Analysis: Can Egypt have a president without a constitution?

Hani al-Aasar, Political science researcher, Tuesday 22 May 2012

Egypt's next president will begin his tenure in the absence of a national charter specifying his responsibilities and powers

Presidential Election Committee
File photo: Head of the Presidential Election Committee Farouk Sultan (seated at table on stage, 2nd R) gives a news conference to announce the final list of candidates for the elections (Photo: Reuters)

Everyone is awaiting the outcome of Egypt's first post-Mubarak presidential election with baited breath. For many, the election of a new president will restore the stability Egyptians have been longing for since Mubarak's ouster early last year. For others, a new president means the end of the military's involvement in politics. For others still, the victory of their favourite candidate will usher in a new age of freedom and social justice.

All of this is wishful thinking, of course. Most Egyptians don’t seem worried by the fact that the new president will begin his tenure in the absence of a constitution determining his responsibilities and powers.

It is hard to assess post-election scenarios without a careful examination of the constitutional declaration that will define the powers of the incoming president in the first few months of his tenure. If we look carefully at the declaration, we will notice two points of immense relevance. One has to do with the president's status; the other with the declaration's articles that set him on a collision course with parliament.

The president's status

The new president will take office under a constitutional declaration that doesn't grant him adequate powers. According to articles 25, 35 and 56 of the declaration, the president is entitled to appoint some members of the People's Assembly and Shura Council. He can appoint or dismiss the cabinet. He represents the country at home and abroad. And he appoints some civilian and military officials.

The same constitutional declaration, however, robs the president of the power to ratify state policy. And he will not be the one ratifying the public budget. Consequently, the president will not be able to increase salaries, introduce unemployment allowances, raise the health and education budgets, or do the rest of the things candidates promised to do. The real power in such matters resides, according to the constitutional declaration, with parliament.

Contentious articles

The writers of the constitutional declaration, inadvertently perhaps, have created several contentious articles certain to take the next president and the People's Assembly down a collision course. Neither will be able to avoid this collision, except through serious political concessions – which could end up being a tough pill to swallow.

The most obvious of these contentious articles is Article 25, which grants the president the powers mentioned in Article 56 of the earlier constitution, with the exception of clauses 1 and 2. Clause 5 of Article 56 allows the president to pass laws and object to them. However, the president has no right to introduce legislation. This right, mentioned in clause 1 of the same article, belongs instead to parliament. In other words, there will be no laws passed without some agreement between the president and parliament – not always an easy matter.

Crisis and solution

Assuming that Egypt's next president will not be affiliated with the Islamist majority in parliament, one can expect one of the following scenarios to unfold:

A subservient president: In this scenario, the president will be little more than an honorary official bending to the wishes of the parliamentary majority. The president will be inclined to avoid any differences with parliament, because he will need parliament's help in matters related to his popularity and the fulfilment of his electoral promises. The president will also be inclined to placate parliament if the assembly is to play a major role in drafting the new constitution.

Collision course: Conflict is unavoidable if the president finds himself caught between the anvil of public discontent and the hammer of parliamentary pressure. The parliamentary majority may force the president into a corner unless he gives in to its wishes. If the president challenges parliament, he must have considerable public support behind him. To get this type of support, the president will be tempted to denounce parliamentary policy, which could lead to endless trouble with the legislature.

Having a sitting president who is not backed by a constitution giving him sufficient powers to do his job is a risky affair. Therefore, all true Egyptian patriots must exert every effort to have a permanent constitution written – one that can offer proper safeguards for the country. Those who attempt to achieve political hegemony by stalling the constitution-drafting process, meanwhile, are simply harming their own cause.

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