In the first part of my discussion of the new draft of Egypt's
constitution that I can read here; http://100badones.blogspot.co.uk/2014/01/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://100badones.blogspot.co.uk/2014/01/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.
(Originally Posted) 22:40 on 2/1/14 (UK date).
No comments:
Post a Comment