Good Governance in Egypt

Chapter 2. The Egyptian Manual for Legislative Drafting

Abstract

This chapter focuses on legislative drafting in Egypt. It first maps out the process of legislative drafting in Egypt while demonstrating how legislative drafting processes and procedures work. It then identifies the existing challenges in the current legislative and regulatory framework; and demonstrates how the Egyptian Legislative Drafting Manual could help overcome these challenges; and thus contribute to better legislation and regulation.

Legislative Drafting Process in Egypt

Legislation is classified into two categories: primary legislation and secondary legislation. Primary legislation includes the Constitution, laws, legislative decrees, and treaties and agreements1. According to the Egyptian Constitution, laws can be initiated by the parliament2, the Cabinet or the President3. Secondary legislation is issued by the Executive, and can be further categorised into three types:

• Executive legislation: These include detailed rules necessary to implement laws which tend to provide the general rules concerning the issue under regulation to ensure flexibility. Executive regulations are issued by the prime minister unless the law specifies who shall issue the regulation (Egyptian Constitution, Article 170, 2014). As they are issued by the Executive Authority, these regulations can be amended or repealed easily compared to laws which are issued by the parliament.

• Organisational legislation: These can only be issued by the prime minister, after approval of the cabinet, to organise public utilities and authorities (such as establishing authorities or agencies, specifying their mandate and functions, or abolishing them) (Egyptian Constitution, Article 171, 2014). Unlike executive regulations, these regulations are not issued based on an ordinary legislation.

• Control legislation: These are the rules laid down by the prime minister, after approval of the cabinet, to protect order and public health (such as regulations concerning food safety) (Egyptian Constitution, Article 172, 2014). They do not implement a specific law.

Both the parliament and the executive (i.e. the president or cabinet) can propose legislation. Legislation initiated by the former, the parliament, is called "proposal law" if it is proposed by less than ten percent of the members of parliament. Legislation proposed by the Cabinet, the President of Republic and more than ten percent of the members of parliament are called "project law".

The Constitution also gives the President of the Republic the right to issue legislation, called "legislative decree", in extraordinary circumstances. For instance, in cases where there is a need to take quick action that cannot be delayed when the parliament is not in session, legislative decrees might be issued. Laws issued by the President need to be submitted to the parliament for review and approval within 15 days. If not, legislative decrees have no retroactive impact, unless the parliament approves their validity in the previous period or the settlement of their impacts.

The enactment of ordinary legislation in Egypt consists of the following steps:

1. Initiation and drafting of proposal,

2. Review by the Parliament,

3. Issue by the President, and

4. Publishing and enforcement.

Initiation and Drafting of Legislation

Legislation can be initiated both by parliament and the government. The process of initiating and drafting legislation by the government and parliament is explained in the following two sub-sections.

Legislation proposed by the government

Although there are no existing standard procedures or guidelines for the development of legislation in ministries; there are common practices which guide the process.

In most cases, a ministry initiates the process for introducing new legislation or amending existing one due to one of the following reasons:

• to realise minister's vision which could be based upon recommendation of their advisers or heads of subordinate authorities and agencies;

• in response to the public interest or problems with the existing legislation;

• in the implementation of recommendations by international development organisations;

• to reflect the verdicts of the Supreme Court;

• in response to the reports of regulators concerning problems in regulation; and

• to be in line with the country's international commitments.

The process of the development of legislation involves a consultation process between ministries. The concerned minister may form a working group, including technical officials from the ministry with expertise in the field as well as legal experts led by the legal adviser to the minister, who are mainly concerned with composing the legal text.

This consultation process might sometimes be supported by consultants, who prepare studies about the expected outcomes and benefits of the legislation and associated risks. Throughout the development of legislation, the working group reviews existing legislation and examines it article by article identifying challenges and proposing amendments. This mainly aims at addressing the limitations of the existing legislation. However, consultation is not mandatory and at the discretion of the entity. Therefore, given that there is no guiding framework, consultations can take different forms and be ad hoc.

The cabinet or ministers may send draft laws and proposals to the Legislation Department at the Ministry of Justice to benefit from their expertise on drafting legislation and legal issues. The Department reviews the quality of drafts in terms of internal consistency, clarity and intelligibility; and may redraft the proposal, if necessary. The Legislation Department also checks the constitutionality of draft legislation.

Once the legal text is drafted, the legal adviser presents the results of the working group to the minister. Upon the approval by the minister, legislative proposal is sent to the Cabinet, together with an explanatory memorandum, for review and discussion by ministers. Although there is no required standard format for the explanatory note, it usually explains the rationale behind the development of new legislation (i.e. the current challenges necessitating introducing change), and the objectives of the proposed sections or articles.

Before placing it on the agenda of the Cabinet, the proposed legislation needs to be presented to the Prime Minister. Upon the approval of the Prime Minister, the proposed legislation is included on the agenda of the Cabinet and a session is reserved to discuss the proposal and the concerned minister is notified. The draft is discussed in the Cabinet and can be approved; returned to the ministry for amendment; or rejected. The Secretariat for Legislative Affairs may ask the proposing ministry for clarifications concerning the drafting of the legislation. In most cases, the draft goes through several iterations. Once it reaches a satisfactory stage and approved by the Cabinet, draft legislation is forwarded to the State Council for legal review. The draft is then returned to the Cabinet, which in turn sends it back to the concerned ministry to incorporate the Council’s comments, and forwards it back to the Cabinet. The final version of the draft is approved by the Cabinet and sent along with the explanatory note to the House of Representatives for ratification.

Legislation proposed by the members of the parliament

The legislation initiated by members of the parliament, is called "proposal law" if it is proposed by less than ten percent of the members of parliament. Legislation proposed by the Cabinet, President of Republic and more than ten percent of the members of parliament (MPs) are called "project law".

The proposal submitted by more than ten percent of MPs needs to be drafted in articles and accompanied by an explanatory memorandum, including the constitution's text related to the proposal, and the main principles on which it is based and the desired objectives (Law No. 1/2016, Article 181). If a law is proposed by less than ten percent of MPs, then it needs to follow special procedures (Law No. 1/2016, Article 158).

Review by Parliament

Project laws, proposed by the government, and proposal laws, proposed by the members of the parliament, are presented in the House of Representatives meeting where the Speaker refers them to the relevant specialised committee in the parliament for review. The Speaker may also circulate the draft and its explanatory memorandum to all MPs (Law No. 1/2016, Article 158).

Specialised committees review the proposal laws and project laws referred to them in their areas of competence in the order they were received (Law No. 1/2016, Article 186). Reviews of assessing the objectives and impact of the proposed legislation might take place in the committees but could benefit from a common framework to ensure even and systematic application of impact assessments.

The specialised committee might request the government to provide additional information to which the government has to respond within 15 days following the receipt of the request (Law No. 1/2016, Article 78). Committees may also invite government officials, heads of departments or authorities to attend their meetings during the discussion of relevant topics. They can also bring along experts and specialists on the subject from their ministries or agencies4. Although the government officials could be consulted during the discussions, they have no voting power on the adoption of the proposed legislation (Law No. 1/2016, Article 61). The Speaker may also ask other committees to provide an opinion about a report submitted by another committee in the assembly's discussion (Law No. 1/2016, Article 55-56). In addition, the Speaker can form ad hoc committees comprising a number of MPs from specialised committees to examine a bill or a certain issue (Law No. 1/2016, Article 80). The Speaker may also form joint committees, comprising two or more specialised committees to examine draft legislation (Law No. 1/2016, Article 81).

Upon the approval of the Speaker of the House, the specialised committee may refer the draft to the Constitutional and Legislative Affairs Committee for review (Law No. 1/2016, Article 162). The Constitutional and Legislative Affairs committee submits a report to the Speaker of the House including its findings and recommendations. The Speaker may refer the report to the General Committee5 to receive its opinion (Law No. 1/2016, Article 47). Once the report is finalised, the Speaker decides whether to include it on the assembly's agenda. If included on the agenda, the report has to be distributed to MPs at least 24 hours before the specified meeting (Law No. 1/2016, Article 70). The assembly may decide to return the report to the committee for further study in light of the discussions (Law No. 1/2016, Article 71).

The proposed legislation is discussed in the assembly meeting, as a whole and then article by article. MPs may suggest amendment, addition or deletion of articles by submitting the suggested amendments to the Speaker at least 24 hours before the meeting6. The proposed amendments are then discussed in the assembly (Law No. 1/2016, Article 159). The concerned specialised committee shall be notified with the proposed amendments before the meeting so that it can examine them, and the coordinator of the committee presents the opinion of the committee on the suggested amendments during the discussion (Law No. 1/2016, Article 160). If the assembly decides to refer the proposed amendment to the committee, the committee has to submit its report on whether the amendment has an impact on the other articles of legislation. In this case, discussion of the draft shall be postponed until the committee finishes its review. Otherwise, the assembly continues the discussion of the other articles of the draft legislation (Law No. 1/2016, Article 161).

Deliberation starts with discussion of the principles and general bases of the draft legislation as a whole. If the assembly rejects the proposal in principle, the draft is considered to be rejected (Law No. 1/2016, Article 166). On the other hand, if approved, the draft legislation is discussed article by article and MPs have to vote on each article and then on the draft as a whole (Law No. 1/2016, Article 167). If approved by the absolute majority of present MPs, which should not be less than a third of the total number of MPs, the proposal is considered approved by the House. If votes are equal, the proposal is considered rejected (Egyptian Constitution, Article 122, 2014). Some laws (such as those regulating judicial bodies or elections) require votes of no less than two-thirds of MPs for approval. All laws are submitted to the State Council for review.

Issue by the President

After approval of the proposal law or project law by the House of Representatives, it is sent to the President of the Republic who has the right to issue it or reject it. If the President approves the law it is published, otherwise it is referred back to the parliament within 30 days. In case of rejection, the President informs the Speaker on the reasons of objection. Despite objection of the President, the House of Representatives may organise another vote and might pass the law if it is approved by no less than two thirds of the whole House (Egyptian Constitution, Article 123, 2014). If, however, the House accepts the objection of the President, the Speaker forms a committee to re-examine the proposal and amend it.

Publishing

The legislation is required to be published in the official gazette within 15 days from its issue by the President (Egyptian Constitution, Article 225, 2014). Laws and presidential decrees are published in the "Official Gazette" while secondary legislation (including ministerial and governor decrees and decisions of public authorities and agencies) are published in "Waqa'a Al-Masreya", which is an annex to the Official Gazette. Constitution stipulates that legislation enters into force 30 days from the day following their issue, unless another date is specified in the legislation. It is mandatory to publish primary legislation in the official gazette. Access to official gazette is subject to subscription fee.

Current Challenges

The current legislative drafting process poses several challenges to the quality of legislation and regulation in Egypt. First, the absence of a common framework on legislative drafting leads to the application of inconsistent methodologies for the preparation of legislation across the government, as observed in other OECD and MENA countries. For instance, legislation might be composed by a technical working group or a legal adviser working with policy-making officials. The absence of guiding principles for the development of legislation affects the coherence in the regulatory framework.

Second, the experience across the OECD demonstrates that the absence of written legislative standards poses challenges to the scrutiny of legislation and legislative quality. The differences in criteria for legislative drafting may lead to uneven application of quality assurance and undermine uniform quality. Furthermore, the quality of legislation risks becoming dependent on the expertise and skill of the legal counsellor composing the text rather than on the common standards. Based on OECD experience, legislative and regulatory framework could benefit from a common framework on which the scrutiny of legislation can be based.

Third, review of legislation needs to be conducted based on a regulatory reform policy rather than on an ad hoc basis. As observed in other OECD and MENA countries, the absence of a systematic review of the stock of legislation results in an accumulation of outdated legislation7 and demonstrates that the development of legislation does not adequately assess the necessity of the adoption of new legislation or considers alternatives. The challenges to the systemic review of the stock of legislation are closely associated with the challenges deriving from lack of registry of all legislation in force. The absence of comprehensive registry of all regulations in force may lead legal counsellors to resort to the practice of implicit repeal in drafting (article is included at the end of the regulation stating that any provisions contradicting the provisions are hereby repealed). This poses challenges to legal certainty, as legal drafters composing legislation may not be fully aware of all provisions in force, whether they are amended or implicitly repealed. Systemic review of existing legislation benefits citizens and businesses by accurately identifying their rights and obligations.

Fourth, based on OECD experience, the lack of formal consultation with stakeholders jeopardises the quality of legislation. Consultation is not mandatory and takes places on an ad hoc basis through informal consultation at various stages of the drafting process depending on the topic and the significance and scale of the impact of legislation. Evidence across the OECD demonstrates that legislative quality can be fostered through institutionalised consultation mechanisms.

Fifth, regulatory policy can be improved through a common framework on impact assessment to identify how various groups in the society will be affected as a result of the proposed legislation and to minimise its negative unintended consequences. Egyptian Regulatory Reform and Development Activity (ERRADA) introduced regulatory impact assessment (RIA) and conducted impact assessment studies on several topics such as the allocation of arable land; shipping agencies; and increasing heights of buildings. Further standard guidelines can support the uniform application of impact assessment across the government.

Egyptian Legislative Drafting Manual

The Legislative Drafting Manual prepared by the Ministry of Justice of Egypt can help overcome the existing challenges in the current legislative and regulatory framework and contribute to better legislation in a number of ways. First, the Egyptian Legislative Drafting Manual8 specifies the target audience of the Manual and introduces its strategy and purpose upfront. The Manual is intended for stakeholders involved in the preparation, drafting, and review of bills across all branches and levels of the government. It provides drafting instructions and aims at introducing a common framework of principles on legal drafting to ensure uniform quality in law making. In particular, the Manual aspires to act as a practical tool accompanying legal drafters throughout the process by providing guidance, explanations, practical advice and examples of what to do and what to avoid. This is a crucial step to overcome the current challenges deriving from the lack of consistent legislative drafting methodologies and uneven legislative drafting expertise across the government.

Second, the Legislative Drafting Manual of Egypt is tailored to the regulatory framework and country-specific priorities of Egypt while drawing on good practices in the field. The Manual stresses the link between policy and legislation and defines legislation as a mean to achieve specific policy objectives. Moreover, the Manual introduces guidelines on how to write the “Statement of Objectives and Justifications” of proposed legislation to effectively communicate the policy objectives of legislation in a clear and transparent manner.

Third, the Egyptian Legislative Drafting Manual establishes a set of guiding principles to assess the need to draft new legislation and to consider alternatives to legislation. In order to assess the necessity of the adoption of new legislation, it suggests that necessary studies and research must be carried out to demonstrate that it is not efficient to address the concerned problem through other means such as amendments or the use of non-legislative alternatives. The Manual also underlines the need to keep the stock of legislation up-to-date. In this respect, the Manual aims to reduce administrative burden and cost; and help overcome challenges stemming from the duplication or conflict of law, and accumulation of outdated legislation. Fourth, the Egyptian Legislative Drafting Manual introduces a common framework on the preparation of the Explanatory Memorandum, which is submitted to the House of Representatives by the Cabinet along with the proposed legislation for review. There is no required standard format for the content of Explanatory Memorandum in the current legislative framework. The Manual aims to formulate uniform standards for the format and content of Explanatory Memorandums.

Furthermore, the Manual establishes principles on the practice of repeal in legislative drafting. For instance, the Manual discourages the use of the phrase “any provision contradicting the provisions of this law is to be repealed". Instead, it suggests legal drafters to identify all laws related to the new bill, examine the relationship between the proposed legislation and all other applicable laws and determine whether the applicable provisions contradicts the provisions of the proposed bill. This aims to contribute to legal certainty and enable legal drafters, citizens and businesses to be aware of all provisions in force.Finally, the Legislative Drafting Manual of Egypt aims to address the challenges deriving from the lack of formal consultation mechanisms through providing guidelines on how to organise consultations with relevant stakeholders throughout the process. The Manual underlines the significance of targeting all concerned parties; and stresses the need to expand the scope of consultations to enforcement entities, experts, non-governmental organisations, unions, syndicates as well as judges specialised in the relevant field.

References

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (181).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (158).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (158).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (186).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (78).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (61).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Articles (55-56).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (80).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (81).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (162).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (47).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (70).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (71).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (159).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (160).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (161).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (166).

Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (167).

The Egyptian Constitution, 2014, Article (122).

The Egyptian Constitution, 2014, Article (123).

The Egyptian Constitution, 2014, Article (170).

The Egyptian Constitution, 2014, Article (171).

The Egyptian Constitution, 2014, Article (172).

The Egyptian Constitution, 2014, Article (225).

Notes

← 1.  Laws and legislative decrees have the same power. The main difference between them is that whereas the former is issued by the parliament the latter is issued by the President of the Republic.

← 2.  According to the current constitution enacted in 2014, Egypt has a semi-presidential political system. The President of the Republic is the head of the Executive Authority; he is elected in a direct popular vote, every four years, and can be re-elected for one term only (The Egyptian Constitution, Articles (139-140)). The House of Representatives is unicameral and sits for a term of five years. Members of parliament (MPs) are elected by absolute majority of legitimate vote casts. The President can appoint up to 5% of the total number of MPs in parliament (which is currently 596) and can also dissolve it if necessary and after a popular referendum (The Egyptian Constitution, 2014, Article (137)).

← 3.  The Prime Minister and Cabinet are appointed by the President, after the approval of the House of Representatives (parliament) (The Egyptian Constitution, Article (146)); and they are accountable to the legislature (The Egyptian Constitution, Articles (129-131)).

← 4.  Sometimes, ministries ask the Ministry of Justice to represent them before the specialized committees.

← 5.  The General Committee comprises the Speaker, two deputies and the heads of specialised committees. Its responsibilities include reviewing reports submitted by the specialised committees on monitoring of implementation of laws and regulatory decrees. Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (26).

← 6.  The Speaker may decide to look into suggested amendments raised just before or during the meeting after listening to the explanation of those proposing the amendment Law No. 1/2016 concerning issue of the internal regulation of the House of Representatives, Article (163).

← 7.  Some of the economic activities listed in schedules in Law No. 453/1954 concerning industrial and commercial premises are outdated.

← 8.  The report considers the Manual in an English translation. However competent the translation, there is always the possibility that some nuances could be lost. It should therefore be recognised that some aspects of the assessment might be based on such information.