The following is a guest post by George Sadek, Senior Legal Research Analyst at the Law Library of Congress.
Last month, a new Egyptian Constitution was approved in a popular referendum held on January 14-15. The Head of the Supreme National Electoral Commission, Chief Justice Nabil Saleeb, announced the results of the referendum on January 18 and stated that the voter turnout was 38.6% of the 53 million people eligible to vote. Of those who voted, 98% voted in favor of the new Constitution. The Constitution came into effect on that same day after it was signed by the current interim president, Adly Monsour, and published in the official gazette. It replaces the 2012 Constitution issued under the administration of former President Mohammed Morsi.
I previously wrote about aspects of the drafting process for the 2012 Constitution and the debate over its provisions, as well as the amendments that were made to the 1971 Constitution in 2011 and the preceding political crisis. As with those cases, different perspectives on some of the 247 articles of the new Constitution also emerged during the drafting process and following the referendum.
Positive Elements of the New Constitution
In analyzing some of the positive elements of the new Constitution, some commentators argue that, among other things, it could reshape the institutions of the modern state by allocating a certain percentage in the public budget for health care, education, and scientific research. In particular, article 18 of the Constitution stipulates that the government must allocate 3% of GDP to the field of health care; article 19 requires that government spending in the field of education should be at least 4% of GDP; article 21 requires at least 2% of GDP to be spent in the field of higher education; and article 23 allocates 1% of GDP for scientific research.
Another positive aspect highlighted by some people is that the new Constitution pays special attention to promoting the concept of human dignity. For instance, article 52 prohibits all form of torture and does not subject the crime of torture to a statute of limitation. Furthermore, as opposed to the annulled 2012 Constitution, article 89 of the new Constitution prohibits all forms of human trafficking. Additionally, with respect to the protection of religious freedom, some highlight that article 64 makes freedom of belief “absolute” and not limited to the Abrahamic religions as was cited in the 2012 Constitution.
Some commentators have also emphasized that, for the first time in Egypt’s modern history, the new Constitution, in article 11, requires that the state guarantee women the right to hold public office and the highest administrative roles in the country, as well as their hiring for judicial roles.
The new Constitution also provides, again for the first time, a process to impeach the president. Article 159 allows the Egyptian House of Representatives to indict the president through a motion signed by a majority of two-thirds of the members. Under this article, members of the House of Representatives have the right to accuse the president of violating a provision of the Constitution, treason, or any other felony. As soon as the indictment is issued, the president shall be stopped from performing his duties until a court renders a verdict in the case.
Finally, one of the key merits of the new Constitution, according to some writers, is that it protects the independence of the Supreme Constitutional Court. Unlike the Constitution of 2012, which granted the president the right to appoint members of the Supreme Court, article 193 of the new Constitution stipulates that the Chief Justice and his deputies are selected by the General Assembly of the Court. The president does not have the authority to reject the decision of the General Assembly.
Negative Aspects of the Constitution
According to various commentators, the Egyptian Constitution of 2014 is not without its issues. In particular, some people have voiced their concern that it grants the military special privileges. For example, the new Constitution treats the military differently when it comes to discussions on its budget. Article 204 weakens the authority of the Parliament by limiting the debate over the military’s budget to the National Defense Council and only the heads of the Planning and Budget Committee and the National Security Committee of the House of the Representatives. It excludes members of the House of the Representatives from reviewing the budget items related to the Armed Forces. Furthermore, a temporary article in the Constitution means that the president will not have the sole power to appoint the Minister of Defense during the next two full presidential terms. Instead, according to article 234, the appointment will only be able to be made with the approval of the Supreme Council of the Armed Forces.
In addition, article 204 grants the military the right to prosecute civilians before military courts at its discretion for any crimes in which an officer is involved, which some say raises concerns about potential abuses of fair trial rights.
Some also argue that the new Constitution does not provide any real mechanisms to guarantee that the government will adhere to the aforementioned budget allocations to develop health care, higher education, education and scientific research.
Finally, one of the main concerns raised about the Constitution of 2014 is that it restores some of the same excessive powers of the president that were included in the annulled 2012 Constitution. For instance, the president still has the ability to appoint 5% of the members of the House of the Representatives, which constitutes 23 members out of the 450.
The Law Library of Congress holds the official gazette of Egypt, which contains the official versions of 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, the Constitutional Declaration of 2011, and the Constitution of 2012. In addition, we have a variety of reference books that analyze Egypt’s constitutional developments at different stages in its history. This includes books in different languages, such as Azmat Dustūr (2012) (Arabic); Les pouvoirs du roi dans la constitution égyptienne (1939) (French); Dustūr Jumhūriyat Miṣr al-Arabīyah (1974) (Arabic); and The Constitutional History of Egypt for the Last Forty Years (1929) (English).