Friday, April 01, 2011

Comparing constitutions

In the wake of the March 19 referendum on amendments to the 1971 constitution, Egyptians have found themselves increasingly confused.  Not least is their confusion about what exactly was the reasoning behind amending a constitution that the army has now declared no longer exists and have replaced with a temporary “constitutional declaration”.    One of the most puzzling aspects of the referendum is that the people were asked to vote on amending a constitution that it is fairly clear the armed forces had already decided to scrap.  Some people think the army simply has no clear idea of where it’s going and is improvising from day to day or week to week.  Others believe the election functioned to provide the army itself with legitimacy to pursue the course it had already decided upon.  Still others wonder if the army does indeed have a plan and events such as the referendum are mainly a distraction as it pursues its own agenda. Given what has been taken from the old document and what has been left out any of these are possible and it seems plausible that a vote on accepting the new document in place of the old might have been much more difficult than getting the amendments accepted.   

I am going to try to address some issues of the vote in the next blog, but for now I want to talk—as an interested but non-expert—reader about some differences between the old constitution and the new one.  I am not a constitutional scholar nor do I claim to be one but some of the similarities and differences between the two documents are sufficiently striking to be apparent to a casual reader.

To the untrained eye there are two striking differences between the two constitutions.  The first is that almost all the sections of the old document dealing with the social and economic obligations of the state and the citizens are now missing.  The second is that what has been added accomplish the general goal of strengthening the rule of law at least in a technical sense.  It accomplishes by  increasing some of the guarantees to citizens relative to the state, enhancing in some ways the status of the judiciary, but it also provides constitutional underpinning to the presence of the Supreme Council of the Armed Forces, its actions, and to its eventual dissolution.

In some ways the constitutional declaration is a much more classically liberal document than the old one insofar as it centers on the rights of individuals rather than on obligations whether of the state or of citizens as members of society.  Some Egyptian commentators have argued that the constitutional declaration itself is more or less a re-statement of globally accepted constitutional principles and thus is widely acceptable even if many Egyptians might want other articles included. Two examples, which actually take up a significant portion of the old document and have been dropped, will suffice.

One area of change has to do with women.  For the moment the society is no longer (constitutionally at least) based on social solidarity nor is the family (again, constitutionally) the basis of society.  The state is therefore now out, at least formally, out of the business of reinforcing family values and the state no longer guarantees to accommodate the obligations of women to their families with the role at work.  Given the immense controversy over Article 2 which makes Islam the religion of state and the principles of Islamic sharia the basis of law, it is striking that with the elimination of the old Article 11 women’s equality with men is, again at least constitutionally, no longer limited by the need not to offend against the rulings of Islamic sharia.  The state is now no longer in the business of protecting and defending Egyptian values and customs (the now vanished Article 12). 

Another area has to do with the obligations of the state in regard to the economy.  Injured veterans and the children of those who perished in war are no longer guaranteed constitutional preference in public employment.  The constitution no longer claims it will end illiteracy.  Work may still be a necessity for most Egyptians but it is no longer a constitutional obligation nor do workers have the right any more to sit on the boards of directors of companies. 

One way to read this is that what remains of Nasser’s socialist experiment is gone.  Another reading, however, is that what has also gone is much of the old language (more clearly expressed I think in terms of women) about joint social responsibility (takaful igtima’i) that was drawn from the Muslim Brothers.

It should be clear that nothing in the document forbids the state from (for example) eliminating illiteracy, or owning factories or giving orphans preference in public hiring, or even providing health services.  The state can still accomplish any of those goals but it is no longer constitutionally bound to do so.  For some people this will be a clear loss.  Given how poorly the state has accomplished many of these goals (if at all) it could well be said the Egyptians are better off without unkept promises.

Much of the language that remains is drawn, nearly word for word, from the 1971 constitution.  It is easy to forget or overlook how much of the language of the old document was at least formally both liberal and democratic.  To the extent that Tariq al-Bishri participated in drawing up this declaration it reflects his belief that before amending the old constitution it was necessary simply to enforce it.  Thus, the new constitution some important language about the defense of the rights of citizens and makes it a crime to interfere with their enjoyment of these rights.  This language is drawn word for word from the old document; these guarantees existed but were simply never enforced.  

What has been added are some stronger guarantees about the rights of citizens including the inadmissibility of torture and the need for warrants.  One other addition concerns SCAF itself.  The armed forces have resolved the problem raised by many constitutional scholars that it had no constitutional standing and that any legal changes (constitutional or statutory) instituted under its authority would be open to later challenge.  The present document both clothes the SCAF in constitutional authority (albeit by the decision of the SCAF itself) and establishes an exit plan.  As soon as a parliament takes office and president is elected the authority of SCAF in regard to the legislative and administrative powers respectively will cease.

The new document does not itself resolve the problem of whether the future Egyptian democracy (to which this constitution like that of 1971 commits itself) will be presidential or parliamentary.   Some of the old presidential powers have been trimmed.  Declaring a state of emergency was limited in the referendum.  The new constitution has eliminated a provision making the president himself the head of the police.  The president, of course, will still appoint the Interior Minister who directs the police but will no longer himself (or herself should a woman be elected)  control them directly.  For the moment, however, the SCAF is more firmly the executive and legislative power in Egypt.  For the moment the ministers (including the prime minister) represent the executive rather than the legislative branch.  For the moment half an elected parliament must still be composed of workers and peasants, categories which are very broadly defined by law so that one need not actually be a worker or peasant to be included even if (for example) most student and professionals wouldn't qualify.
At least until a new constitution is drafted and takes effect (which is at least a year away), the council of ministers is appointed by the executive (now SCAF and later the president).  Both SCAF and the next president are now constitutionally enabled to issue decrees with the force of law. Lastly the terms of the president (four years), the lower house with real legislative power (five years), and the largely advisory upper house (six years) no longer overlap.

A new constitution can dramatically change this constitutional structure and indeed it is expected to.  For the moment, however, the new constitution has a more streamlined form than the old one and it no longer contains an entire language of social obligation that many (especially in the Facebook generation) may have found onerous especially in regard to the role of women, social structure, and the responsibility of the state.  For now, however, a certain amount of what the Saudi legal scholar Abdel Aziz al-Fahad has called the ornamental constitutionalism of the Arab world has been stripped away.   What remains to be seen is whether the state will live up to its obligations under the new constitution better than the old regime did and how the battle for the creation of a new government and a permanent constitution is waged.

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