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Analysis of the draft constitution - Daily News Egypt

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Analysis of the draft constitution

Part 5: The government

The draft constitution splits executive power between the president, who serves as head of state and the executive branch, and the government, led by a prime minister.

Unlike the section on the president, composed of 25 constitutional articles, some of which are very long and detailed, the section on government in the draft constitution is a mere 14 articles, each of which very short.

The government is defined in Article 160 as being composed of the prime minister, his deputies, ministers, and their deputies. The prime minister supervises and directs it and ensures internal security.

Candidates for prime minister or membership of the government must be Egyptian citizens who carry no other citizenship, at least 30 years of age and enjoying full political and civil rights. Members of the government may not at the same time be members of either house of parliament as per Article 162.

Articles 164 through 167 outline the prime minister’s powers. The prime minister appoints and removes civil servants from office, introduces regulations necessary to enforce laws and may devolve this power to others, introduces regulations necessary to form public utilities and institutions and introduces all control regulations.

The financials of government members are outlined in the following two articles. Article 168 states that the law sets the salaries of the prime minister and government members and that they may not receive any other salaries or bonuses or have any other employment even by proxy.

All government members and their families must present financial statements upon the official’s assuming and leaving of office as well as on an annual basis. All gifts received by government members are to be transferred to the state treasury.

The Lower house of parliament, together with the Central Auditing Authority, are to form an economic workgroup tasked with independently managing the private investments of the president, the speakers of both houses of parliament, their deputies, the chairpersons of parliamentary committees, the prime minister, his deputies, ministers and their deputies as well as all equivalent officials.

This economic workgroup is to manage the private investments of officials without the interference or even knowledge of the officials themselves, for as long as they are in office.

The exact duties of the government are detailed in Article 171 which lists them as: introducing the state’s general polices and supervising their application as per laws and presidential decrees; directing the work of and coordinating between ministries and public institutions; issuing administrative and executive decisions and monitoring their application; draft bills and decrees; prepare and present the state budget; prepare economic and social development plans; giving and receiving loans; law enforcement; and protecting national security, the rights of citizens and state interests.

The subsequent article further tasks each minister with formulating the general policy of their ministry and ensuring its execution as long as it is in line with the general state policy.

The section on government makes it seem that ministers, both individually and collectively in the form of the cabinet, get to formulate the principle policies of state, but in reality most of the influential decision making lies with the president.

Presidential powers and duties in the constitution are broad and detailed. Although the constitution is meant to establish a semi presidential system of governance where the president as head of state shares power with the prime minister as head of government, the split in power is unbalanced.

The government’s responsibilities mention nothing about foreign affairs, nominally mention national security, and then only in the context of internal security. This could be explained through the traditional split of power in semi presidential systems where the president handles foreign affairs and the military, while the prime minister is responsible for the economy and domestic security.

The draft constitution does not empower the government with formulating real economic policies. Even though it sets the budget, it must to so in line with general state policy, which the president puts forth.

Despite the limit in power, the government is held strictly accountable to parliament, which has the power to vote to remove ministers or even dismiss the entire government for decisions effectively taken by the president. Notably, impeaching the latter is a complicated process that involves a special court.

Article 174 states that any of the president, a third of the lower house of parliament membership or the prosecutor general may accuse the prime minister or government members of criminal activity subject to a lower house of parliament majority approval.

The accused is then temporarily suspended until the case is resolved and if convicted is permanently removed from office, in addition to serving their sentence.

In the section on parliament, Articles 126 and 127, the lower house has the power to call for a vote of no confidence in a minister, and if the vote is successful the minister has to resign. If the prime minister is subjected to a successful vote of no confidence the government collectively resigns.

The system of governance in the draft constitution essentially holds the government accountable for all executive decisions despite the large role the president plays, leading to a system where the government is punished for the president’s mistakes.

Although Article 155 in the section on the president states that he performs his duties through the government, it provides a list of reserve powers only the president may exercise.

Furthermore, the concept of the head of state exercising power through government is usually accompanied by constitutional provisions allowing ministers or the prime minister to countersign presidential decisions and decrees when they lie inside their area of specialisation, effectively giving them the power to refuse to carry out a decision, since it is they who are held accountable for that decision and not the president.

In the draft constitution no such countersigning procedures exist. Government ministers are accountable for decisions carried out at the behest of presidential orders they cannot refuse.

The concept of executive accountability in the constitution is flawed. It holds an easily replaceable government accountable for the actions of a strong and almost immune presidency.

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