Egypt’s New Draft Constitution of 2013: An Introduction and Appraisal

—Mohamed Arafa, Alexandria University (Egypt) and Indiana University McKinney School of Law

The Egyptian interim government supported by the Egyptian al–qwaat al–mosellaa(h) (military) recently released the new draft Egyptian Constitutional Charter. This draft Constitution is intended to replace, via amendment, the more Islamist–oriented de facto 2012 Constitution established during the recent reign of the Muslim Brotherhood (“MB”) under the leadership of the removed Islamist President Mohammad Morsi. The interim government and the constitution’s drafters (a committee of 10 legal experts plus 50 others) anticipate a large turnout to approve this constitution in an upcoming referendum. A large margin of approval would legitimize the existing transitional government, led by Interim President ‘Adli Mansour (Chief Justice of the Supreme Constitutional Court ‘SCC’), as he steers Egypt toward a more inclusive and credible democracy.

The draft Constitution seeks to reshape the institutions of the modern state, entrench public freedoms and rights, create a real separation of powers, establish effective checks and balances, and respect Egyptians’ sensible moderate religious beliefs. The draft also authorizes governmental institutions to respond to any terrorist activity, violence, and criminal acts committed by anyone (whether from the MB or not), and moreover establishes transparent procedures to ensure the propriety of the governmental response.

With regard to the structural design of the presidency, the President may serve two four–year terms and candidates must be at least 40 years old, Egyptian and born to Egyptian parents. Neither candidates, their parents, nor their spouses may have foreign nationality, and dual nationality is outlawed. Parliament is authorized to vote no-confidence in the President and, if a two–thirds majority approves, it may initiate a public referendum on whether there should be early presidential elections. Additionally, the People’s Assembly can impeach the President with supermajority approval in cases of constitutional violations, high treason, and the commission of a criminal act constituting felony under the Egyptian Penal Code. The president may issue a pardon or mitigate a sentence after consulting with the Cabinet, and public amnesty may only be granted by law.

The draft’s preamble declares that Egypt seeks to “build a democratic, modern country with a civilian government.” The President must appoint a Prime Minister, who must in turn be approved by Parliament. If the choice is denied, the President must accept the choice of the political party or coalition that holds a majority in the house. If that choice does not obtain majority approval, Parliament must be dissolved and new elections held.

With regard to religion, Article 2 remains unchanged since its entrenchment in the 1970s. It states that “the principles of Sharie‘a [Islamic law] are the main source of legislation.” However, Article 219 of the abrogated 2012 Charter—which had been recommended by Islamists—has been omitted in the latest draft, as it was intended to be a tool for theocracy. The draft’s preamble now state that the Supreme Constitutional Court’s interpretation of Sharie‘a will prevail. Moreover, Al–Azhar, the primogenital and most prestigious Islamic institution in the world, is to be the “primary reference” in religious sciences and Islamic issues, but it will not have ultimate authority over any legislation. Likewise, the freedom of belief is “absolute,” not only “protected” as it was in under the 2012 Charter, and the freedom to practice religion and the establishment of houses of worship are constrained to believers in “Abrahamic or Divine religions”—Islam, Christianity, and Judaism—and subject to State laws. Also, the principles of the laws of Egyptian Christians and Jews are the main source of laws regulating their personal status, religious affairs, and selection of spiritual leaders. Furthermore, political parties may not be “molded on the basis of religion, sects, gender, race or geography,” and parties cannot participate in activities against the principles of democracy, be secretive or have military or paramilitary wings. The abrogated 2012 Charter had stated only that political parties could not “discriminate” on religious basis.

The new draft proscribes any discrimination against women and calls for complete equality between men and women. It urges the State to make arrangements that can guarantee women adequate representation in elected bodies and [local] councils and to be appointed in the main judicial bodies (Public Prosecution and State Council) for the first time in the Egyptian history and calls for proper representation of Christians, youth, and handicapped people in the next Parliament, with the percentage of seats assigned for these categories to be established by law.

With respect to the military, the Defense Minister must be a member of the armed forces and will be al–qa’ed al‘aam lil al–qwaat al–mosellaa(h) (Commander–in–Chief). After the ratification of this Charter and during the first two consecutive presidential terms (eight years), the Supreme Council of the Armed Forces (“SCAF”) must approve the appointment of the Defense Minister, which appears to place the army above civilian oversight. The military budget will remain beyond scrutiny, with the National Defense Council (“NDC”) keeping jurisdiction and only the overall total available. Parliament will not have the right to discuss the military budget in detail. Civilians may still be tried by the military courts, in specific [exclusive] circumstances “except for crimes that represent a ‘direct attacks or assaults’ against military facilities, military barracks, or whatever falls under their authority; stipulated military or border zones; its equipment, vehicles, weapons, ammunition, documents, military secrets, public funds or military factories; crimes related to conscription; or crimes that represent a direct assault against its officers or personnel because of the performance of their duties.”

The new draft was created in the context of a social, political, and economic revolution that had as one of its essential objectives a rehabilitated focus on social and economic justice. The draft therefore enshrines personal and political rights in stronger language than previous constitutions. Citizens have the right to work, freedom of speech, dignity, assembly, strike, association, thought, demonstration, culture, movement, residence, migration, and to form unions and syndicates but these still can only be practiced “according to the law.” The State “guarantees the achievement of equality between women and men in all civil, political, economic, social, and cultural rights” and provides protection to women from “any form or act of violence.” Slavery, human trafficking, sex trade (pornography), and “abuse of human beings” are forbidden. Also, public posts (jobs) and employment is a right for citizens on the basis of merit, with no favoritism or mediation. The draft also includes a limitations clause: “Rights and freedoms of citizens may not be suspended or reduced and no law that governs the exercise of rights and freedoms may restrict them in such a way as infringes upon their essence and foundation.” The draft moreover includes a system of taxation designed to achieve social justice and economic development; it furthermore provides that public taxes cannot be established, modified, or cancelled except by law, and it prohibits exemptions except in cases prescribed by law.

Under the new draft, the rule of law is the basis of governance in the State and there is no crime or punishment except by a virtue of law. The clauses regarding the arrest of citizens say, among other things, that “the conditions for preventive arrest will be determined by law.” Anyone arrested must be referred to interrogators within twenty–four (24) hours, an attorney must be present at the investigation and cross–examination, and the detainee has the right to “remain silent.” The draft provides an appeal remedy will be available against any illicit detention and the accused is innocent until proven guilty. The State’s power to seize electronic or regular mail and to disconnect or disable means of communication like the Internet are to be determined and governed by law. Artists, writers, and filmmakers are guaranteed freedom to create, but the media can be censored at times of war and public mobilization. Citizens have the public right to access information (official documents, statistics, and data) subject to national security interests.

Torture of “all sorts have been criminalized, with no statute of limitations.” The most significant point in this document is the clause that Egypt will be bound by international human rights agreements and covenants signed and ratified by the State.

The draft Constitution also protects children from economic abuse, sexual exploitation, violence and mistreatment. On the freedom of expression, media, and press, it is granted in “absolute” terms and journalists may be arrested and jailed—after trial—only if they harmed national security or the economy “but not for expressing an opinion.”

On socio-economic rights, the abrogated 1971 Constitution was silent on health, but the 2012 Charter specified that “All citizens are entitled to health care, and that treatment should be free for indigents.” The 2013 document goes much further, “compelling 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 Gross Domestic Product (“GDP”) to health in its annual budget…Denying any form of medical treatment to any human in emergency or life–threatening situations is a crime.” Also, the right to free education was mandatory and primary education was obligatory under the 1971 Constitution and the 2012 Charter stipulated that “every citizen has the right to high quality education, and the State must allocate a sufficient percentage of the national revenue to technical education” without signifying what that sufficient percentage should be. The new draft offers even more explanation, clarifying that the objective of public education is to “build the Egyptian character, maintain national identity, plant the roots of scientific learning . . . of tolerance and non–discrimination and no less than 4 percent of GDP should be allocated to education, and the State should ‘gradually’ increase that until it reaches ‘global rates.’” Additionally, the “State guarantees the independence of universities, scientific and linguistic academies, teachers, and university professors.”

The draft Constitution protects the right to natural resources, for adequate housing, a healthy environment, clean and safe food and sufficient water, and also assures and recognizes rights and interests for fishers, farmers, workers, elderly, youth, handicapped individuals, and Egyptians living abroad. Further, the State shall grant political asylum to any foreigner, encourage waqf (charitable endowments) and social security services (insurances and pension funds), and protect intellectual property rights.

With regard to reforms of the vertical system of government, the 2013 draft, just as its ancestor, provides that “the law regulates the manner in which governors and heads of other local administrative units are selected, and defines their mandate,” though the only saving grace is that local councils (which are elected) are empowered to withdraw confidence from the heads of local units, but those decisions can be overturned by the central government if they are considered to “damage the public interest.”

The draft Constitution does not substantially change the judiciary. Under the 2012 Constitution, the Attorney General was selected by the Supreme Judicial Council (“SJC”) and the President, but now the Council acts alone. In addition, the abrogated 2012 Constitution left the Supreme Constitutional Court’s configuration to legislation but the 2013 draft states the “Court’s assembly will select its President and the number of justices entirely on its own” and also provides that the “judiciary’s budget” will, for the first time, be integrated into the annual State budget as a “single figure.”

Finally, it should be noted that the draft does not bring significant and substantial reform to the security sector (police); the text retains the very substantial independence and privilege granted to the security sector by the abrogated 2012 Constitution.

In theory, this draft constitution should be a step forward for Egypt. Yet it is unlikely that this Constitution alone will end Egypt’s polarization, political and economic crisis, and ultimately bring effective stability and true democracy.

Suggested Citation: Mohamed Arafa, Egypt’s New Draft Constitution: An Introduction an Appraisal, Int’l J. Const. L. Blog, Dec. 30, 2013, available at: http://www.iconnectblog.com/2013/12/egypts-new-draft-constitution