Egypt’s Impeachment Alternative

A Publication of the Institute for Social Policy and Understanding

Egypt’s Impeachment Alternative

The violence Egypt experienced this summer brings to the forefront whether impeachment is a more effective avenue for removing a president accused of egregiously abusing his power. Although impeachment can be as destabilizing as a coup because it risks undermining the importance of election terms and the political process—the legitimacy of which is vital to Egypt’s fledgling democracy—it is a less violent option when political conflicts become intractable.

To be sure, impeachment should remain the option of last resort. But for a state like Egypt experiencing the growing pains of an emerging democracy, an effective impeachment law can serve as an important tool to oust a president who places himself above the law or changes the law to perpetuate his grasp on power indefinitely. Otherwise, military interventions or frequent popular revolts become the only available options.

As Egypt’s constitutional drafting committee continues to vote next week on selected articles of the 2013 constitution, amending the impeachment article should be a priority. To avoid future repetitions of what transpired on July 3, Egypt could consider reforming institutional channels through which a president can be removed from power. An effective impeachment law would provide an alternative to recurrent protests and could protect and preserve political stability necessary for economic prosperity and a functional democracy.

Under the 1971 constitution, Article 85 required that one-third of the People’s Assembly vote to “request impeachment,” which then had to be approved by two-thirds of the body before impeachment proceedings could begin. Mubarak’s control over the ruling National Democratic Party thus assured impeachment was impossible. In the end, it was not possible for Hosni Mubarak to be removed through peaceful, legally based impeachment proceedings—hence the January 25 revolution.

Under the 2012 constitution, the impeachment law was not substantially different. Article 152 required the commission of a felony, instead of merely “a criminal act,” as was the case under Article 85 of the 1971 constitution, and kept high treason as a basis for impeachment. Article 152 also removed the requirement that two-thirds of the People’s Assembly approve the “request for impeachment” put forth by one-third of the People’s Assembly, making it more likely that impeachment proceedings would go directly before a special court. However, Article 152 did keep the requirement that the People’s Assembly must vote by two-thirds to approve an order of impeachment issued by the special court.

Similar to Mubarak, Morsi was unlikely to be removed through legal impeachment proceedings. This was not only due to the lack of an independent parliament, but also to the lack of a parliament altogether. Weeks before Morsi took office, the Supreme Constitutional Court (SCC) dissolved the People’s Assembly on the grounds that the parliamentary election law unconstitutionally provided an unfair advantage to political parties over independent candidates. Yet even if the parliament had remained seated, Morsi would have governed over an assembly in which his Freedom and Justice Party, along with the Salafi parties, controlled over 70 percent of the seats. Hence even without the SCC’s ruling, it was unlikely that Morsi would have been impeached during his first term for his alleged role in the killing of protesters outside the Presidential Palace in the December 2012 and his constitutional declaration that placed his decrees immune from judicial review.

Along with the absence of a parliament, the impracticality of an impeachment mechanism made it so that Egyptians wanting to oust Morsi had little choice but to pour into the streets on June 30 demanding new presidential elections or calling for the military to depose the president. While the events of the past two years are irreversible, Egyptians can still take stock of past lessons in democracy building to create an impeachment law that allows for a meaningful and peaceful alternative to removing a president that had overstepped the bounds of his authority.

But in its current form, Article 134 of the draft 2013 constitution makes political change through protests more probable than impeachment should Egypt find itself in a similar situation in the future. But, four reforms could help Egypt establish a more effective impeachment law. First, under Article 134, a presidentially appointed prosecutor general is still tasked with prosecuting presidential impeachment proceedings. This position is so powerful—and often in line with the political priorities of the executive branch—that Mubarak’s prosecutor general, Abdel Meguid Mahmoud, was among the most loathed political appointees by all opposition groups. Morsi extra-legally removed Mahmoud to appoint an ally, Talaat Abdullah, a move decried by the judiciary and the political opposition. Placing the prosecutor general as the chief prosecutor taints potential impeachment proceedings with a major conflict of interest. Instead, parliament could appoint a special prosecutor through a process that prioritizes his political independence and professional competency.

Second, Article 134 adds “violating provisions of the Constitution” as a new basis for impeachment, in addition to high treason and any other felony, both already in the 2012 constitution. While other countries use vague terms to define impeachable offenses, Egypt has a unique opportunity to create clarity in a political system that has historically abused vagueness in law to defeat democracy. Objective standards that guide what constitutes high treason and the specific felonies that could lead to impeachment can be clarified to avoid another debilitating political crisis.

Third, and most pertinent to Egypt’s recent political crisis, the constitutional provision requires that a parliament be seated for impeachment to be an option. The Egyptian parliament’s absence during Morsi’s entire rule created an unprecedented situation that must be addressed in the new constitution. Indeed, given Egypt’s last two and a half years of tumultuous transition, the absence of a parliament is not far-fetched. The impeachment article, therefore, could include a provision wherein a request for impeachment could be made by a majority vote through a public referendum if there is no parliament for a specified period of time. Similarly, a public referendum—instead of a two-thirds parliamentary vote—could be used to approve a special court’s impeachment order.

Finally, the judges presiding over the president’s impeachment trial must be independent and shielded from undue political influence. However, such independence is compromised by the president’s authority to appoint the chief justices of the Supreme Constitutional Court, the Court of Cassation, and the State Council, respectively. Law No. 48 of 1979 authorizes the president to appoint the Chief Justice of the Supreme Constitutional Court based on the recommendation of the Supreme Council of Judicial Bodies1. Similarly, the Judicial Authority Law authorizes the president to appoint the chief justice of the Court of Cassation based on the judge’s post and seniority, and Law No. 47 of 1972 authorizes the president to appoint the chief justice of the State Council based on the recommendations of senior judges in the State Council.

To the extent such presidential appointments compromise the judiciary’s independence, as some have alleged2, the reviewing judges may have a conflict of interest in adjudicating a case wherein the same person that appointed them is being charged with the serious offense of impeachment. One solution would be to amend the impeachment provision to allow parliament or the judiciary to appoint judges to the special court who are not directly appointed by the president or by the president’s appointees. Another solution, albeit more sweeping, is to amend the laws to prohibit the president from appointing chief justices, and create an alternative process that does not risk compromising the independence of the judiciary. Such a change has the added benefit of structurally shielding the judiciary from executive branch interference through politicized appointments of senior judges, who in turn discipline lower judges whose rulings may jeopardize the executive’s powers.

All of this raises the question whether impeachment is as destabilizing as—albeit less violent than—a coup. Building a democracy after decades of authoritarianism is no easy feat, and political disputes are inevitable. However, the ability to resolve such disputes through peaceful, effective legal mechanisms rather than violence or military intervention can determine whether Egypt’s democratic project fails or succeeds.The violence Egypt experienced this summer brings to the forefront whether impeachment is a more effective avenue for removing a president accused of egregiously abusing his power. Although impeachment can be as destabilizing as a coup because it risks undermining the importance of election terms and the political process—the legitimacy of which is vital to Egypt’s fledgling democracy—it is a less violent option when political conflicts become intractable.

To be sure, impeachment should remain the option of last resort. But for a state like Egypt experiencing the growing pains of an emerging democracy, an effective impeachment law can serve as an important tool to oust a president who places himself above the law or changes the law to perpetuate his grasp on power indefinitely. Otherwise, military interventions or frequent popular revolts become the only available options.

As Egypt’s constitutional drafting committee continues to vote next week on selected articles of the 2013 constitution, amending the impeachment article should be a priority. To avoid future repetitions of what transpired on July 3, Egypt could consider reforming institutional channels through which a president can be removed from power. An effective impeachment law would provide an alternative to recurrent protests and could protect and preserve political stability necessary for economic prosperity and a functional democracy.

Under the 1971 constitution, Article 85 required that one-third of the People’s Assembly vote to “request impeachment,” which then had to be approved by two-thirds of the body before impeachment proceedings could begin. Mubarak’s control over the ruling National Democratic Party thus assured impeachment was impossible. In the end, it was not possible for Hosni Mubarak to be removed through peaceful, legally based impeachment proceedings—hence the January 25 revolution.

Under the 2012 constitution, the impeachment law was not substantially different. Article 152 required the commission of a felony, instead of merely “a criminal act,” as was the case under Article 85 of the 1971 constitution, and kept high treason as a basis for impeachment. Article 152 also removed the requirement that two-thirds of the People’s Assembly approve the “request for impeachment” put forth by one-third of the People’s Assembly, making it more likely that impeachment proceedings would go directly before a special court. However, Article 152 did keep the requirement that the People’s Assembly must vote by two-thirds to approve an order of impeachment issued by the special court.

Similar to Mubarak, Morsi was unlikely to be removed through legal impeachment proceedings. This was not only due to the lack of an independent parliament, but also to the lack of a parliament altogether. Weeks before Morsi took office, the Supreme Constitutional Court (SCC) dissolved the People’s Assembly on the grounds that the parliamentary election law unconstitutionally provided an unfair advantage to political parties over independent candidates. Yet even if the parliament had remained seated, Morsi would have governed over an assembly in which his Freedom and Justice Party, along with the Salafi parties, controlled over 70 percent of the seats. Hence even without the SCC’s ruling, it was unlikely that Morsi would have been impeached during his first term for his alleged role in the killing of protesters outside the Presidential Palace in the December 2012 and his constitutional declaration that placed his decrees immune from judicial review.

Along with the absence of a parliament, the impracticality of an impeachment mechanism made it so that Egyptians wanting to oust Morsi had little choice but to pour into the streets on June 30 demanding new presidential elections or calling for the military to depose the president. While the events of the past two years are irreversible, Egyptians can still take stock of past lessons in democracy building to create an impeachment law that allows for a meaningful and peaceful alternative to removing a president that had overstepped the bounds of his authority.

But in its current form, Article 134 of the draft 2013 constitution makes political change through protests more probable than impeachment should Egypt find itself in a similar situation in the future. But, four reforms could help Egypt establish a more effective impeachment law. First, under Article 134, a presidentially appointed prosecutor general is still tasked with prosecuting presidential impeachment proceedings. This position is so powerful—and often in line with the political priorities of the executive branch—that Mubarak’s prosecutor general, Abdel Meguid Mahmoud, was among the most loathed political appointees by all opposition groups. Morsi extra-legally removed Mahmoud to appoint an ally, Talaat Abdullah, a move decried by the judiciary and the political opposition. Placing the prosecutor general as the chief prosecutor taints potential impeachment proceedings with a major conflict of interest. Instead, parliament could appoint a special prosecutor through a process that prioritizes his political independence and professional competency.

Second, Article 134 adds “violating provisions of the Constitution” as a new basis for impeachment, in addition to high treason and any other felony, both already in the 2012 constitution. While other countries use vague terms to define impeachable offenses, Egypt has a unique opportunity to create clarity in a political system that has historically abused vagueness in law to defeat democracy. Objective standards that guide what constitutes high treason and the specific felonies that could lead to impeachment can be clarified to avoid another debilitating political crisis.

Third, and most pertinent to Egypt’s recent political crisis, the constitutional provision requires that a parliament be seated for impeachment to be an option. The Egyptian parliament’s absence during Morsi’s entire rule created an unprecedented situation that must be addressed in the new constitution. Indeed, given Egypt’s last two and a half years of tumultuous transition, the absence of a parliament is not far-fetched. The impeachment article, therefore, could include a provision wherein a request for impeachment could be made by a majority vote through a public referendum if there is no parliament for a specified period of time. Similarly, a public referendum—instead of a two-thirds parliamentary vote—could be used to approve a special court’s impeachment order.

Finally, the judges presiding over the president’s impeachment trial must be independent and shielded from undue political influence. However, such independence is compromised by the president’s authority to appoint the chief justices of the Supreme Constitutional Court, the Court of Cassation, and the State Council, respectively. Law No. 48 of 1979 authorizes the president to appoint the Chief Justice of the Supreme Constitutional Court based on the recommendation of the Supreme Council of Judicial Bodies1. Similarly, the Judicial Authority Law authorizes the president to appoint the chief justice of the Court of Cassation based on the judge’s post and seniority, and Law No. 47 of 1972 authorizes the president to appoint the chief justice of the State Council based on the recommendations of senior judges in the State Council.

To the extent such presidential appointments compromise the judiciary’s independence, as some have alleged2, the reviewing judges may have a conflict of interest in adjudicating a case wherein the same person that appointed them is being charged with the serious offense of impeachment. One solution would be to amend the impeachment provision to allow parliament or the judiciary to appoint judges to the special court who are not directly appointed by the president or by the president’s appointees. Another solution, albeit more sweeping, is to amend the laws to prohibit the president from appointing chief justices, and create an alternative process that does not risk compromising the independence of the judiciary. Such a change has the added benefit of structurally shielding the judiciary from executive branch interference through politicized appointments of senior judges, who in turn discipline lower judges whose rulings may jeopardize the executive’s powers.

All of this raises the question whether impeachment is as destabilizing as—albeit less violent than—a coup. Building a democracy after decades of authoritarianism is no easy feat, and political disputes are inevitable. However, the ability to resolve such disputes through peaceful, effective legal mechanisms rather than violence or military intervention can determine whether Egypt’s democratic project fails or succeeds.

Sahar Aziz is a Fellow at ISPU and an associate professor at Texas A&M University School of Law, where she teaches national security and Middle East law. She is also a member of the Egyptian American Rule of Law Association.

This article was published in Sada on October 31st, 2013. Read it here.