Is the Egyptian Constitution for Us or for Them? A Comparative Analysis of Egypt’s 1971, 2012, and 2013 Constitutions

TABLE OF CONTENTS

I. INTRODUCTION

II. EVENTS PRECEDING THE 1971, 2012, AND 2013 CONSTITUTIONS

III. A COMPARATIVE ANALYSIS

IV. CONCLUSION AND RECOMMENDATIONS

REFERENCES

Abstract: This paper is directed to investigating and understanding the contextuality and reason behind the 1971, 2012, and 2013 constitutions formulated for the Arab Republic of Egypt. The following research will illustrate similarities, differences, and points of disagreement, while thoroughly investigating possible hypotheses to understanding why the articles were amended, altered, or removed entirely within all three constitutions. The paper is divided into three parts; part one will elaborate on the events that preceded the establishment of a constitution by the Egyptian Government. Part two will investigate the articles within the 1971 and the 2012 constitutions and compare them to the articles of the 2013 constitution. Part three will elaborate and compare each constitution, 1971 and 2012, with the 2013 constitution. Lastly, this paper will conclude by giving a brief summary of what has been discussed in the paper and provide some recommendations to what should be amended in the latest constitution, 2013 and the institutions to make the constitution stronger and more durable.

I. INTRODUCTION

“We the people are the rightful masters of both Congress and the courts, not to overthrow the constitution but to overthrow the men who prevent the constitution”

~ Abraham Lincoln¹

“Do not separate text from historical background. If you do, you will have prevented and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.”

~ James Madison²

Constitutions vary in their composition, their objectives, their aim, their timing, and their type (oral constitution/written constitution). The quotes above illustrate what I would like to discuss in the following paper. A constitution is meant to protect the rights of the people, and not to protect the ones who are already in power. The objective of a constitution should be to remove those from power, who abuse their socio-economic and political position for self-interest, however this is not usually the case. Furthermore, a constitution should not be taken out of its historical context. The idea behind contextuality is to have some sense of what significant events have occurred before the constitution was drafted and passed, in order to be able to better analyze why certain articles of the constitution are formulated verbally and contextually in some way, and why some articles have been amended to state something different. The power of individual words within a sentence should not be underestimated, for example, a world like “principle” connotes that there is a vague understanding of a concept, however if we put the word principle in a sentence, it differs dramatically from a word like “law”. A world like “law” connotes that the article/sentence has some legal grounds, henceforward, would this article/sentence be violated there are legal consequences, and not just moral consequences like with the word “principle.

According to Robert Badinter the function of a constitution should serve as a guideline to the government on how to govern, set limitations of the government, ensure checks and balances so no power would exploit its powers, protect the rights and state the obligations of the civilians, and lastly set the laws and assigns functions to different organs of governmental and non-governmental organizations.³ Furthermore, he states, that if a constitution is not followed by comments and interpretations on how to apply the law, to avoid ambiguities, the constitution is as good as useless, because the principle of equity could be applied in almost any situation with no regards to the constitutional laws or the formal governmental interpretations.

This paper is therefore directed to investigating and understanding the contextuality and reason behind the 1971, 2012, and 2013 constitutions formulated for the Arab Republic of Egypt. The following research will illustrate similarities, differences, and points of disagreement, while thoroughly investigating possible hypotheses to understanding why the articles were amended, altered, or removed entirely within all three constitutions.

The paper will be divided into three parts; part one will elaborate on the events that preceded the establishment of a constitution by the Egyptian Government. Part two will investigate the articles within the 1971 and the 2012 constitutions and compare them to the articles of the 2013 constitution. Part three will elaborate and compare each constitution, 1971 and 2012, with the 2013 constitution. Lastly, this paper will conclude by giving a brief summary of what has been discussed in the paper and provide some recommendations to what should be amended in the latest constitution, 2013 and the institutions to make the constitution stronger and more durable.

II. EVENTS PRECEDING THE 1971, 2012, AND 2013 CONSTITUTIONS

In 1971 president Anwar El Sadat came to power, after the death of the socialist leader, Jamal Abdel Nasser, and drafted a new constitution and established new institutions.⁴ Anwar El Sadat was the vice president of Jamal Abdel Nasser; they both were part of the Free Officers Military Movement in 1952, which brought about the end of British colonial rule over Egypt.⁵ The succession of Jamal with Anwar was unforeseen and unpredictable. When Anwar came to power, there was a lot of civil unrest in Egypt, due to many factors some of which are: his commencement of a “corrective revolution” by which he meant to reverse the economic, political and social plans that Jamal Abdel Nasser has set, the “open door” economic policy, shifting his political orientation from the East to the West, and lastly his uncharismatic attitude which the Egyptian population had become accustomed to under the rule of Nasser.⁶ However, sources differ about the popularity of Sadat. An author of the English Ahram stated, “Anwar lived for Peace, and Died for Principle”. Later in the article the author stated that Anwar’s death shattered the nation and brought severe grief amongst the populations. His need to satisfy the nation’s need made him become of Egypt’s most beloved and respected presidents.⁷

In 2012 the Muslim Brotherhood member, Mohamed Morsi, came to power through the secret electoral ballot box. Mohamed Morsi was the first elected civilian president Egypt has ever had.⁸ He led Egypt for almost one year, only to be ousted in 2013 by what some believe to be a “military coup” aimed to return back Egypt to the military rule.⁹ Some believe that the alleged coup was due to Morsi’s attempts to cut the military budgets, demand more transparency and inclusion of the president in military affairs, and to integrate the military into the political system rather than having them as an independent body from the government.¹⁰ Furthermore, the anti-foreign intervention in domestic affairs ideology the Muslim Brotherhood possessed raised a lot of eyebrows regarding the international community, especially the West, who have interest in Egypt and the maintenance of its stability for the insurance of their economic trading routes.¹¹ Moreover, the regional powers, which supported the stabilization of the Egyptian internal affairs, like Saudi Arabia and the United Arab Emirates, possess strong anti-Muslim Brotherhood ideologies, which made them motivated to fund the stabilization of Egypt yet oppose the Brotherhood’s ideology.¹²

After the 30th of June 2013 Revolution, which called for the removal of the Muslim Brotherhood regime, after only one year of its installation, brought about the military regime in Egypt. The Revolution could be interpreted as a result of the almost equal division of the society during the 2012 presidential elections, which the Muslim Brotherhood member Mohamed Morsi won by 51% of the votes; meaning that 49% of the society were dissatisfied and uncomfortable with having this political group in power.¹³ The newly elected president Abdel Fattah El Sisi, succeeded in the elections in late October 2013 and did not hesitate to rewrite and amend the constitution of 2012 to be more suitable for the socio-political and economic status of Egypt.

Each of the three presidents and each of their constitutions have different terms and different articles addressing the same issues. In this paper an analysis of the motives behind the changes made to each constitution will be emphasized in order to be able to critically conclude whether the constitutions have been amended and set up to serve the interest of the public or serve the interest of the ones currently in power.

III. A COMPARATIVE ANALYSIS

a) 1971 and 2012 versus 2013

In this part, a comparative analysis between the mutual articles in the 1971 constitution and the 2012 constitution will be laid down and the differences between them and the articles of the 2013 constitution will be highlighted and interpreted.

Article 1 of the constitutions of 1971 and 2012 stated “The Arab Republic of Egypt is a sovereign, united, indivisible State, where no part may be given up, having a democratic republican system that is based on citizenship and rule of law.

The Egyptian people are part of the Arab nation seeking to enhance its integration and unity.” While in the 2013 constitution it was amended to include “(…) Egypt is part of the Islamic world, belongs to the African continent, cherishes its Asian dimension, and contributes to building human civilization.” This amendment has been made to make sure that the economic and political relationships Egypt has with its Eastern allies are emphasized, while also making sure that the unity with the Islamic states in Africa and Asia are reiterated.

Articles 139 and 42 address the electoral quotas and the assignments of each government. Article 139 remained as is in all three constitutions, while article 42 was remained the same in the 1971 and 2012 constitutions, and was amended in the 2013 one.

Article 139, which stated “The President of the Republic is the head of State and the head of executive power. He shall care for the interests of the people, safeguard the independence of the nation and the territorial integrity and safety of its lands, abide by the provisions of the Constitution, and assume his authorities as prescribed therein” remained as is in all three constitutions. This emphasizes the intention of all three governments to have power remain with the president by making sure that all executive measures are presided over by him. This article ensures the president unlimited power over what laws are to be protected, when they serve the interest of the president, and when to be dismissed, when they don’t serve the interest of the president and his entourage.¹⁴

Article 42, on the other hand was amended. In 1971 and 2012 it stated, “Workers shall be represented by 50% of the elected members of the boards of directors of public sector units. Their representation in the boards of directors of public enterprise sector companies shall be subject to the Law. The Law shall regulate the representation of small farmers and craftsmen with a minimum representation percentage of 80% in the boards of directors of agricultural, industrial and handicraft cooperatives.” While in 2013 this quota was removed and article 42 stated “The state grants workers and farmers appropriate representation in the first House of Representatives to be elected after Constitution is adopted, in the manner specified by law.” The amendment to article 42 in 2013 emphasizes the realization of the government that farmers and workers are no longer available for patronage, which led the government to believe that it is necessary to remove the quote in order to ensure that only supporters of the military government are in the parliament.¹⁵

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¹ Abraham Lincoln was the 16th United States president and served from 1861-1865.

² James Madison was the 4th United States president and served from 1806-1817. He was considered to be the “father of the [American] Constitution” due to his many contributions in formalizing and codifying the American Constitution.

³ Robert Badinter, “Chapter 1”, in The nature and Function of Judicial Review, (Princeton: Princeton University Press, 1985): 1-39.

⁴ Ahmed Maher El Sayed and John B. Alterman, eds., “Anwar Sadat and His Vision”, in Sadat and His Legacy: Egypt and the World 1977-1997, (Washington: The Washington Institute for Near East Policy, 1998): 1-7.

⁵ Raymound Maalouf, “Egypt: A Case Study” The Military Handbook 2, no. 18, (2001): 351-356.

⁶ Sayed and Alterman, Sadat and the Transformation of Egyptian National Security, 43-73.

⁷ Darrel Arthur McCulley, “Anwae Sadat: Lived for Peace Died for Principle”, Al Ahram English, (October 9, 1981): 1-2.

⁸ Jannis Grimm and Stephan Roll, “Egyptian Foreign Policy under Mohamed Morsi”, Stiftung Wissenschaft und Politik (SWP) 35(2012): 2-4.

⁹ Martin Beck and Simone Hüser, Political Change in the Middle East. An Attempt to Analyze the Arab Spring, (Hamburg: GIGA Working Paper 203, 2012): 4.

¹⁰ Oliver Roy, “There will be no Islamist Revolution”, Journal of Democracy 24, no. 1 (2013): 14-19.

¹¹ Hillel Fradkin, “Arab Democracy or Islamist Revolution?”, Journal of Democracy 24, no, 1, (2013): 5-6.

¹² Oliver Roy,“The Transformation of the Arab World”, Journal of Democracy 23, no. 3, (2012): 17-18.

¹³ Tom Ginsburg 2012: “The Real Winner in the Egyptian Constitution? The Military”, The Huffingtonpost July 12, 2012; available at: http://www.huffingtonpost.com/tom- ginsburg/egypt-draft-constitution-military_b_2259798.html (accessed Nov. 26, 2015).

¹⁴ Amel Ahmed, “Revolutionary Blind-Spots: The Politics of Electoral System Choice and the Egyptian Transition”, Middle East Law and Governance 3, no. 2, (2013): 3-5.

¹⁵ Brown, Nathan J./ Dunne, Michele (2014): “Egypt’s Draft Constitution Rewards the Military and Judiciary”, Carnegie Endowement for International Peace, December 14, 2013; availableat : http://carnegieendowment.org/2013/12/04/egypt-s-draft-constitution-rewards-military-and-judiciary, (accessed Nov. 22, 2015).