Drafting a Constitution: Part II

            Constitutions define and set out relationships between the primary institutions of the state.  They also suggest some of the compromises and agreements between powerful political forces that have been necessary to create these institutions and it gives us some hints about what the drafters think political life will look like. 

On balance it looks as if, through whatever compromises they have made, the drafters of the Egyptian constitution envisage a civil state based on a very powerful executive authority rooted in but not directly managed by an elected president.   Educated professionals will play a dominant role in administration and legislation. The new state will have obligations to the sixty percent of Egyptians who are poor or illiterate but they will have no role in its institutions and relatively little in its politics. The political elite will engage in competitive elections over power and the military and the judiciary will function with significant levels of autonomy.   The military, however, will continue to be a self-contained hierarchy whereas the judiciary will, more than in the past, be institutionally divided.  Coupled with the role I discussed in an earlier post on the constitution, the constitution lays out what might be called an Islamic rechtstaat.

The draft of the constitution does not stand completely alone.  It clearly borrows quite a bit from the language of the 1971 constitution.  Perhaps strangely for a constituent assembly largely made up of supporters of political Islam it also appears to be a family resemblance to the constitution of the French Fifth Republic.  What makes this peculiar is that many of the drafters claim they want to replace statutory law borrowed from the French civil code with Islamic sharia and yet the constitution nods clearly to Paris. 

Most surprising of all, however, are the similarities between this draft and the 1923 constitution.   You could almost say this document has created an elected constitutional monarch who presides over a parliamentary system that unequally but directly apportions political power on the basis of wealth and status.  Indeed the new constitution has abandoned the language of the 1971 constitution to describe the legislative branches in favor of that of 1923.  Thus Egypt no longer will have a People’s Assembly and a Consultative Assembly; it will henceforth have (as it did in the past) a Chamber of Deputies and a Senate.

The most important relationship the constitution establishes is between the president and legislature.  At the beginning of the revolution, the Muslim Brothers had expressed their support for a parliamentary system of government.  They began to back away from that position fairly quickly and have suggested that what they want is a mixed system.  What the constitution envisages is relatively far from a mixed system.  It seems to envisage something much closer to the monarchical system that characterized what Afaf Marsot called “Egypt’s liberal age.”  Because the constitution retains an elected republican form of government it might be best called a limited elected monarchy. 

The new constitution clearly limits the power of the president relative to that of the 1956 and 1971 Egyptian constitutions. Sometimes it does so by borrowing language directly from the 1923 constitution; sometimes it does so by reference to the constitution of the French Fifth Republic. However, the limitation on the power of the presidency is not achieved by a corresponding increase in the power of the lower house, the Chamber of Deputies.  It is achieved by increasing the constitutional power of the Prime Minister even as it increases the independence of that office from the parliament.  The draft has created a strong president whose goals are accomplished through an unelected Prime Minister subject to a vote of confidence by an elected parliament.

            The simplest way to grasp the underlying dynamics for Americans is to imagine that President Obama could not directly choose his own cabinet.  Rather he would choose a General Secretary who would then choose the secretaries of the existing departments (State, Treasury, Education and so forth) and the General Secretary rather than the president would be responsible for the administration of government and would also usually chair cabinet meetings. It would not be particularly surprising to Americans to learn that Congressmen who joined the government would resign their seats. The feature that would be unfamiliar would be that although Congress could force the president to choose a new General Secretary it could not solely for political reasons force the president from office.

            The details are worth looking at a bit more closely if only to understand how the drafters have deployed language from the constitution of the monarchy to achieve their ends.

           

            Article 48 of the 1923 constitution stated that the king exercised his authority through his ministers and Article 155 of the current draft uses the same language to describe how the president exercises his. This language about the executive was absent from earlier Egyptian republican constitutions. Until now Egyptian presidents, like those in France and the US, exercised their extensive powers directly. The current draft reduces the range of presidential authority and (by adopting the language of the 1923 constitution) attempts to place a barrier between the president and the direct exercise of many of the powers of the executive branch. In so doing, of course, it creates the possibility of a potential clash between an elected president and parliament that could play out in the selection of a prime minister. This suggests that the drafters, at least, clearly envisage that the mechanisms they have put in place in the constitution to supervise free and fair elections will work and that Egypt will, henceforth, have real political pluralism. 

This present commitment is enhanced by Article 129, which makes it difficult for the president to dissolve parliament routinely.  Unfortunately the one situation in which the president is most likely to wish to dissolve parliament is not covered by Article 129, as I discuss below, which likely vitiates its importance.

Article 49 of the 1923 Constitution gave the king the absolute right to choose and dismiss ministers.  The present constitution also gives the president the unlimited right to appoint the prime minister but, as noted above, Article 129 makes it much more difficult for him to dismiss an appointed minister who has acquired parliamentary support. 

            The 1923 constitution emerged from massive demonstrations that paralyzed the old order no less than did those of early 2011. It was written by a much smaller committee whose members certainly understood at least as well as those of the present one issues of Islamic law, constitutional jurisprudence, and the historic importance of their work.  Writing as it did in the shadow of British military predominance, a profoundly conservative landed elite anchored in the royal family, and a powerful nationalist movement it wrote a document that distributed real but unequal power across the country’s institutions. There was, in 1923, no requirement that the ministers be chosen from the majority party but neither was there any prohibition on parliamentary members serving as ministers. Article 65 gave parliament the right (but not the duty) to issue a vote of non-confidence in the ministry. It was then obliged to resign.

This draft appears to be the first Egyptian constitution in which the president’s ministers (as in the French Fifth Republic) cannot be sitting parliamentarians. Deputies who join the government leave their seats. Parliament has significant influence over the president but the relationship is ultimately one-sided. Under Article 145 the president names the prime minister who then forms a government and presents its and its program to parliament. If the lower house does not reject this by a majority within thirty days then the government takes office. If the new government is rejected the president is given a second chance. If his second attempt is rejected, the president is then directed to form a government based on parliament’s proposal. If this is not accomplished within thirty days then the president dissolves parliament and new elections are held. Presumably the president can simply delay rather than appointing a ministry he or she opposes so as to call for new elections. This is the one situation in which the president not only can, but also must, dissolve the government without presenting either a justification or holding a referendum (as required in Article 129); it therefore provides the president with tremendous power in regard to a refractory sitting parliament.  The president ultimately not only can, but also must dissolve parliament; parliament can dislodge a prime minister but not a president.

This provision is evidently designed to avoid the possibility of “cohabitation” as occurred in France where the president also appoints the prime minister who must then seek parliamentary approval. On several occasions since the 1980s the president was from one party and the majority in the chamber of deputies was from another. Thus a Socialist president had to appoint right-wing ministries and once a right-wing president was forced to accept a Socialist ministry. Because the Egyptian president, unlike the French one, rules through his minister cohabitation might seem to be more dangerous. 

The draft also limits the president’s direct power in other ways. According to Article 149 the president appoints and dismisses military officials (muazzafun askariyun) and political representatives (mumaththalun siyasiyun) but not civil servants (muazzafun madaniyun) who are, according to article 164, appointed and dismissed by the prime minister.  This is clearly an attempt to re-establish the integrity of the civil service, but its implementation will depend on the probity of future prime ministers as well as additional legislation and ultimately litigation before the constitutional and administrative courts. The meaning of “political representatives” is not specified in the constitution and will probably require legislation and adjudication to define. Judging by article 13 of the French constitution, which contains similar language, it will include provincial governors, and diplomats.

Unlike the French president (Article 9 of the French constitution), the Egyptian president is not supposed to routinely preside over meetings of the council of ministers. He may call the ministers into session for important occasions and he presides over meetings he attends (Article 158). The Egyptian president neither signs nor issues the decisions of the Council of Ministers (as does the French president) which further emphasizes the degree to which the drafters, at least, envisage the ministry as independent of the presidency as well as the parliament once appointed.

The Egyptian president does give an account, at the annual inaugural joint session of the two chambers of parliament of the government’s general policy (Article 146). This largely resembles the speech from the throne in the 1923 constitution (Article 42) although the houses are not given the right of written reply they enjoyed in 1923. This address differs from the address (Article 145) that the Prime Minister is to give of his program.

The president has a variety of other powers, including the declaration of war and states of emergency subject to the approval of the legislature as well as plebiscite in the case of the latter. The president (and the legislature) may request amendments to the constitution. The president issues legislation (but not administrative regulations) and has the right to a veto.

The Prime Minister has a more significant role in many ways than the president.  The government (as opposed to “the state”) is composed of the Prime Minister, his deputies, the various ministers and their deputies and it is the prime minister who oversees the work of the other ministers and who is responsible for public security. The prime minister appoints and dismisses civil servants (Article 164) and issues regulations necessary to enforce legislation (Article 165), issue administrative and regulatory decrees as well as develop draft laws and relevant budgets to be presented to the legislature (Article 171).  The Chamber of Deputies must approve the budget initiated by the Prime Minister and may modify it but may only increase expenditures if it finds additional resources (Article 117). 

The legislature has rather limited powers:  it can propose legislation but for the most part responds to the executive. It must overcome a presidential veto with majority votes in each chamber—not an unusual requirement in strong presidential system.

If the Prime Minister controls the government there is one area in which his power and that of the president are limited: the military. The President is the supreme commander of the armed force (Article 152) and clearly makes appointments within the military. However, as outlined above it is the Prime Minister who appoints the Defense Minister and the Defense Minister is the “general commander” of the armed forces. The Defense Minister must, under Article 198, be a member of the officer’s corps and the budget of the armed forces will be provided to the legislature as a single number by a National Defense Council headed by the President but made up primarily of military and intelligence officials (Article 197). 

            Articles 197 and 198 throw significant light on the ease with which President Mohamed Morsi was able to place Generals Sami Enan and Mohamed Hussein Tantawi on retirement in August and to end the period of direct military rule. Any fears within the general staff that a return to civilian rule would imply significant civilian oversight have been assuaged. A civilian president with no previous ties to the army is now nominally in charge of the armed forces, but they have managed, for the first time in Egyptian history, to constitutionally oblige the executive to choose an officer as minister of defense and to limit legislative oversight of their budget.  When the uproar in fall 2011 over the proposal by then Vice Prime Minister Ali al-Selmi erupted it was in part because he proposed just such an article for the forthcoming constitution. The armed forces, having given way, has effectively gained what it sought then in terms of control over its own budget and a say in whether the country goes to war (which it must be admitted no government would launch against the express advice or wishes of its military commanders).

With the exception of the armed forces, the limits on legislative authority are largely in line with much European practice over the last century. What is striking is the limitation on who can serve in the legislature. One of the most contentious issues of the last two years was the insistence in Nasserist constitutions that fifty percent of parliamentarians be workers or farmers. These mandates were abused by Egyptian governments from their inception to provide a convenient cover for blatant manipulation. The present constitution has gone in the reverse direction, in ways that depart dramatically from democratic theory and Egyptian constitutional norms over much of the last century.

A fundamental feature of modern democracy is that the electorate constitutes, at least in theory, the pool for elected officials. Obviously in most representative democracies, elected officials are drawn from a relatively small subset of the electorate as a whole: the poor and poorly educated are rarely elected and women and members of minority communities are also under-represented.  The fiction (or, more kindly, the ideal) that anyone in society can serve in elected office is a basic principle of contemporary democracies. Where there are express limitations on who can serve even if everyone can vote, we are more skeptical about claims to democracy.

To serve in the Chamber of Deputies a candidate must be twenty-five years old and have completed primary education. If we simply took published illiteracy rates as a proxy for primary education (which they are likely to be because it is much easier for the government to measure school completion rates than substantive literacy) it would suggest that something like seventeen percent of the male population and thirty-five percent of the female population is ineligible to serve in the Chamber of Deputies. Reported initial enrolment rates in primary education are much higher, but, of course, these students are too young to serve in the Chamber and I have not found good recent information on measured levels of completion (although I do suspect that they are what “literacy levels” actually are measuring).

The Senate is a completely different situation. With the exception of fiscal oversight, the Senate shares legislative authority with the Chamber of Deputies. Its vote is also necessary to overcome a presidential veto. In addition, should the Chamber be dissolved, the Senate temporarily assumes its legislative functions. Its members serve a six-year term, which gives it significant greater staying capacity than either the president or the Chamber.

The president chooses twenty-five percent of the 150 members of the Senate and the rest are elected (Article 130). This is in line with the 1971 constitution in which the president chose one-third of the Consultative Council’s 132 members. As with the People’s Assembly, the Consultative Council was required to have half its members be workers and farmers. 

The language of the constitution in regard to the new Senate resurrects the language of the 1923 constitution.  The president must choose members of the Senate (Article 130) from among the country’s highest educational and political elite: former ministers and their deputies, former legislative leaders, scientists, religious figures, judges, retired military officers, and high-level civil servants. In addition, former presidents (elected after 25 January 2011) are automatically life-members of the Senate on leaving the presidency. This is remarkably similar to Article 78 of the 1923 constitution with one revealing exception. In 1923, both appointed and elected Senators were drawn from a pool with similar qualifications. In 1923, however, in addition to former officials those who owned significant amounts of property (defined by its tax) were also eligible. In 2013 elected Senators need not be drawn from the ranks of former officials nor must they own property with a minimum taxable value, but they must have completed higher (university) education. Where once physical capital was a requirement for membership in one of the legislative chambers today it has become intellectual capital but the restriction remains quite real.

It is not necessary to have a romantic view of the poor and the illiterate to believe that these restrictions are anti-democratic. Nor is it necessary to believe that Egypt should retain the Nasserist prescriptions. Relatively few workers and farmers enter legislatures anywhere; most legislators are attorneys by education. But it is profoundly undemocratic to restrict the right of the poor and the illiterate to contest. When Supreme Court Justice Tahany El-Gabali suggested unequal voting rights for the educated and the illiterate in 2011 she was pilloried, but few people seem to have noticed that the Constitutional Committee has made a very similar move. That she was a woman and the committee is largely male may have something to do with it.

The last section of the draft I address before concluding are the articles dealing with the judiciary.   There are two quite positive changes in the draft relative to the 1971 constitution.  First, the old section on state security courts has been removed. For now they no longer exist and lack direct constitutional sanction.  Second, military courts may now only try cases involving military personnel and civilians may not be tried in military courts (Article 200 and Article 62).  One of the major demands of the last two years has been to end civilian trials before exceptional or military courts and these articles together would seem to be the embodiment of that demand.  In the context of recent Egyptian history this is a very welcome development and it will also provide an immediate test of how seriously the new government takes its own constitutional obligations.

Two sections of the draft deal with the State Council and the Supreme Constitutional Court independently.  The State Council is explicitly made the sole court to decide administrative disputes, thus reinforcing its role as the guardian of the European conception of the rule of law, usually referred to as the “rechtsstaat” (Article 181). The Supreme Constitutional Court is given the task of deciding the constitutionality of legislation and deciding cases that involve disagreement between judicial bodies (Article 182).  The SCC retains its right to determine constitutionality after laws have come into effect with one exception: it must decide on the constitutionality of draft laws governing elections at any level within 15 days of their being presented by the president or the Chamber of Deputies.  Once the court has made its prior determination on draft electoral laws it loses the right to determine constitutionality under Article 182 (Article 184). 

The history of the SCC and Egyptian election law is too complex to go into here, but the drafters have stripped the SCC of its power to declare elections (and elected parliaments) invalid.  When the court did this during the Mubarak era they were hailed as champions by the Muslim Brothers who now decry them for invalidating the 2011 elections on the basis of the same jurisprudence.  Nominations for appointment to the court will also now be made by a much broader group of jurists than previously which will give the president significantly greater latitude in choosing members of the court. 

The obvious question to ask in concluding is why a committee made up largely of Islamists who decry the role of European law in Egypt directly or indirectly have chosen to write a constitution that is modeled in part on the French constitution.  That much of the language is borrowed from a constitution written under British guns is even more peculiar.

            A satisfying answer would take another essay but there are two general areas that are worth considering.  The first is simply that the present drafters, like those in 1923, face a profound and contradictory challenge.  They must find a way to make an abstract commitment to equality and democratic participation conform to their substantive preferences to maintain particular kinds of inequality.  The absence of a monarchy and the presence of a deeply-rooted (even if flawed) court system makes the challenge of writing a constitution much more complicated than in the past.  Under the 1923 constitution Egyptians did not have either “the rule of law” or a rechtsstaat in the sense that legal scholars (including Egyptian jurists) today or then understood the term.  The Mixed Courts provided foreigners with legal remedies for government abuse of power but Egyptian citizens could not use them and the National Courts did not have similar authority.  Since the creation of the State Council in 1946 and the Supreme Court in 1971, Egyptians have acquired the rule of law and it has become a deeply rooted part of their relationship to the state.  Because many of the drafters are themselves prominent jurists and because the rule of law has now become a part of the Egyptian political landscape, this constitution must deal with its existence and the significant jurisprudence it has created over the last six decades.  The constitution appears to be an attempt to create new channels of contact and legal discourse through institutional innovation and the introduction of potentially constraining Islamic language.  It certainly does not transform the ulama into powerful political actors but it will give significant support to political parties and movements whose discourse couched in terms of Islam has hitherto stood outside the framework of the rule of law in Egypt.

The 1923 constitution was written by the generation associated with the Nahda, a movement that proclaimed its role to be the revival of Arab culture, religion and politics.  The Muslim Brothers have claimed an affiliation with the Nahda.   What they and the Salafi parties share with many of the elites of the early 20^th century (including the British) is a sense of their tutelary mission over a morally deficient society.  This is clear not only from their political language but from much of the draft itself which takes care to position the state as the defender of those who require help because they are easily victimized (such as widows, orphans, and the disabled).  The constitution from which they have borrowed so heavily provides a method for maintaining inequality through the institutions of a tutelary regime in which moral authority is presented as the basis for political power.

A draft constitution claiming to defend the rights of the disabled and to reinforce the role of the Arab-Islamic heritage appears to be one that the most celebrated intellectual of the Nahda in Egypt, Taha Hussein, would have disapproved.