Analysis of specific provisions of Proposed Amendments to the Egyptian Constitution

Guest Bloggers with the assistance of Warigia Bowman.
[This post contains contributions by Sara Samy, Ramona Cannan, Omneya Ali, Ansam Mohammed, Aya Karar, Perihan Koura, Dalia el Abd, Samah abdel Geleel, Hodah Salah and Nashwa Ghoneim. Many thanks for their thoughtful analysis.  They are the leaders of tomorrow's Egypt. I have edited it for both style and clarity, and added some language to make their points clearer. WMB]

Today, Saturday 19^th of March 2011 is the date set by the Armed Forces for the national referendum on the constitutional amendments drafted by a committee of experts. The committee announced modifications on nine constitutional articles. Egyptian citizens will have to vote for “Yes” or “No” for the whole package of amendments. We recommend a No vote. This review does not go over all 9 amendments, but rather reviews some key points. 

Article 75

Article 75 introduces new eligibility requirements for presidential candidates. The president must be an Egyptian without dual nationality. A candidate would be ineligible to run for office if he or his parents has ever held citizenship in a country other than Egypt, or if he married to a non-Egyptian.

We do not support this change to the Constitution, because holding a dual passport, marrying a non Egyptian or even having non Egyptian parents should not be an obstacle to becoming the president of Egypt. These conditions are unaccepted discrimination against many potential candidates. In addition, the language of the article suggests that only a man can run for the Egyptian presidency. In our opinion, the amendments in the Constitution were put into place to achieve the goals of the revolution which is democracy. Unfortunately, the way they are written, these new conditions constitute discrimination against women and many others. In addition, the proposed amendments do not take into consideration the fact that in most of the democratic countries it is enough to be born on the country to apply for president.

Article 76

Article 76 was modified to ease the severe restrictions on presidential elections. The Commission decided on three methods for candidacy (1) the candidate should be endorsed by 30 members from one of the parliament’s two chambers, or (2) to be able to collect 30,000 signatures from Egyptians living in 15 provinces or (3) to belong to a party that has at least one seat in the People’s Assembly or Shura Council.

Our critique is as follows. The parliamentary elections should be held before the election of the President to apply the proposed text. It is not clear that the parliamentary elections are in fact going to proceed the presidential elections. In addition, the only two parties who are currently well established are the Muslim Brotherhood and the National Democratic Party. It is our view that having parliamentary elections so soon would unnecessarily favor these two parties.

According to Chief Justice Khalil Mostafa, article 76 as currently written breaches the principle of the equality party and independent candidate; article (7) of the political parties Act No. 40 of 1977 stipulated that one thousand members from 10 governorates to form a party, then it will be easier for the candidate to be one of the existing parties, or to belong or form a new party that nominates him (or her). 

Article 77

The old article 77 stated: "The term of the presidency shall be six years starting from the date of the announcement of result of the plebiscite. The President of the Republic may be re-elected for other successive terms. In the amendments they shortened the presidential terms to four years and limited presidents to a maximum of two consecutive terms.

Unfortunately, this new article appears to conflict with article 190, which will remain the same. The argument here is that article 190 was added in 1971 under the emergency situation of 1971. Yet, article 190 doesn’t specify date of coverage, so it is valid in any time. In other words, it is unclear how many terms the President will be able to run for office. 

Article 139

Article 139 amendment obligates Egypt’s president to appoint a Vice President within the first two months of coming to power, and in case he is unable to perform his duties for any reason, a substitute must be appointed.

This amendment is meant to correct for Mubarak's 30-year run without a vice president, but it will obviously do little to constrain executive power. Indeed, a very critical flaw of his amendment is that it does not state that the President could not appoint any of his close relatives as Vice President. If the Article does not include a restriction that the president cannot appoint any of his relatives, friends, cronies or associates, this means that this could open the door the coming president to replicate the scenario of presidency bequeathing power to a colleague. In addition, it is not clear why the Vice President is not either elected. It is also not clear why the Vice President would not be appointed at the exact time as the President.

Article 148

Article 148 which dealt with the declaration of the state of emergency has been modified too. The modified article makes the declaration of a state of emergency reliant upon the approval of the People’s Assembly. The Emergency Law cannot be applied for more than six months, which the old version failed to set this time limit.

Although this modified article is a step forward towards democracy, nevertheless, the declaration of a state of emergency is still not seen as necessary. Many countries have never declared a state of emergency. In particular, most democratic countries do not have a state of emergency provision in their constitution.  

Article 179

Article 179 dealt with terrorism in the country.

Terrorism is an abstract term which needn’t be included in any article in the Constitution unless previously defined operationally in specific measurable constituents. Clearly, it is incredibly difficult to find a workable operational definition. Under the name of fighting terrorism the President had limitless powers that deprived civilians from fundamental rights and freedoms. Additionally the allowance to submit any crime of terror to any judicial body the President might select from the Constitution or the law would allow the trial of civilians in military courts. Therefore, cancellation of this article is mandatory to embody a democratic regime.  This amendment seems reasonable.

Article 189

Unappointed members of the yet to be formed Shura Council and People’s Assembly are to form a founding committee to formulate a new Constitution within a maximum duration of six month of their appointment. The new Constitution will be later voted on by the public within duration of another six months. This is a problematic provision, because historically, the Shura (Senate) and People’s Assembly have been extremely weak. In addition, it is unclear who exactly should serve on the constitutional committee, and what qualifications they should have.

Conclusion

As constitutional experts have argued, the “radical” alternation, or indeed elimination, of the old 1971 constitution which supports an authoritarian system of government  is necessary to allow Egypt move forward safely through the gate for real democracy. The proposed amendments neither take into consideration the concept of citizenship nor adequately restrict the powers of the president. They might allow the few well known political parties like (MB and NDP) to dominate the upcoming parliament if elections are staged as early as planned.  This might threaten Egyptian people’s aspirations of having diverse multiples of political representation to select from for presidential elections in a free democratic manner whereby my majority interest should prevail. In order for parties other than the Muslim Brotherhood, or the NDP to prevail, there must be a broad-based opposition coalition for a joint list of candidates with a pre-determined quota for each political group.

The proposed amendments increase Copts’ and Christians’ fears that Egypt could turn into an Islamic state with religious foundations. This motivated Christians to speak up loudly after a very long period of silence and say NO to the amendments.

If the majority of the Egyptian people vote NO, one possible outcome is that a temporary constitution would be set according to which presidential elections will be run dictating the authorities of the temporary government and the civil presidential council. After the new President is elected, eligible voters can submit the new Constitution based on people’s will. Unfortunately, it is not totally clear that this is what will happen in the presence of a not vote. There is some uncertainty as to the likely next step. It is our belief that the new Egyptian Constitution should adopt civil freedoms, separates the three legislative, judiciary, and executive powers and uphold the value of citizenship in running state affairs.