outvoted by the rest of the C50’s membership.
If the above analysis is correct, and if the 2013 draft fails to deliver any significant improvements in the lives of most Egyptians over the coming few years, then clearly it will be high time to declare the current constitutional framework dead and to replace it with something completely new. The question then will be who should be responsible for drafting the text and what mechanisms should be followed.
Just about everyone has been given a chance to reform Egypt’s constitution since February 2011, including the military, senior academics, judges, religious figures, senior bureaucrats, state officials, etc. 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.
To achieve the promise of a better future, radically new ideas will need to be developed. The C50 did not deliver, which means that constitutional reform is clearly far from over in this country. The question now is how long will it take before Egypt’s broad spectrum of elites (including the Brotherhood and the forces that the C50 represents) allow for such a process to begin?
