6 March 2011
Last week saw the announcement of the proposed amendments to the Egyptian Constitution. The ruling Supreme Council of the Armed Forces (SCAF) had late last month assigned an eight-member panel of jurists and scholars with the task of amending the Constitution as it sees fit to secure democracy and the integrity of presidential and parliamentary elections.
The public will give its verdict on the suggested amendments in a referendum which should take place on 19 March, before the new Constitution is put into effect.
Running for President
Article 75 was modified to guarantee that Egypt’s president cannot be married to a non-Egyptian and does not hold and have never held any other nationality. The old article only stated that Egypt’s president should be born to two Egyptian parents and that he should enjoy all civil and political rights. The minimum age for the president was set at 40 years old.
Article 76 was modified to ease restrictions on presidential nominations. The revised article outlines three ways a candidate can be eligible to run for president: the candidate should be endorsed by 30 members from the People`s Assembly or the Shura Council (the lower and upper houses of Parliament); secure 30,000 signatures from Egyptians from at least 15 governorates; or be a member of a political party that holds at least one seat in Parliament. The old article was more restricting and was seen as an obstruction by the former regime to guarantee its grip on power, as the candidate had to collect at least 250 signatures from Parliament and local councils or be a member of the supreme council of a five-year-old party with at least 3 per cent representation in Parliament; the candidate in this case should have remained in office for at least one uninterrupted year.
Article 77 now limits the president to two terms in office, each lasting for four years. The original article did not set term limits and set the length of each term at six years.
Article 88 was amended to allow full judicial oversight of elections during the entire electoral process, from voter lists until the announcement of results. A 2007 amendment to Article 88 had abolished judicial supervision, and stipulated that a supreme unbiased independent committee supervises the elections as dictated by the law.
Article 93 formerly gave the People’s Assembly (PA) the exclusive right to determine the validity of the parliamentary membership. It was amended so that the Supreme Constitutional Court (SCC) is the only arbitrator on contested memberships.
Article 139 was changed to compel Egypt’s president to appoint a vice president within 60 days of his coming to power. The vice president should answer to the same pre-conditions as the president. The old article gave the president the choice to appoint one or more vice president and assign his/their responsibilities himself.
Article 148 pertaining to the State of Emergency was also changed. Under the amendment, if the president wants to apply the Emergency Law for more than six months, it must be approved by a public referendum. Formerly, the State of Emergency could be announced by the president and renewed by approval of the PA.
The committee proposed the abolition of Article 179, which pertains to terrorism law.
Article 189 which is related to the mechanisms of amending the Constitution was modified to ensure that the next elected PA and Shura Council will form a new Constitution within six months of its election. A committee of 100 members elected from both the lower and upper houses of Parliament will be in charge of forming the new Constitution and of calling for a public referendum. The commission, furthermore, will be expected to complete its mission within another six months.
An Article 189 bis was added, it stipulates that the elected members of both houses of parliament should announce the result of the referendum on the constitutional amendments during the first parliamentary session after the referendum. According to Article 189 bis, during this session the committee which will be in charge of forming the draft for the new constitution will be elected. Directly after his election, the President should appoint one third of the members of both houses of parliament.
Salah Eissa, editor-in-chief of the daily State-owned al-Qahira told Watani that abolishing the 1971 rigid Constitution and calling for a new Constitution is the best achievement so far.
Mr Eissa applauded the flexibility implied by the amendments, regarding the preconditions for presidency candidates. In light of wide powers the Constitution gives the President, he said, it is good that the amendments limit the president to two terms in office.
Judicial supervision of the electoral process, according to Mr Eissa, was inevitable, he applauded the fact that contesting parliamentary membership will be the responsibility of the SCC and not Parliament as before.
On the other hand, Mr Eissa disapproved the article regulating the Emergency Law, suggesting the use of Article 199 of the 1954 Constitution, which empowers the PA to delegate to the executive authority the responsibility of declaring the State of Emergency. In this case the PA grants the executive authority outstanding authorities to tackle the State of Emergency. But determining the incidents where a State of Emergency can be declared as well as its time frame and the outstanding authorities which can be granted to the executive authority, would definitely limit the crimes committed under the pretext of ‘State of Emergency’.
“These are partial amendments which only attempt to contain the 25 January Revolution,” commented Nabil Abdel-Fattah of Al-Ahram Centre for Strategic Studies, adding that these amendments enforce no real reform on the powers of the president for instance. He said these amendments put too many preconditions for presidential nominations, which would prevent some very fine Egyptians from running for President.
Mr Abdel-Fattah disapproved the clause which allows the president to appoint one or two vice presidents, saying they should be elected instead.
“Why should the will of the president supercede that of the nation?” he said.
Judicial supervision on the electoral process was not acceptable, he said; an independent authority should oversee the elections, which is the case the world over.
The amendments, according to Mr Abdel-Fattah, represent but an extension of the “retarded” 1971 Constitution.
The fact that the transitional period between the old and a new regime is short, Mr Abdel-Fattah insisted, only revealed the intention to elect a new president who belonged to the old regime. He said that foreign pressure from the United States, Europe, Israel and Saudi Arabia, all of whom have their own agendas, is likely to play a big role in selecting the next President. This short transitional period, he lamented, can not be enough for new political parties or new figures to surface, or for the public to be familiarised with them.
Include them all
Political activist Nigad al-Borai regards the recent amendments as a mere sidestep from the original demands of the 25 January revolution. Borai told Watani that, even though he approved the four-year presidential term in view of the sweeping powers of the president under the current Constitution, and the amended article concerning the state of emergency, he regarded the other items as falling short of the required change.
The proposed commission that would be tasked with drafting a new Constitution, Borai said, should not be restricted to the proposed 100 members of the PA and Shura Council, since it cannot be assumed that MPs would represent all the various identities on the Egyptian social and political spectrum. A more varied commission has to be chosen, he said, to represent all.
Borai suggested that a transitional period of one year should be decreed, during which a new Constitution would be drafted, and after which presidential and parliamentary elections would be held.
A Patch-up job
The Egyptian Association for the Enhancement of Community Participation (Musharaka) criticised the proposed constitutional amendments.
Musharaka said it had been monitoring Egyptian elections on the presidential, legislative, union, and syndicate levels for some six years, during which time it can testify to the encroachment of the executive authority over the legislative and judicial authorities. This encroachment, according to Musharaka, was made possible by the 1971 Constitution and its 2007 amendment, which maintained no balance between the three authorities and gives absolute power to the president. The imbalance in powers is translated into freedom-limiting laws which hinder demonstrations and strikes, freedom of expression, and publishing, among others.
Musharaka said that patching up the Constitution will not work, and that the current does not make for establishing a State of rights and rule of law. It called for a new Constitution that would maintain the balance of power between the three authorities and institute freedoms and civic rights. It criticised the fact that the SCAF-appointed panel for amending the Constitution included no representatives from the different political powers, youth of the revolution, NGOs or intellectuals. Instead, it included Sobhy Saleh who is a member of the Muslim Brotherhood and was headed by Tareq al-Bishri who is a proponent of political Islam.
The newly-amended conditions for nomination to the presidency came under fire from Musharaka, under the pretext that they were tailored to exclude the nomination of Ahmed Zuweil or Mohamed ElBaradei, both of whom were considered by some political analysts to be strong contenders for the presidency.
It also said that the vice president should be elected not appointed by the president.
Musharaka also called for revising all the articles in the Constitution which pertain to exercising political rights and freedoms, including the formation of political parties. Furthermore, it brought to question the 50 per cent parliamentary quota allocated for peasants and labourers, demanding that wide discussions should be conducted on all levels of the Egyptian society relevant to a new Constitution.