Thursday,20 September, 2018
Current issue | Issue 1122, 15 - 21 November 2012
Thursday,20 September, 2018
Issue 1122, 15 - 21 November 2012

Ahram Weekly

Remarks on the draft constitution

The blatant way in which Brotherhood members of the Constituent Assembly overturned the consensus in the draft constitution is proof that they have only ever been interested in power, writes Emad Gad

Al-Ahram Weekly

The recently publicised version of the draft constitution triggered heated public debate and heightened tensions between political forces. Moreover, at least one facet of the controversy rebounded into the halls of the Constituent Assembly itself. Not a few of its members charged that the draft that reached the public had no relationship whatsoever with what the assembly members had agreed on. Accusations and recriminations were hurled back and forth. Most notably, the members of the committee responsible for the section on the “System of Government” accused the drafting committee of tampering with the texts submitted to it and “totally distorting” the original intent of the provisions.
Flare-ups over the provisions of the draft constitution extended beyond the customary Salafist-liberal divide. In fact, salvos were exchanged between individuals, groups or committees that occupy the same general ideological ground. For example, a number of constitutional law professors who share similar ideological outlooks to that of the Muslim Brotherhood accused Muslim Brotherhood members of the Constituent Assembly of altering agreed-upon texts in the interest of expanding the powers of the president to the detriment of the powers and autonomy of the legislature and judiciary.
One of the most frequently cited grievances against the draft constitution is that it reflects the balance of powers that existed at the time of the last parliamentary elections in which the Islamists won a majority. They, in turn, sought to capitalise on this in the formation of the Constituent Assembly and in their subsequent relentless persistence in imposing their views on most of the constitutional provisions, regardless of whether or not they obtained a consensus. Not a few of these provisions threaten a huge setback in Egypt’s path to democratic transformation. Dozens of reservations and concerns have been aired with respect to the fate of the freedom of belief, women’s rights, the freedoms of opinion and expression, and other public and personal rights and liberties. Here, however, I will register a number of observations with respect to the proposed system of government.
In the course of the deliberations among political science experts, constitutional law professors and representatives of various political forces it was generally agreed that the main problem with the Egyptian system of government over the past six decades resided in a presidential system that accorded the president vast powers that enabled him to singlehandedly control the executive authority and exert his sway over the executive and legislative branches. Armed with the authorities accorded to him under the 1971 constitution, the president reigned supreme over all bodies of the executive, including the regulatory ones, which afforded him incredible leverage over the other institutions of the state.
At the same time, the participants in the dialogue on the form of government voiced a general preference for a parliamentary system, on the grounds that this is best suited to Egypt after a phase of democratic development that permitted the existence of strong political parties. The recommendation, therefore, was a mixed presidential-parliamentary system along the lines of that in France. A prime minister would be selected from the largest parliamentary bloc and he would share power with the president in his capacity as chief executive. The president would be primarily responsible for foreign policy issues and national security, while the prime minister would focus on domestic affairs. There would be a reasonable balance between the powers and competencies of the two officials.
Much to these people’s surprise, however, they discovered that, in spite of the general agreement in principle, the draft constitution not only favours a presidential system, it grants the president absolute powers. Article 145 states, “The President designates the Prime Minister and charges him to form the Cabinet within 30 days.” Not only is the president empowered to appoint the prime minister, there are no restrictions on this power, nothing, for example, to compel him to select the candidate from the party that won that largest number of seats in parliament. Further along, in Article 163, we read: “No person who is appointed Prime Minister or a member of the Cabinet may combine membership in the Cabinet with membership in the People’s Assembly or the Shura Council. If a member of Parliament is appointed to the Cabinet, he must vacate his parliamentary post as of the date of his appointment.” This article confirms that we are looking at a presidential system as opposed to a parliamentary or even a hybrid one. All those discussions and all those understandings that had been reached had been ignored. The general consensus that Egypt’s blight before the 25 January Revolution was a presidential system in which the president had autocratic powers was tossed out of the window and we were cast back to square one, and perhaps worse.
In the pre-revolutionary period, the president used his authorities in ways that enabled him to gain control over the legislative and judicial authorities. To further his grip over the legislature he used rampant electoral rigging aided by a Ministry of Interior at his beck and call, a powerful media machine mobilised to support the regime and brainwash voters, and an army of government bureaucrats and wealthy business magnates in high places in government and the ruling party. As for the judiciary, the president had the right to appoint the head and members of the Supreme Constitutional Court and other key judicial officials, thereby securing the loyalty of this branch of government. Therefore, in addition to extensive powers, the president had at his service a pliant legislative authority that was prepared to pass the laws he wanted, even if that entailed overriding the constitution to pave the way for hereditary succession — and there was a judiciary that may have done nothing to prevent this.
This regime was brought down and its key figures were ushered into various prisons. Then began the process of building a new political order, which entailed, above all, laying the essential foundations for this order in the form of a new constitution. However, no sooner did the process of forming the Constituent Assembly begin than the Islamist forces, which had secured a parliamentary majority, insisted that this majority be reflected in the composition of this 100-member assembly charged with drawing up the constitution. They succeeded in creating one Islamist dominated Constituent Assembly that was then dissolved by order of the Administrative Court. They then succeeded in creating a second similarly composed one, the determination of the legitimacy of which was turned over to the Supreme Constitutional Court. While that case remained pending, Constituent Assembly members raced against the clock to patch together an appalling document, one that actually inflates presidential powers beyond the authorities accorded to Anwar Al-Sadat and Hosni Mubarak under the 1971 constitution.
The irony is that even the Muslim Brothers had supported, or at least not objected to, the mixed presidential-parliamentary system advocated by a broad range of political forces. But apparently, the victory of the Brotherhood’s standby presidential candidate, Mohamed Morsi, inspired them to change tack, once again, and opt for the presidential system. Maybe they thought that this would give them lasting control over this office. If they did, they had clearly misread the message of the presidential elections in which Morsi’s competitor, the last prime minister under Mubarak and a pillar of the old regime, won nearly as many votes as the Muslim Brotherhood’s candidate. They also failed to hear a very powerful signal sent by Egypt’s youth who turned out in huge numbers to vote for Hamdeen Sabahi or Abdel-Moneim Abul-Fotouh. Be that as it may, Brotherhood members and their supporters in the Constituent Assembly began to push for provisions that would give the president unprecedented powers and diminish those of the legislature and judiciary.
Consider, for example, that the System of Government Committee submitted an article stating that in the event that the president asked for the dismissal of parliament this would be brought to a public referendum and if the referendum rejected the president’s request, the president would be required to resign. By the time it cleared the Drafting Committee, the article accorded the president the right to dismiss parliament with no need for a referendum. Under the draft constitution, one of the grounds that the president has to dismiss parliament is if parliament rejects the president’s proposal for a cabinet two times in succession. Instead of the president facing the risk of having to resign because of an unpopular request to dismiss parliament, parliament faces the risk of dismissal because of an unpopular proposal for a cabinet.
 The draft constitution that has been put to public discussion does not bode well with respect to the question of the system of government. Rather than moving away from the authoritarian presidential system that Egypt and the Egyptian people have suffered so greatly under over the past six decades, the draft constitution seeks to surpass it through provisions that grant the president virtually absolute powers. What this tells us is quite simple. Those that are pushing for a presidential system through their various devices see the 25 January Revolution as their window to grab power and perpetuate their hold on it by cloning the experience of the National Democratic Party and the production of a president with tremendous powers vis-à-vis the legislative and judicial authorities.

The writer is an analyst at Al-Ahram Centre for Political and Strategic Studies. He is also head of the Social Democratic Party and a former MP.

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