Egypt's Draft Constitution: Part 2.

In the previous part of this discussion that can be read here; http://100badones.blogspot.co.uk/2014/01/egypts-draft-constitution-part-1.html I noted that the first 100 articles of the 2013 draft of Egypt's constitution was generally very strong and didn't contain any problems significant enough to justify it being rejected at the upcoming public referendum.

Unfortunately though articles 184 to 221 covering the apparatus of state such the military, the Courts and the police force contain much more serious problems. I should start though by pointing out the areas where the constitution is particularly strong. The main one of these is the police force which the constitution mandates as an organisation whose loyalty is to the people rather then any branch of the government and whose duty is to uphold the constitution and the law above all else (Article 206/2013). This independence is guaranteed by the formation of the Supreme Police Council made up of senior police officers and a legal adviser from the State Council which the Minister of the Interior must consult before changing the way the police force operates (Article 207/2013). This is all a pretty standard, sensible and internationally recognised way of ensuring an independent police force. The only improvement I would make is to give the Supreme Police Council an explicit rather then implied right of veto over any instruction given by the Interior Minister or any other member of the government that contradicts the values of the constitution.

Another area where the constitution is very strong is the Judiciary which makes up all the Courts and Judaical bodies. Here the draft is quite clear that the Judiciary is wholly independent of government and the military (Article 184/2013). I though would be explicit that the powers of the Judiciary are defined by the constitution and the law rather then simply the law as the current draft reads. The independence of the Judiciary is further re-enforced by an obligation that they and they alone are responsible for managing their own affairs (Article 185/2013) and that its members cannot be dismissed under any circumstances and can only be disciplined by other members of the Judiciary (Article 186/2013). Finally to ensure that the people can see the Judiciary to be acting with integrity all Court sessions are to be held in public unless exceptional threats to public order or public morals require them to be held in closed session (Article 187/2013). Again this is a pretty standard requirement of Courts throughout the democratic world.

Obviously a nation's Judaical system is only as good as the laws it upholds. In the draft this is covered primarily by Chapter 4 made up of articles 94-100. Again here the draft is very strong with the rule of law being made the ultimate authority in the running of the nation (Article 94/2013). This means that the law applies to all Egyptians without exception regardless of race, gender, religion, political affiliation or profession. My only concern is that the current wording describes members of the Judiciary as being immune from the law. This is a problem because while the Judiciary need to be independent from political interference they still need to be bound by the laws they uphold.

The constitutional draft goes on to explicitly state that punishments can only be imposed on an individual after a Judaical ruling (Article 95/2013).This prevents a person being sent to prison without first being convicted of a crime and prevents the friends or relatives of an offender being punished for their crime. The draft goes on to explicitly states that punishments ordered by a Court have to be carried out (Article 100/2013). This prevents offenders using financial, political or other forms of influence to bribe public officials to avoid their punishment.The draft also explicitly grants an accused person a right to a defence and obligates the state to provide assistance to individuals who are financially unable to mount a defence (Article 98/2013). The draft explicitly states that a person is presumed to be innocent until proven guilty by a fair Court of law (Article 96/2013). 

Exactly what constitutes a "fair Court of law" is more precisely defined by the provisions of Chapter three, articles 51 to 93 because any criminal investigation or Court ruling that violates these articles is by its definition unfair. The most important articles here are the right of personal freedom (Article 54/2013). Unless a person is caught in the act of committing a crime this prevents them being arrested without a Judge first being convinced that there is enough evidence to issue an arrest warrant. When a person is arrested they must be given a valid reason why, informed of their rights, have someone informed of their arrest and have a lawyer present during any questioning. An arrested person must be brought before an investigating authority (similar to a Magistrate) within 24 hours who will check that their arrest is justified and their rights are being respected. If an arrested person is to be detained beyond 24 hours this must be reviewed by a Judge every 7 days. This is a widely accepted democratic practice known as Habeus Corpus.

Whilst under arrest an individual has a guaranteed right to silence and may not be tortured, terrorised or coerced into breaking that silence (Article 55/2013). The right to private life (Article 57/2013) and the inviolability of homes (Article 58/2013) protect the individual from unlawful search and seizure such a wiretapping or searches of a private residence. These provisions are all stronger then the system I live under here in the supposedly free United Kingdom so rather then criticising them I'm actually tempted to try and copy them.

In terms of the Judaical system that protects all these rights and enforces the law the draft is again very sensible, reasonable and a bit dull. The Supreme Constitutional Court is the highest Court in the land with Jurisdiction to rule over all civilian legal decisions including disputes between lower Courts and Judaical bodies (Articles 194 & 192/2013). To ensure its independence the Supreme Constitutional Court chooses its own President and members subject to the approval of the President (Articles 193 & 194/2013).

In order to maintain the independence of the Supreme Constitutional Court and all other Judaical bodies matters relating to their administration and disciplinary matters of their staff are handled by the State Council (Article 190/2013). This all very standard seems simply to be an Egyptian name for what is known in other nations as the Bar Association.

In support of the Courts there is the Public Prosecution which deals with investigating and prosecuting crimes. It is headed by a Prosecutor General who is selected by the Supreme Judaical Council from either assistants to the Court of Cessation, assistants to the Court of Appeals or deputy Prosecutor Generals (Article 189/2013). Again this is all pretty standard and in the UK the similar body is known as the Crown Prosecution Service. Then there is the State Cases Authority which defends the government when it gets sued and offers legal advice to government departments to stop them getting sued in the first place (Article 196/2013). In the UK and the US the similar body is known as the Office of the Attorney General. Finally there is Administrative Prosecution which functions much the same as the Public Prosecution but deals exclusively with financial and administrative corruption (Article 197/2013). Personally I think this is a little redundant because I think its work could be done by the Public Prosecution but if Egyptians want a dedicated body to tackle corruption that is their choice.

The area where this draft constitution deals with the apparatus of state that gives me the most serious problems though is the provisions it makes for the military. The first problem is with the National Defence Council (Article 203/2013). This is set up to ensure the safety and security of the nation. Although given Egypt's history I think this body should have a power of veto over its head - the President - my main problem is that its work is duplicated by the National Security Council which is set up to ensure the security of the nation against all threats (Article 205/2013). While there is an unanswered question over whether the National Defence Council or the National Security Council is the superior body having two bodies mainly strikes me as needless bureaucracy and suggests the issue hasn't been given the level of thought and consideration it requires.

The second problem is with the role of the Military Judiciary (Article 204/2013). I have absolutely no problem with the military having its own codes of justice and a Judiciary to enforce them. However I have great problem with the military being able to exert its codes of justice over civilians. Ideally civilians should only be answerable to civilian Courts but given Egypt's history and current security situation I can appreciate that under certain circumstances terrorist groups who are mounting military attacks will need to be dealt with by military Courts. The problem is that the draft gives military Courts authority over all crimes against the military's equipment, vehicles, weapons, ammunition, documents, military secrets, public funds or whatever falls under [the military's] authority. This is far too broad and I think that military Courts should be limited only to attacks on military buildings, barracks and stipulated military or border zones. Civilians engaged in crimes against other aspects of the military should in the first instance be dealt with by civilian Courts. After all as the do in the US it only takes a matter of minutes for a civilian Judge to review a case and then decide that it is best handled by a military Court.

My main problem with the way the draft deals with the military is the provision that makes the Minister of Defence the Commander in Chief of the Armed Forces (Article 201/2013). This directly contradicts the provision that makes the President the Supreme Commander of the Armed Forces (Article 152/2013). The Armed Forces can only have one ultimate commander therefore this glaring contradiction is totally unworkable and to my mind grounds alone for this constitutional draft to be rejected at the referendum.   


(Originally Posted) 22:10 on 30/12/13 (UK date).