An Examination Of Egypt's Draft Constitution Part III: Presidential Powers, Status Of Military And Judiciary, Civil Freedoms

Introduction

Previous reports in MEMRI's series on Egypt's draft constitution dealt with the controversial articles regarding the relations of religion and state in Egypt.[1] The present installment addresses the other central issues that have triggered public criticism of the draft constitution, which is to be brought to referendum on December 15, 2012.[2]

A. Presidential Powers – Compared to the 1971 constitution, and compared to the sweeping powers assumed by President Muhammad Mursi in recent weeks,[3] the present draft constitution does restrict the president's powers, as many Egyptians had hoped it would after the January 25, 2011 revolution. For example, the draft constitution limits the president to two four-year terms in office (Article 133), unlike the previous constitution, which did not set any limits on presidential tenure. Moreover, unlike the previous constitution, the new one does not permit the president to dissolve the parliament at will, but only by referendum (127), and the president is no longer authorized to declare a state of emergency of unlimited duration (148). Also, the prosecution of a president is possible under certain conditions involving suspicion of criminal activity or treason (152).

However, many of those opposed to the constitution claim that it still leaves the president with excessive powers[4] that do not exist in other presidential regimes around the world. For example, some pointed out that according to the draft constitution, the president appoints the prosecutor-general (173),[5] as well as the heads of the bodies charged with supervising the president himself (202).[6] It was also noted that, unlike in the previous constitution, the president appoints the judges of the Supreme Constitutional Court (176)[7] and must approve every law legislated by parliament (104). Unlike in the past, the president is no longer entitled to appoint some 30% of the members of the Shura Council, but still has the right to appoint up to 10% of them (Article 128).[8] It was also noted that the article authorizing the president to appoint and dismiss civil and military personnel (147) virtually enables him to fire 6,000,000 civil servants and replace them with appointees of his own choosing,[9] and that the new constitution, unlike the previous one, does not require him to appoint a vice president.

B. Human Rights and Liberties – Like the previous constitution, the new draft constitution enjoins the state to guarantee liberties such as freedom of speech and opinion (45), congregation (53), and movement (42), and human rights, such as the right to live in dignity (31), and the right to employment (64) and education (58). Moreover, the new draft constitution guarantees some rights and liberties that were not mentioned in the previous constitution, such as the right to demonstrate (50), freedom of information (47), the right to establish NGOs (51) and newspapers (49), and the restriction of media censorship to wartime only (48) (unlike the previous constitution, which enabled censorship as part of a state of emergency as well). The new draft also determines that prisons will be monitored (37), and forbids prisoner torture (36).

On the other hand, to the chargin of human rights organizations and liberal circles in Egypt, the draft constitution does not include any expression of commitment to international conventions on human rights and liberties.[10] The detractors of the draft constitution also point out that it permits the shutdown of NGOs (51) and newspapers (48) by court order, and that, unlike the former constitution, it includes no explicit clause on gender equality, and no explicit ban on discrimination against religion minorities or women; instead, it includes only a general clause calling for equality among citizens and prohibiting discrimination (33). In fact, the new constitution opens the door to discrimination against non-Sunni Muslims, including Shi'ites, by stating that Sunni Muslim jurisprudence is the primary source of legislation (219). It also restricts freedom of religious worship to members of the monotheistic faiths (43).

C. Status of the Military – The previous constitution did not address military legislation and budget, and whether civilians may be tried in military courts. Popular demands to address these issues in the new constitution arose after Mubarak's ouster, during the rule of the Supreme Council of the Armed Forces (SCAF), which sought to establish the military's supremacy in the constitution, as reflected in the Constitutional Principles document drafted by its deputy prime minister, Dr. 'Ali Al-Silmi, in November 2011. Articles 9 and 10 of that document granted the SCAF the exclusive right to handle the affairs of the military and its budget, and the authority to veto any legislation pertaining to the armed forces.[11] This document, which sparked widespread criticism and was abandoned with the appointment of a new government, triggered public demands to restrict the military's authority in the new constitution.

The draft constitution indeed addresses the controversial issues. It does not grant the military exclusive authority over its own affairs, yet it does grant it substantial independence and influence regarding military decision-making. It determines that the military budget will not be debated by the parliament, which handles the rest of the national budget, but rather by the National Defense Council – which includes the president, the heads of parliament, the head of intelligence, the chief of staff, and the heads of the sea, air, land, and operations branches of the military (197). The president must also consult this body before declaring war (146), and the parliament must consult it regarding any legislation related to the military (197) – two provisions that did not exist in the previous constitution. Furthermore, the draft constitution enables the prosecution of civilians in military courts in cases of offenses "that harm the armed forces" (198); and, following pressure from the military delegates to the Constituent Assembly, articles relating to the military judiciary system remain under the section dealing with the military, as opposed to the general judiciary section (198).

D. Status of the Judiciary – Like the previous constitution, the current draft is committed to preserving the independence and autonomy of the judiciary (168). However, there are several new key articles that have been met with outrage among many judges in Egypt, especially those of the Supreme Constitutional Court, particularly the one authorizing the president to appoint the prosecutor-general (173), as well as the justices of the Supreme Constitutional Court itself, including its Chief Justice (176). This article overrides a law set forth by the SCAF after the revolution that determined that the head of the Supreme Constitutional Court would be elected by a general assembly of judges.[12]

In addition, the draft constitution includes several articles that directly challenge the authority of the Supreme Constitutional Court, in that they override previous rulings by this court. For example, it determines that members of the National Democratic Party (NDP) – the ruling party during the Mubarak era – are banned from serving in public office for 10 years (232), while the Supreme Constitutional Court ruled that this law contravened the equality clause of the constitution and that it should be applied only to members of the previous regime found guilty of corruption.[13] Furthermore, the new draft determines that the parliamentary elections will continue to include candidates from party lists alongside independent candidates (231) – a system that enabled the Muslim Brotherhood (MB) to win a majority of seats in the previous People's Assembly, and which the Supreme Constitutional Court ruled unconstitutional, leading to the disbanding of this assembly.[14]

In response to the criticism of the draft constitution, its proponents, chiefly the MB, underscored its advantages by focusing on articles likely to appeal to the general public – such as the articles limiting presidential authorities – while downplaying its controversial articles. For example, in his December 1, 2012 speech, in which he called for a referendum, Mursi said: "For the first time in Egypt's history, the constitution supports the people's will and limits the powers of the president... who can no longer dissolve the parliament [at will], but only by referendum."[15] At a gathering intended to educate the public on the new constitution, the MB's secretary-general in Giza, Dr. Hilmi Al-Gazzar, explained that the president will no longer be entitled to declare a state of emergency or a war without the approval of parliament.[16] Yet another example of this focus was an informational video posted on the MB's official website which explains in simple language the constitutional articles dealing with salary caps for senior officials, workers' right to strike, and social security and various other services. The website also posted reports listing the articles that improve the people's lot. One such report, by Muhammad Kamal, lists 41 articles dealing with ensuring social justice.[17]

Egyptian Legal Expert: There Is Nothing New In The Draft Constitution

In an article titled "Ten Reasons To Oppose The Constitution Draft Proposal," published in the independent Egyptian daily Al-Shurouq, Egyptian economist and legal expert Ziyad Bahaa Al-Din, a former member of the People's Assembly and a present member of the Egyptian Democratic Party, outlined the main public criticisms of the above-mentioned constitutional articles. Bahaa Al-Din harshly decried the way in which the Islamic majority in the Constituent Assembly had hijacked this assembly and then finalized and approved the draft with lightning speed. He added that the draft was being imposed upon the people, and had come to symbolize schism and the trampling of the rule of law, concluding: "The way this constitution has been forced upon society, and the claim that we must choose between accepting it and living under a tyrannical constitutional declaration, is reason enough to object to it." The following are excerpts from his article:[18]

"I really tried to examine the draft constitution through the eyes of someone who sees the glass as half full, not half empty. But, sadly, I eventually found myself forced to reject it, for 10 main reasons:

"First, the debate on the Islamic shari'a was unfortunately presented as a debate on the value of the shari'a itself, or [on the value] of faith, while it is [actually] a purely legal question: will legislation remain in the hands of the elected parliament and the justice system in the hands of the courts, or will there be a new source of authority – Al-Azhar's Supreme Council of Clerics – with the dictates of shari'a receiving specific legal recognition?...[19]

"Second, the constitution, which we hoped would bring about clear achievements for the Egyptian people in terms of economic and social rights and human development, includes the usual flowery phrases without imposing specific standards or goals upon the state, and therefore offers [nothing] new."

Pretty Words About Human Rights, But Devoid Of Content

"All imaginable rights were mentioned in the draft constitution, just as they were in many previous constitutions – [including] education and scientific research (Articles 59 and 61), healthcare (62), employment (64), social security (65), benefits (66), housing, water, and food (68), and even sports (69), and the care of children (70) and the disabled (72). However, there is no requirement [that the state] produce results, allocate resources, or even do anything more than just talk. In my estimation, this part of the constitution, which has not received the [public] attention it deserves, is one of the weakest sections, because it will not bring about a noticeable improvement in the public's standard of living, and will not meet its needs."

The Draft Constitution Does Not Ensure Equality Or Prevent Discrimination Between Citizens

"Third, the new draft constitution does not ensure equality among citizens or preclude discrimination among them. [True,] Article 6 states that 'Egypt's political system is based upon citizenship, under which all citizens are equal in rights and duties'; Article 9 states that 'the state shall ensure safety, security, and equal opportunities for all citizens without discrimination'; and Article 33 stipulates that 'all citizens are equal before the law. They have equal public rights and duties without discrimination.'[20]

"However, these pretty words are empty, since the 2012 draft constitution does not include a single text that explicitly prohibits discrimination between men and women in rights and duties, jobs, education, healthcare services, or benefit payments. Nor does it contain a single text explicitly prohibiting discrimination on the basis of religion or belief. It contains no explicit statement about the state's responsibility to end the various kinds of discrimination, or any prohibition against hatred and incitement on a religious basis. It does not criminalize forced immigration or prohibit collective punishment, nor does it defend cultural pluralism, though Egyptian society is characterized by cultural richness and diversity... The new constitution neither defends nor ensures equality between citizens because it largely ignores this issue, perhaps in order to avoid embarrassment, or else out of the assumption that ignoring it is enough – when [the fact is that] equality among the sons and daughters of a nation is the most important message in all the constitutions of the world.

"Fourth, many of the suggestions made by [various] professional unions, associations, and parties regarding rights and guarantees they hoped would appear in the constitution ultimately went unheeded. Sadly, many of those who read the final version of the draft constitution assess it only according to what they find in it, and ignore what is absent and could have been included in it. [For example], Article 70 on the rights of the child does not define the age of minority and does not defend children [against abuse] inside the family. The constitution does not include any text banning torture (Article 36 prohibits the torture of prisoners, but not of citizens in general).

"In addition, [the Constituent Assembly] withdrew its original [intention] to ban imprisoning [journalists] for publication violations; nor does the constitution include the proposed prohibitions on human trafficking, underage marriage, and the violation of women's rights. Additionally, [the Constituent Assembly] did not heed the suggestion to include a clause guaranteeing resources and services for women in order to help them combine their roles in the family and in the [job market], and defending women from violence and guaranteeing their right of inheritance..."

No Change Was Made To The Parliamentary Election Process

"Fifth, turning to [the issue of] the state's political system, we find that, with regard to the legislative branch, the draft constitution leaves the [upper house of parliament], the Shura Council, in place, though [this body] is superfluous – especially since, according to the draft constitution, it is elected by the same procedure as the Senate [i.e. the lower house of parliament, previously known as the People's Assembly]. This means that we will have two houses of parliament, [both elected] in the same way and with more or less identical authorities, [except that] one will convene in a green hall and the other in a red hall, and the two will doubtless spend most of their time smoothing out their differences and debating rules that they must agree on.

"Sixth and more importantly, the draft constitution includes a puzzling clause (Article 231), which states that it has suddenly been decided, without prior warning, that 'two thirds of the seats [in the parliament] are to be won by a list-based electoral system and one-third by individual candidacy, with parties and independent candidates allowed to run in each.' This [clause] is puzzling because... that was the procedure used in this year's [People's Assembly] election [held between November 2011-January 2012], which was bad because it combined all the drawbacks of the list-based system and all the drawbacks of the individual [candidacy] system. Moreover, this addition [to the draft constitution] was made at the last moment, and precluded an understanding between the political forces on this issue [by preventing] a debate on it.

"Seventh... Article 229... reinstates the reservation of half the seats in parliament for workers and farmers. But, since the purpose of this article is [merely] to gain popular support rather than to achieve useful results, [the article] defines 'worker' as 'anyone who is hired by another for a fee or salary.' This basically refers to the entire Egyptian people, with the exception of businessmen and white collar workers..."

Opening The Door To Reinstating Military Courts' Control Over Civil Society

"Eighth, when it comes to the armed forces, the [Constituent Assembly] did not realize all the expectations or heed all the suggestions that were made by the political forces over the last year. [At first,] the principle that civilians are not to be tried in military courts seemed to be taking root in the [draft] constitution, but then, along came Article 198, which ignored this and restored the permission to try civilians in military courts for offences against the armed forces (to be defined in a subsequent law). It was also stated that this law (to be passed at a later date) will define the rest of the authorities of the military court system – which opens the door to restoring the control of the military courts over civil society.

"As for the complicated issue of the armed forces' budget, and the question of whether the parliament is authorized to debate it as it debates the state's budget as a whole, Article 197 ignores the numerous alternatives and impartial concepts that are used around the world to maintain the balance between considerations of national security and the people's right to oversee the national budget. [The Constituent Assembly] chose the worst alternative, granting sole authority to discuss the military budget to the National Defense Council, which is to include, from the legislative branch, only the heads of the People's Assembly and the Shura Council, while the majority of the members of this council are from the military itself. What kind of oversight is this?"

The President Still Has Absolute Authority

"Ninth, regarding the president of the republic, it is surprising to hear from the defenders of the constitution that his rule and authority are severely curtailed. This may be true, but how do you respond to the fact that, [according to the draft constitution,] the president of the republic is the head of the executive branch (Article 132)? [Moreover,] he appoints the prime minister (139), determines the country's general policy (140), is in charge of defense, national security, and foreign policy (141), heads government meetings whenever he wants (143), and ratifies international treaties (145). He is [also] the commander-in-chief of the armed forces (146), and [may] appoint and dismiss civil and military personnel (147), declare a state of emergency (148), grant pardons and commute the prison sentences of convicted criminals (149), and call for referendum (150). He appoints [up to] 10% of the Shura Council delegates (129), as well as the members of the Supreme Constitutional Court (176) and the heads of all oversight mechanisms (202), and he is the head of the National Security Council (193).

"Furthermore, the draft constitution does not require him to appoint a vice president, so he makes all these decisions without involving a possible successor. If this is not absolute authority, what is? If you require further evidence of the expansion of the president's authority, look at the government's powers (159), and you will see that it is devoid of means and authority and is limited to [roles of] 'collaborating [with the president],' 'directing' [and] 'preparing' projects, and 'following [them] up'. All these are authorities befitting the office of the president of the republic, not the government that runs the country."

The Constitution Is Being Forced Upon Society

"Tenth, let us set aside language and look at the conditions under which this constitution is being issued. How can we ignore the fact that it was drafted by an assembly of questionable authority, [since] the People's Assembly that appointed it has been disbanded by court order? [How can we ignore the fact] that one political faction insisted on controlling it from the start? That all delegates of the secular stream withdrew from it in protest over its takeover by the [Islamic] majority? That it was boycotted by Egyptian churches? That two professional unions – the Attorneys Union and the Journalists Union – objected to its activity? That the president of the republic issued a tyrannical constitutional declaration to bullet-proof its makeup and its resolutions?[21] That the Supreme Constitutional Court was besieged so it wouldn't rule on it? And that its final draft was hastily ratified?

"How can we hold a referendum on a constitution that was supposed to be agreed upon, when it has [actually] become a symbol of schism and of trampling the rule of law? The finished product cannot be [viewed] separately from the circumstances and method of its issuing. The way this constitution has been forced upon society, and the claim that we must choose between accepting it and living under a tyrannical constitutional declaration, is reason enough to object to it.

"For these reasons, I call upon you to reject the constitution. Do not believe that the referendum is about choosing between a civil [state] and a religious [one] because, in reality, the choice is between democracy and dictatorship. Don't believe that consenting to this pathetic constitution guarantees us stability, security, and economic prosperity – because the only things that will bring us closer to all those [goals] are concord and unity, rather than division and schism. Do not be afraid to object to this constitution out of a belief that [your] objection will lead to chaos. There are many possible alternatives that are preferable and can lead to true stability. Do not be afraid to object to the constitution, because it essentially does not fit this country."

President Mursi sets the Egyptian constitution in stone[22]

*L. Lavi is research fellow at MEMRI.