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Constitutionalism, Human Rights, and Islam after the Arab Spring by Grote, Rainer; Röder, Tilmann J (22nd August 2016)

Part 4 The Fragile Basis of Democracy and Development, 4.6 The Quest for a New Economic Order in Egypt’s Constitutional Transformation

Kilian Bälz, Anja Schoeller-Schletter

From: Constitutionalism, Human Rights, and Islam after the Arab Spring

Rainer Grote, Tilmann J. Röder

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 07 December 2019

(p. 513) 4.6  The Quest for a New Economic Order in Egypt’s Constitutional Transformation

I.  The Arab Spring and the Quest for a New Economic Order

“Bread, Freedom and Social Justice.” Already the slogan of the 2011 Revolution demonstrates that the quest for social justice was a key issue of the Arab Spring. The protests started when the street vendor Muḥammad Būʿazīzī burned himself in the Tunisian town of Sīdī Būzīd on December 17, 2010, and led to the toppling of the regimes in Egypt and Tunisia only weeks later. The small-scale trader could no longer bear the abusive treatment he had endured at the hands of the police, who had confiscated his goods and his scales, thus preventing him from running the business on which he relied to support himself and his family. The initial spark for the Arab Spring was therefore both economic and political. It was economic because widespread dissatisfaction with social injustice and corruption played a key role. This, however, became political because the political system was perceived as being responsible for the malaise and the discussion on social justice and transparency thus took place within a broader political context.1

The economic frustration, which was reflected in the street vendor’s life (and death), was the by-product of rapid yet uneven economic development in Tunisia and Egypt over the last decade: Both countries liberalized their economies and succeeded in attracting foreign investors. Their economies grew at solid rates of between 4% and 6% per annum, and they were regularly hailed as “success stories”.2 Their vicinity to Europe, the emergence of (p. 514) new forms of manufacturing, the spread of information technology, and new cash crops in agriculture promised an economic and social transformation. The newly emerging middle class, however, was small, comprising maybe 2% to 3% of the population. The modern Arab dream, characterized by shiny shopping malls and exclusive compounds, imported consumer goods and travel abroad, international schooling and university education, remained the privilege of a few.3 The economy was dominated by a small business elite, which held a monopoly over business opportunities.4 There was a widespread dissatisfaction with corrupt practices and the lack of transparency.5

This contribution will focus on tracing the development of competing economic ideas and resulting ambiguous economic models throughout Egypt’s recent constitutional history.6 Although there was wide spread dissatisfaction with the economic policy of previous regimes, it will be shown that no new or alternative models have been proposed to date. In neither of the constitutional debates—which focused on issues such as the role of Sharīʿah, civil liberties, the powers of the president or the role of the army—did economic issues, beyond the general postulation of “economic and social justice”, play a prominent role.7 Beyond differences in detail, both continue the trend of the previous Constitution of 1971, which lacked a clear sense of direction in economic matters.

II.  The Economic Paradox of the 1971 Constitution

Both the constitutional debate in Egypt preceding the Constitution of 2012 and the rather limited debate relating to the 2014 Constitution evolved against the backdrop of the 1971 Constitution. It is worth briefly revisiting the key economic principles contained therein, as these reveal a paradoxical attempt to reconcile a socialist economic order with the fundamentals of a free-market economy.8 This is especially obvious when contrasting the various provisions on property contained in the 1971 Constitution.

(p. 515) On the one hand, the 1971 Constitution contained the standard guarantees in relation to private property and economic activity, which are considered to be amongst the cornerstones of any free-market economy:9

  • –  No sequestration of private property except in the cases specified in the law and under a court judgment (Art. 34, 1)

  • –  No expropriation except for the public benefit and against fair compensation in accordance with the law (Art. 34, 2)

  • –  No nationalization except for considerations of the public interest, in accordance with a law and against compensation (Art. 35)

  • –  Prohibition of public sequestration (Art. 36)

From this perspective, the 1971 Constitution provided the basis for a market-based economic system. On the other hand, however, the 1971 Constitution (here in the wording prior to the constitutional amendments of 2007) also enshrined the key elements of a socialist economic order. Thus Art. 1 stated: “The Arab Republic of Egypt is a state with a socialist-democratic system [niẓām ishtirākī dimūqrāṭī], which is based on an alliance of the labor forces of the people.”

The economic system was further defined as “based on subsistence and justice”, while adhering to the obligation that “exploitation shall be prevented, the reductions of the gap between earnings shall be targeted, legitimate income shall be protected and the just distribution of public obligations and levies shall be safeguarded” (Art. 4).

These general provisions were complemented by Arts. 23 to 29 of the Constitution of 1971, which dealt with the “economic constituents” of society, thereby providing for the state development plan (Art. 23), the control of the people over the means of production (Art. 24), as well as cooperative and public property (Art. 29). In addition, the public sector was assigned a key role in economic development (Art. 30). These provisions, being in clear contrast to the fundamentals of private property and freedom of economic activity, were initially understood as entailing an orientation in favor of a socialist economic order.10

Therefore, the 1971 Constitution lacked clarity when it came to economic matters. It stands at a crossroads between a socialist and market liberal economic order and reflects the tendency among drafters to allow for some modifications to a strictly socialist economic model without abandoning state oversight and protection. It is important to note that the 1971 Constitution was by no means a manifesto of neoliberal doctrines, which by definition would give the market priority over the state and wouldn’t enshrine the principles of public interest or subsistence for the poor through constitutional safeguards. The economic liberalization and transformation of Egypt, which started with Sādāt’s open door policy in the 1970s and was continued by his successor Mubārak,11 thus developed against the background of a constitution which established a strong mandate for the state and assigned the public sector a key role in economic development.

(p. 516) III.  Neoliberal Reform and Constitutional Justice

Much has been written about the role of the Supreme Constitutional Court in the Egyptian political system. One of the most plausible explanations of why an autocratic regime opted to establish a strong and independent constitutional court is that this was a way of supporting the transformation to a marked-based economic system. Tamir Moustafa in particular has argued that the Egyptian Supreme Constitutional Court was established in response to investors’ needs for an independent institution to protect property rights. According to this reading, the Supreme Constitutional Court in Egypt is intrinsically linked with Sādāt’s open door economic policy in the 1970s and the economic liberalization under Mubārak in the decades that followed.12

This is not the right place to discuss the merits of this approach in detail. It clearly would be wrong to attribute the shortcomings of the Egyptian economic transformation prior to the January 25 Revolution to the intervention of the Supreme Constitutional Court, which has, for example, emphasized the social function of private property and the corresponding responsibility associated with it in many of its rulings.13 It appears, however, that the Supreme Constitutional Court did play a major role in reshaping the constitutional framework of Egypt’s economic order and that it did so by means of a reinterpretation of the provisions of the 1971 Constitution. This becomes apparent when one considers its decisions regarding three critical issues: nationalization, rent control, and the privatization of state enterprises.

The policy of sequestration and nationalization of privately owned land and assets during the Nāṣr era had created a large public sector. From its inception, the Supreme Constitutional Court was attributed the role to “exclusively undertake the judicial control of the constitutionality of the laws and regulations” and to “undertake in the manner prescribed by the law the interpretation of legislative texts” (Art. 175). In this regard, the Supreme Constitutional Court has acted to defend the sanctity of private property and repeatedly reinforced the principle of prohibiting nationalization without full compensation. As a result, the government was obliged to increase compensation payments and in some instances, decisions on nationalization were reversed altogether (with the result of properties being returned to their previous owners).14 The Supreme Constitutional Court thus reinforced the sanctity of private property and reversed the restrictions developed during the Nāṣr era.

Since the Nāṣr era, landlord-tenant relations Nāṣr in Egypt have been tightly regulated. Without going into the details of the complex rules, which distinguish between different classes of properties and different uses, it suffices to say here that under the respective laws, tenants often gained a legal position similar to that of property owners. Rents were fixed at a low (at times tokenistic) amount while the contracts were indefinite, could not be terminated, and were even transferred to family members by way of inheritance. The Supreme Constitutional Court, based on the principle of private property, significantly reduced these restrictions and thereby supported the transformation to a free rental market—a development which, in light of its social dimension, is not uncontroversial.15 Time and again, the (p. 517) Supreme Constitutional Court reinforced the principle of private property, thus reducing the extensive legal protection enjoyed by tenants which had provided them with an owner-like status. As a by-product, the rental market, once paralyzed by rent control laws, was revived.

The Nāṣr era policies of nationalization created a sizable public sector, which dominated the Egyptian economy for the decades that followed. From the early 1990s onward, the Egyptian government pursued an ambitious program of privatization as part of a structural adjustment policy aligned with the International Monetary Fund and the World Bank. The public sector companies were transferred to holding companies and then sold either to investors directly or through the stock exchange. The privatization program was challenged in the Supreme Constitutional Court based on the argument that it was unconstitutional to dispose of public property and that such privatization was in violation of the socialist guarantees of the constitution. The Supreme Constitutional Court, in a landmark decision in 1997, dismissed these arguments and ruled that the Egyptian Constitution did not prohibit a transformation to a market-based economy. In doing so, the court safeguarded the transformation from a state-led to a market-based economy.16

In view of this, it is fair to conclude that the Supreme Constitutional Court indeed played a significant role in the economic transformation of Egypt and that it probably did so deliberately. It is noteworthy that the Supreme Constitutional Court emphasized the necessity to interpret the constitutional provisions in the light of changing economic circumstances and in doing so implicitly reserved the right to interpret for itself. In its landmark decision on the privatization of public enterprises, the court maintained:

The provisions of the Constitution may not be understood to provide a final and permanent determination of the economic system, which is detached from the realities of the time. [The provisions of the Constitution] are not adopted and enacted, with the purpose of being followed blindly … moreover, their meaning is to be determined in the light of the supervening values of its purpose, to free the nation and the citizen in political and economic respects … To subject the provisions of the Constitution to a ratio which is imminent in themselves contravenes the fact that these provisions are exposed to new horizons, the considerations of which society desires.17

Based on this, the court argued that the constitution (1971) did not contain a stipulation for any particular economic order. However, it did provide an arrangement in favor of economic and social development. In turn, achieving development requires the investment of capital, which may be public or private. The balance between public and private investment, according to the Supreme Constitutional Court, must be determined in the light of changing social and economic circumstances. A sale of public assets, the court argued, was not prohibited if it served as a source of public income, which helped to achieve development. In summation, the court had reinterpreted the provisions of the 1971 Constitution to permit a sale of state enterprises and dismantle the public sector.

Therefore, the constitutional principles, which framed Egypt’s economic transformation, were not enshrined in the text of the 1971 Constitution. They were the product of a discursive process by Egypt’s Supreme Constitutional Court, which reflected the political and economic changes that had occurred in the country. When the Constitutional Assembly (p. 518) in Egypt started to prepare the draft of a new constitution—a process that proved difficult in many respects18—it did so against the backdrop of a constitution that had once been based on socialist principles but which, however, had been transformed to correspond to the requirements of a free-market economy.

IV.  The Economic Debates in the Constitutional Process

Discourse on economic issues in the aftermath of the January 25 Revolution in Egypt has brought together a wide range of loosely connected issues. In order to better understand the resulting economic provisions of the constitutions of 2012 and 2014, these issues may be grouped according to the economic demands raised in the public discussion and underlying ideological concepts amongst the various political actors who then “translated” these concepts into constitutional “solutions”.

A.  The Economic Demands

Although the trigger for the Arab Spring was economic, it is difficult to determine the key economic demands in specific terms. The centrality of economic matters did not translate into clear-cut concepts or postulates. Rather, their articulation remained very general in nature, with the effect that they were difficult to translate into concrete policies. Many of the issues, however, can be grouped under the three headings of transparency, social justice, and employee’s rights.

The quest for transparency often is equated with the combating of corruption. It was, without any doubt, a key demand of the Arab Spring. It goes without saying that corruption, profiteering, and influence peddling are criminal offenses under Egyptian law.19 The implementation of the relevant rules, however, had certain shortcomings. In addition and more importantly, the lack of clear rules on conflicts of interest helped a politically connected business elite to monopolize many of the lucrative business opportunities within their small group of entrepreneurs. Furthermore, the structure of public budgets, in particular the widespread use of special funds, made any effective control of public finances difficult. From this it follows that the “transparency issues” in the Egyptian context are more complex than the simple implementation of penal law provisions for combating bribery. They require changes to the very fabric of the business world and its established patterns of practice.

The call for social justice comprises a number of demands, most of which are interestingly concerned with economic opportunities (and less with the actual distribution of wealth). This demand is related to the transparency issue to a certain extent; however, it represents an approach from a different perspective. Both Egypt and Tunisia have been blessed with rapid economic development over the last decade. Tourism, real estate, and manufacturing as well as financial services and investment all contributed to strong economic growth. In social terms, however, this economic growth generated new challenges as (p. 519) it reinforced social inequality. The middle class, who directly benefited from the economic growth, remained small and there was no trickle-down effect. The distribution of wealth was uneven and social mobility was limited. As a result, society was “taken hostage” by its own economic success and economic growth created additional social challenges rather than easing them. On a societal level, economic growth may be considered to have been a curse rather than a blessing.

Finally, the Arab Spring revealed severe shortcomings in the area of employee rights.20 For instance, trade unions had been tightly controlled in Egypt, with the effect that no free (independent) workers’ representation existed. Thus the April 6 Movement, which played a significant role in the January 25 Revolution, grew out of a strike in the industrial town of al-Maḥallah al-Kubrā in the Nile Delta in 2008. When employee unrest spread following the revolution, it became apparent that there were no institutions through which such demands could be channeled for a solution negotiated.21 Putting industrial relations on a new footing emerged as a new demand, interestingly, from both the employees’ and the employers’ side. The lack of a system that allowed for the resolution of labor disputes became a significant challenge.

It should be noted that not all these issues are issues that are traditionally addressed in a constitutional document. Issues of combating corruption, social justice, and workers’ rights can all only be dealt with effectively through the implantation of relevant statutory enactments—provided they are consistently applied. They are not “classical” issues of constitutional law, such as fundamental freedoms, the separation of powers, or electoral rights. Moreover, these issues are only loosely connected to the fundamental, systemic choices between a market-based or state-led economic system. Nevertheless, a constitutional document can provide certain guidance on these issues and on the priority assigned to them.

B.  Competing Ideologies

In examining the competing economic doctrines amongst the political actors, the overall picture is not dissimilar to that relating to economic demands. There are, again, a range of ideas which are offered to address the aforementioned issues, and they loosely correspond to the issues on the “demand side”. The systemic choices on offer, however, are rather vague in nature. Similarly to the vagueness of the demands, this may also be due to the lack of theoretical depth in much of Egypt’s economic discourse.

Following a strong populist current, the revival of the Nāṣrist ideas of a strong public sector, regulated markets, extensive subsidies, and rent control has been proposed as one possible solution.22 Whether this actually offers a feasible alternative is questionable. Although it is undoubtable that the economic liberalization of Egypt had shortcomings in the social sphere—a fact that is widely acknowledged—it is difficult to imagine how these ailments may be cured by a revival of clearly out-of-date concepts. The proposed return to Nāṣrism may indeed be charming and popular, as it harks back to a period of Egyptian history where the country was perceived as being strong and served as a role model for many (p. 520) developing countries well beyond the Middle East. Nonetheless, a revival of such concepts today would almost certainly not survive the test of modern reality.

In view of the parliamentary majority of Islamic parties in the first elections after the revolution, the question has arisen as to what role Islamic economic concepts should play. The doctrine of Islamic economics emerged in the 1950s and 1960s as an alternative to both socialist and capitalist economic ideologies.23 It is based on the application of doctrines derived from traditional Islamic law, such as the prohibition of interest, speculation, and monopolization, which are underpinned by the overarching principles of fairness and social justice. Interestingly, the Egyptian Freedom and Justice Party, the political party affiliated with the Egyptian Muslim Brotherhood, was undecided when it came to Islamic economic principles, and has not advocated an Islamic economic order. This also may be due to the fact that these principles are hard to define with a level of precision that would allow for them to be put into practice.24 With the end of the Mursī government in mid-2013, however, these discussions became moot. The 2014 Constitution does not contain any specific references to Islamic economic concepts.

Finally, there are proponents of the concept of a social market economy, as an economy which is based on market principles but where the market mechanism, however, is contained and tamed, thus balancing the market with social concerns. A debate about a social market economy is conspicuously absent in the Arab world,25 and only recently have political parties in Egypt started to promote this principle. One possible explanation for this absence is that the struggle for social justice is often framed in an Islamic context. In addition, in the context of an economic transition from a state-dominated to a market-based economy, the idea of regulation may be subject to the general suspicion of preventing economic development. This, though, might mean that once the “neoliberal experiment” has been completed, the time will be ripe for such a discussion.

Consequently, when drafting the constitutions of 2012 and 2014,26 there was a consensus that economic and social issues were key to the successful transformation (p. 521) of Egypt.27 The issues to be addressed by the new basic law, however, were not clearly defined. In addition, there was no coherent and overarching political philosophy guiding the constitutional process when it comes to economic questions.

V.  Economic Principles in the Constitutions of 2012 and 2014

In view of the above, it will not come as a surprise that neither the 2012 Constitution nor that of 2014 continue to follow either a clear-cut Nāṣrist economic doctrine or straightforward free-market economic principles. Instead, both constitutions encompass a somewhat eclectic compilation of economic principles. These are intertwined by an overarching far-reaching mandate for state control. Upon reading, this arrangement may seem to fall short of any real clarity and the lack coherence of becomes obvious when considering how specific subject matters are regulated in the two constitutions.

A.  General Principles

In both constitutions, a section entitled “Economic Elements” contains provisions on the “national economy”. This section describes the economy’s general function and enshrines certain general principles.28 Placed in comparison with the Constitution of 1971, the introductory article states:

1971

201229

201430

Art. 23: The national economy shall be organized in accordance with a comprehensive development plan which ensures raising the national income, fair distribution, raising the standard of living, solving the problem of unemployment, increasing work opportunities, connecting wages with production, fixing a minimum and maximum limit for wages in a manner that guarantees lessening the disparities between incomes

Art. 24: The people shall control all means of production and direct their surplus in accordance with a development plan laid down by the State.

Art. 14: The national economy aims at steady and comprehensive development, at elevating the standard of living and realizing welfare, at combating poverty and unemployment, and at increasing job opportunities, production, and national income.

The development plan works toward establishing social justice and solidarity, guaranteeing distributive justice, protecting the rights of the consumer, safeguarding the rights of the workers, engendering cooperation between capital and labor in defraying the costs of development, and ensuring a fair distribution of income.

Earnings must be linked to production; income disparities must be lessened; a minimum level for earnings and pensions enabling a life of dignity for every citizen must be guaranteed, as well as an income cap for state agencies. There can be no exceptions unless this is grounded in law.

Art. 27: The economic system aims at achieving prosperity in the country through sustainable development and social justice to guarantee an increase in the real growth rate of the national economy, raising the standard of living, increasing job opportunities, reducing unemployment rates and eliminating poverty.

The economic system is committed to the criteria of transparency and governance, supporting competitiveness, encouraging investment, achieving balanced growth with regards to geography, sector and the environment; preventing monopolistic practices, taking into account the financial and commercial balance and a fair tax system; regulating market mechanisms; guaranteeing different types of ownership; and achieving balance between the interests of different parties to maintain the rights of workers and protect consumers.

The economic system is socially committed to ensuring equal opportunities and a fair distribution of development returns, to reducing the gaps between incomes by setting a minimum wage and pension to ensure a decent life, and setting a maximum wage in state agencies for whoever works for a wage as per the law.

(p. 522) The Constitution of 1971 entailed the concept of a “comprehensive development plan” aimed at ensuring economic growth and a rise in the standard of living (1971 Art. 23, also Art. 32). This socialist outlook was an essential aspect of Nāṣrist ideology. The concept of a national “development plan” was still to be found in the 2012 Constitution, but here it is specifically aimed at establishing social justice and solidarity, a cornerstone of the ideology of Islamist parties (2012 Art. 14). In contrast to the other constitutions, economic growth is subordinated to the “national economy.” Although it was still found in a draft document (August 20, 2013), the term “development plan” was altogether dropped in the final version of the Constitution of 2014.

In the new constitution the term “national economy” is substituted by the more general wording of “economic system” (Art. 23), while the aims to be achieved remain unchanged, except in slight differences in the wording (“sustainable” instead of “comprehensive” development, see table above). Nonetheless, the Constitution of 2014 introduces a list of new criteria to be applied within the economic system, such as:

  • –  Transparency in governance;

  • –  Encouraging investment and competitiveness;

  • (p. 523) –  Balancing growth with regard to geography, economic sectors, and the environment;

  • –  Consumer protection;

  • –  Regulation of market mechanisms.

A reduction in the income gap remains central among the social commitments addressed. In comparison the Constitution of 1971 already contained a general guarantee of minimum and maximum wages, the Constitution of 2012 provided for minimum pensions, while applying the concept of a maximum wage specifically to state agencies.

The proposed draft version of the 2014 Constitution expanded the scope of a maximum wage, encompassing not only state agencies but also public sector companies and the public business sector (Art. 23, draft of August 20, 2013). However this was finally dropped again, resulting in a maximum wage only in state agencies and only for “whoever works for a wage” (Art. 27).

State involvement in the economy has traditionally been strong in Egypt and this role is further elaborated in the constitutions of 2012 and 2014, especially with regard to the protection and development of certain industries.31 The Constitution of 2012 explicitly mentions the protection of agriculture (Art. 15) and industrial production (Art. 17), including small enterprises. In 2014, the scope and definition of economic production was expanded to include exports and investments (Art. 28), agriculture (Art. 29), fisheries (Art. 30), and the public media outlets (Art. 31).

In addition to a general commitment of protection and support, the new constitution, similarly to that of 2012, names specific measures to be taken by the state to develop these industries and economic sectors further. Such measures include the reclamation of additional land for agriculture (2012 Arts. 15 and 16; 2014 Art. 29), the introduction of new technologies (2012 Art. 17) and—for the first time—the use of renewable energies (2014 Art. 32).

In the Constitution of 2014, several ambitious state investment projects are mentioned, such as a housing program (Art. 41) and the development of the Suez Canal (Art. 43) and the Nile River (Art. 44).

The concept of environmental protection was already contained in the Constitution of 1971 (Art. 59). In the constitutions of 2012 and 2014, repeated references are made to the necessity of balancing economic growth with environmental protection. This aspect is mentioned in relation to the Nile (2012 Art. 19, 2014 Art. 44), the sea (2012 Art. 20, 2014 Art. 45) and the fishing industry (2014 Art. 30), but not the desert. The Constitution of 2014 defines a healthy environment a right of every citizen (Art. 46).

These provisions do not provide more than very general and vague principles. In view of the case law of the Supreme Constitutional Court, it is questionable as to whether any of these principles can be legally enforced.32 Rather, one may expect that when tested in court, they might prove to be void of any legal value or may only serve as a point of reference when interpreting other constitutional provisions. In addition, it seems as if they deliberately avoid any clear determination in relation to either a market-based or socialist economic order. Nonetheless, the constitutional document of 2014 demonstrates the effort made to integrate some standard principles into an approach based on modern social market economics and, with regard to the terminology used, further distancing of the state from traditional socialist ideas.(p. 524)

B.  Property

The constitutions of 2012 and 2014 do not materially amend the system of property when compared that of 1971. The 2014 version drops “religious endowments” as constitutionally protected form of ownership, as was first introduced by the Constitution of 2012.

1971

2012

2014

Art. 29: Ownership shall be under the supervision of the people and the protection of the State. There are three kinds of ownership: public, cooperative and private.

Art. 21: The State guarantees legal ownership, be it public, cooperative, private, or in the form of religious endowments, and protects it, as specified by law.

Art. 33: The State protects ownership, which is three types: public ownership, private ownership, and cooperative ownership.

Art. 30: Public ownership is the ownership by the people as represented in the ownership of the State and public legal persons.

Art 33: Public ownership shall have its sanctity, and its protection and reinforcement are the duty of every citizen in accordance with the law.

Art. 22: The public funds are inviolable. Protecting them is a national obligation both for the State and society.

Art. 34: Public property is inviolable and may not be infringed upon. It is the duty of every citizen to protect it in accordance with the law.

Art. 32: Private ownership shall be represented by the unexploitative capital. The law organizes the performance of its social function in the service of national economy within the framework of the development plan without deviation or exploitation. It may not be in conflict, in ways of its use, with the general welfare of the people.

Art. 34: Private ownership shall be safeguarded and may not be put under sequestration except in the cases specified in the law and by court judgment. It may not be expropriated save for the public benefit and against a fair compensation in accordance with the law. The right of inheritance too it is guaranteed.

Art. 24: Private property is inviolable. Managed ethically and without monopoly, it fulfills its societal function by serving the national economy. The right to inherit private property is guaranteed. Property may only be confiscated in circumstances specified by law. This requires a court ruling and is permissible only if doing so is in the public interest and fair compensation is provided upfront.

All this happens as specified by law.

Art. 35: Private property is protected. The right to inherit property is guaranteed. Private property may not be sequestrated except in cases specified by law, and by a court order. Ownership of property may not be confiscated except for the public good and with just compensation that is paid in advance as per the law.

Art. 36: The State encourages the private sector to fulfil its social responsibility in serving the national economy and society.

Art. 28: The State shall look after co-operative establishments of all forms and encourage handicrafts with a view to developing production and income levels.

The State shall endeavor to reinforce agricultural cooperatives according to modern scientific bases.

Art. 31: Cooperative ownership is the ownership of the cooperative organizations. The law guarantees its protection and self-management.

Art. 23: The State sponsors cooperatives in all their forms, supports them, and guarantees their independence.

Art. 37: Cooperative property is protected. The state cares for cooperatives, and the law guarantees the protection and support of cooperative property, and ensures its independence.

It cannot be dissolved, nor its boards, except by court order.

Art. 35: Nationalization shall not be allowed except for considerations of the public interest, in accordance with a law and against compensation.

Art. 36: Public sequestration of property shall be prohibited. Private sequestration shall not be allowed except by a court judgment.

Art. 29: Nationalization is illegal unless it occurs for the public good, in compliance with the law, and with fair compensation.

Art. 30: The confiscation of public property is forbidden.

The confiscation of private property is illegal unless it occurs with a court order.

Art. 40: Public confiscation of property is prohibited.

Private confiscation is prohibited except based on a court judgment.

(p. 525) This means that the Constitution of 2014 essentially maintains the features of the 1971 Constitution: On the one hand, it distinguishes between three different kinds of property (public, private, and cooperative), therefore acknowledging forms of collective property in addition to private property. On the other hand, it guarantees the sanctity of private property.

The provisions on property, nevertheless, contain certain subtle amendments that are more in line with a social market model. The definition of public ownership as ownership by the people (1971 Art. 30) was removed in 2012 and not reintroduced in 2014. Also removed was the definition of private property as un-exploitative capital (1971 Art. 32), another formula going back to the Nāṣrist-socialist ideas. The Constitution of 1971 had assigned a social function to private property, which was to be organized by means of the national development plan (Art. 32). This idea has now been replaced by the concept of the social responsibility of private property (2012 Art. 24; 2014 Art. 36).33 According to the Constitution of 2014, the state is only called on to encourage the private sector to fulfill its social responsibilities (Art. 36).

The protection of private property was already contained in the Constitution of 1971; sequestration and confiscation is possible only by law and by court order (2012 Arts. 32 and 36; Arts. 24 and 30; 2014 Arts. 35 and 40). Fair compensation was also already guaranteed in 1971, but this has now been now strengthened by the commitment to pay the (p. 526)

compensation prior to the act of confiscation (Art. 35). The regulation of nationalization in the Constitution of 1971 (Art. 35), still retained in 2012 (Art. 29), was removed in 2014. The protection of public property was considered the duty of every citizen in the 1971 document (Art. 33), of society in 2012 (Art. 22), and once again of every citizen in 2014 (Art. 34). The Constitution of 2014 regulates permissions granted for the exploitation of natural resources for the first time, limiting them to a maximum of 30 years.

Following demands by Islamist parties, the Constitution of 2012 reinforced the position of legal endowments, granting them explicit protection (Arts. 21 and 25). Religious endowments (awqāf) have played an important role in Egyptian history.34 Traditionally, they provided independent funding for religious institutions, thus making them financially independent from the state. Over the 19th and the 20th centuries, government control over religious endowments gradually increased, changing the nature of these non-state organizations. In addition, secular forms of associations and foundations have been created and exist alongside religious ones. However, the pertaining clauses were removed again in the Constitution of 2014.

C.  Taxation

In the Constitution of 1971, taxes had been dealt with in three separate articles (Arts. 25, 38, and 61). The content of all three was cooperated in one single article in the 2012 Constitution (Art. 26). The concept of social justice, already mentioned in 1971 (Art. 38), was placed at the center of the tax system, in accordance with the ideas of the Islamist parties.

A more elaborate regulation of taxes was introduced by the Constitution of 2014, including, after some debate, the concept of progressive taxation (2014 Art. 38). Progressive taxation is widely considered as an essential element in achieving social justice.35 The (p. 527)

Constitution of 2014 also includes a commitment by the state to safeguard private savings for the first time (Art. 39, compare 1971 Art. 39; 2012 Art. 28).

1971

2012

2014

Art. 25: Every citizen shall have a share in national income to be defined by the law in consideration for his work or his unexploitative ownership.

Art. 38: The tax system shall be based on social justice.

Art. 61: Payment of taxes and public charges is a duty, in accordance with the law.

Art. 26: Social justice is the cornerstone for assessing taxes and other ways of defraying public costs. The creation, amendment, and cancellation of the tax code can only happen through law. Only under circumstances specified by law may a taxpayer be exempted from taxation; and no one must be charged beyond these taxes and fees unless the law permits it.

Art. 38: The taxation system and other public levies aim to develop state resources, and achieve social justice and economic development.

Public taxes cannot be established, modified, or cancelled except by law. There can be no exemptions except in cases prescribed by law. It is prohibited to require anyone to pay additional taxes or fees except within the limits of the law.

When imposing taxes, it must be taken into account that the tax system has multiple sources. The taxes imposed on the incomes of individuals are progressive multi-tier taxes that are in accordance with their tax capacity. The tax system ensures the promotion of heavy labor industries, and incentivizing their role in economic, social, and cultural development.

The State commits to the development of the tax system, and adoption of modern systems to achieve efficiency, ease and accuracy in tax collection. The law specifies the methods and tools to collect taxes, fees, and any other sovereign returns, and what is deposited in the state treasury.

Paying taxes is a duty, and tax evasion is a crime.

D.  Industrial Relations

The constitutions of 2012 and 2014 both deal with aspects of industrial relations in various articles. First, they continue to guarantee workers’ co-determination rights and rights to participation in the companies’ profits:

2012

2014

Art. 27: The workers have a share in the management of projects and their earnings. They commit themselves to developing production, safeguarding its tools, and carrying out the production plan in their work units, as stipulated by law.

The number of worker representatives in the management assemblies of the public sector units must approximate fifty per cent of total elected members.

The law guarantees that small farmers and small craftsmen are represented with at least 80 per cent membership in the management assemblies of agricultural and industrial cooperatives.

Art. 42: Workers have a share in the management of projects and their profits. They are committed to developing production and implementing the plan in their production units as per the law. Maintaining the tools of production is a national duty.

Workers’ representatives on the boards of public sector units are 50 per cent of the number of elected members. Their representation on the boards of public business sector companies takes place in accordance with the law.

The law regulates the representation of small farmers and small craftsmen that is no less than 80 per cent of the boards of directors of agricultural, industrial and trade cooperatives.

(p. 528) Co-determination and profit participation are both prominent principles in Egyptian industrial relations. They were also contained in the 1971 Constitution as well as the Egyptian Company Law (1981). It does not come as a surprise, however, that these principles are not implemented rigorously. In practice, the income gap between normal workers and management is tremendous. Moreover, the participation in profits normally is limited to more senior management. Normal workers may occasionally be entitled to a bonus, which also depends on the company’s performance, if they share in the economic results of their labor at all. The reiteration of these principles in the Constitution of 2012 and also 2014 may, therefore, not necessarily brings about fundamental material change. It is rather a form of traditionalism, where a principle of law, which has lost its “teeth” over time, is not openly abandoned.

Concerning the provision guaranteeing the participation of workers in the management of companies, changes may be noted in the number of workers sitting on the boards of public sector companies. The Constitution of 1971 called for a minimum of 50%. This minimal requirement was replaced by “must approximate 50%” in 2012 and subsequently by “exactly 50%” in 2014, thus in effect reducing the influence of workers on the management of public companies. In a draft version for the 2014 Constitution (August 20, 2013), it was sought to also apply the 50% clause to public business sector companies. Their representation in public business sector companies in the final constitutional document is now delegated to regulation by law. The representation of small farmers and craftsmen in cooperatives remains unchanged at no less than 80% throughout the constitutions.

Second, the constitutions of 2012 and 2014 deal with trade unions. The emergence of free trade unions is one of the key features which emerged in Egypt in the aftermath of the January 25 Revolution.36 As mentioned, one of the youth movements at the center of the revolution, the April 6 Movement, grew out of the strikes at al-Maḥallah al-Kubrā in 2008. The Constitution of 2012 deals with trade unions in the context of the freedom of association:

Article 52  The freedom to establish syndicates, unions, and cooperatives is guaranteed. They are legal persons, based on a democratic foundation, and freely engage in their activities. They serve society, raise the level of competence among their members, and defend their rights. Only in execution of a court ruling may the authorities dissolve them or their management meetings.(p. 529)

Article 53  The law regulates the professional syndicates and ensures their democratic management. It defines their financial resources and the method by which syndicate members, in exercise of their professional activities, are held to high ethical standards. There can be only one professional syndicate per profession.

Only in execution of a court ruling may the authorities dissolve a syndicate’s management meeting, and they may not put them under surveillance.

It is noticeable that in the 2012 Constitution, trade unions are just one further kind of association to be treated alongside professional syndicates and political parties. Here trade unions must be strictly discerned from syndicates, which organize the so-called “free” professions, including lawyers, medical doctors, and architects. Syndicates are a hybrid between a body representing their professionals’ rights and one for the policing of free profession (which is also reflected in Art. 53). Trade unions, moreover, are not vested with any collective bargaining rights. This means that the trade unions benefit from the general freedom of association. However, they are in no way provided with a special position that would protect their rights to represent the labor force at large. The limitation of one union per profession furthermore precludes the formation of labor pluralism.37

The basic right to organize in labor unions was removed from the relevant article in 2014 (Art. 76), thus going back on the progress made in 2011. Unions are now mentioned only in connection with the agricultural sector (Art. 29). Also removed was the participation of unions in an Economic and Social Council (2012 Art. 207). Only the right to form professional syndicates was kept in place (2014 Arts. 76 and 77). In 2012 and 2014, this right was limited to one syndicate per profession, reducing their function as representative bodies. Instead of guaranteeing the right to form trade unions, the Constitution of 2014 guarantees the means for collective negotiations (Art. 13).

Third, the constitutions of 2012 and 2014 deal with the right to work. This, again, shows the repercussions of Egypt’s socialist past, in providing:

Art. 64: Work constitutes a right, a duty, and an honor for every citizen. The State guarantees it on the basis of equality, justice, and equality of opportunity.

Forced labor is permissible only to the extent stipulated by law.

The public servant works to serve the People; the State awards government employment to citizens according to merit, without favoritism. Any deviation from this is a crime punishable by law.

The State guarantees every worker’s right to a fair income and vacation days. It also guarantees pensions, social security, healthcare, protection against occupational hazards, the availability of safety provisions in the work place, in accordance with the law.

Workers may only be fired under circumstances that are specified by law.

Art.12: Work is a right, a duty, and an honor guaranteed by the State. There can be no forced labor except in accordance with the law and for the purpose of performing a public service for a defined period of time and in return for a fair wage, without prejudice to the basic rights of those assigned to the work.

Art. 13: The State commits to protecting worker rights, and works on building balanced work relationships between the two sides of the production process.

It ensures means for collective negotiations and works on protecting workers against the risks of work, ensures that conditions for professional security, safety and health are met, and prohibits arbitrary dismissal. All the foregoing is as organized by law.

(p. 530) In 2012, the concept of equality, justice and equality of opportunity was added to the right to work. How such a provision would have been implemented remains unclear.38 In view of the unemployment challenge which Egypt is presently facing, it seems unlikely that a court would have interpreted Art. 64 (1) in a way that would have granted every citizen the right to a job corresponding to the citizen’s qualifications and expectations. Rather, one would expect that the courts would have interpreted the provision as containing a general programmatic guideline and a commitment from the government, but not an enforceable right vested in the individual citizen. The provision was removed again in 2014.

Finally, the Constitution of 2012 introduced a right to strike (Art. 64, 4). This provision was new and had no precursor in the 1971 Constitution.39 In the Constitution of 2014, it constitutes a separate article (Art. 15). The provision provides workers with a right to strike peacefully, and thus acknowledges the contradiction between labor and capital in the workplace. It can be understood as a provision informed by free-market concepts, as socialist constitutions would tend to negate any contradiction between labor and capital—and consequently would also not provide for a right to strike. As is common in the constitutions of 2012 and 2014, however, the details are regulated by law. This means that the effectiveness of the right to strike will depend on how it is implemented in an amended labor law.

E.  Economic Rights

Chapter 3 of the Constitution of 2012, entitled “Economic and Social Rights” contained an array of rights, which supplement the chapter on economic principles:40

  • –  Citizens have a “right to a high-quality education” (Art. 58);

  • –  Freedom of scientific research is guaranteed (Art. 59);

  • –  The Arabic language is an essential subject in the various stages of education (Art. 60);

  • (p. 531) –  The State is committed to combating illiteracy (Art. 61);

  • –  Citizens have a right to health care (Art. 62);

  • –  Every person has a right to a healthy and undamaged environment (Art. 63);

  • –  The State is under the obligation to honor the martyrs of the January 25 Revolution (Art. 65);

  • –  The State guarantees social insurance services (Art. 66);

  • –  The State shall provide adequate pensions to small farmers and non-unionized agricultural workers (Art. 67);

  • –  Adequate housing, clean water, and a healthy nourishment are considered guaranteed rights (Art. 68);

  • –  Physical exercise is a right of all (Art. 69);

  • –  Children shall be given a proper name, care by the family, nutrition, health care as well as support in the religious, emotional, and intellectual development (Art. 70 (1));

  • –  Child labor is restricted, by providing that as long as children are subject to compulsory education, they must not be employed in occupations which are not age-appropriate (Art. 70 (3));41

  • –  The State provides care for children and youth (Art. 71);

  • –  The State is committed to providing care and education for the handicapped (Art. 72); and

  • –  Forced labor and the sex trade are prohibited (Art. 73).

The enumeration was shortened somewhat in 2014, but in principle it was kept in place. The list demonstrates that the constitution reflects various individual interests, without, however, succeeding in molding them into one coherent philosophy or system. It is questionable whether the freedom of academic research is properly classified as an “economic or social right”; with regard to the social rights (i.e., relating to education, health care, and housing), it is also not clear whether the constitutional provisions will actually confer legally enforceable rights on the citizens (as mentioned above, this is the same with the right to work). The restrictions on child labor, as well as forced labor and the sex trade will depend on the effectiveness of the respective penal laws enacted. Over all, therefore, the chapter demonstrates the range of different topics and interests that were present in the constitutional assembly; it does not provide any clear directions for the economic future of Egypt. In the hands of a creative constitutional court, however, the provisions should not be underestimated, as they could permit judges to take an activist stance on these issues.

VI.  Conclusion

The economic principles in the Egyptian Constitution of 2012 as well as the Constitution of 2014 are the outcome of a hasty drafting process. In this regard, the stipulations regarding the economic order share the same fate as many other aspects of the constitution, which suffered from an ill-organized drafting process characterized by intense time pressure. Both were written by the dominating political faction, to the exclusion of others. The Constitution of 2012 was written by an assembly that was dominated by Islamist or Islamist-leaning parties, the Constitution of 2014 by a commission set up by the military. While in the first case liberal parties were sidelined, in the second the entire spectrum of Islamist parties was excluded.

Both in 2012 and in 2014 the attempt was made to remove Nāṣrist language from the constitutional text. Examples are the deletion of the term “national development plan” and (p. 532) the redefinition of public and private ownership. Nevertheless, both constitutions continue to propagate the protection of industries like agriculture and industry, a core concept of Nāṣrist thinking. In fact, some clauses can be interpreted as an expansion of state control over certain parts of the economy. Large-scale state investments mentioned in the Constitution of 2014 like the development of the Suez Canal are in fact highly reminiscent of Nāṣrist projects like the Aswan High Dam.

The Constitution of 2012 essentially replaced Nāṣrist thinking with concepts derived from Islamist ideologies. Examples are the introduction of religious endowments and the idea of placing social justice at the center of economic development. To what extent this was a concept that reflected concept upon is an open question. The Constitution of 2014 instead introduces the idea of sustainable economic growth for the first time, though only nominally. In addition, the Constitution 2014 makes reference to certain concepts of a social market economy, such as the need to control markets. The result of these diverse attempts is a mixture between Nāṣrist ideals, free-market elements, and concepts that might lead to a social market economy. Neither constitution contains an unambiguous call for economic reform.

The constitutions of 2012 and 2014 certainly do not proactively help to resolve the country’s many social and economic ailments. The constitutions, in fact, only partially address the demands made in 2011. The call for greater transparency was answered only in some aspects. The responsibility of state officials in cases of corruption was enhanced. Noteworthy are the restrictions for economic activity on the part of government officials including the president. One central topic was, however, left unchanged: The budget of the armed forces remains under the auspices of the military secret, beyond the direct control of elected officials.

The constitutional texts of 2012 and 2014 clearly reflect an attempt to pander to the calls for social justice. The term “social justice” is mentioned in many articles. Several articles provide regulations for bringing about a more equal distribution of wealth and opportunities. Among the most effective provisions in this respect is the introduction of progressive taxation (2014 Art. 38). Whether the constitutional text by itself will be able to foster the social justice it calls for remains nonetheless doubtful.

A demand not met by the constitutions of 2012 and 2014 is the call for better representation of workers. In 2014 unions were removed entirely from the text and professional syndicates were restricted. Even the participation of workers in the management of public companies, an achievement of the Nāṣrist era, was reduced. A single exception is Art. 13 of the new constitution, which in general terms binds the state to ensuring means for collective bargaining.

In general, many constitutions around the world remain vague when it comes to economic principles and shy away from any clear decision on the economic orientation of their respective countries—possibly for good reasons. First, economic matters are particularly complex, and they are difficult to encapsulate in a constitutional document. Second, and perhaps more important, the economic system is probably less easily influenced by regulation in the form of constitutional principles than it is, for example, by the allocation of powers within the government, electoral principles, or classical fundamental rights. The juristic qualification of social and economic rights has still to be debated and any clear decision for or against a certain economic system would nevertheless have to be implemented against the backdrop of economic realities.

Since the start of the revolution in 2011, the economic situation of Egypt has worsened. Nonetheless, neither of the constitutions can be blamed for this, as they do not stand in the way of necessary and fundamental economic reforms. Whether the new Constitution of 2014, in turn, will actively contribute to the economic development in Egypt, and whether it will be referred to and interpreted in order to provide opportunities for positive developments, remains to be seen.

Footnotes:

1  Jane Kinninmont, Bread, Dignity and Social Justice: The Political Economy of Egypt’s Transition (Chatham House Briefing Paper, April 2012).

2  Tibor Hargatai, Review of International Law and Politics (2011) vol. 7, 153.

3  See Mark Allen Peterson, Connected in Cairo: Growing up Cosmopolitan in the Modern Middle East (IUP, Bloomington 2011); Mona Abaza, The Changing Consumer Cultures of Modern Egypt: Cairo’s Urban Reshaping (AUC Press, Cairo 2006); Diane Singerman and Paul Amar (eds), Cairo Cosmopolitan. Politics, Culture, and Urban Space in the New Globalized Middle East (AUC Press, Cairo 2006); Diane Singerman (ed), Cairo Contested: Governance, Urban Space, and Global Modernity (AUC Press, Cairo 2009).

4  See: the detailed study of Stephan Roll, Geld und Macht. Finanzsektorreformen und politische Bedeutungszunahme der Unternehmer- und Finanzelite in Ägypten (Hans Schiler, Berlin/Tübingen 2010); Ahmad El-Sayed El-Naggar, “Economic Policy: From State Control to Decay and Corruption” in Rabab El-Mahdi and Philip Marfleet (eds), Egypt: Moment of Change (AUC Press, Cairo 2009) 34–50.

5  See: Mohamed A. Arafa, “Towards a Culture for Accountability: A New Dawn for Egypt” (2011) Phoenix International Law Review 5, 1.

6  Compare: Anja Schoeller-Schletter, “Die Verfassung Ägyptens von 2012. Betrachtungen aus verfassungs- theoretischer Perspektive” in A. Cavuldak, O. Hidalgo, P. W. Hildmann, and H. Zapf (eds), Demokratie und Islam—Theoretische und empirische Studien (Heidelberg 2014), 329–353; and the studies of the recent Egyptian constitutions in their historic context prepared by Anja Schoeller-Schletter for the Hanns-Seidel-Foundation on the Constitutions of 2014 and 2012.

7  See: Tamir Moustafa, Drafting Egypt’s Constitution: Can a New Legal Framework Revive a Flawed Transition? (Brookings Doha Center Paper Series No. 1, 2012).

8  See: Alper Y. Dede, “The Egyptian Spring: Continuing Challenges a Year after the Arab Spring” (2012) 5 USAK Yearbook of International Politics and Law, 103–104.

9  The Constitution of 1971 is cited from the official English translation. It should be noted that these provisions were amended in connection with the 2007 constitutional amendment.

10  See: the analysis in Kilian Bälz, “Marktwirtschaft unter einer sozialistischen Verfassung?” (1998) 704 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 703–711.

11  See: Tarek Osman, Egypt on the Brink. From Nasser to Mubarak (YUP, New Haven and London 2010).

12  Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics and Economic Development in Egypt (Cambridge University Press, Cambridge 2007).

13  See: Kilian Bälz (n 10) 707.

14  Enid Hill, “The Supreme Constitutional Court of Egypt on Property” in Le prince et son juge. Droit et politique dans l’Egypte contemporaine (No. 2, Egypte Monde Arabe 1999), 55–91, 57 et seq.

15  Id. 71 et seq.

16  Id. 63 et seq. and Kilian Bälz (n 10).

17  Supreme Constitutional Court, Decision 17/16 of February 1, 1997, “al-Jarīdah al-Rasmīyah” no. 7 of February 13, 1997, 3–17, 8.

18  This is not the right place to discuss the difficult and at times flawed process of drafting Egypt’s 2012 Constitution. For summary of the constitutional drafting process, see also: Anja Schoeller-Schletter (n 6) 332 et seq. As will be argued further below, the sections dealing with economic issues reflect the lack of a coherent program and consensus in the Constitutional Assembly.

19  See: Arts. 103 to 125 Penal Code, dealing bribery, the squandering of public funds, and abuse of power more generally.

20  See: Joel Beinin, Justice for All: The Struggle for Worker Rights. A Report by the Solidarity Center (Washington D.C., 2010).

21  Maha Abdelrahman, In Praise of Organization: Egypt between Activism and Revolution, Development and Change (Blackwell Publishing 2013) 577–579.

22  On the economic policies of the Nāṣr period, see: John Waterbury, The Egypt of Nasser and Sadat: The Political Economy of Two Regimes (Princeton 1983) 57–82.

23  See: Johannes Reissner, “Die innerislamische Diskussion zur modernen Wirtschafts- und Sozialordnung” in Werner Ende and Udo Steinbach (eds), Der Islam in der Gegenwart (5th edn C.H. Beck, München 2005) 151–162.

24  On the different attempts of implementing Islamic economic concepts, see: Volker Nienhaus, “Islamische Ökonomik in der Praxis: Zinslose Finanzwirtschaft” in Werner Ende and Udo Steinbach (eds), Der Islam in der Gegenwart (C.H. Beck 2015) 163–198. It should be noted, however, that the Egyptian legislature article was debating a Ṣukūk law at the time of writing this article, which is intended to facilitate the issuance of Islamic bonds (so called Ṣukūk). In contrast to a conventional bond, a Ṣukūk is asset backed and the investors acquire title to a certain asset (and, for the time of the Ṣukūk, are entitled to a share in the profits of this asset). The law sparked a fierce debate, focusing, inter alia, on whether it was permissible to use state assets as underlying assets (meaning to use state property or assets to give value to the security/bonds, etc.), whether the proposed law was compliant with Sharīʻah rules and, last but not least, whether Ṣukūk are a suitable instrument to raise funds for the Egyptian government budget at all.

25  See: the discussion in Konrad-Adenauer-Stiftung, The Social Market Economy and Islamic Finance: Common Value Based Approaches (Sankt Augustin, Berlin 2011). The papers were initially presented and discussed at a conference in Abu Dhabi in October 2010.

26  It may be noted that the drafting process of both constitutions was marked by the dominance of a political “winner.” In both cases, a majority attempted to sideline the respective opposition groups, although within very different constituent procedures. While the constitutional draft of 2012 was the result of a constitutional assembly whose members were elected by a parliament dominated by Islamic parties, the draft of 2014 was written by commissions appointed by the military-led interim government. For the constitutional drafting process, see: Anja Schoeller-Schletter (n 6), respectively.

27  Amr Moussa, head of the Constitutional Assembly in 2013–2014, talked of a “constitution for social justice,” November 30, 2013.

28  In Egyptian constitutions of the past half century, regulations relating to the economy have traditionally formed a separate section, called “Economic Foundations” in 1971 and “Economic Elements” in 2012 and 2014. In 1971, this section formed Chapter 2 of Part 2 of the constitution, called “Basic foundations of society” (Arts. 23–39), in 2012 it was Chapter 3 of Part 1entitled “Elements of State and Society” (Arts. 14–30), in 2014 Section 2 of Chapter 2, called “Basic Components of Society” (Arts. 27–46).

29  The translations of the Constitution of 2012 are based on the translation of Nivien Saleh.

30  The translations of the Constitution of 2014 are based on the translation of IDEA.

31  Compare similar developments in other countries. Anja Schoeller-Schletter, “Structural deficits in legal design and excessive executive power in the context of transition in Uzbekistan” in Paolo Sartori and Tommaso Trevisani (eds), Patterns of transformation in and around Uzbekistan (Reggio Emilia 2007) 134–149.

32  See: Supreme Constitutional Court, Case No. 7/16, 13. Here, the court took the view that the constitution’s protection of the “achievements of socialism” were too vague to vest legally enforceable rights on the citizen.

33  See: Kilian Bälz (n 10) 707.

34  See: Andreas Kemke, Stiftungen im muslimischen Rechtsleben des neuzeitlichen Ägypten (Peter Lang, Frankfurt/Bern/New York/Paris 1991).

35  Maria Cristina Paciello, Delivering the Revolution? Post-uprising Socio-economics in Tunisia and Egypt, The International Spectator: Italian Journal of International Affairs (Taylor & Francis Online, 2013) 10–12.

36  For the role of labor in the revolution, see: Maha Abdelrahman, In Praise of Organization: Egypt between Activism and Revolution, Development and Change (Blackwell Publishing 2013) 577–579.

37  Labor movements independent of state regulation have been regarded as a threat by all successive governments. Maria Cristina Paciello (n 35) 15–16.

38  In fact, measures against unemployment were not a high priority in the period following the drafting of the constitution. See: Maria Cristina Paciello (n 35) 13–15.

39  It should be noted, however, that the 2003 Unified Labor Law had explicitly legalized strikes. Due to certain de facto restrictions, the right to strike was difficult, if not impossible, to exercise (see: Justice for All p. 35 seq.).

40  Economic rights have not been included in the section on economic components of society. In 1971 they were found either in Chapter 1 “Social and Moral Foundations” of Part 2 of the constitution (Arts. 13 and 14) or in Part 3 “Public Freedoms, Rights and Duties” (Arts. 59 and 61). In 2012, they were subsumed in Chapter 3 “Economic and Social Rights” of Part 2 “Rights and Freedoms” (Arts. 58–73). In 2014, this section was renamed “Social Components” and moved to Chapter 2 “Basic Components of Society” (Arts. 13–16).

41  It should be noted that the provision was very controversial, as it does not entirely ban child labor.