Rewriting the Future

With Mubarak’s resignation on February 11, the Supreme Council of the Armed Forces (SCAF) fast-tracked the transition by dissolving Parliament and suspending the Constitution.On February 14, the SCAF appointed a panel of legal experts, headed by former State Council Vice President Tarek El-Beshry, a moderate Islamist writer and judge, to amend key articles of the Constitution by the end of February.The SCAF has announced a public referendum is to be held within two months for the people to vote on the new amendments.

According to legal experts and media reports, the panel’s agenda is to change articles that mainly deal with candidacy, limiting the term of presidency and procedures to establish free and fair presidential and parliamentary elections. The work doesn’t end with elections, however. Once a new elected government is in place, there are several other contentious articles open for debate.

The now-suspended Constitution was approved by popular referendum under President Anwar Sadat in 1971 and has been amended three times over the past 40 years.

A chief justice in the South Cairo court who asked to remain anonymous to express his opinions freely, says that today’s debates and dilemmas over the Constitution are due to the amendments in 2005 and 2007, which legitimized the president’s grip of power.

Prior to 2005, the president was determined by referendum.The ruling party nominated the sole candidate and a popular referendum approved that nomination. Since 1980, the National Democratic Party (NDP) repeatedly nominated then-President Hosni Mubarak and, despite allegations of voter fraud and intimidation, the referendums kept him in the post.

In 2005, Mubarak made sweeping changes to article 76 of the Constitution, introducing multi-party presidential elections for the first time in Egypt. But the justice explains that the changes also placed heavy restrictions on candidacy to make it impossible for any politician from outside the NDP to run. Later on in 2007, 34 articles of the Constitution were also amended, the most notable of which removed judiciary supervision on elections and replaced it with an independent body.

The amendments, drafted in just three months, were controversial and in protest, 110 opposition members of Parliament’s 454 members boycotted the vote, claiming their concerns were ignored.

There are four articles — 76, 77, 88 and 93 — prioritized for amendment before the next presidential elections, if Egypt wishes to see a truly democratic regime, according to the justice. Although there are two other articles proposed for change, 179 and 189, the justice says those articles are of highest priority for amendment now, in terms of elections.

The 2005 amendments to Article 76 established multi-party presidential elections and set the requirements for nominating a presidential candidate. Under the suspended Constitution, state-recognized parties that hold a minimum of three percent of the Parliament’s seats and have been active for over five years can nominate a candidate from their senior leadership. Independent candidates can also run, but under the condition that 250 members of Parliament approve them. At least 65 of the 250 have to be members of the People’s Assembly, 25 of the Shura Council and 10 members of local councils in at least 14 governorates.

Yousri El Essar, a professor of constitutional law at Cairo University, notes: “Twenty or thirty votes is more than enough. These numbers are so high, no one can possibly gain that many votes, except if he belongs to the ruling political party. We need to ease the requirements.”

The chief justice says that simplifying the nomination requirements of Article 76 is the only way to guarantee credible and free presidential elections.

In 1980, Sadat amended the Constitution to allow the president to stay in office indefinitely, as well as declare Shariah as the basis of law. And even after the multi-party elections were established, Article 77 allows the incumbent to run for re election and hold the post indefinitely. Mubarak was in his fifth in a series of six-year terms.The ideal change, according to the chief justice, would be to limit the president to two terms in office, while El Essar wants to reduce the term’s length to five years.

The 2007 amendment to Article 88 further eroded the credibility of elections in general by eliminating judicial supervision of the voting process, in favor of an independent body. Critics argue that an entity appointed by the government cannot be truly independent, while under the Constitution, the judiciary is not answerable to the president.

El Essar explains that, previously, each ballot box was to have its own monitor. Countering the argument that there are not enough judges, the law professor suggests the elections can be held during the court system’s summer break, with a smaller electoral circle so judges are monitoring fewer ballots.

“The changes should include full judicial supervision from the beginning to the end of the elections, which is one of the most important guarantees against fraud,” says El Essar.

Article 93 addresses parliamentary membership, decreeing that only Parliament can rule on the validity of its members. El Essar thinks that this decision should be in the hands of the State’s Council, which rules on legal issues related to government administration. “This article is very strange,” he says. “The priority would be to have it ruled by the State’s Council as it is an administrative decision.”

Introduced to the Constitution in 2007, Article 179 allows the president to refer “crimes of terrorism to any judicial body established by Constitution or law.” Critics say this has been used to try civilians in military courts under the pretext of combating terrorism. Calling this a clear infringement of human rights, many call for Article 179 to be completely struck from the Constitution.

“Those are even tougher conditions than emergency laws,” says El Essar.  “It has to be completely abolished. The 2007 constitutional amendments were very bad; they were totally against the constitutional spirit.”

Both the legal scholar and the chief justice believe the ideal scenario for the Egyptian Constitution of 1971 would be to scrap it altogether and create a new one.However, the chief justice acknowledges that a comprehensive overhaul would take much longer than six months; the best route is to change the key articles that will ensure democratic elections. Once a new president and Parliament are in place, work can begin on drafting a new constitution.

This is why Article 189, dictating the mechanism of amending the Constitution, is on the SCAF panel’s short list for amendments. The article stipulates that the president or a one-third consensus of the People’s Assembly can propose amendments. El Essar says that amending the Constitution should not depend on the president’s initiative.

While media attention is fixed on these six articles, the judge and the law professor both say other important articles need to be changed to prevent a dictatorship from taking hold.

Articles 82 and 84 – which stipulate that an acting president cannot dissolve the Parliament or amend the Constitution – are at the core of the debate regarding when Mubarak should have stepped down.This, the justice explains, made it almost constitutionally impossible to change the electoral system unless Mubarak remained in power. If he stepped down early, the restrictive requirements for nominating a presidential candidate meant that another president from the NDP would almost certainly have been a fait accompli.

Related to a temporary transfer of power, Article 139 says the president may appoint one or more vice presidents, but the Constitution does not require the president to do so.El Essar and the justice agree that the post of vice president should be filled at all times, with the justice suggesting that people vote on the presidential candidate with his vice president,  as is the case in the United States.

The legal experts also agree that all articles concerning the president and his powers must be changed to reduce centralization of the president’s power.The chief justice points out that the president is the constitutional head of the executive power (Article 137), the judicial body (173), the National Defence Council (182) and the Supreme Chief of the Police Authority (184). “This situation is unacceptable,” says El Essar.

Another article up for debate is Article 2, amended under Sadat in 1980, which states that Islam is the religion of the state and the principles of Islamic law (Shariah) are  the principal source of legislation.

Civil rights activists have argued that Article 2 is unfair to the nation’s Coptic Christians, estimated to constitute 10 percent of the population. They also see it as a barrier to eliminating discrimination against Copts.

Even though Article 2 is not likely to be addressed by the SCAF panel, Sheikh Al-Azhar Ahmed El-Tayeb has already weighed in. On February 16, Al-Ahram Online quoted the sheikh as saying that Article 2 should not be changed or sectarian tension would result. The revolution may be over, but the Constitution promises to be a source of debate for months to come.