The state and its constitution

As the deadline marking the end of the 50-member committee’s work on amending the 2012 constitution approaches, newspaper headlines have been occupied with objections from various state institutions regarding their positions in the amended draft.

Conflicts involving the judiciary and the military in particular have unfolded throughout the process, revealing that both are on adamant quests to use the constitution as a leveraging tool rather than a democratic state-building one.

Many observers view this as a result of the fears of executive intervention following the rule of the Muslim Brotherhood, which ended with a military intervention. But they also voice concerns about the lack of a solid political project that could bring these institutions together rather than putting them on the defensive.

A conflict among members of the same sector

Two main judicial authorities, the Supreme Constitutional Court and the Supreme Judicial Court, made sure to garner more protection and privileges in the amended constitution.

The constitution committee is recommending that amendments be made to judicial authority laws after they have won the approval of at least two thirds of MPs, while normally a simple majority is deemed sufficient.

The retirement age for judges will not be mentioned in the constitution, nor the specific number of judges in the Supreme Constitutional Court, both of which were the traps through which the short-lived Brotherhood regime managed to intervene in the formation of the court: In May that regime tried to dispose of 4000 judges by saying the retirement age should be 60 rather than 70, and its constitution, introduced in 2012, reduced the number of SCC judges to 11 from 17.  

Less sure about its fate in the new constitution is the State Council, which falls in the middle of a rift between the State Lawsuits Authority and the Administrative Prosecution Authority. The 2012 Constitution granted the council judicial immunity, unlike the 1971 Constitution. However, the council has other demands, which is bringing it into conflict with other judicial players. 

A number of State Council judges are planning to hold a sit-in at their club’s headquarters to demand the exclusion of Administrative Prosecution Authority and State Lawsuits Authority judges from the chapter concerning judicial authority in the constitution. They also demand that those judges be stripped of any judicial immunity.

Meanwhile, the Administrative Prosecution Authority will hold an emergency general assembly meeting tomorrow to discuss its demand that the committee assign some of its members disciplinary powers that currently belong to the State Council.

“The State Council is swamped with thousands of administrative lawsuits. The main role of our authority currently is to investigate financial and administrative violations inside government authorities, then refer them to the State Council once a violation is proved,” says the Administrative Prosecution’s Club spokesperson Ahmed Galal. 

“However, establishing a disciplinary court supervised by the Administrative Prosecution would allow us to not only investigate but also rule on these violations. In the end, we have enough members capable of handling these cases, and this would give the State Council the freedom to rule in administrative conflicts between the state and any other party, thus helping achieve justice,” he adds.

Meanwhile, the vice president of the State Lawsuits Administration, Ashraf Mokhtar, says his administration has the right to keep the jurisdiction granted to them by a 2012 constitutional amendment, that includes the right to draft state contracts, and add a new draft law with the right to revise contracts as well.

“Before the 2012 constitution, the Tenders and Auctions Law gave the State Council the right to revise contracts, but now our rule is restricted to drafting them. All those revised by the State Council were annulled later in lawsuits filed at the State Council itself, especially contracts for public sector companies that were privatized, like Omar Effendi and Madinaty,” Mokhtar says. 

Maged Shebita, a judge at the State Council, disagrees with these suggestions.

“I think these suggestions stirred unnecessary problems. What does it mean when the Administrative Prosecution holds disciplinary courts, making it the opponent and the referee at the same time? Judiciary rules are simple and obvious when it comes to separating investigative from ruling authorities,” Shebita says.

“As for the State Lawsuits Authority’s suggestion to be responsible for drafting and revising contracts, we don’t mind giving them the right to draft them so as to avoid any mistakes in the legal drafting. However, revising the contracts is an inherent right of ours,” he adds. 

Shebita dismisses claims that their revising is flawed since some contracts have been nullified later, explaining that their role is limited to legal drafting and not the content of these contracts.

For Youssef Auf, a constitutional law researcher, these demands lack solid technical justifications.

“It seems that some judicial authorities have decided to keep all the privileges they won through the Brotherhood’s constitution. They are even demanding more powers, regardless of their efficiency or capability to implement them. Why don’t representatives of these authorities come up with realistic solutions that justify their demands?” he wonders.

“The idea of assigning disciplinary measures to the Administrative Prosecution and granting the right to revise contracts to the State Lawsuits Authority needs extensive research and practical experiments according to a specific timeline. Hence, those rights should not be constitutionally immune,” he adds.

The army also demands

Nearly two weeks ago, the privately-owned Al-Shorouk newspaper published a cover story confirming that the constitution committee had reached an agreement with the Armed Forces that the president will be able to assign or fire the defense minister only after the approval of the Supreme Council of the Armed Forces for one to two presidential and parliamentary sessions following the ratification of the new constitution.

At the same time, an unverifiable voice recording of a conversation between Defense Minister Abdel Fattah al-Sisi and chief editor of the privately-owned Al-Masry Al-Youm newspaper appears to show Sisi emphasizing that the positions of the defense minister and the military must be constitutionally protected regardless of the beliefs or views of the future president.

Auf believes that the origin of the current controversy lies in article 195 of the 2012 Constitution, which stipulates that the assignment of a defense minister has to come from within the ranks of the army. He says this article was an attempt by the Brotherhood curry favor with the military.

“Although the 1971 Constitution didn’t mandate that the defense minister be military personnel, it was always an obvious choice. Unfortunately, article 195 further complicated the situation and opened the door for discrimination when it comes to the Defense Ministry,” he says.

Political science professor Hassan Nafaa suggests an amendment giving the military the opportunity to nominate three names, from which the president would then choose a defense minister.

Moreover, the 10-person committee of legal experts that worked on the constitutional amendments ahead of the 50-member committee recommended keeping the articles concerning the military from the 2012 Constitution. They stipulated that the defense minister is commander in chief of the Armed Forces, and is selected by military officers. They also lowered civilian representation in the National Defense Council, which discusses the military’s budget and draft laws.

Eight seats are now reserved for military and security representatives while six, instead of seven, remain for executive and legislative authority representatives. At the same time, the president may still keep the right to relieve military personnel from their positions, although this has not been officially decided by the constitution committee yet.

For Auf, this is an expected evolution with the developing role of the military in politics.

“The military’s involvement in public life since January 25, its more effective role and consequent popularity after June 30, its financial interests, and the fact that there is no potential ruling figure from a military background who can provide it with political protection like Hosni Mubarak, pushes it to pursue a special status in the constitution,” he says.

Nafaa thinks that the articles specifically tailored for the military give it the upper hand over all other state institutions. At the same time, he argues that it may be explained as a security measure following constant attempts by former President Mohamed Morsi and the Brotherhood to control and infiltrate the military.

“It’s not in Egypt’s favor to have institutions that don’t fall under presidential powers, so we have to reach a common ground that protects the military’s independence from the president’s ideology and ensures high national security standards without affecting democracy,” he says.

A committee in a dilemma

Many thought that amending the constitution would be a smoother process than last time thanks to the absence of deep ideological conflicts between civil fronts and their Islamist counterparts.

However, an obstacle seems to be the focus on undoing the Brotherhood’s perceived errors, which has overshadowed the need to write a technically balanced constitution that draws clear lines between state institutions, critics say.

Political science professor Ahmed Abd Rabboh believes that “state institutions decided to deal with the constitution as a means to obtain immunity out of fear of political plurality.”

“The committee is in a tough situation, vulnerable to both public and state pressure, especially as it has a large number of liberal members who are calling for absolute democracy,” he says. “I expect the 2013 constitution to be relatively better than those preceding it, but it won’t last for long.”

Additional reporting by Mohamad Salama Adam

Omar Halawa 

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