Egypt: New Constitutional Roadblocks Complicate Transition to Democracy

By William Fisher

One of Egypt’s leading pro-democracy human rights organizations charged today (Monday) that the Constitutional amendments prepared under the Army’s instructions are “deeply flawed and have frustrated Egyptians’ hope that they would usher in a democratic transition or address the problematic electoral system before parliamentary and presidential elections.”

The amendments, slated to be put before a popular referendum on March 19, are “ill-considered, said the Cairo Institute for Human Rights Studies (CIHRS).

In addition to the flawed amendments, CIHRS said, “the truncated transitional period -- only six months – [is] liable to exclude the emergent political and youth forces that unleashed the revolution from representation and participation in shaping the country’s future, especially since elections will take place under laws that restrict the right of civic association and curtail the free formation of political parties, NGOs, and trade unions.”

“In other words, the forces responsible for igniting the revolution will be denied legitimacy, despite the departure of Mubarak and certain pillars of the former regime,” the organization said.

The amendments were seen as a way to open the Egyptian political process to new candidates and new political parties, to conduct free and fair elections, and the reliably monitor and evaluate the results of all elections. The amendments were prepared by a committee of judges, lawyers and activists and turned over to the country’s interim military rulers.

CIHRS is offering recommendations for each of the amendments in detail and is also urging the military to reconsider the so-called transitional period before the popular referendum.

In what is termed “a new agenda” for the transition, CIHRS issued joint statements with the Forum of Independent Human Rights Organizations (FIHRO), expressing “grave concern over the brevity of the transitional period and the intention of holding parliamentary elections within six months.”

The organizations believe that this timeframe “will only reward the traditional forces that were defeated and marginalized by the January 25 revolution by handing them the two houses of parliament on a silver platter, before nascent political forces have the opportunity to organize within parties or other structures that will be capable of competing in general elections, organizing election campaigns, and harnessing the necessary human and material resources.”

Moreover, the groups said, under the proposed amendment of Article 189, the two houses of parliament, which will no doubt be dominated by traditional forces, will be charged with forming the constituent assembly that will draft the new constitution, “which will likely entrench the same power relations and values which the January 25 revolution rose up against.”

The organizations claimed, “Ending the political process set in motion by the January 25 revolution with the election of two legislative bodies controlled by traditional forces and the establishment of a similarly comprised constituent assembly to draft a new constitution will necessarily push Egypt into a longer phase of instability as a result of the marginalization of the forces of the January 25 revolution, which will have the right to resist this marginalization by all available political means.”

The groups acknowledged that the Supreme Council of the Armed Forces does not welcome the extension of the transitional period and formation of a joint civilian-military council to manage the interim period.

So it is proposing the following compromise:

1. Start with presidential elections and postpone elections for the People’s Assembly and Shura Council. It makes little sense to elect a parliament that will be dissolved within one year after the drafting of a new constitution. Moreover, reconstituting and restructuring the police will require much time, which will make it difficult to secure and organize general elections in such a short period.

2. The Supreme Council of the Armed Forces shall issue a temporary constitutional declaration regulating the second interim period. In particular, this declaration should limit the powers of the president and should require a popular referendum for all supplementary legislation to the constitutional declaration issued prior to the new constitution. The declaration should be issued after consultation between the Supreme Council of Armed Forces, the elected president, the State Council, the Court of Cassation, the Supreme Constitutional Court, the Youth Coalition of Egypt’s Revolution, and human rights organizations. The Supreme Council of the Armed forces may then transfer power to the elected “interim” president at the end of this first transitional phase.

3. The “interim” president shall form a constituent assembly to draft a new constitution, in consultation with the Supreme Council of the Armed Forces, the State Council, the Court of Cassation, the Supreme Constitutional Court, the cabinet, the executive bureau of the Youth Coalition of Egypt’s Revolution, human rights organizations, and selected legal and intellectual figures, in order to guarantee that the constituent assembly includes all the necessary professional expertise for the task and also genuinely reflects Egypt’s political, intellectual, religious, ethnic, and racial diversity. The draft of the new constitution shall be put before a public referendum.

4. All representative assemblies shall be elected under the new constitution and the relevant amended laws.

As to individual amendments, CIHRS urged the Supreme Council of the Armed Forces to reconsider each in keeping with the group’s comments.

But it also expressed a desire to be fair to the committee responsible for drafting these amendments. It noted that some of its reservations and those of other sources of public opinion are the inevitable product of the fact that the 1971 constitution has long outlived its usefulness.

Subsequent amendments introduced over the years, particularly in 2005 and 2007, have robbed it of any internal coherence. Attempts to introduce piecemeal changes, even with good intentions, can only exacerbate to the flaws and distort it further, creating more problems than it solves.

1. The proposed amendment to Article 75 tailored the conditions for presidential candidates in such a way as to deny the right of candidacy to figures who have already announced their intention to run for president. Particularly egregious is the amendment’s exclusion of dual citizens, even those who renounce their non-Egyptian nationality or have held a second nationality in the past, and those with non-Egyptian spouses. These provisions specifically exclude Ahmed Zuweil, who had already announced his intention to run.

This narrow, chauvinistic view of national loyalty is inconsistent with provisions in Egyptian law that uphold the right of Egyptian citizens to dual nationality, and it disregards the fact that hundreds of thousands of Egyptians were forced to emigrate over the past five decades, either to escape persecution or because the country failed to foster an adequate environment that would respect the competencies, abilities, and aspirations of all Egyptians without discrimination. This restriction is a grave insult and impeaches the patriotism of an enormous number of Egyptians who gambled on their ability to succeed in free, competitive societies. It tells Egyptians abroad considering returning to their homeland after the revolution to help build a new country not to bother, and it establishes a broad category of second-class citizens.

It should be noted that the former president—whose departure was seen by Israel as the loss of a strategic treasure—had no nationality other than Egyptian. The same is true of spies convicted by Egyptian courts and some of the most reviled symbols of corruption and oppression in the Mubarak era.

The amendment not only assumes that state secrets will be the subject of pillow talk with the president’s non-Egyptian spouse, it shows little faith in the capacities of Egyptian women themselves, refusing to recognize their right to run for president, as is clear from the official text of the amendments posted on the website of the Information Bureau.

2. The amended Article 76 retains the provision making the chief justice of the Supreme Constitutional Court the chair of the commission overseeing presidential elections, even though the chief justice is appointed by the president. It also insulates the commission’s decisions from judicial review, an issue that was under severe criticism during the 2005 presidential elections. The Supreme Administrative Court stated in one of its rulings at that time that this immunity to the decision of the Presidential Elections Commission contradicts other constitutional principles as it takes away from the right to litigate guaranteed in article 68 of the constitution. In addition this constitutes an attack on the mandate of the State Council according to article 172 of the constitution.

The amendment details several routes by which one may declare presidential candidacy. Although this provision complies with the principle of equal opportunity, one unified method should have been specified, preferably the collection of citizens’ signatures, instead of multiple means, which gives unearned status to parties with no real political weight by granting them the right to nominate a presidential candidate if they hold even one seat in the People’s Assembly or Shura Council. Moreover, instituting a single rule for the declaration of candidacy—citizen endorsements—would make it possible to convene the presidential poll before the parliamentary elections.

3. Article 139 should have been revised to make the position of the vice-president an elected office rather than a presidential appointment, providing for the election of the president and his vice-president on one ticket.

4. Although the amendments meet the demand for full judicial supervision of elections, the proposed amendment of Article 88 is formulated in extremely general terms and defers to the implementing legislation, which in practical terms demotes judicial supervision of elections from a constitutional principle to a less secure legal guarantee. Moreover, the amendment allows for the participation of “judicial bodies” in election oversight rather than limiting supervision to sitting judges. In turn, this allows participation by judicial bodies that do not enjoy full independence.

Instead, Article 88 should have put all general elections—including presidential elections—under the oversight of one permanent supreme agency or commission that includes well-established impartial, independent experts with judicial experience, as well as experts from the legal, human rights, and civil society communities. This commission should enjoy full guarantees of financial and administrative independence and the necessary immunities, as well as a judicial police force working under its supervision in electoral periods. To prevent a conflict of interest, the law establishing this commission should ban members from running for or occupying public office at least five years after their membership on the commission.

5. Although the proposed amendment of Article 93 ends the ability of fraudulently elected parliaments to disregard court rulings and Court of Cassation investigations about the validity of its members’ status, it makes no sense to task the Supreme Constitutional Court with the mission of hearing challenges to parliamentary membership and issuing final rulings, given that court’s questionable independence, the small number of sitting justices, and their lack of professional qualifications to rule on these cases. More logical is to give this mandate to the Court of Cassation or the Supreme Administrative Court, as both of these bodies enjoy more independence, have more experience in dealing with the election-related issues, and have a sufficient number of judges to rule on challenges in a timely manner.

6. The proposed amendments proposes the abolishment Article 179 of the constitution, which was created during Mubarak’s tenure to normalize the exceptional prerogatives of state police bodies on the pretext of combating terrorism. Nevertheless, it is unfortunate that the same sweeping change not introduced to Article 148, which regulates the declaration of a state of emergency. Under the proposed amendment, the president maintains his right to declare a state of emergency with no restrictions on the cases in which he may take this exceptional step. These prerogatives go beyond the strict limitations for the declaration of states of emergency established in the International Covenant on Civil and Political rights and the constitutions of many democracies, including those in the developing world.

The amendment is also deeply flawed insofar as it mandates a referendum to extend the state of emergency—a process that will be impossible to carry out if the country is indeed facing a true emergency. Rather, the decision to extend the state of emergency should be left to parliament.

7. Assuming that for practical purposes the constitution required immediate changes prior to the impending elections, it is astonishing that the constitutional provision was maintained that allots farmers and workers 50 percent of the seats in the two houses of parliament—a provision that has always been used, even before the Mubarak era, to create a false popular front that successive regimes have manipulated for the commission of crimes and errors for over five decades. Cosmetic representation for workers and farmers has only exacerbated political corruption in the electoral process and representative institutions, as these seats more often than not go to businessmen, high-level administrators, landowners, and senior police officers.

8. Although the proposed amendment of Article 77 is sound, it would be more appropriate for the new constitution that will be drafted by a constituent assembly. In contrast, this transitional period requires a president with specific qualifications suitable for the interim period who will occupy the post for one term only—perhaps for four years, as the amendment stipulates, or even less. The principal mandate of the first, transitional president should be to oversee the establishment of foundations for Egypt’s transition to a real democracy that respects human rights in the framework of international conventions and declarations. This requires drafting a new constitution, dismantling the police state, and building and liberalizing democratic institutions such as the two houses of parliament, municipal councils, political parties, labor unions and trade syndicates, and NGOs.

Based on these observations and critical comments from other judicial, political, human rights and intellectual forums, as well as prominent public figures, CIHRS urges the Supreme Council of the Armed Forces to reconsider these amendments before putting them before a public referendum.

It remained unclear what the next steps would be for the army and the pro-democracy forces to reconcile their respective views of the Constitution.