Egypt's Draft Constitution: Part 1.

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.

21:55 on 28/12/13 (UK date).