Egypt’s draft semi-presidential constitution

The draft Egyptian constitution is now available in English. As expected, it establishes a semi-presidential system.

One oddity that jumped out at me: it has a term of office for the House of Representatives (5 years) that is longer than that for the President (4). I can’t recall ever seeing that before.

The House can withdraw its confidence from the Prime Minister by absolute majority of all members, and upon proposal by one tenth of the membership (Art. 126). Another odd provision is that it seems a successful vote of no-confidence only affects the tenure of the PM himself unless “the Cabinet announced its solidarity with him before the vote,” in which case the whole cabinet must resign.

The president appoints the prime minister, who then has 30 days to form a cabinet. If this proposed cabinet does not obtain confidence, “the President shall appoint another Prime Minister from the party that holds the majority of seats in the House of Representatives” (this stricture is not imposed on the initial appointment). If this PM also fails to gain confidence (how could he, given the majority-party stricture, or maybe the Arabic actually means “plurality”), then the House itself appoints a PM. If that PM also somehow fails to assemble a cabinet that can gain confidence, there must be a new House election within 60 days. (These provisions are somewhat akin to those of the Polish constitution.)

I do not see a specific provision related to the resignation of a cabinet, aside from those regarding withdrawal of parliamentary confidence. The silence of the constitution on whether the president can force the resignation of a PM leads me to believe this constitution should be classified as president-parliamentary, rather than premier-presidential.

The president may dissolve the House, though only after calling and winning a referendum to that effect. If he loses the referendum, the president must resign (Art. 127).

The constitution, unsurprisingly, grants protection to the armed forces. Not only is the military singled out as having “protected” the revolution in one of the first statements of the constitution, but also Art. 194 says “The Armed Forces shall belong to the people” and Art. 195 says that “The Minister of Defense is the Commander in Chief of the Armed Forces, appointed from among its officers” (my emphasis). It seems to me that the military is thus made essentially above the law, or at least not subordinate to the president or legislature.

In matters of religion and state, God is mentioned in the second line of the preamble, Art. 2 says “Islam is the religion of the state and Arabic its official language. Principles of Islamic Sharia are the principal source of legislation” and Art. 3 says “The canon principles of Egyptian Christians and Jews are the main source of legislation for their personal status laws, religious affairs, and the selection of their spiritual leaders.”

A referendum on the draft constitution is set for 15 December.

20 thoughts on “Egypt’s draft semi-presidential constitution

  1. Thank you for these highlights. I’m curious how the articles on religion and state compare to other Muslim-majority countries’ constitutions. At first blush, the language raises concerns (for me). But is this standard fare for consitutions in the region? Is the nod to Sharia principles nothing more than an expected phrase?

  2. At the risk of disagreeing with you, it seems to me that in the absence of any mention of the PM being responsible to the president or the president being able to dismiss the PM, then the constitution should be classed as premier-presidential. This doesn’t mean that in practice, like in France, the president won’t be able to dismiss the PM. But, constitutionally, it does not say that this is a presidential power. And we would both class France as premier-presidential. That said, I think it is worth noting that there has been a slight ‘presidentialisation’ of the constitution since the October draft, which was available at the international IDEA website. For example, Art. 159-1 now states that the cabinet shall “Collaborate with the President of the Republic in laying down the public policy of the State …”, whereas previously the equivalent article (171-1) said that the government shall “Establish the State’s public policy and oversee its implementation in accordance with laws and Republican decrees” with no mention of the president.

  3. Robert, yes, I noticed that (subtle but possibly important) change of wording.

    On the subtype classification, it is a close call, but I tend to assume that ambiguity will be exploited by the president. To me, it seemed as though it could be read as premier-presidential, but was sufficiently ambiguous that I decided (at least tentatively) to lean the other way.

    Omar, that is a very good question.

    For what it is worth, the August, 2012, draft of the Tunisian constitution says, in the preamble:

    In the Name of Allah, the Merciful, the Compassionate…

    Building on the fundamentals of Islam and its open and moderate objectives and on the sublime human values; inspired by the civilization of the Tunisian people over the various epochs of history; emanating from its reformist movement based on its Islamic-Arab identity and on universal civilizational accomplishments; adhering to the national accomplishments achieved…

    In Art 1.1 it says:

    Tunisia is a free, independent and sovereign state. Its religion is Islam, its language is Arabic and its form of government is a Republic.

    And at 1.8:

    The state shall be the patron of religion, the guarantor of freedom of belief and practice of religious rites, the protector of religious sanctuaries and the assurer of the neutrality of houses of worship from partisan propaganda.

    A text search of the draft turns up no references to “Sharia.”

    The current Iraqi constitution reads, in the preamble:

    In the name of God, the Most merciful, the Most compassionate
    {We have honored the sons of Adam}
    We, the people of Mesopotamia, the homeland of the apostles and prophets, resting place of the virtuous imams, cradle of civilization, crafters of writing, and home of numeration. Upon our land the first law made by man was passed, and the oldest pact of just governance was inscribed, and upon our soil the saints and companions of the Prophet prayed, philosophers and scientists theorized, and writers and poets excelled;
    Acknowledging God’s right over us, and in fulfillment of the call of our homeland and citizens, and in a response to the call of our religious and national leaderships and the determination of our great authorities and of our leaders and politicians, and in the midst of international support from our friends and those who love us, marched for the first time in our history towards the ballot boxes by the millions, men and women, young and old, on the thirtieth of January 2005, invoking the pains of sectarian oppression inflicted by the autocratic clique and inspired by the tragedies of Iraq’s martyrs, Shiite and Sunni, Arabs and Kurds and Turkmen and from all other components of the people, and recollecting the darkness of the ravage of the holy cities…

    And it goes on in that vein for a while!

    In at Art. 2:

    First: Islam is the official religion of the State and is a foundation source of legislation:
    A. No law may be enacted that contradicts the established provisions of Islam
    B. No law may be enacted that contradicts the principles of democracy.
    C. No law may be enacted that contradicts the rights and basic freedoms
    stipulated in this Constitution.

    Second: This Constitution guarantees the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights to freedom of religious belief and practice of all individuals such as Christians, Yazidis, and Mandean Sabeans.

    Sharia, per se, is not mentioned in this constitution, either.

  4. And from a little further east, Article 3 of the Malaysian constitution reads:

    Article number: 3

    3.

    (1) Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
    (2) In every State other than States not having a Ruler the position of the Ruler as the Head of the religion of Islam in his State in the manner and to the extent acknowledged and declared by the Constitution, all rights, privileges, prerogatives and powers enjoyed by him as Head of that religion, are unaffected and unimpaired; but in any acts, observance or ceremonies with respect to which the Conference of Rulers has agreed that they should extend to the Federation as a whole each of the other Rulers shall in his capacity of Head of the religion of Islam authorize the Yang di-pertuan Agong to represent him.
    (3). The Constitution of the States of Malacca, Penang, Sabah and Sarawak shall each make provision for conferring on the Yang di-Pertuan Agong shall be Head of the religion of Islam in that State.
    (4) Nothing in this Article derogates from any other provision of this Constitution.
    (5) Notwithstanding anything in this Constitution the Yang di-Pertuan Agong shall be the Head of the religion of Islam in the Federal Territories of Kuala Lumpur and Labuan; and for this purpose Parliament may by law make provisions for regulating Islamic religious affairs and for constituting a Council to advise the Yang di-Pertuan Agong in matters relating to the religion of Islam.

    For much of Malaysia’s history the religion clause was not much more significant than similar articles in a number of European constitutions. Sadly the government is increasingly authoritarian and the religion clause is now being used to further that process.

    Indonesia is somewhat of a contrast:

    Article 29
    (1) The State is based upon the belief in the One and Only God.
    (2) The State guarantees all persons the freedom of worship, each according to his/her own religion or belief.

  5. What exactly is the difference between president-parliamentary semi-presidentialism and premier-presidential?

    I seem to remember reading that it is a distinction that MSS created. Perhaps someone could give me a brief summary and/or direct me to the relevant article? Thanks.

    • Sorry; I should not write as if the distinction is clear to all. The difference is in the provisions over responsibility of the cabinet.

      Premier-presidential: exclusively to the legislative majority (France, Finland)

      President-parliamentary: either president or legislative majority may dismiss cabinet (Weimar Germany, Sri Lanka, Taiwan)

      The distinction was first made by Shugart and Carey, Presidents and Assemblies (1992); my most recent work that makes use of these subtypes is Samuels and Shugart, Presidents, Parties, and Prime Ministers (2010). Many other authors also follow the same distinction, including Robert Elgie (whose blog also covers such matters in depth).

  6. > ” a term of office for the House of Representatives (5 years) that is longer than that for the President (4)”

    I have some idea that Singapore, too, once had this same somewhat counter-intuitive combination of terms, but the Wikipédiste says only that the President now has a 6-year term. However, I notice that the last few Presidents appointed by Singapore’s Parliament began their terms in 1981, 1985 and 1993 which implies a four-year term before direct “elections” (deliberate quotation marks) were introduced in 1991.

  7. Pingback: The Proposed Egyptian Constitution

  8. I appreciate the compare and contrast of the various constitutions. I guess what ultimately matters is how the language is interpreted by the new Egyptian government. Let’s see what type of precedence they set. So far… it’s not looking so good.

  9. I was under the impression that the French president could sack his prime minister if they were from the same party. For example, Chaban-Delmas won a confidence vote in 1972 and yet Pompidou fired Chaban-Delmas anyway. I read that presidents asked their prime ministers for a signed, undated letter of resignation, so perhaps it is merely a political convention. Is the distinction between the two forms of semi-presidentialism strictly based on what a state’s constitution says, rather than the way the state operates in practice?

  10. @14
    Singapore’s president did serve a 4-year term until 1993 (http://infopedia.nl.sg/articles/SIP_808_2004-12-28.html), though in an entirely ceremonial role.

    As for the “elections,” apart from a Presidential Elections Committee which rejects more candidacies than any electoral watchdog I’ve seen other than the Guardian Council of Iran, and which resulted in two consecutive elections in which only one candidate was approved, both elections held so far seem to be the freest and fairest elections ever held in Singapore (as the PAP can’t engineer and gerrymander a one-seat national FPTP election to guarantee a win like they can in the parliament), and in the 2011 election, a PAP maverick (by Singaporean standards at least) lost to the establishment-preferred candidate by less than 1%.

    It seems to me that Singapore’s previous 5 year parliament/4 year head of state split is simply an interesting setup, though as the role was ceremonial, it’s virtually irrelevant how or how often the head of state is elected. The new Egyptian system, on the other hand, could bring up serious political issues, especially if the cycle ever gets to the point where a presidential election is held around 6 months after the parliamentary, meaning the same parliament might serve with three regularly-elected presidents in a full term.

    As for other heads of state with a shorter term than the legislature, the only place I can think of is San Marino, where the dual heads of state serve 6-month terms while the parliament serves a 5-year term. Whether they are heads of government or not is a difficult question–as far as I can tell, they remain MPs during their term (though I don’t know whether it’s customary for them to speak and vote or not), and they are joint chairs of the cabinet (which is interesting because they are always from two different parties and one of them is usually, but not always, elected from the opposition), though I don’t know whether they’re active participants or more impartial moderators, as there is very little info on their government in English. I believe technically the cabinet as a whole is executive, but the Foreign Secretary serves as a de facto head of government and is one of the few cabinet posts chosen by the entire parliament (interestingly, the foreign minister since 2008, Antonella Mullaroni, is the leader of the 2nd largest party of the coalition, despite the largest party having more than a majority of the coalition’s seats, something I’ve never heard of before in a parliamentary system other than on an interim basis).

    The President of the Confederation in Switzerland serves a one-year term, while both houses of the legislature serve four year terms, but Switzerland is very clearly a directorial system in which the Federal Council is collectively head of state and head of government, and the president’s powers are essentially limited to chairing Federal Council meetings and being the first in precedence for the year, in addition to their normal ministerial duties. The Federal Council members themselves are elected for 4-year terms by the legislature.

    It will also briefly be the case in the Dominican Republic. Since the early 90s, they have had 4-year presidential and legislative terms, with all legislative elections at midterm, but in order to synchronize the terms in the future, the legislature elected in 2010 will serve a 6-year term, while the president elected this summer will serve a 4-year term. From 2016, they will return to 4-year terms.

    As an aside, while we’re on the subject of term lengths, the 2009 seed where I found that out about the DR claims the DR is the only jurisdiction with exclusively midterm elections (or at least will be until 2106). That is inaccurate. Cyprus, the EU’s only presidential system, elects both the president and legislature for 5 years, but the legislature is elected during the president’s 4th year in office.

    Finally, the new President of the European Council, the closest thing the EU has to a head of state, serves a 2.5 year term, while the European Parliament serves 5-year terms.

    That’s all I can think of, though perhaps one or two more might be found by searching through Wikipedia pages. It is indeed quite uncommon, and even more so with a powerful head of state. I wonder what the rationale is behind the choice, especially given the president’s strength right now. It would seem that this set-up gives the legislature more power at the expense of the president (though if a president can simply dissolve the legislature and call new elections, as used to be the case in France until term lengths were synchronized, it would neutralize this power).

  11. How far does “personal status laws” extend? Mixed marriages are impossible? What other countries have the same religion-based distinct ‘personal law’ system (Israel, India,…?)

  12. “Principles of Islamic Sharia are the principal source of legislation”

    May be we should focus on WHO interprets Sharia, WHO decides what’s the framework for legislation – the legislature itself? the constitutional court? the “Al-Azhar Senior Scholars” who are “to be consulted in matters pertaining to Islamic law” according to art. 4?

  13. “Is the distinction between the two forms of semi-presidentialism strictly based on what a state’s constitution says, rather than the way the state operates in practice?”

    Yes.

    There is an extensive discussion of this in Samuels and Shugart (2010). The upshot of it is that if parties are “presidentialized” (i.e. the party head, whether de jure or de facto, is the president), and the president’s party or the alliance it forms has a majority, then we expect that presidents will freely fire premiers even if the constitutional form is premier-presidential. The key point is that in such a system the relationship between the president and the premier is based in “partisan powers” not in constitutional powers.

  14. Bancki’s questions at 12 & 13 are good ones. I wish I knew the answers.

    I do know that there is no civil marriage in Israel, where marriage (and also burial and other life-cycle matters) are handled by religious authorities. This causes problems for non-Orthodox jews (or those not-Orthodox-enough-for-the-Rabbinate), who arguably have less religious freedom than non-Jews in Israel. (Israeli citizens’ civil marriages performed outside Israel are, however, recognized in Israel. This has created a nice tourist industry for Cyprus, the closest non-Muslim state Israelis can travel to to get married without official rabbinic sanction.)

    I know India has similar laws in terms of religious definitions of personal status, but I know less about them. There has been a recent political discussion about whether to establish a separate personal-status federal law for Sikhs that caught my attention.

  15. Ditto Indonesia and Malaysia. Personal status laws are characteristic of Muslim nations. Israel and India would be the only exceptions. In both cases British colonial regimes continued systems of personal law they had inherited from the Ottoman and Mughal empires.

    The historical exception is the personal status laws imposed on First Peoples until quite recently by countries like Australia, Canada and the US.

  16. a) What spheres of law are governed by ‘personal status law’? Marriage (conditions, divorce,…), paternity, matrimonial regime (prenuptial agreement), inheritance,…

    b) Does a different ‘personal status law’ also mean a separate court structure? Is the general legislature competent to interpret or change the law?

  17. It is probably easiest to talk about the Ottoman empire. The patriarch of Constantinople, who was appointed and removed by the sultan, governed family law, inheritance, marriage, children etc etc for the Orthodox within the empire. Ditto the patriarch of Alexandria for the Copts, and the Armenian patriarch for his community. The Orthodox and the Copts had their own court hierarchy, although the sultan could obviously intervene at will. There will have been a similar Jewish authority but I do not know the details. There was also a hierarchy of Muslim courts.

    The religious authority was also responsible to the sultan for the behaviour of his adherents. A number of Orthodox patriarchs paid the ultimate price for rebellions by the sultan’s Christian subjects.

    That is roughly the origin for most modern systems. The separate legal systems are all customary and it is rare for the legislature or the executive to intervene. For some reason most systems seem to resemble Israel in that the religious courts are much more conservative than the (ahem) median believer. Religious leaders no longer face the noose if their adherents misbehave.

  18. I am completely puzzled by the balance of power in the Egyptian arrangements. Three things strike me most: the veto; the power of the president to make all appointments on his own without any need for consultation with the government; and his power over national security (including I assume some level of control of the Ministry of the Interior). In addition, members of the government can be called to account to the legislature but it appears, not the Prez. Combined with the power of the Prez to do the State of the Nation speech, I wonder how things will work if Prez and government are not politically aligned. And, are there any systems analogous to this that may provide some clues?

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