Reforming the Constitution of Egypt: An Ugly Institutional Competition

Constitutional reform is often a key component of any political transition, either to establish a more democratic regime or to help strengthen the rule of law. Although constitutions are recognized as the fundamental law in any given country, they still are a rule of law enforcement tool and reflect the strong or weak application of the rule of law. A successful process of constitution-making requires a legal framework to determine its main features, such as: (a) fundamental constitutional principles that will guide the process; (b) rules and mechanisms to decide the system of governance and establish constitutional organs and institutions; (c) mandates and guarantees for oversight of the drafting process; (d) enforcements mechanisms that will guarantee the constitution its binding effect; (e) and a timeframe defining the schedule of the whole process. Despite these main features, the structure of the drafting body/committee plays the pivotal role in rendering the process of constitution-making successful. In fact, a drafting committee that calls for meaningful wide input from different sectors of society, including the public alongside legal and political experts, guarantees diversity of views, settles political rivalries, and confers greater legitimacy on the drafting process.

In Egypt, where two regimes have been toppled by popular uprisings in 2011 and 2013 respectively, major constitutional reform took place. However, records from the constitution-making process reveal that the wide societal and institutional participation represented in the drafting committee was no more than an ugly competition between the drafters just for the interest of the institution/sector they represent. This short article sheds light on the latest constitutional drafting process in Egypt and how the advantage of having a diverse drafting body was abused only to contribute in the distortion of the new constitution.

After the ousting of President Mohamed Morsi of the Muslim Brotherhood on July 3, 2013, the military in Egypt appointed Adly Mansour, the president of the Supreme Constitutional Court, as an interim president and ordered the 2012 Constitution to be amended. Two different committees were involved in the process of amending the suspended 2012 Constitution: the Committee of Ten and the Committee of Fifty. Pursuant to a constitutional declaration issued on July 8, 2013, both committees were formed by a presidential decree. The Committee of Ten was composed of eight judges, “two from the Supreme Constitutional Court and its College of Commissioners, and two from the State Council”, and four constitutional law professors (Art. 28 of the declaration). On the other hand, the Committee of Fifty was composed of fifty members representing all sectors of the Egyptian society except the Muslim Brotherhood (Art. 29 of the declaration). The Committee of Ten was tasked with introducing the required amendments to the 2012 Constitution, while the Committee of Fifty was tasked with reviewing the work of the Committee of Ten and writing the final draft of the Constitution.

The formation of the two committees was an attempt to avoid the criticism directed at the process of drafting the 2012 Constitution: that it did not represent all sectors of the society, reflecting only an Islamist ideology. Indeed, a Parliament-selected panel of 100 members had seized the process of drafting the 2012 Constitution. The Muslim Brotherhood and the Islamist bloc in Egypt dominated the panel since they enjoyed the Parliamentary majority back in 2012. Having said that, it seems that the selection of judges in the Committee of Ten were to show that the process of amending the constitution would involve experts who would take care of the detailed and complicated legal aspects of drafting a constitution. On the other hand, the Committee of Fifty would involve the participation of different representatives with different views, which would guarantee the diversity that was absent in the 2012 Constitution, ensuring that the new constitution would not reflect the view of only one sector.

Additionally, it should be noted that the circumstances surrouning the ousting of President Morsi, namely military intervention viewed by many countries as a coup d’etat, necessitated the call for wide and varied community participation in the process of amending the 2012 Constitution. Besides the appointment of the chief judge as interim president, this kind of broad participation was meant to confer legitimacy on the political transition that followed the removal of President Morsi and show that the military has no intention to take power in Egypt.

However, records from the drafting process reveal that this diverse participation turned out to be an ugly competition among drafters representing the country’s institutions and different sectors of society. For instance, although the Committee of Ten amended most articles of the 2012 Constitution, the Committee, being dominated by judges, reserved the most significant amendments for the judiciary articles in an attempt to immunize the judiciary and guarantee it certain privileges. Specifically, unlike the suspended 2012 Constitution, which vested the power of determining the members of the Supreme Constitutional Court in the legislature, the Committee of Ten vested this power in the Court itself. Also, the Committee suggested listing the budget of the Court as a single digit in the state’s general budget, contrary to the principle of budgetary transparency. Ironically, when the Committee of Fifty received the suggestions of the Committee of Ten, it amended all of them but those related to the judiciary, a step that was described as a deal. Precisely, the Committee of Fifty decided to pass judiciary-related articles as drafted by the Committee of Ten while retaining the right to introduce any amendments to other constitutional articles without fearing interference or criticism from the Committee of Ten.

That deal was not the only evidence of institutional competition during the drafting process. For example, representatives of the armed forces were concerned only with listing the military budget as a single digit, without it being discussed in Parliament, and how to find a way to maintain military trials for civilians. Moreover, Egypt’s religious institutions cared only about the interests of their religious factions and how to maximize their constitutional powers. Specifically, representatives of the Al-Azhar institute were only concerned with how to maintain Article 2, which lists the principles of Islamic Sharia as the main source of legislation, in the Constitution, and how to retain the sole right to interpret Islamic Sharia. Likewise, representatives of the Egyptian Church only paid attention to those articles related to the rights and freedoms of Egypt’s Christians.

I should note that I am not trying to argue against the idea that representatives of each institution or faction should reflect their institutions’ and factions’ interests; however, for a constitutional drafter, this should be neither the priority nor the absolute goal. In other words, the constitutional drafters resemble members of Parliament in that they represent the entire community and reflect the interests of the entire people, not only those who vote for them or belong to their faction.

The question right now is, was Egypt’s constitution worth the competition? As mentioned above, constitutions are after all a rule of law indicator that measures its strength and weakness. In fact, the institutional competition that was evident in the process of drafting Egypt’s current constitution made that process futile and revealed the weakness of the rule of law in Egypt. Indeed, an institutional competition could have been intelligible, even if still undesirable, if the fair application of the contested amendments had been guaranteed. In point of fact, successive violations of the rule of law in Egypt make any fought-for privilege or power little more than ink on paper.

Despite the downfall of the Mubarak and Morsi regimes in less than two years, Egypt has failed to find its way towards an effective application of the rule of law. More precisely, rights, freedoms, and the separation of powers are continuously attacked by Egypt’s current military-backed government despite the wide constitutional safeguards granted by the Constitution, which renders the rule of law in Egypt a mere illusion. For instance, Egypt’s public protest law, which was issued during the transitional period following the ousting of President Morsi, continued in effect despite the restrictions it imposed on individual rights and freedoms in violation of the current Constitution.[1] Additionally, arbitrary arrest for political purposes is now widely witnessed in Egypt.[2] This is not even to mention the successive encroachments on the principle of separation of powers, with several laws enacted by presidential decree, bypassing Parliament;[3] as well as the recent infamous leaks that showed a high-ranking military officer promising to intervene to influence a judge to direct his verdict towards a certain outcome.[4]

In post conflict countries, the adoption of the constitution through a democratic process is not sufficient to render it legitimate; however, the constitution should also be drafted through a democratic process. After being involved in a number of constitution-drafting processes in Afghanistan, Iraq, and Cambodia, the United Nations (UN) concluded that such process should be governed by some international standards, such as national ownership, inclusive participation, and transparency. International literature emphasizes the importance of consulting the international standards in the constitution-drafting process. For instance, while discussing the process of constitution-making in Rwanda, Angela Banks highlighted how the Legal and Constitutional Commission (LCC) responsible for the drafting of the Rwandan constitution teamed with the UN Development Fund for Women (UNIFEM) to address Rwanda’s international obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).[5] Further, international literature is in agreement that the will of ordinary citizens should be reflected in the constitution-making process through public hearings and meetings, questionnaires, or the submission of initiatives and memorandums.[6]

Records from the Egyptian constitution-making process reveal that the Constituent Assembly did not partnered with any international organization, such as the UN, the EU, the US Institute of Peace, or the Centre for Democracy and Development during the drafting process to address Egypt’s international obligations. Further, no records from the drafting process show that the constituent assembly sought to ensure the national ownership through the inclusive participation of the general public. On the one hand, no reference was made to the possibility of holding consultations regarding certain issues with relevant stakeholders. Certain sectors of the society, such as actors/actresses and lawyers have been invited to participate in some of the drafting sessions to express and share their opinions. However, such participation was not intended for the consultations of these sectors regarding issues relevant to their specific interest; however, it was a mere general participation to share their thoughts regarding the entire constitution. Additionally, Egypt’s actors/actresses and lawyers were actually represented in the constituent assembly through the head of their syndicate, so their invitation was actually meaningless. On the other hand, the constituent assembly failed to meet the international standard of inclusive participation by enabling the public to participate in the drafting process through public hearings or the submission of initiatives and memorandums. More precisely, Egypt’s constituent assembly failed to acknowledge that the international standard of the constitution-national ownership would be enhanced only when the constitution reflects the views of all Egyptians not only the majority of the appointed constituent assembly.

In sum, constitutionalism and democracy are best achieved in Egypt not only by strengthening the rule of law, but also developing a culture supportive of the rule of law. This two-prong approach requires strengthening the rule of law to such an extent that guarantees the enforcements of the measures, principles, rights, and freedoms set in the constitution. A rule of law culture must also be developed, meaning that the constitutional drafters must be fully aware that the rule of law, as well as the interest of the state, outweigh their private or institutional interests.

[1] The English translation of the law is available at http://english.ahram.org.eg/News/87375.aspx. For more information regarding restrictions imposed by the law, see Mohamed Abdelaal, Egypt’s Public Protest Law 2013: A Boost to Freedom or a Further Restriction?, 11(9) US-China L. Rev. 1114, (2014).

[2] Joe Stork, Egypt’s Political Prisoners, available at http://www.hrw.org/news/2015/03/06/egypt-s-political-prisoners. Egypt: Rampant torture, arbitrary arrests and detentions signal catastrophic decline in human rights one year after ousting of Morsi, available at https://www.amnesty.org/en/articles/news/2014/07/egypt-anniversary-morsi-ousting/.

[3] Worse than the dictators: Egypt’s leaders bring pillars of freedom crashing down, available at, http://www.theguardian.com/world/2014/dec/26/sp-egypt-pillars-of-freedom-crashing-down.

[4] New evidence backs authenticity of leaked Egypt tapes, available at http://www.middleeasteye.net/news/egypt-says-morsi-detention-tapes-fabricated-640288569.

[5] Angela M. Banks, Participatory Constitution Making in Post-Conflict States, College of William & Mary Law School, Faculty Publications Series 138, 139 (2007).

[6] See generally Mark Tushnet, Constitution-Making: An Introduction, 91 Texas L. Rev. 1983 (2013).