Unbalancing power in Egypt’s constitution

Egypt approved a new constitution in a popular referendum on December 22, 2012, by a 63.8 percent vote. The establishment of the new legal framework for the post-Mubarak political order came after weeks of political turmoil, which pitted an Islamist current against a fragmented camp of liberals, leftists, and assorted non-Islamists. This diverse opposition responded to President Mohamed Morsi’s fait-accompli with a return to street protests and an angry outcry against the procedures through which the constitution was introduced.

The exchange of reasoned arguments may have been a somewhat naïve aspiration prior to the popular referendum given the poisoned political climate. But it is still striking that the text of the constitutional draft received so little attention in the shrill accusations exchanged by intransigent political opponents. There may yet be time to rectify this failing, however. Representatives of the Morsi government, its opposition, and the judiciary have recently shown signs of willingness to renegotiate bits and pieces of the constitution as well as the by-laws governing the vague provisions in the document. If they do, there will be a wide range of articles to reconsider.

There is reason to believe that Egyptians have to live with the current text, assuming the absence of an extra-judicial power grab and a renewed authoritarianism. Articles 217 and 218 establish a two-thirds majority in parliament followed by a popular referendum as the requirement for any constitutional amendments. The Egyptian political climate has proven conspicuously unsuitable for creating broad-based consensus among political forces, necessary for the amendment of articles. But it is worth the effort, since some of its core provisions will create a real mess for a democracy in the making.

The 2012 constitution, much like the preceding 1971 document, remains rife with flaws and idiosyncrasies. The main problem with the constitution is not its religious content, despite the public focus on those issues. The still largely vague and symbolic framing of articles 2, 4, and 219 does not come close to creating an Islamic theocracy. Nor is the constitution particularly authoritarian in nature. The strengthening of individual rights and liberties as well as some articles designed to curbing executive powers defy this contention.

The greater problem is that the constitution will make life difficult for future policy makers of whatever political camp and ideological color, in part because the text proposes an idiosyncratic mixture of vague articles alongside bizarrely detailed policy provisions. This means that governments who fail to pass appropriate laws will not just have failed at policymaking but will be in violation of the constitution. This could well contribute to the delegitimation of the state as it fails to make good on the promises to its citizens outlined in its own constitution.

Among the most problematic traits of the 2012 constitution is the apparent ignoring of a core consensus among political forces. In the immediate post-Mubarak period the road-map of institution building was developed under the auspices of the Supreme Council of the Armed Forces (SCAF). At least in the first half of 2011 intellectuals, revolutionary youth, and politicians from various camps (with the possible exception of former regime figures and the military) were united to call for a more balanced power structure of political institutions. The idea was to enhance the prerogatives of the legislature to the detriment of the previously dominating executive branch of government, especially the presidency. There was no broad-based agreement to craft a parliamentary system, a scenario that would have presumably met fierce resistance of the power brokers in the SCAF. Yet, political forces agreed that presidential powers of the Mubarakist type had to be curbed in order to give democratic transition a fair chance.

This agreement was not implemented in the 2012 constitution. The document outlines a presidential political system — not necessarily authoritarian, but with a dominant presidency and a number of significant defects. Strong executive powers do not necessarily equal authoritarianism. Presidential and semi-presidential democracies, as in the United States and France, prove the opposite; and a majority of hybrid regimes in Latin America, sub-Sahara Africa, and Asia have experienced consecutive competitive elections despite sweeping powers vested in presidential offices. In this light a majority of the Egyptian constitution’s articles that regulate presidential powers do not defy democratic principles. The Egyptian president will continue to enjoy the right of appointment in the government and judiciary (articles 139, 147, 166, 173, 176, 199, 202), and he or she may choose to delegate presidential powers to other political institutions (articles 142, 143, 153). The president formulates core policies (articles 132, 144, 159, 177) and reserves the right of pardon (article 149). None of these articles are necessarily worrisome, perhaps with the exception of article 132. Its wording that the president "observes the separation between powers" is a clear indicator of the authors’ perception of the president as a dominant political figure above checks-and-balances. From a democratic theory point of view, the president shall represent the executive body of the state, and thus be part of a balancing act between powers rather than its arbiter.

Reference to democratic theory might be too academic an approach to judge article 132, a largely symbolic, yet telling introduction into the constitution’s chapter two on executive authority. Four aspects of presidential powers raise real concerns: de facto veto power in the law making process; strong influence of the current president on the presidential election law; prerogatives to rule by presidential decree; and the outsourcing of core policy arenas from political institutions enjoying electoral legitimacy.

Apart from the fact that the executive will be de facto more active in drafting laws than the legislature, article 104 offers the president particularly strong leverage over the law making process. Draft laws will pass parliament but can be rejected by the president — a decision that can only be overruled by a two-thirds majority in the legislature. Adding to the confusion on law making procedures is the lack of clear guidelines about the role of the two chambers of parliament. While article 104 only mentions the first chamber, the majlis al-sha’b, article 102 maintains in vague wording that both chambers of parliament are involved in law making, including the upper house, the majlis al-shura. Article 103 regulates disputes between the majlis al-sha’b and the majlis al-shura. Both articles, however, remain silent as to the procedures applicable to draft laws rejected by the president. In practice, qualified two-thirds majorities in parliament are difficult to secure, all the more so when a rejected law goes back to both chambers. The presidential rejection will thus, in most cases, turn into a final verdict on the proposed law.

The presidential election law is particularly confusing. Article 136 only calls for a direct vote and an absolute majority, with the legal fine tuning regulated by law. And here we are back at articles 102 through 104. Since, first, there is no law regulating the forthcoming presidential elections and, second, the president has de facto veto powers as of article 104, Morsi will have a strong influence over the drafting of the law ruling over his possible reelection in 2016. To complicate matters further, article 177 brings in the Supreme Constitutional Court (SCC) that has to be consulted in matters concerning presidential, legislative, and local administrative elections. There is still time ahead of the next presidential elections and it is unlikely that lawmakers will touch the matter any time soon. Yet, if the current political climate persists — with a seemingly intractable stand-off between the SCC and the Islamist camp — we will most likely witness a very contentious law making process. That the current president enjoys significant leverage upon the procedures regulating his possible second-term elections will cause the opposition to cry foul, especially when they lose. A possible solution could be that the law regulating the June 2012 presidential elections is adopted, but this is uncertain und somewhat unlikely.

Article 150 is one of the most problematic pieces of the constitution and has triggered substantial criticism in the Egyptian political establishment. It most clearly violates the prior consensus that presidential powers be curbed. The article grants the president the right to draft decrees on issues "relating to the supreme interests of the state." Of course, with some imagination, quite a number of political challenges, policy arenas, and decisions would fit this fuzzy designation. Presidential decrees have to pass popular referenda, a clause that invites popular — and populist — presidents to rule by decree and sideline parliament.

A fourth contentious aspect of presidential powers is the de facto outsourcing of core policy areas from the civilian institutions of the state. Articles 141, 145, 193, 194, and 197 define issues of security and defense, but also foreign policy, as areas where decision-making will effectively be outsourced from political institutions with popular legitimacy. Those issues are moved to three ambiguous councils with overlapping competencies (National Security Council, SCAF, and National Defense Council) that are to be recruited from civilian politicians and military personnel. This comes in conjunction with the complete absence of civilian oversight of the military establishment concerning recruitment, organizational structure, decision-making, and the military’s economic empire. The president is a member of all of these councils and exerts particular leverage over foreign policy (article 145), virtually copying arrangements under the Mubarak regime.

To be fair, attempts have been made to introduce measures to control the president. Some of those limit presidential powers, whereas others were designed to endow parliament with control mechanisms. Article 135 allows both chambers of parliament to propose candidates in presidential elections. The clause that 20 members are needed for a candidate’s registration might actually come to the advantage of party politics. Political organizations in Egypt have been notoriously fragmented in different factions, personal fiefdoms, and would-be parties. Thus, article 135 contains an incentive to move toward greater party cohesion and coalition building, at least ahead of presidential elections. Article 133 reintroduces term limits for presidents, who can be reelected only once. Moreover, the duration of terms has been cut from six to four years. Article 127 is an interesting attempt to balance power relations between the president and parliament. It allows the president to move to dissolve parliament through a popular vote, a provision that might come as a necessary step to solve a deadlock between the two institutions. Yet, an important clause has been introduced in order to impede the article’s abuse: losing the popular referendum triggers the automatic resignation of the president.

Articles 146 and 148 serve to check the president’s possible application of extraordinary coercive measures. According to article 146, the majlis al-sha’b has to approve the president’s declaration of war, a prerogative that might not matter much in practice because the rallying-around-the-flag is a likely scenario in a crisis leading to violent conflict with another country. Article 148 is more significant in that it holds that both chambers of parliament approve the president’s declaration of a state of emergency, applied for the first time on January 28 amidst violent clashes two years after the January 25 revolution. The parliament’s oversight of the application of emergency measures means the departure from an important tool of authoritarian rule under Mubarak who used a protracted state of emergency ever since his takeover in 1981 in order to maintain a parallel court system of state security and military courts and coerce political opposition into submission.

Some of these articles can be powerful tools for parliament to check an over-ambitious executive. Yet, two articles are more ambiguous in that they may lead to a mutual blockade of the executive and legislative branches of government. Article 139 grants parliament the power to veto the appointed prime minister and his or her cabinet — a far-reaching clause that extends parliamentary powers beyond the control of the governmental budget. In the short run, the article secures the protracted control of the Muslim Brotherhood over the Morsi government. It is thus designed to affect the relations within the Islamist camp: between the Ikhwani "mother organization," its political off-spring Freedom and Justice Party, and the presidential office. In the longer run, article 139 may well lead to a real deadlock over the recruitment of government in the case that parliament is composed of a majority of members in opposition to the president. What is termed in French a situation of "co-habitation" may not be an imminent threat in Egypt, with the Muslim Brotherhood and its Islamist allies promised to dominate upcoming elections. Yet, a constitution usually has a longer life span than one or two electoral cycles; and the article will almost certainly create a deadlock once the voter chooses to send a president and parliamentarians with differing political allegations into office. Article 139 goes on to prescribe the consequence of such a deadlock: the dissolution of parliament.

Article 152 invites an equally unhealthy political practice. The idea of the president’s impeachment through parliament is an important component of a democratic system of checks-and-balances; yet it is poorly executed in the Egyptian constitution. Article 152 sets a particularly low barrier of a one-third vote among members of the majlis al-sha’b to initiate an impeachment case. For a positive vote — moved to a special court, which will finally decide the president’s fate — parliament needs a two-thirds majority. With the latter hurdle in place it seems unclear why it should be made that easy for the majlis al-sha’b to trigger an impeachment case. In Egypt’s political reality, it is quite likely that a somewhat desperate opposition — failing to win majorities in either presidential or parliamentary elections — would use article 152 on a relatively regular basis in order to discredit the president. The article therefore has the potential to sustain and aggravate the current political climate in which boycott and the general dismissal of the political opponent’s legitimacy remain an integral part of the political discourse.

In sum an assessment of the balance of power between the president and parliament presents a mixed picture. Most observers are uncomfortable with the strong position of the president. Yet, the president does face some significant limits — accompanied by a few articles that are designed to institutionalize political deadlock rather than effective parliamentary control. The possibility of political blockades is a somewhat inherent component of presidential systems. Yet, the Egyptian constitution remains particularly unbalanced. In the case of concordance between president and parliament, the former is too powerful and has to resist the temptation to rule by decree. In the case of substantial dissonance between the president and parliament, deadlock is a likely scenario.

Apart from a dominant presidency and ambiguous measures of checks-and-balances it is striking that more traits and ideals of the 1971 constitution have been transmitted to the current document than anticipated by a political establishment energized by the fall of Mubarak and a revolutionary discourse. This can be seen in the articles regulating presidential powers, but also in other parts of the document. For instance, the chapters on economic policies and social development reflect a nationalist, etatist agenda, and a whole number of articles was copied unaltered from the previous document.

This might come as a surprise to observers who mostly see the Muslim Brotherhood as the main force behind the new constitution. The document did not meet expectations that the Brotherhood would engineer a more significant break with Egypt’s authoritarian past, introduce an alternative (perhaps their own) social and economic agenda, and make good on their promise to strengthen parliament over the presidency. This is probably because of the Brotherhood’s motivation to finalize the institution-writing process as quickly as possible and to secure short-term gains as the most powerful organization in the immediate post-Mubarak era. The resulting document might be there to stay for some time, however, given the high barriers to its amendment.

Holger Albrecht is assistant professor of Political Science at the American University in Cairo and Jennings Randolph senior fellow at the US Institute of Peace.