On December 3rd 2013 (3/12/13) a new draft of the constitution was
submitted to Egypt's interim President Adly Mansour and will go to
public referendum on January 14th and 15th 2014 (14&15/1/14). As the
document states in Article 227 the constitution represents a single,
coherent unit with different articles interacting to compliment and
counter-balance each other. However for the purposes of simplicity I
will be conducting this discussion in several parts.
The first four chapters comprising of 100 articles covering The State,
Basic Components of Society, Public Rights, Freedoms and Duties and The
Rule of Law are all excellent work. So much so that it is difficult to
criticise provisions that are reasonable, sensible and rather dull.
After all when it comes to constitutional law reasonable, sensible and
dull are what we aspire to. Therefore the first 100 articles are marked
out more by what they don't contain rather then what they do.
The first big improvement on the 2012 constitution is that gone are all
the subtle and not so subtle attempts to turn Egypt into a Sunni Islamic
state. For example there is no longer a constitutional prohibition of
insulting the Prophets and Messengers of Islam (Article 44/2012). Of
course the 2013 draft does make Islam the official state religion and
makes the principles of Sharia the primary source of legislation
(Article 2/2013). In itself this is not a problem because at it's core
Sharia is merely a moral code that is universal to all human standards.
Also the majority of Egyptians are Muslims so it is more acknowledging
that fact rather then trying to change the nation.
The constitution goes on to to protect the rights of Christians and Jews
by making their religious principles the source for legislation
governing their personal affairs (Article 3/2013). This should be
sufficient to prevent Egypt moving from laws inspired by the principles
of Sharia to all out Sharia law. The sale and consumption of alcohol is
a rather good example of how this would work. Muslims are of course
forbidden to consume alcohol and will be free to continue to resist
temptation under this constitution. However Christians and Jews and
under no such religious obligation and the consumption of alcohol is
actually required under Christianity as one of the sacraments. Therefore
any attempt to pass a law banning the sale or consumption of alcohol in
Egypt would impinge on Christians and Jews personal status and
religious affairs violating Article 3 making any such law
unconstitutional and therefore invalid. The rights of Egypt's religious
minorities and those of no religion at all are further strengthened by a
provision ensuring equal opportunity to all citizens without
discrimination (Article 9/2013).
Also missing from the 2013 draft are articles relating to incredibly
specific aspects of economic and social policy such as an obligation for
the foster small handicraft industries (Article 17/2012). As I
commented at the time these issues may well be perfectly valid but their
specific nature means that they have no place in a constitution. The
essence of a written constitution is that it is very difficult to change
meaning that it acts as a constant under-pinning the day to day, year
to year government policies and ensuring the equity and fairness of all
laws. As a result it needs to focus on vague principles and ideals
rather then specific details. Fortunately the 2013 draft has been
mindful of this distinction between constitutional law and everyday
legislation with certain articles being excluded entirely and others
being re-written. For example where the 2012 Constitution obligated the
state to support workers co-operatives "in all forms" (Article 23/2012)
the 2013 draft talks more vaguely about the state caring for worker's
co-operatives and co-operative property being protected and supported
under the law (Article 37/2013).
This shift away from specifics towards more general principles means
that many articles in the 2013 draft now end with variants of the
phrase; "The forgoing is regulated by law." For the most part this is
entirely sensible because it allows the government of the day a degree
of discretion in passing laws while staying within the principles of the
constitution. A perfect example of why this discretion is necessary is
the use of DNA evidence in criminal trials. Forty years ago DNA
profiling simply was not possible so recently many legal systems have
had to change the laws and regulations to allow DNA evidence to be used
while still maintaining the principle of due process. This has recently
been a specific issue in the US where arguments have abounded over
whether a compulsion for suspects to provide DNA samples is compatible
with the 5th amendment protection against self-incrimination.
However the amount of discretion given to a government of the day can be
too broad and allow it to undermine the constitutional principle. An
example of this would be the provision in the 2012 constitution that
guaranteed the right to establish places of worship as regulated by law
(Article 43/2012). This was inserted specifically to persecute Egypt's
Christians because it was well known that the existing law made it
extremely difficult for Christians to build Churches for worship. For
the most part the 2013 draft deals with this problem by having
complimentary provisions providing a sort of double lock on certain
constitutional principles. For example a government of the day can pass
new laws regulating the way the National Election Commission conducts
elections and referenda (Article 208/2013). However those laws must
uphold the principle that every citizen has the right to vote, run in
elections and express their opinion in referendums (Article 87/2013).
However there are other areas where the inclusion of variants of the
phrase; "regulated by law" creates more problems then it solves. For
example I think its inclusion is totally superfluous in dealing with
protections for aides to the judiciary (Article 199/2013).
On a related note I consider the current wording on legal continuity
(Article 224/2013) to be a significant problem. The current phrasing
talks about all laws passed before the adoption of this constitution to
"remain valid and in force." While it is essential that existing laws to
remain in force until new ones can be passed the insistence that they
remain valid seems to prevent them being challenged no matter how wildly
they contradict the values of the constitution - the current laws
governing the building of Churches being a specific example. On that
issue specifically I would re-write the obligation on the National
Assembly to issue a new law on the subject (Article 235/20/13) so that
the existing laws expire at the end of the first session regardless of
whether a new law has been passed or not.
The main problem with the first 100 articles is the over representation
of trade unionist and other socialist special interest groups that has
been carried over from the 2012 constitution. Significant work has been
done to limit this influence. For example gone is the obligation on the
state to "divide revenues between capital and labour" (Article 14/2012)
replaced with a more flexible obligation to ensure "a fair distribution
of development returns" (Article 27/2013). However serious problems
exist such as the obligation to give workers a share in the management
of projects and their profits (Article 27/2012 & Article 42/2013)
and the obligation on the state to "buy basic agricultural crops at
prices to ensure a profit for farmers" (Article 29/2013). These are
attempts to cling onto a Marxist command style economy and are things
that I think Egyptians will come to regret and even resent over time.
After all far more then Rihanna what caused the Egyptian revolution was
the fact that its command style economy simply wasn't working causing
high rates of unemployment.
That said although I completely disagree with them I don't think these
economic articles alone represent sufficient reason to reject the entire
constitutional draft. After all while written constitutions should be
incredibly difficult to alter they should not be impossible to change.
The 2013 draft sets out a framework by which the Constitution can be
amended that requires first a two thirds majority in the National
Assembly and then an overall majority at public referendum. The economic
articles particularly the obligation on the state to preserve food
subsidies (Article 79/2013) are all prime candidates for national
discussion and public vote as part healthy, functioning democracy.
(Originally Posted) 21:55 on 28/12/13 (UK date).
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