Recent legislation raises constitutional issues concerning presidential power over independent agencies.
Egyptian President Abdel Fattah el-Sisi recently ratified Law No. 180 of 2018, which regulates print, broadcast, and digital media. The new law repeals Law No. 92 of 2016, which previously regulated such sectors.
Article 211 of Egypt’s Constitution, as amended in 2014, establishes the Supreme Council for Regulating Media—a government authority granted legal personhood and technical, financial, and administrative independence—to regulate audio and visual media and printed and digital press, as prescribed by law.
The recently adopted media law raises questions about whether it adequately preserves the constitutionally required independence of the Supreme Council for Regulating Media in three respects: the Council structure and appointment power of the President; the financial autonomy of the Council; and the President’s removal power.
Article 73 of the recent law requires the Council board to be appointed by the President and composed of nine members:
- the chairperson, selected by the President;
- a counsel serving as vice president of the Council of State—the Egyptian administrative judiciary—as nominated by the Privy Council of the Council of State;
- the Chairperson of the Egyptian Competition Authority;
- a representative of the National Telecommunications Regulatory Authority (NTRA), as nominated by the chairman of the board of directors of the NTRA;
- an experienced public figure selected by the President;
- a journalist nominated by the board of directors of the Journalists Syndicate, provided that the nominated individual is not a member of the board;
- a media professional nominated by the board of directors of the Media Professionals Syndicate, provided that the nominee is not a member of such board;
- an experienced public figure nominated by the Bureau of the House of Representatives—which comprises the President of the Egyptian House of Representatives and his two deputies—provided that the nominated individual is not a member of the House; and
- a representative of the Supreme Council of Universities, who must be a media or press professor in one of the Egyptian universities nominated by that Council.
Some commentators would argue that such a structure achieves some kind of diversity and independence, as most of the members must be nominated by independent institutions. But article 73 grants the President the absolute power over the appointment of two members of the board: the President selects the chairperson and an experienced public figure completely unilaterally. As for the other Council members nominated by the institutions to which they belong or relate, the law obliges such institutions to provide the President—three months prior to the end of the term of the Council board—with two nominations for each vacancy, so that the President at the end reserves the power to choose from among the two nominees. If one or all such institutions do not submit nominations to the President during the stipulated period, the President appoints the members based on nominations from the Bureau of the House of Representatives.
Consequently, the Bureau of the House of Representatives plays a very limited role—and the full House of Representatives no role at all—over the matter of appointment. It is worth mentioning that, with respect to other independent bodies, article 216 of the Constitution provides that the consent of the majority of the House of Representatives is required to approve the President’s nomination for heads of such bodies.
Such an appointment system may lead the members to pursue the President’s agenda or preferences to satisfy him and to secure their reappointment, as allowed for once by article 76 of the 2018 law. And even if the President who nominated a given Council member is not reelected, the member may still pursue presidential wishes to show loyalty to the single power—the President—that chose him.
The structure of the Council could be more independent by balancing the President’s appointment power with requiring the consent of the House of Representatives for such appointments. Alternatively, the President’s appointment power could be transformed into merely a confirmation of nominations by the institutions mentioned in the law. These changes would enable the Council to make regulatory decisions more effectively and on the basis of technical analysis rather than on political scores.
Turning to the financial autonomy of the Council, article 86 of the new law provides an independent budget for the Supreme Council for Regulating Media. Article 87 defines the resources that fund this budget and is skillfully drafted for the purpose of ensuring independence, as is the case for the other Egyptian regulatory authorities. Article 87 provides for key protections of regulators’ financial autonomy: diversity of resources, less reliance on the state’s public budget appropriations, and keeping fees obtained for licenses. The principles in the Constitution reflect support for all of these protections as well.
The legislature did, however, overlook one thing about the Council budget: the budget surplus. Although the legislature provided for totally or partially carrying over the budget surplus for authorities such as the Competition Protection and Antitrust Authority, Electricity Regulatory Authority, and Telecommunications Regulatory Authority, the legislature kept silent on such matters with respect to the Council for Regulating Media’s budget.
Finally, the single-article Law 89 of 2015 grants the President the power to remove heads and members of independent bodies on the following grounds: serious evidence of prejudicing state security or integrity; losing the respect and trust required for the office; breach of official duties damaging the supreme national interest or a public legal person; and disqualification for the office for reasons other than health.
These grounds are vague enough that the President effectively has at-will removal power over heads and members of regulatory authorities, notwithstanding their definition as “independent bodies” in their establishing legal instruments.
This remaining presidential power of removal, combined with the appointment power and the potential power over budget surpluses, raises a question: If the Council is an “independent body” under the 2018 law, why did the legislature not consider it so in terms of article 216 of the Constitution?
