The final draft of the proposed constitution has been handed to President Mohamed Morsy by the Chairman of the Constituent Assembly Hossam El-Gheriany, after which several constitutional experts criticised the document.
The constitution would give the president 37 new powers according to Ra’fat Fouda, professor of law at Cairo University. Half of the new powers were not found in previous constitutions because new bodies were formed in this constitution, which the president heads.
This constitution makes the president head of the police, the armed forces, the National Defence Council and the National Security Council. But the main problem according to Fouda, is Article 132, which states that the president of the republic is the president of the executive powers.
“Anyone who claims that this constitution minimizes the powers of the president isn’t telling the truth,” Fouda said.
Magdy Qorqor, constitutional expert, is concerned that the constitution has no vice president.
Gamal Eid, head of the Arabic Network for Human Rights Information said that not mentioning a vice president isn’t a flaw in the constitution. “But it isn’t reassuring. [The president] has the right to appoint a vice president but constitutionally [the vice president’s] powers would be with the president not with the people,” Eid said.
Fouda agrees that the problems run deep. “The system this constitution provides gives the president the power to destroy the nation. Having a vice president, means that there will be two people who have the power to destroy the nation,” he said.
In addition, the president has the right to appoint a tenth of the members of the Shura Council. Egypt has a bicameral legislation made up of the Shura Council, the Upper House and the People’s Assembly, the Lower House.
Eid said that he is against unelected appointments. Fouda said that these appointments will nullify the Shura Council immediately, because the president of the council and his two deputies will likely be among the appointed members.
The military budget will be under the purview of the National Defence Council, which includes the president, the prime minister, the minister of defence and the minister of interior, as well as representatives from the navy and military aviation. The council could therefore include only four civilians and Fouda said this could have repercussions for civilian access to budget information. In addition, Article 198 of the constitution makes it possible for civilians to be tried before the military judiciary.
As for the freedom of the press, Fouda said that the constitution has not provided guarantees of an independent press, while Qorqor agrees with journalists who are demanding that the constitution protect them from being arrested just for doing their job. Fouda added that no one should be punished for expressing their opinion and that the constitution should give power to bodies such as the Supreme Council of the Press the right to form media laws.
Azab Mostafa, from the Freedom and Justice Party, said the draft does provide freedom of the press, speech and expression, in addition to the right to start a newspaper.
Article 62 of the constitution states that the nation has an obligation to provide healthcare and insurance services through a high quality and just system, for free for the “unable.” The term “unable” is vague and needs to be defined, said Qorqor.
Article 72 of the constitution has also caused some controversy because of insensitive language. It mentions the state’s obligations towards people with disabilities rather than people with special needs. Eid said that it would have been better to use people with special needs because it includes more people. Qorqor said that people with special needs would have guaranteed rights for the elderly which would have been better because the constitution has not guaranteed their rights at all.
Houqouqi Association for the Rights of Individuals with Disabilities said that the constitution does not guarantee that people with disabilities are not discriminated against.
Immediately after the president’s announcement that the referendum will be held on 15 December, opposition groups started making preparations for a “No” campaign. Some people have said that voting is giving the draft legitimacy and will abstain.
Yasser Borhami, a member of the Constituent Assembly, said that the president’s decision to call for a referendum on the constitution is right and that tremendous efforts have been made over the course of several months to produce this draft.
President Mohammed Morsy’s constitutional declaration, which he announced on 22 November, has left most Egyptians divided. The declaration is seen by opposition as a step towards dictatorship. Supporters say despite the powers it grants the president, it was a necessary move.
The declaration expires if the constitution is passed by referendum. If it is not passed, the declaration will remain in use until a new constituent assembly drafts a new constitution.