Egypt's Draft Constitution: Part 3.

In the first part of my discussion of the new draft of Egypt's constitution that I can read here; http://watchitdie.blogspot.co.uk/2013/12/egypts-draft-constitution-part-1.html I covered the first 100 articles covering The Sate, Basic Components of Society, Public Rights, Duties and Freedoms and The Rule of Law. I found this section to be very strong containing very minor concerns none of which would individually justify rejecting the entire constitution at referendum.

In the second part of my discussion that can be read here; http://watchitdie.blogspot.co.uk/2013/12/egypts-draft-constitution-part-2.html I covered articles 184 - 221 which covers the so-called apparatus of state including the military, the Courts and the police force. Although this section was again generally very strong I did find a number of significant problems that would justify rejecting the entire constitution at referendum. 

In this third and final part I'm going to look at articles 101 - 183 which make up chapter 5 and covering The Ruling System made up of the legislative branch of government (the House of Representatives) and the executive branch (the Presidency and the Government). This is the section which has presented me with the highest number of very serious problems any of which would justify the rejection of the constitution. That is a shame because this is probably the most important section of the entire constitution.

The first thing you notice about this section is that it has clearly been deeply scarred by the experience of Mohamed Morsi's disastrous time as President. So for example the President can now only dissolve the House of Representatives following a public referendum (Article 137/2013). Also the House of Representatives (Henceforth "The House") can only move from its seat in Cairo at the request of the President or a one third majority of its members (Article 144/2013) and can only be considered in session if attended by a majority of its members (Article 121/2013). These provisions are a direct reference to Morsi's dismissal of Parliament in order to rule by diktat and Muslim Brotherhood members of Parliament holding rival Parliamentary sessions following Morsi's ouster. They are though very sensible provisions.

The big change in the ruling system is that it sees Egypt move from a bicameral system with two legislative chambers (House of Representatives and Shura Council) to a unicameral system with the House acting as the sole legislative chamber. This change was clearly brought about in response to the constant conflict and gridlock between the House and the Shura Council and initially had me very worried. That's because the bicameral system is intended to function with the two chambers acting as a safety valve cancelling out each others worst excesses and is the system I personally prefer.

However the unicameral system is the most widely used system globally although many of the nations that use it such as China, the Democratic Peoples Republic of Korea (DPRK), Azerbaijan and Cuba are hardly bastions of democracy while other such as Mali, the Central African Republic (CAR) and Somalia are not exactly famed for their political stability. That said though there are some very good examples of unicameral republics including Israel, South Korea, Finland and probably most importantly Turkey which is still just about the leading example of an Islamic democracy. Therefore it is possible for this system to work and it seems appropriate for Egypt especially as I expect its burgeoning political scene to produce lots of disparate coalitions based on co-operation rather then overall majorities for the foreseeable future at least.

In terms of the organisation of the House the draft is again very sensible, reasonable and a bit dull. For example it contains a version of what in the UK is known as "Parliamentary Privilege" with members being immune from normal restrictions such as injunctions and libel actions during the course of their work (Article 112/2013) and can only be subject to criminal proceedings with the permission of other members of the House (Article 113/2013). This last point is important because it stops the police doing things like arresting Representatives in order to prevent them voting in favour laws that would, for example, cut the police's pay. 

There are though two big problems with the structure of the House both of which warrant the entire constitution being rejected at referendum. The first of these which I've already mentioned is the provision that prevents the House  from passing a budget that "incurs new burdens on citizens" (Article 124/2013). My reading of this is that it prevents the government from ever raising taxes or introducing new taxes. A government simply cannot function like this especially when it has constitutional obligations to raise public spending on things like education (Article 19/2013), health care (Article 18/2013) and scientific research (Article 23/2013). In fact there are many cynics who would say that increasing the burden on it's citizens is the entire purpose of government.

The second big problem is that the experience of Morsi has caused the balance of power between the House and the President to shift too far in favour of the House. Although the President must sign any law passed by the House of Representatives before it can be enacted and has the right of veto the President can veto only once (Article 123/2013). If the veto is used the matter must be referred back to the House within 30 days in order to prevent it being enacted automatically and then if two thirds of the House pass the law a second time it automatically gets enacted.

Although in any nation - especially one with Egypt's history - there needs to be a mechanism to prevent the head of state repeatedly denying the will of the people there also needs to be safeguards to prevent a single party - like the Freedom & Justice Party - winning a majority in the House and then abusing that position to defy the will of the people. This is especially true in a unicameral system.

To avoid this problem I would give the President a second or even third veto over a two thirds majority. After the final veto the law automatically gets enacted but that would cause such a constitutional crisis the House would probably have tabled a motion of no confidence in the President by then meaning that the people get to speak for themselves in a referendum (Article 161/2013).

In terms of the Presidency itself despite all these new limits of Presidential powers it is still far from a mere ceremonial role with the President retaining real powers. Primarily it appears that the framers of the constitution have gone for a French style split between the office the President and the office of the Prime Minister. That is to say that the President is responsible for setting out the general direction of the nation and concentrating on foreign affairs while the Prime Minister and Cabinet the concentrates of the day to day running of the nation.

Generally the way the structure of the Presidency is laid out in this draft is all so sensible, reasonable and dull there isn't a lot for me to add. For example the President can only declare a state of emergency or send the nation to war with the support of the House (Articles 154 & 152/2013).

I am though seriously concerned by the language the prevents the President from holding any partisan position (Article 140/2013). This has clearly been inserted to make sure that the President serves the best interests of the nation during their term in office rather then any party political agenda. However I'm worried that it could be interpreted to mean that the President cannot be a member of a political party. This presents a problem because President is an elected position which means any candidate needs to mount an election campaign in order to secure the position. Election campaigns do not come cheap so if candidates are not able to rely on the resources of political party's the office will only really open to the richest Egyptians which goes against the principle that any Egyptian citizen over 40 years of age can become President (Article 141/2013). Therefore I will need to have this point clarified before I can endorse this draft.

Despite all the efforts to limit the power of the President I am worried that they remain too powerful in certain key areas. The first area of concern is the provision that if a vote of no confidence in the President is rejected at referendum the House that forced the referendum is automatically dissolved (Article 161/2013). This seems too severe a punishment on the House because while the people might still have confidence in the President they may also still have confidence in the House and prefer to see the two work together to resolve their differences rather then an all or nothing outcome. Therefore I would remove this provision because the President would still retain the power to call a referendum to dissolve the House.

The main area where I'm concerned that the President retains too much is over the control of the military. The President continues as the Supreme Commander of the Armed Forces (Article 152/2013) although as previously discussed this directly contradicts the provision that makes the Minister of Defence the Commander in Chief of the Armed Forces (Article 201/2013).

While the constitution prevents the President from sending the armed forces to war or into combat outside of state territory without the approval of the House it makes no such provision for deploying the military within state territory which obviously allows the President to unilaterally deploy the military to crush protests which is hardly in line with democracy.

The circumstances that would reasonably see the military deployed within Egypt's borders - such as an invasion - don't really allow for debates and votes in the House though so I would enshrine in the constitution a right of veto over domestic deployments to either the National Defence Council or the National Security Council which is why it is essential that it is established which Council has superiority as I previously discussed.

The part of this section that causes me the most problems though are the provision for the Government made up of the Prime Minister and their Cabinet which is the state's supreme executive power (Article 163/2013). Under the draft the President appoints a Prime Minister who in turn appoints a Cabinet. The House then has 30 days to approve this government and if it fails to do so the President appoints a replacement Prime Minister who is nominated by the leader of the largest bloc or party in the House (Article 146/2013). The problem is that the Prime Minister or any members of the Cabinet cannot be members of the House (Article 164/2013).

This rather bizarre system was clearly devised to allow government to operate separately from the House in response to the constant gridlock that existed under Morsi. The problem is that it also means that the day to day running of Egypt bears absolutely no relation to the will of the people expressed through elections. That is completely incompatible with the principles of democracy especially where members of the government are obligated to introduce laws (Article 167/2013) and I can think of no other nation on earth that operates this way. As such I simply cannot endorse a constitution that structures a government this way.

Therefore as an alternative I would make it a constitutional requirement that the Prime Minister has to be an elected member of the House although that does not necessarily mean they need to be the leader of the largest bloc or party. I am less concerned with members of the Cabinet having to be elected because in nations such as the US all members of the Cabinet are appointed by an elected President and usually hold no elected office in order to ensure that the most talented people get the top jobs. However I do not think that membership of the House should be an automatic barrier to being a member of the Cabinet.

Finally the draft makes provisions for local government which has got to be the least interesting part of any government. It was clearly of no interest to the framers of this draft who appear to have simply inserted the phrase "as regulated by law" after every article in an effort to rush the draft to referendum in order to keep up with the transitional roadmap. That is simply unacceptable when drafting a constitution. In the rare area where explicit provisions for local government are made they seem totally dominated by trade unionists and similar special interest groups. For example 50% of seats on local councils are reserved for workers or farmers (Article 180/2013). This gives workers and farmers an automatic majority on and therefore control over all local councils. So if seats in local government are to be reserved for special groups I think they should be limited to no more then 25%.

So in conclusion despite its many strong points this constitutional draft contains so many significant problems in key areas I have no choice other then to recommend that the Egyptian people reject it at referendum so it can be sent back to the drafting committee for further clarification and strengthening.

I appreciate that this will delay the roadmap and Egypt's transition to democracy but a delay of a few months is certainly preferable then adopting a faulty constitution before waiting six months and having to go through another bloody revolution.


22:40 on 2/1/14 (UK date).