Furthermore, the new constitution enshrines many rights and protections unrivaled in many advanced democracies. For instance, it requires the state to charge a suspect within 12 hours of his arrest, offer an attorney within 24 hours, and present him before a judge facing official charges within one week. Otherwise, he must be released. It also allows the establishment of any political parties or media outlets with a simple registration form, without any approval process by the state. In addition, it bans all forms of torture while dropping its statute of limitations, and allows victims to bring their torturers directly before a judge if the state declines to prosecute. It even requires the judge to apply criminal sanctions if the accused are found guilty.
In addition, the drafters of the constitution included many articles that enshrined many political rights and added economic protections. It is difficult to see how the new economic promises will be paid for if the referendum passes. For example, the constitution guarantees a minimum wage and pension. If applied immediately as stipulated in the constitution, many public employees, workers, and pensioners would see their salaries double or even quadruple. How would that impact the weak Egyptian economy that is at the brink of collapse? Where will the state bring the extra money to cover the new increases in salaries when it is already struggling with 27 percent deficit of its budget (or 11 percent deficit of GDP)? How would the new sudden increases affect the inflation rate, which is already exceeding ten percent annually? Who would enforce the minimum wage standard with the weak existing government institutions?
Commendably, the new constitution guarantees all Egyptians access to free and quality health care as well as free education even at the university level. If implemented immediately, the Egyptian budget for education and health care would have to be increased by four to six times to fulfill these grand promises. In addition, the new constitution guarantees a monthly stipend to the unemployed (over 4 million), senior citizens (over 3.5 million), widows, divorced mothers, homemakers (countless millions), and the poor (over 20 million people are considered poor as poverty is defined in Egypt at $512 per year per person). These idealistic but unrealistic promises of the welfare state are not even matched in any Scandinavian country. If a quarter of these promises were to be fulfilled at the minimum wage established by the courts ($200 per month), Egypt would then need to increase its budget by $24 billion (or a deficit of another 10 percent of its GDP). Utterly impossible.
It is amazing that no one in the political arena is debating the devastating impact on the budget once the constitution passes. If the government was obligated constitutionally to fulfill these lofty promises as asserted by the drafters of the constitution, where is the money going to come from? And if it cannot afford them, why then give these assurances to the people only to have their hopes dashed? It was completely irresponsible of Morsi to accept such a document without thinking through its overall economic implications. After all, it is the president who is in charge of protecting and implementing the constitution.
Although there are many articles that can be improved in the new draft, there are several major flaws in the constitution that amazingly both the supporters and opponents of the constitution have ignored. With the exception of the Dr. Abol Fotouh's Strong Egypt Party and some youth activists, very few have challenged the role of the military in the new constitution. For the first time ever, the military would be afforded a constitutionally sanctioned special status in a supposedly democratic state run by civilians. It is clear that the political civilian leadership in the country, led by the FJP but also with the concurrence of most of the other parties including secular ones, has struck a bargain with the military and acceded to their demands. It appears that in return for its non-interference in the political process, the military has largely maintained its autonomy and privileges with very limited civilian oversight. For the first time ever, the Egyptian constitution now mandates that the Defense Minister be appointed from among its ranks, a condition that did not even exist during the last six decades when military officers actually ruled Egypt. The military also would dominate the body in charge of defense and national security policies.
Astonishingly, another major weakness of the constitution is the very system of government it embraces. The Islamists boast that the constitution reduces the power of the presidency while the secular parties complain that it gives it dictatorial powers even in its diminished capacity. The new draft adopts neither a parliamentary system where the majority party dominates, nor a presidential one. It embraces what is referred to as a mixed or hybrid system, or what is sometimes called the pseudo-presidential system. The advocates assert that this system is similar to France, yet they fail to consider the historical evolution of the French system and the flaws inherent in their new design.
Historically, the system of government in France's fifth republic was an improvement over its third and fourth republics, which were basically parliamentary systems led by a prime minister. Generally, parliamentary systems suffer from instability because of shaky alliances formed to establish a majority government. In addition, when the majority party or coalition forms the government, the supervisory or oversight role of the parliament over the government diminishes and becomes much weaker as the majority party has little incentive to hold itself accountable.
Furthermore, the French president who appoints the prime minister, typically from the majority party in parliament, has historically retained the ability to freely choose his prime minister and fire him at will. Despite these protections, the French government was historically at its lowest performance levels, politically and economically, when the French president and prime minister were from different parties. Such periods are referred to as co-habitation. To reduce the possibility of this scenario, the French voted in 2002 to cut the term of their president from seven to five years so that they could run presidential and parliamentary elections within the same year. They reasoned that holding the elections during the same time span would lessen the possibility of co-habitation.
Indeed this lesson was learned the hard way in Iran. In the aftermath of its 1979 Islamic revolution, the country also adopted the hybrid French system of sharing executive powers between the president and his prime minister, who was also appointed from the majority party in parliament. Over the years, the system proved to be dysfunctional even when the president and the prime minister were from the same party. In 1989, the Iranians amended their constitution and abolished the position of prime minister.
In the new Egyptian constitution, the president essentially cedes all economic and domestic policies to his prime minister, who is empowered to appoint the cabinet with the exception of a few portfolios, such as foreign and defense ministers. The main responsibility of the president in this constitution is to oversee the areas of national security, foreign affairs, and defense. Since the military is basically entrusted with most defense policies, the major responsibility of Egypt's president in the new constitution is essentially to run foreign affairs with indirect input on other national matters.
Furthermore, the term of the president is four years while the term of the parliament is five years. So presidential and parliamentary elections would only align once every two decades. Therefore, it is not implausible that once Egyptian democracy takes root and becomes more vibrant and competitive, the president might oftentimes come from a different party than that representing the majority of the parliament, leading to unhealthy rivalry or even paralysis.
Most assuredly it will be a crude awakening to the Egyptian electorate to realize that when they elected their president he did not have enough power to implement any of his domestic agenda or platform that he advocated and received a popular mandate to carry out, especially if the majority party represents a different ideology or advocates an opposing platform.
Moreover, the constitution offers a convoluted way of choosing the prime minister. Initially, the president is allowed to nominate a prime minister. But if rejected by parliament, the president is then obligated to nominate a candidate from the majority party. If rejected again, then the majority party can impose its own candidate on the president. In short, the new constitution creates a much weakened and frustrated presidency where a popularly-elected president is superseded in domestic affairs by a prime minister who was in all likelihood selected by the bosses of the majority party.
It is unfortunate that the FJP officials, who believe that they would retain their status as the majority party in the foreseeable future have opted for their short term political gain over the efficient functioning of governance. The proper way to deal with the previous model of the imperial presidency was not to strip it from its effective executive power to run the government, but to strengthen the other branches of government, namely the legislative and the judiciary, and to design a system of effective checks and balances.
Another flaw in the draft is that it allows the president to dissolve parliament even though both are popularly elected. This unnecessary power given to the president violates the concept of separation of powers hailed in the constitution. The president also has limited powers in appointing many senior officials and no authority in selecting any judge or prosecutor. In most cases, there are autonomous government institutions that nominate and elect these officials and impose them on the president. His role is basically reduced to simply signing their appointment letters like any government bureaucrat. So it seems that the nascent Egyptian democracy may require considerable time before it adjusts and calibrates its system of government.
Egypt did not become the center of the Arab world in the past century because of its sizable population, central location, or great wealth. The primary reason for Egypt's dominance in the Arab World, and indeed across the southern hemisphere for many decades, was its intellectual prowess, diverse and vibrant culture, and dynamic society in all fields of human civilization and development, including scholarship, innovation, education, the sciences, the arts, literature, cinema, and the theatre.
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