It is important to subject the proposed amendments to the 2012 constitution and the founding principles they establish to critical analysis in order to discover to what extent they respond to the people's demands for a constitutional system that safeguards freedom, dignity and equality. The amended constitution should establish the governing frameworks for a real democracy founded on the principle of the separation of powers and fostering economic development and social justice. The proposed amendments are positive in some respects but quite negative in others. Indeed, on certain socioeconomic aspects, they are a step backwards from the 2012 constitution. Therefore, the members of the Committee of Fifty will be shouldering an immense responsibility as they strive to draft a constitution that lays the foundations for a modern and enlightened, fair and balanced, and politically, economically and socially developed state. Before proceeding to the substance of the proposed amendments, it is important to note that although on the whole the new constitution marks a tangible shift in favour of the civil nature of the state and the effective separation of powers, it lacks — even in the preamble — any mention of Egypt's commitments to the international treaties and conventions it has signed with respect to human rights, basic freedoms and the prevention of corruption. This is a repetition of the same deficiency that existed in the 2012 constitution. This article will focus on the social-economic articles, although it will also touch briefly on other articles, especially those pertaining to the judicial authority which is granted excessive power over the other authorities of the state while at the same time being relieved of sufficient accountability.
SOCIAL AND ECONOMIC ARTICLES: Article 8 of the amended constitution states that “society is based on social solidarity. The state is committed to furnishing the means to achieving social justice and solidarity between the members of society within the limits of the law.” The corresponding article in the 2012 constitution was better than this amended version in that it added that the state should “work towards the realisation of sufficiency for all citizens within the limits of the law.” I believe we should revert to that version, while changing “work towards” to “be committed to”. Article 13 states that “having the opportunity to be appointed to the public sector is a right for all Egyptian citizens and public-sector employees are charged with serving the people.” The corresponding article in the 2012 constitution (Article 64) adds that the state must employ people “on the basis of merit”. This stipulation should be retained, as it forms a constitutional basis that compels legislators to promulgate laws that prohibit discrimination on the basis of class, religion or sect, as well as gender or ethnicity, in public-sector jobs. Article 14 states that “peaceful strikes are a right that shall be regulated by law.” Unfortunately, this article, like its counterpart in the 2012 constitution, overlooks the fact that the right to stage demonstrations and sit-ins is an essential democratic right that does not need a law to regulate it. True, Article 53 lays the constitutional groundwork for the right to peaceful protest. However, it would have been better to combine all the rights to peaceful protest (including to strikes, sit-ins, and demonstrations) within a single all-embracing article. Although Article 15 obliges the state to honour the martyrs and care for the wounded of the revolution, it does not explicitly state the 25 January Revolution and its successive waves in October 2011, December 2012 and on 30 June 2013. The article should be amended accordingly because the 25 January Revolution and its successive waves are a source of national pride and deserve to be explicitly mentioned. Article 16 states that “the state shall provide social insurance services. All citizens who do not have social insurance have the right, if they are unable to support themselves or their families, or are incapacitated and unable to work, or are unemployed or elderly, to social insurance that guarantees a dignified life. The state shall work to provide an adequate pension for small-scale farmers, agricultural workers and casual labourers in accordance with the law. The state shall safeguard the necessary insurance and pension funds.” Here, instead of the wording “the state shall work to provide,” it would have been preferable to write “the state is committed to providing” (an adequate pension, etc.). More importantly, the article should also state that “the insurance funds are the property of the insured” and that these funds “should be managed in a safe and competent way, in the interest of the insured, by a board of trustees made up of representatives of the workers', farmers' and professional syndicates and of the state and of other experts and be subject to oversight by state agencies in the interests of the insured.” Article 17, which commits the state to providing healthcare and to allocating sufficient funds for this purpose in the budget, is very deficient. It needs to be revised as follows: “the state is committed to providing healthcare for every citizen. It shall allocate for this purpose a sufficient portion of the national budget which shall be consistent with the recommendations of the World Health Organisation in this regard, or with the average public expenditures on healthcare among developing nations.” Article 22 prohibits the establishment of ranks or titles among civilians but contains nothing that might penalise this practice. The practice is particularly common in the security agencies and the judiciary where the titles “Bek” and “Pasha” are used by employees towards superiors. It is also reinforced by various mechanisms that oblige members of the public to use such titles when dealing with these agencies. Although such titles have largely been voided of their substance by their application in society at large, it would be better if this article stipulated explicitly that public employees should be addressed only in terms of their official capacities. Article 23 states that “the Egyptian economy is based on promoting the growth of economic activity and encouraging investment.” The article does not define the nature of the Egyptian economy or the role of the state in it, however, thereby perpetuating the same shortcomings that were found in the 2012 constitution (Article 14), which effectively exempted the state from participating directly in economic activity and from the task of real job creation. This is essential for a developing economy and especially for one that is struggling to emerge from its current straits. The second paragraph of Article 23 obliges the state to “set a minimum level for wages and pensions that will guarantee a dignified life for the people” as well as a “maximum level for wages in government agencies, the public sector and the public business sector from which there can be no exemption except by law.” However, this provision in fact perpetuates the status quo of miserably low salaries for government employees, while at the same time paving the way for the abuse of the maximum wage limit as a result of possible legal exemptions. This loophole needs to be closed by prohibiting exceptions altogether, and the article should be re-worded in order to ensure that the minimum wage provision applies to the public economic bodies not mentioned here. The article should also include a stipulation to guarantee that the minimum wage is increased annually by a percentage equivalent to the rate of inflation, in order to avert erosion to purchasing power and the standards of living of employees. Interestingly, in this regard the 1971 constitution contained an article providing for a minimum wage sufficient to ensure a dignified life and a maximum wage in order to minimise income gaps. Like the current constitution, it did not set specific criteria for the maximum wage, however (for example, that it should not exceed 15 or 20 times the amount of the minimum wage). Article 24 of the draft constitution states that “agriculture, industry, tourism and their associated activities are primary components of the national economy,” and as such it reflects a lack of economic expertise among its drafters. The sectors that any economy consists of are agriculture, industry and services, tourism being a branch of the latter. Incidentally, agriculture contributed about 15 per cent of Egypt's GDP in the first nine months of the 2012/2013 financial year, while industry and services accounted for 31.7 and 53.3 per cent, respectively. Tourism made up only 3.3 per cent of GDP in this period. Clearly, it is vital to develop this promising sector, which is a major source of foreign currency. But to reduce the service sector to tourism overlooks the fact that this sector also includes health services, education, financial services, transportation and storage, communications, trade and insurance, real estate and other services. The agricultural sector, farmers' rights and the state's responsibilities in this area are also gravely neglected in the constitutional amendment proposals. There is no provision regarding the state's duty to protect farmers' rights, to adjust prices for their crops, or to control the prices of the agricultural materials on which they rely, for example. Nor is there anything to prevent non-Egyptians from owning agricultural land. This signifies the persistence of the same deplorable situation in which ownership of Egyptian agricultural land can be transferred to non-Egyptian hands while there are millions of Egyptian farmers and graduates of agricultural schools who are more entitled to the cultivatable land of their own country. In addition, a poor and haphazard management of the agricultural sector that ignores the systematic application of the principles of fixed and flexible agricultural cycles and incentives systems has been instrumental to the deterioration in the cultivation of certain strategic crops and their associated industries. Notable examples here have been cotton and flax, together with the cotton and linen textile and cotton and linseed oil manufacturing industries. The constitution should address this problem by building the foundations of the sound management of the agricultural sector on the basis of a flexible agricultural cycle in accordance with which agricultural land is divided into three sections, one of which would be compulsorily allocated to the cultivation of strategic crops in annual rotation with the other two sections. Article 25 states that “mineral wealth and natural resources are the property of the people who have the right to their revenues. The state is committed to the preservation and sound use of these resources and to safeguarding the rights of future generations to them.” This article is no different from Article 18 in the 2012 constitution. Both fail to commit the state to obtaining fair prices, consistent with the prices on the global market, for these resources. Some of these resources are currently being squandered, as has been the case with mineral and quarry wealth which is being sold at rates set by a law that dates back to 1956. Article 25 does not commit the state to investing the revenues from the exploitation of mineral, quarry or natural wealth in the development of new productive projects as a form of compensation for the consumption of depletable resources to which future generations have equal rights to the current one. Also on the subject of natural resources, Article 26 commits the state “to the preservation of the Nile, its water resources, coasts, seas and nature reserves, and to the elimination of their abuse. The use of such resources shall be regulated by law.” But the article does not explicitly criminalise polluting these resources or violating public rights to them. Article 27 is also no different from its counterpart in the 2012 constitution. It states that “the state is committed to the preservation and maintenance of antiquities and to the recovery of seized antiquities.” Both of these things are essentially preliminary in nature, however, and they keep the door open to the kind of scandalous negligence and paltry penalties that have done little to deter the theft and other abuses of the heritage and legacy of the first and greatest human civilisation (the ancient Egyptian one). A provision needs to be added to this article stating that “laws shall be promulgated to prevent, criminalise and punish anyone who commits criminal assaults against the archaeological heritage of Egypt and humanity as a whole in a strict and deterrent manner.” Article 32 states that “the taxation system and other public revenues shall be based on the principles of social justice. The payment of taxes is a duty to be performed in accordance with the law.” There is no reference in this article to the idea of a progressive tax system that also covers capital gains and incomes from depletable wealth. Nor is there any mention of exemptions for the poor or for limited-income sectors or of the need to move the minimum taxable income level up in tandem with inflation rates (the average rise in consumer prices). Also missing is a provision that all taxes, fees, fines and other levies imposed by the state must be deposited with the Ministry of Finance. Such a stipulation is needed in order to prevent the continuation of the current situation in which much of these revenues end up in special funds or with other agencies that do not have the right to receive them directly. Article 35, which prohibits the confiscation of public moneys and the expropriation of private moneys except by judicial warrant, paves the way for the non-confiscation of wealth accumulated through corruption or through illicit trade in arms, antiquities and drugs or abuse of public moneys and assets. This needs to be addressed.
POLITICAL ARTICLES: Turning to government structures and offices, the articles pertaining to the authority of the president still need to be amended. Article 120 does not contain anything to restrict a president from seeking employment with private or foreign agencies after leaving office, for example, which seems essential for national security purposes. Article 121 grants the president the right to ignore the party that won the most seats in the People's Assembly. As the constitution is currently worded, the president has the right to choose a prime minister to form a government and if that government fails to obtain the approval of the People's Assembly the president can appoint another prime minister from the majority party. But in fact, the reverse would seem to be more logical, which is to say that it would be less potentially controversial if the president appointed a prime minister from the majority party and if his cabinet failed to obtain the approval of the People's Assembly the president would then appoint another candidate to form a government. Article 127 states that the president is the commander-in-chief of the Armed Forces, and Article 176 states that he is the commander-in-chief of the police. In order to ensure that the army and the police remain state agencies that serve the people as opposed to instruments of oppression in the hands of the president, it would be better to state that he will serve as commander-in-chief of these institutions only in times of emergency and war. As for Article 128, this gives the president the right to appoint and dismiss civilian and military officials, which is to say that it grants him total hegemony over appointments and promotions at all levels of the civil and military hierarchy. This is nothing less than total madness. The principles and rules regarding appointments and promotions in the civil service and the military must be established by laws and regulations that ensure that appointments are not made on the basis of nepotism or political, ideological or other affiliations but on the basis of objective professional criteria. At all events, what president has enough time to evaluate and assess the candidates for thousands of civilian and military posts? This article repeats a criminal defect in the 2012 constitution, and it should be scrapped in its entirety. In like manner, Article 130, which grants the president, after the cabinet formed by his appointed prime minister is approved, the right to pardon convicts or reduce their sentences, is a repetition of the sin of Article 149 in the 2012 constitution. The presidential right to grant amnesty or reduce sentences must be subjected to specific regulations, including the need for legislative approval and restriction to crimes connected with the abuse of public rights. In other words, a pardon or reduction of sentence should never be granted to a person found guilty of the crime of murder because the sentence being served by that criminal is a form of retribution for the family of the victim. It will be recalled that the former president secured the release of the murderer of the famous writer Farag Fouda because, to him, the assassin's membership in the president's own “family and clan” outweighed the feelings of the members of the victim's family. Article 131 is also potentially dangerous as it grants the president the power to issue decrees with the force of law in the absence of the approval of the People's Assembly. The provision is restricted by the condition that the president must bring such decrees to the assembly within 15 days and if the assembly rejects it a decree will lose its legal force retroactively. Nevertheless, it would be preferable to stipulate that the president should summon the assembly to an immediate emergency session for the purpose of issuing any extraordinary decrees or laws. In the event of the dissolution of the People's Assembly, this power should be restricted solely to laws necessitated by a state of emergency and stop short of decrees that have the force of law. Article 134 pertaining to the possible prosecution of a president is excellent apart from the stipulation that a two-thirds vote would be required by the People's Assembly to indict the president after he had been investigated by the prosecutor-general. After a one-third vote by the People's Assembly in favour of turning the president over to the prosecutor-general for investigation, the decision regarding an indictment should rest with the judicial authority rather than the legislative authority.
OTHER ISSUES: Turning to other issues, under Article 151 of the new draft constitution original and supplementary taxes and fees on municipalities are considered as part of the revenues of local government units. This article should be revised to provide that all local taxes and fees revert to the Ministry of Finance which, in turn, will designate the resources to be allocated to local government units on the basis of their size and the projects they intend to undertake. Article 152, which states that the selection of governors should be regulated by law, should be amended to explicitly provide for the direct election of governors. Article 158 states that every judicial agency or body is responsible for its own affairs and that the judiciary should have its own independent budget that is listed in the national budget. This article effectively supports the unjustifiable lack of transparency in the disposal of public moneys and opens the way to financial prerogatives that are inconsistent with the general rules and conditions regarding civil servant salaries that apply to other government authorities and departments. Article 183 is potentially dangerous as it gives the president control over oversight agencies, even if his power to appoint the heads of such agencies is conditional on parliamentary approval by a majority vote. As the primary function of such agencies is to monitor the behaviour of the executive authorities in their handling of public funds, it would be advisable to eliminate the president, as the head of the executive authority, from the process of choosing the heads of the oversight agencies. Instead, this power should be vested in the People's Assembly alone and these agencies should be guaranteed complete autonomy. Lastly, Article 184 requires that the oversight agencies and bodies submit their annual reports to the chairman of the People's Assembly, with the latter then reviewing the reports and taking whatever measures it deems appropriate. It would be more logical if the agencies themselves were to take the appropriate measures, such as referring a particular case to the courts directly, without the need for a go-ahead from the president or the People's Assembly. This would underscore the autonomy of the oversight agencies, which is essential to ensuring the efficiency and efficacy of a system intended to prevent and combat corruption in Egypt.
The writer is an expert at Al-Ahram Centre for Political and Strategic Studies.
