The following is the first of a two part article by the Arab Reform Initiative, an independent research network, concerning the 2014 constitution’s treatment of human rights and the separation of powers in the government. The first part, below, addresses the constitution’s articles concerning the military and security apparatus. The second part, dealing with the judiciary, will be printed on Wednesday.
Since the Constituent Assembly’s announcement that they had completed a new draft constitution, there has been a celebratory atmosphere in Egypt and faith in the ability of the constitution to establish democracy and to protect the sovereignty of the Egyptian state. In the highly complex context in which the Constituent Assembly has been working, the government has determined that the constitution is the necessary basis from which to launch the democratic transition phase, in which there will be greater respect for pluralism and the rule of law. The discussion around the constituent elements of the new constitution has been one of total polarisation: either with the constitution or against it and with mobilisation in favour of a yes vote proposed for the protection of the nation and in support of stability.
With the near absence of rational constitutional debate, these two articles attempt to focus on a common perspective from which to evaluate the proposed text. The articles thus focus on “accountability mechanisms,” measuring the extent to which the 2014 constitution realises the people’s desire for checks on power and enforced accountability of state actors, whether through elected legislative representatives, through the principle of mutual checks among state institutions or through public gatherings of the people. The first article deals with the points that are missing from the constitutional text in terms of accountability and checks on the armed forces and the Egyptian police. The second article discusses the constitution’s focus on the concept of “independence” of the judiciary as a substitute for concern with its “neutrality”, the transparency of its appointments, and its effectiveness as a basic system for establishing and implementing justice for all citizens.
The paper seeks to address an essential question that has been absent from debates about the new constitution: to what extent and by what mechanisms can the constitution pave the way for a democratic future that safeguards the right of citizens, their representatives and their organisations to accountability in government and checks on power?
Civilian-military relations and the position of security institutions in the 2014 constitution
By Ahmed Abd Rabou, Assistant Professor in Political Science at Cairo University.
This article seeks to outline the development of civilian-military relations in the 2014 constitution because of the importance of this relationship in any state that aspires towards democracy. Most studies of democratic transition make connections between the ability to create civilian control over the decision-making process for the recruitment of military elites, policy setting for internal and external security, the placement of military institutions under civilian control, and the ability to make a democratic transition. Civilian-military relations and the position of the military have been the subjects of heated debate since the fall of Mubarak on 11 February 2011 when the takeover of the country’s affairs by the Supreme Council of the Armed Forces led to a period of political violence and mutual accusations of betraying or reversing the revolution. The paper also discusses the position of security institutions (the police) in the constitution to evaluate the extent of its triumph over civil rights and over the freedom to oppose the Egyptian internal apparatus, which has been connected with immense violations of human rights since the revolution began on 25 January 2011.
The first part of the paper undertakes a short discussion of the nature of the civil state in Egypt through analysis of civil-military relations and political life. Four principal issues will be reviewed: 1) Appointments of the defence minister, military leaders and military employees
2) Laws specific to the military and its budget
3) Military courts and their responsibilities
4) The announcement of a state of war.
The second part the paper discusses the security apparatus with regards to civil rights and freedoms, especially the right to protest. The paper compares the 2014 and 1971 constitutions to reveal the development of this relationship over time and to investigate the civilian state in Egypt.
Section 1: Civil-military relations
A) The civilianisation of the Egyptian state (a glance at the preamble)
It is noteworthy that the preamble of the 2014 constitution saw an important change in terms of the civilian state. The preamble to the 2012 constitution did not indicate the phrase civilian state other than where it put forward the very important principle of non-intervention by the military institution into political affairs, with the preamble stipulating in its eighth principle:
‘Defence of the nation is an honour and an obligation. Our armed forces are a neutral, professional national institution that does not interfere in the political process. It is the country’s protective armour’. The text of the 2014 constitution, meanwhile, not only omits this important principle establishing a civilian state, but puts forward a strange and unpalatable phrase on the fifth page of the official text: “We are now drafting a Constitution that completes the building of a modern democratic state with a civilian government”. The phrase ‘civilian government’ is unpalatable in the literature of the political sciences as it is a narrowing of the principle of a state of a civilian nature or even civilian rule, since “government” is narrower than “state” or “rule”. Although this change worried some who anticipated that it might be in the interests of Islamic political groups, this provision opens the door to control by the military over political and civilian affairs, especially if we look at the current position of strength for the military relative to the Islamic political movements on the ground.
B) The development of the military
1) Appointments of the defence minister, military leaders and military employees
The 2014 constitution assigns the elected civilian authorities (the government and the president) the role of appointing the minister of defence. In contrast, Article 143 in the 1971 constitution stipulated that the president undertakes the appointment and removal of military and civilian employees. The 2012 constitution produced under the Morsi government restricted this absolute right of the 1971 constitution by leaving Article 143 in the same formulation (though re-numbered as Article 145) but re-defining and limiting it in Article 195 which stipulates that “the Minister of Defence is the Supreme Guide of the Armed Forces and is appointed from among its officers.” This meant that although authority has been granted to the president to appoint the Minister of Defence, the president is obliged to choose this minister from among the officers of the armed forces.
In the 2014 constitution, Article 153 preserves the right of the president to appoint military and civilian employees, but is redefined and limited in two other articles. Article 201 maintains the restriction that the Minister of Defence must come from among the officers, while Article 234 stipulates that the appointment of the Minister of Defence should be with the agreement of the Supreme Council of the Armed Forces and that the appointment will be valid for two complete presidential terms. This translates as complete independence for the military in the appointment of its leader without any interference or authority from the government or president.
2) The military budget and special military legislation
The constitution of 1971 was entirely silent about the budget for the armed forces or on the discussion of draft laws specific to the military. In the 2014 constitution, however, Article 203 maintained the gains that the military obtained in the 2012 constitution (Article 197), stipulating the establishment of a National Defence Council. The council is headed by the president and is responsible for (among other things) discussion of the military budget, and must be consulted about any legislative bill concerned with the armed forces. The 2014 constitution put forward three changes to the 2012 constitution concerning the formation of this council and the discussion of the military budget:
1) The Council of National Defence in the 2012 constitution is composed of eight civilians and seven military officers (with the assumption that the minister of the interior and the head of general intelligence are civilians), while in the 2014 constitution, the council is composed of seven civilians and seven military persons. With the elimination of the Shura Council in the constitution (leaving the House of Representatives as Egypt’s sole legislative body), the position on the Council of National Defence previously held by a Shura Council representative has been removed.
2) Article 203 in the 2014 constitution stipulates the insertion of the army’s general budget as one section of the general state budget. This is an additional stipulation not found in the 2012 constitution.
3) The 2014 constitution also requires that the head of financial affairs for the armed forces be present at discussions of the military budget, along with the heads of the Budget and Planning Committee and the Defence and National Security Committee.
In general, the 2014 constitution has maintained the jurisdiction of the Council of National Defence, which is dominated by members of the military, over the discussion of matters pertaining to the army budget or to any legislation pertaining to the military.
3) Military courts
Although the constitutions of 1971 and 2012 established military courts, the 1971 constitution gave only a brief description of this judiciary body, leaving it to legislators to define its competencies (Article 173). The 2012 constitution established military trials for civilians through Article 197, which stipulated the independence of military courts and gave them the right to try civilians for crimes that “harm the armed forces”. The 2012 constitution also left it to legislators to define those crimes, while ensuring that members of the military judiciary could not be removed.
However, the 2014 constitution, by way of Article 204, does not stop at the previous assurance, but puts forward three additional points representing new additional powers for the military judiciary:
1) The addition of the phrase “and whoever is subject to them” in the jurisdiction of the military judiciary where it categorises crimes connected with the armed forces, their officers and whoever is subject to them, which widens the sphere of the jurisdiction of the judiciary. This stipulation was not in the 2012 constitution.
2) The inclusion of crimes committed by individuals in the general security services during and on account of their service. This is an additional stipulation, which extends the authority of the military judiciary where it did not exist previously.
3) The inclusion of trial for citizens for attacks on one of the following groups: military facilities, barracks or whatever falls under their authority, stipulated military or border zones, military equipment, vehicles, weapons, ammunition, documents, military secrets, public funds or military factories, crimes related to conscription, or crimes that represent a direct assault against military officers or personnel because of the performance of their duties.
The article therefore represents an expansion, unprecedented in the history of Egyptian constitutions, of the possibilities for trials of civilians by the military judiciary. General expressions such as “whatever is under their authority” may be used ambiguously to punish political opposition and activists.
4) Announcement of a state of war
While in the 1971 constitution this was limited to Article 150, which stipulated the necessity of gaining the approval of the People’s Assembly before the president could announce a state of war, the 2012 constitution put forward two important amendments: the first was that it became unlawful to declare a state of war without consulting the Council of National Defence, the Council created in this constitution; second, agreement of the Council became obligatory for the declaration of a state of emergency or to send forces abroad.
Article 152 of the 2014 constitution put forward two important additions:
1) That a declaration of a state of war requires that the House of Representatives approve by a two thirds majority, rather than the absolute majority (50%+1) required in the constitutions of 1971 and 2012.
2) In case of dissolution of the House of Representatives, the approval of the Supreme Council of the Armed Forces is required, along with the Council of National Defence and the Council of Ministers.
The 2014 constitution thus expanded control of the military over the citizenry and over political life. Although this trend began with the 2012 constitution, the 2014 constitution both affirmed the trend and assisted in creating the tyranny of the military over the citizens. The 2014 constitution gives the military complete independence, to the extent of positioning them as an authority independent from the executive, rather than being subject to it, as would be the case in a stable democracy.
Section 2: Security institutions in the 2014 constitution
One of the most important demands of the 25 January Revolution was to restructure the Ministry of Interior and hold it to account for past actions. Revolutionaries called for the remaking of security policies so that the concept of security would be redefined to mean security of the citizens rather than security of the regime. Despite the second revolutionary movement of 30 June 2013, seen as a rejection of the security policies during the rule of the deposed President Morsi, the 2014 constitution contains severe and conservative articles concerning security policies and the rights and freedoms of citizens. The 2014 constitution contains some of the policies and procedures that the revolutionaries had rejected, including the suspension of civil rights and freedoms, detention without trial, and restrictions on rights to demonstrate, including demonstrations concerning civil rights and freedoms or opposition to the security policies of the state. The constitution includes severe general stipulations that do not give any rights guarantees with reference to the law. Listed below are the most important observations regarding the rights and freedoms of individuals facing the security policies of the state:
First: Article 54 of the constitution allows detention without trial despite the fact that this is considered odious in democratic countries and has played a negative role in Egyptian history. The constitution places no restraints on this procedure.
Second: In spite of Article 57, which stipulated that a dignified life should be given to prisoners, the regulation of this dignified life was referred to the legislature.
Third: Article 57 assigns to legislators the role of organising and guaranteeing the right of media freedom.
Fourth: Similarly, procedures and guarantees regarding the inviolability of homes have been assigned to the legislature by Article 58. The legislature may thus act as it sees necessary in organising the protection of this right, which in the Egyptian experience has repeatedly meant the right becoming meaningless.
Fifth: The 2014 constitution was haphazard in its amendment of laws concerning rights and freedoms. It makes amendment of these laws conditional on a two thirds majority in parliament. This makes it impossible to amend the laws concerning rights and freedoms, despite clear gaps, making the culture of political and civil rights and freedoms meaningless.
Sixth: In Article 73, the 2014 constitution restricts the right to demonstrate by insisting on notification, to be regulated by the law. The Egyptian experience of the current law reveals the scale of the oppression in the exercise of this right. Notification does not so much mean informing the authorities, but rather, in the Egyptian context, the law imposes the requirement of “prior permission” rather than “notification” because it gives the interior ministry the right to authorise demonstrations or not.
Seventh: In Article 241, the House of Representatives commits to issuing a transitional justice law without defining the substance of this law or its meaning. Despite the fact that the formulation of the article appears to support a law of transitional justice, the possibility that the political actors controlling the legislative process may have interests that conflict with the law completely empties this article of its content.
The 2014 constitution does not champion civil rights and freedoms in confronting the police. While Articles 206 and 207 lay out the structure of the police and their high council, with the usual reference to the law, the remainder of the articles concerned with civil rights and freedoms are either emptied of meaning by being referred to the legislature for definition, or are simply devoid of any real basic guarantees to organise these rights.
The Arab Reform Initiative was founded in 2005 by sixteen think tanks and research institutes from the Arab world, Europe and the United States. ARI is an independent research network with no ties to any specific country or any political agenda related to the region.