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Debate Over the 2012 Egyptian Constitution

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The following is a guest post by George Sadek, a Senior Legal Analyst at the Law Library of Congress.  Last week George provided an overview of the drafting process and content of the Egyptian Constitution of 2012.  He has also previously written posts on Egypt’s constitutional referendum and several other topics.

In my last post, I presented a brief overview of the drafting process and content of the new Egyptian Constitution.  In this post, I will discuss various perspectives on the Constitution: both those in support of it and those that criticize it.  These differing views developed during the drafting process for the Constitution and following its approval in a public referendum in December 2012.

Two groups of legal scholars and commentators have engaged in a debate concerning some provisions in the new Constitution.  The first group supports the Constitution, and some even consider it to be the best constitution drafted in Egypt’s modern history.  On the other hand, a second group of scholars criticizes the new Constitution, suggesting that it imposes restrictions on some of the freedoms and rights guaranteed by international agreements.

Support for the New Constitution

Scholars who defend the new Constitution argue that the interpretation of article 219, which addresses the implementation of Islamic law, is likely to be based on the four traditional sources of Sunni Islam, and therefore that it calls for a modern interpretation of Islamic law.  This is supported by the inclusion, in article 4 of the Constitution, of a requirement that the Al Azhar religious institution have a key role in reviewing all controversial bills submitted by the Parliament, reflecting an effort to ensure the interpretation of Islamic law by a reputable and moderate Islamic institution.

Supporters of the new Constitution also argue that it promotes the principle of religious tolerance.  For the first time, there is now a constitutional provision in Egypt, article 3, that emphasizes the right of religious minorities to practice their religion and select their religious leaders without any interference from the state.

Furthermore, with respect to the protection of fundamental rights and freedoms, scholars endorsing the new Constitution highlight that, for the first time, there is a constitutional provision prohibiting long periods of arbitrary detention.  Article 32 provides that no individual may be detained for more than twelve hours after his or her arrest without formal charges being brought against him.  It continues by stating that an individual must be offered an attorney within twenty-four hours of his or her arrest and must be presented before a judge to face charges within one week.  Otherwise, the individual must be released.

In addition, this group of scholars emphasizes that, again for the first time in Egypt’s modern history, the new Constitution guarantees the freedom to establish political parties, civil associations, and media outlets without the state’s prior approval.  This is reflected in articles 49 and 51 of the new Constitution, which allow the creation of the such entities through notifying the designated governmental authorities.

Another important aspect of the new Constitution relates to health services.  In an unprecedented constitutional provision, article 62 promises to ensure the availability of free, high quality health care to all citizens, and article 10 also relates to the provision of healthcare for mothers and children.

Scholars backing the new Constitution also assert that, unlike the Egyptian Constitution of 1971, there are now constitutional provisions restricting the powers of the President.  For instance, article 133 places limits on presidential terms; restricting them to two four-year terms.  Also, based on article 131, Presidential Decrees must be reviewed by the People’s Assembly (lower chamber of the Parliament) and the Shura Council (upper chamber) after they begin their sessions.  Furthermore, under article 127, the President can only dissolve the Parliament after a public referendum.

The President also does not have absolute power pertaining to the appointment of the Prime Minister.  Under article 139, if the People’s Assembly passes a vote of no-confidence with respect to the Prime Minister, the President must appoint another Prime Minister from the party that holds the majority of seats in the People’s Assembly.  Another limit on presidential power is contained in article 146, which limits the powers of the President to declare war.  It states that the President cannot declare war except following consultation with the National Defense Council and with the approval of the majority of members of the People’s Assembly.

Finally, those defending the merits of the new Constitution claim that it promotes the concept of an independent judiciary.  For example, article 168 provides that “[t]he judicial authority shall be independent.”  It also prohibits any kind of interference from the executive branch in the affairs of the judiciary.  The concept of the independence of the judiciary is further underscored by article 170, which states that “judges are independent, cannot be dismissed, and are subject to no other authority.”  Furthermore, article 173 stipulates that the Prosecutor General be appointed by the President upon the advice of members of the Supreme Judicial Council.

Criticism of the Constitution

Of course, the Egyptian Constitution of 2012 is not without its critics.  Some scholars have voiced their concern that it includes provisions that restrict human rights.  For example, they argue that article 3 discriminates against Baha’is by failing to include reference to them.  By not mentioning Baha’is, some people contend that the Constitution deprives such religious minorities of the right to practice their religion and select their religious leaders without the interference of the state.

Another source of criticism are labor rights activists, who view article 14 as a violation of workers’ rights to fair wages.  These activists say that article 14 links wages to productivity.  Accordingly, if production is down for any reason, workers would bear the costs of lower production in the form of lower wages.

There are also concerns that the new Constitution restricts the principle of free speech and democratic dialogue due to article 31, which states that “insulting or showing contempt toward any human being shall be prohibited.”  There are allegations that the President and other key figures of the administration might use article 31 to criminalize any criticism they consider an insult.  Scholars opposing the new Constitution also contend that it fails to prevent trials of civilians before military tribunals, since article 198 states that “[c]ivilians shall not stand trial before military courts except for crimes that harm the Armed Forces.”

Critics of the new Constitution argue that some of the constitutional provisions ignore basic rights and freedoms.  Much of this criticism relates to the vagueness of some provisions.  For instance, article 36 fails to define or ban torture, using the term “physical or moral harm” instead.  Article 33 mentions that citizens are equal before law; however, it does not set forth prohibited grounds of discrimination, such as gender, religion, and race.  Also, article 41 does not include any reference to a prohibition on trafficking in persons, focusing only on trafficking of organs.

One of the main issues raised by scholars who are not in favor of the Constitution of 2012 is that it restores many presidential powers found in the previous constitution.  For instance, article 128 allows the President to appoint one-tenth of the Shura Council (the upper chamber), thus providing the President with influence over the legislative branch of the government.  Under article 146, the President is the Supreme Commander of the Armed Forces, and he has the right to appoint and dismiss both civil and military personnel under article 147.  Furthermore, article 193 allows the President to be the head of the National Security Council.  In addition, according to article 199, the President is the Supreme Chief of the Police Force.   He also has the authority, under article 149, to order a pardon or mitigate a sentence issued by the courts of law.

Finally, there are accusations that the new Constitution restricts the powers of the Supreme Constitutional Court by removing a number of judges who have played a key role in criticizing the policies of the Muslim Brotherhood movement.  Article 176 of the new Constitution reduces the number of the Court’s judges from nineteen to eleven.  It states that the court will be composed of the ten longest serving judges in addition to the Chief Justice.  The Constitution also prevents the Supreme Constitutional Court from reviewing laws related to presidential and parliamentary elections after they are passed by the Parliament; it allows the court to review only pending versions of those laws.  Article 177 provides that “[t]he President of the Republic or Parliament shall present draft laws governing presidential, legislative or local elections before the Supreme Constitutional Court, to determine their compliance with the Constitution prior to dissemination.”  If the court does not grant a decision within forty-five days concerning those bills, they are considered approved and become law.

Tracing the differences in Egypt’s constitutions over time is an interesting scholarly exercise.  The Law Library of Congress has a number of resources related to previous Egyptian constitutions, including primary and secondary sources on the Egyptian Constitution of 1923, the Egyptian Constitution of 1956, the Egyptian Provisional Constitution of 1964, the Egyptian Constitution of 1971, the 2005 amendments to the Egyptian Constitution of 1971, and the Constitutional Declaration of 2011.

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