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Inside Egypt's draft constitution: Checks and balances mediate presidential power

Draft constitution gives parliament the ability to impeach the president, but some observers believe that the president still wields too much power

Zeinab ElGundy , Thursday 12 Dec 2013
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A man casts his vote at a polling station during the second day of parliamentary elections in Giza, on the outskirts of Cairo December 14, 2011. (Photo: Reuters)
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The new constitutional draft, which will be voted on at a national referendum in a matter of weeks, sees the adoption of a number of checks and balances related to presidential power that were not present in the previous charter.

Following the ouster of president Mohamed Morsi in July -- accused by many political opponents of exceeding his powers -- the  2012 constitution was suspended, to be redrafted by a new committee.

The new draft, the product of several months of work by a fifty-member panel, enshrines a number of innovative measures that limit the power of the president. These include mechanisms for parliament to withdraw confidence from or even vote to impeach the president.

The president can dissolve parliament after calling for a public referendum (Article 137) while two thirds of parliament can call for a public referendum to end the president's rule and organise early presidential elections (Article 161).

The president also has the right to object to laws issued by parliament and has the right to promulgate laws with the approval of two thirds of parliament (Articles 122 and 123).

While the president can appoint a prime minister chosen from within the party that wins a majority in parliament (Article 146), parliament can withdraw confidence from the prime minister chosen by the president (Article 133).

Semi-presidential system

Despite these principles, several political forces and parties believe the draft constitution gives the president more power than the parliament.

“We wanted a strong parliament and a strong independent prime minister, not a premier that works in the shadow of the president,” Nadar Bakkar, a leading member of the Salafist Nour Party, told Ahram Online. “We preferred [to have] a true semi-presidential system that is closer to the parliamentary system,” he added.

Bakkar said the semi-presidential system mentioned in the draft constitution is far from what the Salafist party aimed for.

Unlike, the Nour Party, the liberal Free Egyptians Party believes that the semi-presidential system adopted in the draft constitution is the best system in terms of facing the hardships of Egypt’s current situation.

“As liberals we prefer the parliamentary system, but such a system demands strong parties — something we don’t have now,” Ahmed Khairy, a leading member of the Free Egyptians Party, told Ahram Online. ”Thus we said several times that we wanted a semi-presidential system.”

“This is a transitional period and the semi-presidential system is good for the transitional period. At least for the upcoming eight or 10 years,” Khairy added. “After all, this constitution is [drafted] for this period full of problems.”

Parliament and elections

Parliament in the new draft constitution is made of one chamber, known as the House of Representatives.

The House of Representatives is to be made up of 450 members elected by the public for five years. The president, however, has the right to appoint five percent of house members, according to Article 102.

The main role of the House of Representatives, as mentioned in Article 101, is legislative, as well as "to approve the State’s general policies as well as public economic, cultural and social policies, and the public budget.” The article also states that parliament has a supervisory role relative to the executive authority.

Despite that the draft constitution sets out in detail the form and role of parliament, it left interim President Adly Mansour to decide on one crucial detail: the electoral system that would elect the body.

The president is to choose between a party list system, a candidacy system (for individuals), or a mixed system encompassing both. In 2011, Egypt adopted a mixed system.

Nader Bakkar described the individual candidacy system as "killing parties" and said he was in favour of a mixed system giving party lists 75 percent of parliament and individual candidacy the remaining 25 percent.

“Do you want real political life in Egypt or not? Real political life means strong parties in a healthy political atmosphere,” Bakkar said. “You need to encourage the growth of those parties, and the party list system will help building these parties while giving less well known parties the opportunity to grow,” he added.

“The individual candidacy system opens the door to money being used for political ends in the elections,” the leading Salafist figure added.

Liberal Ahmed Khairy also believes that the party list system is the best for Egypt.

“We said several times since the parliamentary elections in 2011 that we want a party list system in order to reinforce political parties in Egypt,” Khairy said. “There should be representation for the parties and this won’t happen except through the list system,” he added.

Nevertheless, some support the individual candidacy system. Among them are the Rebel (Tamarod) Campaign and the Nasserite Popular Current movement. Advocates of the individual candidacy system say the system would prevent Islamist parties and movements, like the Muslim Brotherhood, from dominating parliament.

Ban on religious-based parties

On political parties themselves, the draft constitution is different from the 2012 constitution in one crucial respect -- it explicitly prohibits political activities or parties based on religion (Article 74). The 2012 constitution only prohibited political activities based on gender, racial and religious discrimination.

This clear prohibition is considered to be a blow to Islamist parties, such as the Nour Party, which participated in the drafting of the constitution, and Morsi's Muslim Brotherhood, now facing a severe crackdown by the authorities.

Non-Islamist parties welcomed the move, but parties like Nour had another view. “This article affects Islamists who work in politics. It is as if this article says they are not allowed to work in politics anymore,” Bakkar told Ahram Online. He added that from a legal point of view his party’s platform and bylaws did not discriminate between citizens based on religion.

Human rights lawyer Negad El-Borai stated earlier this week that the article banning religious-based parties was useless since the principles of Islamic Sharia were still the main source of legislation, according to Article 2 of the draft constitution. Accordingly, the future of Islamist political parties is not determined.

National decentralisation

The draft constitution also favours administrative, financial and economic decentralisation of the country’s governorates and local councils (Articles 165 and 167).

According to the draft, members of local councils are elected (Article 180), while it is left to the law to decide whether or not governors and heads of local units in governorates should be elected or appointed.

The local council electoral system is also left to be determined by the law.

Khairy told Ahram Online he was not sure if the security situation in Egypt’s governorates would allow for organising local elections.

“The local councils have been the subject of a huge debate since Mubarak. We are speaking of nearly 54,000 seats. The democratic rule says that local councils should be elected. But can we hold elections now for local councils in Egypt?“ Khairy asked.

“The local councils law has been under discussion for three years now and  members are still being appointed temporarily, which is useless. Local councils are the true schools for upcoming members of parliament, like in a real democracy. But we are still waiting for the legislation,” he added.

-------------------------------------------

The following is a comparison between the 2012 and 2013 versions of some of the articles.

2013

2012

Article 117

The House of Representatives shall elect, in the first meeting of its regular annual session, a speaker and two deputy speakers for the full legislative term.

If the seat of either becomes vacant, the House of Representatives shall elect a replacement.

The inner bylaws of the house shall determine the rules and procedures of election. In the case of the disruption of either's obligations, one third of the members of the house could request that he be relieved from his post. The decision is issued by a two-third majority of its members.

In all cases, the speaker or either of the deputy speakers may not be re-elected in the following term.  

Article 97

Each house shall elect, in the first meeting of its regular annual session, a speaker and two deputy speakers for the full legislative term in the case of the House of Representatives, and for half of the legislative term in the case of the Shura Council.

If the seat of either becomes vacant, the Shura Council or House of Representatives shall elect a replacement, whose term will last until the end of their predecessor’s.

In all cases, one third of the members of either house could request a new election of the Speaker or Deputy Speakers in the first meeting of the regular annual session.

Article 137

The president of the republic may not dissolve the House of

Representatives except when necessary and by a causative decision and following a public referendum.

The House of Representatives may not be dissolved for the same cause for which the immediately previous House of Representatives was dissolved.

The president of the republic shall issue a decision halting the sessions of the house and put the decision to dissolve it to referendum within 20 days at most. If the participants in the referendum approve with a majority of valid votes, the president of the republic shall issue the dissolution decree and call for early elections within 30 days at most from the day of the decree's issuance.

The new house shall meet within 10 days following the final result's announcement.

Article 127

The president of the republic may not dissolve the House of

Representatives except by a causative decision and following a public referendum.

The House of Representatives may not be dissolved during its first annual session, nor for the same cause for which the immediately previous House of Representatives was dissolved.

The president of the republic shall issue a decision halting the sessions of the house and put the decision to dissolve it to referendum within 20 days at most. If the participants in the referendum approve the house's dissolution with a majority of valid votes, the president of the republic shall issue the decree to dissolve the house and call for early elections within 30 days at most from the day of the decree's issuance.

The new house shall meet within 10 days following the final result's announcement.

If the majority do not approve the dissolution, the president must submit his resignation.

If the referendum is not carried out within the given period, the house shall reconvene the day after the end of the given period.

Article 139

The president is the head of state and chief of the executive branch of government. He looks after the interests of the people, safeguards the independence, unity and territorial integrity of the motherland, and is committed to the provisions of the constitution.

He carries out his responsibilities in the manner prescribed by the constitution.

Article 132

The president is the head of state and chief of the executive branch of government. He looks after the interests of the people, safeguards the independence and territorial integrity of the motherland, and observes the separation between powers.

He carries out his responsibilities in the manner prescribed by the constitution.

Article 141

A presidential candidate must be an Egyptian citizen born to Egyptian parents. He and his parents must have carried no other citizenship. He must have civil and political rights, and must have fulfilled his military service or been legally exempted from it and at the time of nomination cannot be younger than 40 Gregorian years.

Other conditions for nomination are determined by law.

Article  134

A presidential candidate must be an Egyptian citizen born to Egyptian parents, must have carried no other citizenship, must have civil and political rights, cannot be married to a non-Egyptian, and at the time of nomination cannot be younger than 40 Gregorian years.

Article 133

Before assuming the presidential position, the president of the republic shall take the following oath before the House of Representatives: “I swear by Almighty God to loyally uphold the republican system, to respect the constitution and the law, to fully look after the interests of the people and to safeguard the independence, unity and territorial integrity of the motherland.”

If the House of Representatives is dissolved, the oath is to be taken before the general assembly of the Supreme Constitutional Court.

Article 137

Before assuming the presidential position, the president of the republic shall take the following oath before the House of Representatives and the Shura Council: “I swear by Almighty God to loyally uphold the republican system, to respect the constitution and the law, to fully look after the interests of the people and to safeguard the independence and territorial integrity of the motherland."

If the House of Representatives is dissolved, the oath is to be taken before the Shura Council.

Article 136

The president of the republic appoints the prime minister, who shall be assigned by the president the task of forming the cabinet and presenting its programme to the House of Representatives. If the cabinet is not granted confidence by the majority of House of Representatives members within 30 days at most, the president shall appoint the prime minister nominated by the party or coalition that holds the majority of house seats. If the cabinet of that appointed prime minister does not obtain the confidence of the majority of the House of Representatives members within 30 days, the house is considered dissolved and the president of the republic shall call for the election of a new House of Representatives within 60 days from the date the dissolution is announced.

In all cases, the sum of the periods set forth in this article should not exceed 60 days.

In the case of dissolution of the House of Representatives, the prime minister shall present the cabinet and its plan to the new House of Representatives at its first session.

The president of the republic, in consultation with the prime minister, shall appoint the ministers of defence, interior, foreign affairs and justice if the cabinet is appointed by the majority party in the House of Representatives, or by a coalition that comprises a majority.

Article 139

The president of the republic appoints the prime minister, who shall be assigned by the president the task of forming the cabinet and presenting its programme to the House of Representatives within 30 days at most. If the cabinet is not granted parliamentary confidence, the president shall appoint another prime minister from the party that holds the majority of seats in the House of Representatives.
If the cabinet of that appointed prime minister does not obtain parliamentary confidence within a similar period, the House of Representatives then appoints a prime minister who shall be assigned by the president the task of forming a cabinet, provided that this cabinet obtains parliamentary confidence within a similar period.

Otherwise, the president of the republic shall dissolve the House of Representatives and call for the election of a new House of Representatives within 60 days from the date the dissolution is announced.

In all cases, the sum of the periods set forth in this article should not exceed 90 days.

In the case of dissolution of the House of Representatives, the prime minister shall present the cabinet and its plan to the new House of Representatives at its first session.

Article  145

The president of the republic shall represent the state in foreign relations and shall conclude treaties and ratify them after the approval of the House of Representatives. Such treaties shall have the force of law after publication, according to the provisions of the constitution.

Any treaty of peace, alliance, and all treaties related to the rights of sovereignty must be subjected to a popular referendum. Such treaties are not ratified unless approved by referendum.

In any case, no treaty contrary to the provisions of the constitution or concedes any part of state territory shall be concluded.

Article  145

The president of the republic shall represent the state in foreign relations and shall conclude treaties and ratify them after the approval of the House of Representatives and the Shura Council. Such treaties shall have the force of law after ratification and publication, according to established procedures.

Approval must be acquired from both legislative houses with a two thirds majority of their members for any treaty of peace, alliance, and all treaties related to the rights of sovereignty.

No treaty contrary to the provisions of the constitution shall be approved.

Article 154

The president of the republic shall declare, after consultation with the cabinet, a state of emergency in the manner regulated by law.

Such proclamation must be submitted to the House of Representatives within the following seven days for consideration.

If the declaration takes place when the House of Representatives is not in its normal session, a session is called for immediately.

In any case, a majority of the members of the House must approve declaring a state of emergency. The declaration shall be for a specified period not exceeding three months, which can only be extended by another similar period upon the two-thirds majority by the house.

If the house is not in session, the matter is submitted to the cabinet for approval, to be presented to the new House of Representatives in its first session.

The House of Representatives cannot be dissolved while a state of emergency is in place.

Article 148

The president of the republic shall declare, after consultation with the cabinet, a state of emergency in the manner regulated by law.

Such proclamation must be submitted to the House of Representatives within the following seven days.

If the declaration takes place when the House of Representatives is not in session, a session is called for immediately. In case the House of Representatives is dissolved, the matter shall be submitted to the Shura Council, all within the period specified in the preceding paragraph.

The declaration of a state of emergency must be approved by a majority of members of each Council. The declaration shall be for a specified period not exceeding six months, which can only be extended by another similar period upon the people’s approval in a public referendum.

The House of Representatives cannot be dissolved while a state of emergency is in place.

Article 158

The president of the republic may submit his resignation to the House of Representatives. If the house is not in session, he shall submit it to the general assembly of the Supreme Constitutional Court.

Article 151

For the president of the republic to resign, a letter of resignation must be presented to the House of Representatives.

Article 159

A charge of breaching the provisions of the constitutions or of felony or treason against the president of the republic is to be based on a motion signed by at least the majority of the members of the House of Representatives. An impeachment is to be issued only by a two-thirds majority of the members of the House and after an investigation carried out by the prosecutor-general and if rendered unable he is replaced by one of the assistant prosecutor-generals.

As soon as an impeachment decision has been issued, the president of the republic shall cease all work; this shall be treated as a temporary obstacle preventing the president from carrying out presidential duties until a verdict is reached.

The president of the republic shall be tried before a special court headed by the president of the Supreme Judicial Council, with the membership of the longest-serving Deputy of the president of the Supreme Constitutional Court and the State Council, and the two longest-serving presidents of the Court of Appeals; the prosecution to be carried out before such court by the prosecutor-general. If any of them is rendered unable, he is replaced by his follower in seniority. The court verdict is final and cannot be appealed.

The prosecution, trial procedure and penalty are regulated by law. In the case of conviction, the president of the republic shall be relieved of his post, without prejudice to other penalties.

Article 152

A charge of felony or treason against the president of the republic is to be based on a motion signed by at least one-third of the members of the House of Representatives. An impeachment is to be issued only by a two-thirds majority of the members of the House of Representatives.

As soon as an impeachment decision has been issued, the president of the republic shall cease all work; this shall be treated as a temporary obstacle preventing the president from carrying out presidential duties until a verdict is reached.

The president of the republic shall be tried before a special court headed by the president of the Supreme Judicial Council, with the membership of the longest-serving Deputy of the president of the Supreme Constitutional Court and the State Council, and the two longest-serving presidents of the Court of Appeals; the prosecution to be carried out before such court by the prosecutor-general. If any of them is rendered unable, he is replaced by his follower in seniority.

The prosecution, trial procedure and penalty are regulated by law. In the case of conviction, the president of the republic shall be relieved of his post, without prejudice to other penalties.

New article:

Article 161

The House of Representatives can propose withdrawing confidence from the president of the republic and early presidential elections based on a causative motion signed by the majority of House of Representatives members at least and the approval of two-thirds of its members.

The motion cannot be presented for the same cause during the presidential term more than once.

As soon as the proposal is approved, the matter of withdrawing confidence and holding early presidential elections is subjected to a popular referendum called for by the prime minister.

If a majority approves the decision to withdraw confidence, the president of the republic is relieved from his post which then becomes vacant.

The early presidential elections shall be held within 60 days from the date the referendum result was announced.

If the referendum results in disapproval, the House of Representatives is considered dissolved and the president of the republic shall call for electing a new house within 30 days from the date of dissolution.

 

Article 185

Each judicial body shall administer its own affairs; each body shall have an independent budget subject to discussion by the House of Representatives in detail and be incorporated in the state budget as one figure.

Each judicial body shall be consulted on the draft laws governing its affairs.

Article 169

Each judiciary body shall administer its own affairs; each body shall have an independent budget and be consulted on the draft laws governing its affairs, by the means that are regulated by law.

Article 189

The Public Prosecution is an integral part of the judiciary, to investigate, press and follow charges in all criminal cases except what is exempted by law. Other competencies shall be defined by law.

The Public Prosecution is conducted by a prosecutor-general appointed by the Supreme Judicial Council, from among the Deputies to the president of the Court of Cassation, or Presidents of the Court of Appeals or the Assistant prosecutor-generals, and the president of the republic issues a decision to appoint him for a period of four years, or for the period remaining until retirement age, whichever comes first, and only once during the judge’s career.

Article 173

The Public Prosecution is an integral part of the judiciary, to investigate, press and follow charges in all criminal cases except what is exempted by law. Other competencies shall be defined by law.

The Public Prosecution is conducted by a prosecutor-general appointed by the president of the republic, based on the selection of the Supreme Judicial Council from among the Deputies to the president of the Court of Cassation, the Presidents of the Court of Appeals and Assistant prosecutor-generals, for a period of four years, or for the period remaining until retirement age, whichever comes first, and only once during the judge’s career.

The articles from the 2012 constitution are from the official translation. The articles from the 2013 constitution were translated by Ahram Online.

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patkar
13-12-2013 07:56am
0-
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there is an imbalance
the constitution allows the president to be impeached BUT no touch to defense minister. Something is wrong there as who holds the power.
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