By Tamer Bahgat and Khalid El-Sherif
“We are no longer slaves, and from this day forward, we shall not be inheritable!”
Ahmed Orabi, Sept. 9, 1881
The fall of the autocratic government in Egypt is the consummation of a struggle that began almost 130 years ago. Ahmed Orabi’s declaration in 1881 of the right of Egyptians to control their own destiny, free from the shackles of servitude and oppression, was echoed in the revolutions of 1919 and 1952, and re-proclaimed in 2011. On Friday March 5, exactly 21 days after the resignation of President Hosni Mubarak, hundreds of thousands of Egyptians gathered in Tahrir Square to welcome their new Prime Minister, Essam Sharaf. The preceding week had witnessed a continuing stream of similarly dramatic developments, with the arrest of former ministers, the publication of suggested amendments to the constitution, and the announcement of a criminal investigation into the actions of the former President. Though uncertainty still lingers, a mood of cautious optimism now flows from Tahrir Square to the rest of the country, with a palpable sense that, piece-by-piece, the crumbling edifice of the old regime is being cast asunder.
The appointment of a Prime Minister untainted by the corruption that characterised the Mubarak era offers the possibility for directing a clearer focus on building the foundations for a truly accountable government in Egypt. Indeed, the sober realisation of the multiple challenges that still confront the country has become all the more necessary. The 11 suggested constitutional amendments put forward by the Constitutional Amendment Committee on February 25 exhibit welcome signs of progress, but are undeniably modest in their scope. While recommending some curtailment of the current powers of the presidency, and the government’s ability to abuse the basic rights and freedoms of the citizens, the Committee deferred discussion of the full range of flaws in the constitution until after the upcoming elections (to be held in the next two to six months). Given that the distinguished Committee members were charged with the exceptionally onerous task of submitting their recommendations within 10 days, such limited proposals are unsurprising.
In reviewing Egypt’s constitutional framework, a crucial distinction should be drawn between liberalization and democratization. Change represented by the removal of the state’s powers of arbitrary arrest, the re-introduction of legal safeguards, the toleration of opposition groups (such as discourse with the once persecuted Muslim Brotherhood), and the release of political prisoners are all forms of liberalization. Democratization, on the other hand, entails additional substantive measures, particularly repairing, or indeed replacing the failed political structure that prevented the existence of a genuine democratic society in Egypt.
Noticeable by its absence from the Committee’s proposals was any in-depth discussion of reforms to Egypt’s system of government. As such, with planned elections only months away, Egyptians are being asked to embrace a governmental framework whose clear deficiencies have already been proved (a factor which contributed directly to the outbreak of the January 25 Revolution). The means by which any democratic state functions determine how the people’s representatives are elected, what powers they wield, and how the different branches of government interact with one another. Not taking the time to examine which system will best serve the country’s interests risks undermining the process of Egypt’s democratisation — a cause for which so many gave their lives.
The previous regime expended every effort to detach the people from the manner in which the country was ruled. So successful has this policy been that serious misconceptions about what form of government Egypt actually has are widespread. Contrary to the pronouncements of some commentators in recent weeks, Egypt does not currently have a presidential system of government akin to that of the United States of America. Rather, it technically has a semi-presidential system, with power theoretically divided between a directly elected President, and a Prime Minister and Cabinet answerable to parliament. In practice, however, the various components of constitutional republican government have been used as mere window dressing for autocracy. As such, an ostensibly sound political system has been warped by rigged elections, the suppression of opposition groups, and the creation of a virtual one party state.
Similar confusion exists regarding the parliament itself. Most striking is the fact that, in contrast to the commonly held belief, Egypt does not have a genuinely bicameral legislature (a parliament composed of two legislative chambers). The Shoura Council (created in 1980, and commonly referred to as the upper chamber of the Egyptian parliament) possesses extremely limited powers (outside of the ratification of international treaties, and constitutional matters), and acts primarily as an advisory body. Indeed, the constitution expressly precludes the Shoura Council from exercising any responsibility over the Prime Minister and the Cabinet. Egypt’s primary law-making institution is the People’s Assembly, meaning that for all intents and purposes, Egypt’s parliament is unicameral. The question of whether Egypt should progress to a fully fledged bicameral system, with two chambers balancing each other’s powers (and those of the President, and the judiciary) has been wholly ignored by the Constitutional Amendment Committee (perhaps due to the severe time constraints under which they were operating). Moreover, the Committee’s recommendations did not address the glaring democratic deficit within the Shoura Council, one third of whose members are not elected but rather appointed directly by the President.
Discussion of such basic constitutional issues should be seen not as an optional exercise for future consideration, but as an absolute and immediate prerequisite for genuine reform. There is a desperate need to engage the citizenry in considering one form of government over another, with decisions thereon only made after a full and detailed consideration of the various systems available. This is not a simple ‘cut and paste’ exercise to transplant the system of another state, but a mission to tailor and adapt a governmental framework to the specific circumstances and needs of Egypt.
The presidential system, with which the current Egyptian structure has been confused, draws a clear distinction between executive and legislative roles. While the US Government’s unrivalled military might affords the US President the epithet of ‘the most powerful man in the world’, the President’s powers within the United States itself are limited by a bicameral legislative branch that guards its own authority jealousy, and by an empowered judiciary whose role as the arbiter of the constitution is unchallenged. The Congress in particular acts as powerful counterbalance to the President, compelling the executive to work collaboratively with the people’s legislative representatives to push through his political agenda. However, it also lacks a single unified leadership position of its own in the form of a Prime Minister, or the power to bring down the executive through a vote of no confidence (as opposed to impeachment for unlawful conduct, a separate process enshrined in most forms of government).
This contrasts with the parliamentary system, where a vote of no confidence is theoretically a potent check on the powers of the executive. With the President relegated to a largely ceremonial role, parliament is the primary branch of government. Yet, as the executive and legislative branches are effectively merged by the virtue of the Prime Minister and Cabinet sitting in (and often dominating) parliament, the separation of powers is incomplete. In a state such as the United Kingdom, one consequence thereof is that the Prime Minister wields far greater domestic power than the US. President. Furthermore, the Prime Minister is typically not directly elected by the people, but owes his position to the number of parliamentary seats held by his political party. This permanently denies the electorate the opportunity of selecting the specific leader of their choice, and essentially precludes independent candidates from ever competing for this role. Though this can augment the power of the parliament, it also insulates the Prime Minister from popular opinion, as his specific job performance (as opposed to that of his party) is never subjected to a nationwide election. Moreover, the multi-party parliamentary pluralism that so many Egyptians seem to desire can only be truly guaranteed through proportional representation, an electoral system that entails a host of other challenges, and arguable deficiencies.
The semi-presidential model exhibits elements of both systems. By reducing this system to a mere veneer under which the people were subjugated to the will of the President, the Mubarak regime has discredited it in the eyes of many Egyptians. However, the same would have been true of any form of government deformed by autocracy. As demonstrated by its use and success in France, the semi-presidential system does indeed have the potential to balance the power of the President with that of the parliament, thereby preventing the wild excesses of presidential power to which Egyptians have grown so painfully accustomed. Key features are a directly elected President, who fulfils an executive rather than purely ceremonial role, and a powerful Prime Minister accountable to the legislature. Presidential elections permit the people to select the leader of their choice, while the power of the legislature is enhanced by its ability to force the resignation of the Prime Minister and Cabinet through a vote of no confidence. In some circumstances, this division of powers between the ‘dual executive’ can serve as an effective barrier to abuse of power by either the presidency or the parliament. However, it can also lead to critical internal governmental tension or inertia when the President and Prime Minister belong to different majority and/or minority political parties. This is particularly the case where presidential and prime ministerial powers converge, or are ambiguous. The arguable success or failure of this form of government varies from country to country, particularly in the case of some post-communist states.
Thus far, public debate over the respective benefits and detriments of these differing systems has been almost non-existent, a worrying factor exacerbated by the aforementioned misconceptions caused by the previous regime’s abuse of the constitutional system. An additional cause for concern is the suggestion currently gaining traction for serving senior members of the judiciary to be involved in the constitutional re-drafting process, and even to form part of a transitional presidential council. Such confidence in the judiciary is unsurprisingly given their reputation for integrity, and few would deny the expertise of the judges in constitutional matters. However, Egyptians should be cautious of asking judges to help frame constitutional articles or laws (usually left to the legislature and executive), which they will then have the duty of interpreting, something at variance with the fundamental requirement of separation of powers between the different branches of government. In view of the judges’ understandable desire to continue their judicial careers subsequent to the transition period, it could be seen as unfair to place them in a situation that may require them to rescue themselves from future judicial matters due to conflicts of interest.
The present formula for transition calls for the suggested constitutional amendments to be approved in a nationwide referendum before the end of March, followed by the election of a new President for a four year term (a welcome reduction from the six years of the existing constitution). The President would then oversee a more comprehensive constitutional re-drafting process in preparation for parliamentary elections. Chief among the numerous risks of this approach is that, to a large degree, it entrusts the reform of Egypt’s constitution to a sitting government, as opposed to a temporary assembly of experts convened solely for this purpose.
Unemployment, deteriorating standards in education and healthcare, chronic housing shortages, re-structuring of the degraded internal security apparatus, and multiple concurrent foreign policy crises, ranging from the permanent exigency in Palestine to the accelerating water dispute with Nile basin states, are but a few of the challenges that a newly elected Egyptian government will face in its first months. In such circumstances, expecting the government to spearhead constitutional reforms that might limit its powers appears improbable. Even those with the most benign of nationalistic intentions oftentimes find themselves unable to relinquish control, discovering power to be an opiate of unique allure. Moreover, once the current nationwide euphoria has faded in the cold light of Egypt’s political and economic woes, the public’s appetite for constitutional debate will be sorely tested. One of the oft proved truisms of Egyptian life is that when people are confronted with severe financial hardship, the price of bread will take precedence over the process of political reform.
Egypt’s window of opportunity, forced open by the sacrifices of its people, is soon to close once again. Before it does, those who are to administer the newly free country are faced with a historic task. Building a system that can answer the righteous calls for genuine freedom, dignity, and justice leaves no room for error, and no scope for regression. This is the moment of which Egyptians have dreamt for so long, from the earliest days of their civilisation through to the last three decades of tyranny. With the sense of national pride that has sustained their country for millennia, they have now declared that the Egyptians themselves will write Egypt’s future. If they can succeed in this undertaking, the only limits of their potential will be of their own creation.
Tamer O. Bahgat is a transnational lawyer with a predominant International Law Firm in London, with experience in corporate and international law, with a focus on economic and constitutional reform. He holds a Bachelor of Science in Biochemistry, Bachelor of Arts in International Relations and Economics, Juris Doctor. Khalid El-Sherif is a legal and policy professional with experience in regulatory reform, public and private international law, with a focus on development in the Arab World. He holds a Bachelor of Law, Masters of Law.
