Egypt: a flawed constitutional reform process

by | Nov 13, 2012 | News, Publications, Reports

RESTRICTED USE - ASK OLIVER BEFORE USEA new ICJ report shows that the constitutional reform process in Egypt has failed to meet international principles of inclusive participation and transparency, thereby undermining the transition to democracy.

“The Egyptian authorities, including the Constituent Assembly, have failed so far to meet the aspirations of the Egyptian people to adopt a Constitution that establishes the rule of law, recognizes and protects universally accepted human rights without restriction, guarantees the independence of the judiciary in all circumstances, and ensures the effectiveness of democratic institutions,” said Wilder Tayler, ICJ Secretary General.

The ICJ is calling upon the Egyptian authorities to address the challenges currently facing the constitutional reform process, as a matter of urgency; ensure that this process is in full compliance with international standards of inclusive participation and transparency; and guarantee that the new Constitution fully conforms with the rule of law and international law, including human rights standards.

The ICJ report Egypt’s new Constitution: a flawed process; uncertain outcomes details how, in overseeing the process leading to the adoption of a new Constitution, the Supreme Council of Armed Forces (SCAF) failed to ensure the rights of Egyptians to take part in public affairs and to meaningfully participate in the drafting and adoption of a new Constitution.

“Instead of paving the way for a clear and participatory reform process, the SCAF consistently opted for opaque, rushed and non-consensual policies that aimed to shield the armed forces from any form of accountability and that have severely undermined both the legitimacy of the process itself and its outcomes,” Tayler added.

Even though the administration of President Morsi replaced the SCAF on 30 June 2012, the constitution-making process continues to be carried out under the legal framework enacted by the SCAF.

The report also describes how several judicial decisions, in particular the dissolution of the first Constituent Assembly, by a decision from the High Administrative Court, and the dissolution of the People’s Assembly, following a decision by the Supreme Constitutional Court, have contributed to the confusion and uncertainty regarding the drafting of a new constitution.

As a result of this confused process, the draft of the new Constitution, published by the Constituent Assembly on 14 October 2012, has failed to provide for effective guarantees to reinforce the protection of human rights and the supremacy of the rule of law, including by ensuring that the powers of the State are not exercised arbitrarily.

“The draft Constitution does not sufficiently incorporate the rule of law and international law, including human rights standards. This is particularly evident as regards the accountability of the armed forces and their subordination to a legally constituted civilian authority, the content and scope of constitutional human rights, and the compliance of the whole judicial system, including the Office of the Public Prosecutor and the Constitutional Court, with international standards of independence, impartiality and accountability,” said Said Benarbia, ICJ Senior Legal Adviser for the MENA programme.

The report sets out urgent institutional and legal reforms that, together with sufficient political will, may help ensure a clean break with the practices and policies of Mubarak’s regime and the transition to a genuine democracy in Egypt.


Saïd Benarbia, Middle East & North Africa Senior Legal Adviser, ICJ, t +41 22 979 3817; e-mail: said.benarbia(at)

Alice Goodenough, Middle East & North Africa Legal Adviser, ICJ, t +41 22 979 3811; e-mail: alice.goodenough(at)

Egypt-Flawed constitutional reform process-report-2012

Photo by Reuters

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