Part 2: Divisions of power in the constitution under scrutiny

With the draft constitution now in the office of interim President Adly Mansour, experts have analysed the contentious articles in three sections of the final draft constitution. The three sections are the system of governance section, the transitional articles section and the sovereignty of law section.

Legislative authority

Constitutional expert Tharwat Badawy expressed his approval of the elimination of the Shura Council from governance, as the draft constitution renders the House of Representatives the state’s only legislative body.

Article 102 of the draft states that the House of Representatives is to be formed of at least 450 members, a number which Badway said is too high. Parliament members, he believes, should number no more than 350. The article puts the minimum age of parliamentary candidates at 25 years, delegating other criteria for electing candidates to the concerned laws. It also allows the president to appoint a maximum of 5% of parliamentarians.

Ra’fat Fouda, Cairo University law professor and constitutional expert, meanwhile criticised the article, pointing out that nowhere else in the world is the president given the power to appoint members of parliament. He added that in this specific aspect, the 2012 constitution was better than the current draft, as it did not grant the president this power.

Each elected House of Representatives is valid for five years, according to Article 105. Article 113 gives parliamentarians immunity against any criminal charges or felonies without the prior approval of the House of Representatives, unless they are caught red-handed.

Article 159 allows for accusing the president of high treason, violating the constitution or other crimes, based on a petition signed by at least the majority of the House of Representatives. A formal accusation cannot be issued without the approval of two-thirds of the House of Representatives. The article allows the trial of the president in front of a special court. Should he be found guilty, the president is suspended from his post.

Fouda said that Article 102 would make the implementation of Article 159 highly problematic.

“When around 25 members of parliament are appointed by the president, they will be under his allegiance,” Fouda said. “This will affect the parliament’s right to strip the president of confidence; questioning the president [under such circumstances] will be fantasy.”

Fouda added that coupled with the cancellation of the upper house of parliament, Article 102 gives the president prevalence within the government.

Article 122 allows the president, the cabinet and parliamentarians to propose bills to the House of Representatives. Should the bills be approved, the president can either ratify or reject them, according to Article 123. Rejected bills must be referred back to parliament within 30 days; should the presidency fail to refer them in the stipulated grace period, the bills pass. If the bills are referred back to parliament and approved by a two-third majority of its members, the bill also passes.

Article 130 allows the House of Representatives to interrogate the prime minister, his deputy(s), or the ministers, a procedure Fouda described as “ordinary” when compared to earlier constitutions. Article 131 meanwhile allows the parliament to strip the prime minister, his deputy(s) or any of the ministers of confidence after interrogation; at least 1/10 of parliament members should propose such act, while the majority of the House of Representatives must approve it. Should the cabinet announce its solidarity with those whom the parliament wishes to strip of confidence, the entire candidate must submit its resignation.

Presidential authorities

Badawy criticised the constitution for “expanding” the president’s jurisdiction, especially when weighed against the 2012 constitution. Article 140 sets the presidential term at four years and prevents the re-election of the president more than once. Presidential candidates, according to Article 141 must be Egyptians, with Egyptian parents and spouses; neither the candidate nor his parents or spouse are allowed to carry a dual nationality. Presidential candidates must be at least forty years old.

Article 145 prohibits the president from practicing another job during his presidential term(s). It also bans him from buying, selling, exchanging or renting state property. The article also bans the president from granting himself medals, a clause which Badawy applauded, as it was missing in the 2012 constitution.

Badawy nevertheless criticised Article 146, which stipulates the mechanism of appointing the prime minister and his cabinet. The article gives the president the authority to delegate a prime minister to form a cabinet and present parliament with the cabinet’s programme. Should the majority of parliament give the cabinet a no-confidence vote within 30 days, the president appoints a new prime minster from the party which enjoys the prevailing number of seats relative to other parties within the parliament. If the new prime minister and his cabinet also fail to get a vote of confidence from the majority of parliament within 30 days, the parliament is dissolved and the president is to call for new parliamentary elections within 60 days since the dissolution.

“This puts the president’s will above that of the people,” Badawy said.

Fouda said that the House of Representatives should be delegated with forming the cabinet from the start. He also criticised dissolving parliament should it fail to give the second choice of prime minister a vote of confidence, pointing out the high expenses needed to hold new parliamentary elections.

The cabinet

Article 163 states that cabinet is the state’s supreme executive and administrative authority. Article 168 gives the ministers the authority to decide on their ministries’ policies “in cooperation with concerned authorities” so long as such policies are in line with the state’s general policy, whereas Article 150 gives to set the state’s general policy to the president in cooperation with the cabinet.

Fouda said that according to the draft constitution, the ministers no longer have ministerial powers but administrative ones. He added that the ministers, under this draft, would be similar to the United States secretaries.

“This [exclusively] gives the president all executive powers,” Fouda said. He highlighted Article 137, which allows the president to dissolve the House of Representatives “when it’s mandatory” and when the president has a valid reason. The dissolution takes place after a referendum is held. Fouda criticised the article for failing to detail the procedures that should take place if the people refuse the dissolution of parliament.

“With its infinite use of elastic expressions, this draft constitution turned exceptions into norms and vice versa,” Fouda said.

Media councils and committees

Article 211 of the draft addresses an independent body, the Supreme Council for Organising Media. It is responsible for guaranteeing and protecting the freedom of the press and media services as well as placing criteria to ensure that media services “commit to professionalism, ethics and the necessities of national security.”

Board Member of the Press Syndicate Hanan Fekry said the words “necessities of national security” are “rejected” in a constitution, adding that the same words were that can be stretched and were used frequently under the era of ousted President Hosni Mubarak.

If these terms are to be kept in the constitution, Fekry said, then these “necessities” should be clearly defined.

“A person would find themselves getting arrested for breaching the necessities of national security without even knowing what they are,” she said.

Fekry explained that the syndicate had presented 10 articles to the Constituent Assembly during the drafting process and that this article combines several of them, but the part on national security “has nothing to do with what we presented.”

The next two articles, 212 and 213, refer to the formation of two national committees; one is responsible for managing state-run newspapers, while the other is tasked with managing state-run broadcast media and state-run electronic media. The committees have to guarantee the neutrality and independence of the media services.

Fekry expressed no problem with the articles, but stressed the need to define the mechanism under which the members of these committees are appointed. “The regime cannot appoint the members and then expect them to supervise media services that criticise the regime,” she said, adding that the members themselves would not be independent in such a case.

The military’s powers

Article 234 states that the appointment of the Minister of Defence is appointed upon the approval of the Supreme Council of the Armed Forces (SCAF) for the next two presidential terms. Fouda had earlier described this as making SCAF “a partner to the president”.

Article 204 of the draft bans military trials for civilians, but with many exceptions. Among such exceptions are cases in which a civilian commits a crime that is considered a direct assault on military institutions or military camps, and assaults on military weapons and ammunition. The article has received significant criticism and Badawy likened it to the special treatment that the British occupation reserved for themselves by use of their own tribunals.

Article 97, which falls under the sovereignty of law section, preserves the right to file lawsuits and bans giving immunity to administrative decisions against judiciary supervision. It also states that civilians can only be tried in front of their “natural judge”, banning exceptional courts.

Emad Mubarak, lawyer and director of the Association for Freedom of Though and Expression, said that the Constituent Assembly which drafted the constitution doesn’t recognise military trials as exceptional trials.

He added that the existence of such contradictions in the draft constitution is why, in his opinion, this constitution will not last for long.

Articles on the judiciary

As it stands the Supreme Constitutional Court (SCC) now has an undefined number of members. Article 193 of the draft constitution states that the SCC is made up of “a head and a sufficient number of deputies” without specifying a number.

The Deputy Chairman of the State Litigation Authority Sameh Sayed said leaving the number open for the court to decide is better since the court knows how many cases it is handling and how many judges it will need for the cases.

The State Litigation Authority is the state’s legal representative and Article 196 in the final draft of the constitution states that the State Litigation Authority is an independent body which represents the state in legal suits and suggests amicable settlements in any stage of litigation.

Sayed had hoped that the Constituent Assembly would maintain Article 179 of the 2012 constitution, which addresses the authority, however the article was amended and “we are dealing with Article 196 as reality.”

In the previous constitution, the State Litigation Authority could settle conflicts which the state is party to, not just suggest settlements.

Suggesting settlements is not enough, Sayed added, since they were only binding to the state but not to citizens, which means that if a citizen opposes a settlement, he can resort to litigation.

The previous constitution had also given the authority the responsibility of drafting contracts to which the state is party. However, this constitution states that the State Litigation Authority only drafts contracts if the government refers them to the authority. Sayed criticised the change, adding, “This leaves the matter to the hands of the administration.”

Transitional and general divisions

The process of amending the constitution is stipulated in Article 226 of the final draft. Amending articles can be requested by the president or one-fifth of the members of the House of Representatives. This means at least 90 members, since the legislature is set to be made up of at “least 450 members.”

The legislature discusses the request within 30 days and if a majority of the members approve, the articles in question are discussed in parliament after 60 days. If two-thirdsof the members approve of the amendment, a referendum is held within 30 days.

Articles on the principles of equality and freedom and articles on the re-election of the president cannot be amended unless to offer “additional guarantees”.

Constitutional expert Badawy said he finds nothing amiss with Article 226 but would have preferred that one tenth of the members could request an amendment instead of requiring a fifth.

Article 230, one of four articles voted down during the final voting on Sunday, states that presidential or parliamentary elections will be held, with the procedures of one of the elections being held no sooner than 30 days, and no later than 90 days of the enacting of the constitution. The procedures of the second are to commence within six months.

The article does not specify which elections will be held first, after Constituent Assembly members failed to agree.

Should the parliamentary elections be held after the presidential and based on the timeframes given in the two aforementioned articles, this would imply an up to 10-month waiting period from the constitution’s enaction before it could be amended.