This post is also available in: Arabic
By Nathan Brown and Michele Dunne
Proposed amendments to Egypt’s constitution meet some longstanding opposition and civil society demands but also create new uncertainties. A committee appointed by the Supreme Council of the Armed Forces presented the amendments on February 26, allowing for a brief period of public discussion and possible further changes before a public referendum, which might be held as soon as March 19. The proposed changes shorten the presidential term and create a two-term limit, significantly expand the pool of eligible presidential candidates, restore judicial supervision of elections, pave the way for a new constitution after elections, and restrict the ability to declare and renew a state of emergency.
At the same time, some surprising amendments raise questions about whether the changes serve specific agendas within the military or other leadership circles. In particular, a change in the eligibility criteria for the presidency disqualifies any Egyptian who has dual nationality or is married to a non-Egyptian. This was not a step demanded by the opposition or civil society and seems designed to exclude prominent expatriates, such as Egyptian-American Ahmed Zewail, from running. Mohammed ElBaradei denies that he has held any citizenship other than Egyptian, but there have been rumors—never substantiated—that his Egyptian-born wife has foreign ties.
The Supreme Council of the Armed Forces announced on February 28 that parliamentary elections will be held in June, followed by a presidential election later in the summer. But it is still unclear whether there will be a change in the electoral system for the parliament before these elections take place. Without major amendments, use of the current system (in which deputies are elected by district) would work in unpredictable ways, as the only experience with that system came when the National Democratic Party was strongly dominant. In the new environment, the system might result in a diverse parliament dominated by local leaders.
There has also been talk of moving to a different electoral system from the current system of individual districts; the constitution was amended in 2007 to permit a change to either a proportional representation or mixed system. Such a change would require the ruling military council to issue complicated new legislation by decree very soon. This type of system would be difficult without also liberalizing the party system, a complicated step but also one widely expected at some point. Whatever system is used, these uncertainties raise the prospect that parliamentary elections will be held only a few months after the establishment of new parties, leaving little time for them to mobilize support.
The committee did not address controversial Article 5 of the constitution, which bars any political activity “with a religious frame of reference”—despite the fact that a Muslim Brotherhood politician, Sobhi Saleh, served on the committee. While the Muslim Brotherhood could still try to form a party by writing a platform that meets the current constitutional requirement, the movement has said that it will not take any steps that require it to apply to the existing “parties committee,” a body established by law that has been very stingy with approvals in the past. Thus the Brotherhood may very well not move beyond internal preparations for establishing its new party before the elections. Tentatively named the “Freedom and Justice Party,” the party is led by Saad al-Katatny, who headed the alliance of independent Brotherhood deputies in the parliament elected in 2005.
The Proposed Amendments in Detail
The amendments have provoked a mixed reaction from Egyptians. The general spirit of their proposals has been welcomed widely, but a large number of activists anxious for a more thorough transition continue to say there is no point in trying to tinker with minor constitutional amendments and that it makes more sense to move immediately to a wholly new document. Others worry about a rapid series of elections in a still inchoate political environment.
Despite such concerns, many leading political figures and some opposition movements have been supportive and enthusiastic that some concrete political changes are finally imminent. Most of the commentary thus far has focused on the general thrust of the amendments, though as more time elapses, more detailed reactions are likely to be forthcoming.
The most significant changes are:
- Candidates will have three ways to get on the presidential ballot: nomination by a party with at least one parliamentary seat; endorsement by 30 members of the parliament; or attainment of 30,000 signatures of citizens eligible to vote.
- The president will serve for four years and be limited to two terms.
- The president will be obligated to appoint at least one vice president.
- The judiciary is returned to active supervision of elections and will be the final arbiter of the validity of legal challenges to results.
- The president or half of the members of parliament may call for a new constitution and a 100-member assembly can be convened to draft a new constitution.
- The president may declare a state of emergency with parliamentary approval; any extension beyond six months would require approval in a public referendum.
- An article setting aside constitutional human rights provisions in terrorism cases will be removed entirely.
A more detailed discussion of the amendments, article by article:
Article 75: Adds that the president may not be a dual national or married to a non-Egyptian. This change is a surprise, as it was not among the protestors’ demands and was not mentioned in the original list of articles that the committee was tasked with amending. And it is ironic as well, since the drafting committee includes members from the country’s Supreme Constitutional Court, a body that actually struck down a law imposing a similarly stringent ban on Egyptians married to foreigners serving as judges. It might be intended to exclude some expatriates considering presidential campaigns.
Article 76: Eases procedures to get on the presidential ballot in such a way as to create the possibility of real competition. Before 2005, the parliament nominated a single presidential candidate, who was confirmed in a public referendum. In 2005, the public voted directly for the president but it was virtually impossible for any independent candidate to get on the ballot, and even political parties faced stringent requirements in choosing a candidate. The new amendment would create three ways to get on the ballot: endorsement by 30 members of the People’s Assembly or Shura Council, endorsement by 30,000 eligible votes (endorsements must be from at least fifteen provinces with at least 1,000 endorsements from each), or membership in a political party with at least one seat in either of the houses of parliament.
The amended article also establishes a commission composed entirely of senior judges by virtue of their position (no appointees) to supervise the presidential election from the opening of the nomination period through the announcement of results. The commission’s decisions will be final. The insistence that presidential elections be returned to judicial supervision has been a core opposition demand. While such a system is unusual internationally—most countries have opted in recent years to create independent electoral commissions—Egyptians’ experience with supposedly “independent” commissions is a bitter one. Such commissions—introduced in the past decade—were woefully short of true independence. But while judges have a reputation for professional integrity, they are not generally trained to oversee electoral processes; the commission is likely to need some technical assistance.
Amended Article 76 also calls for prior review by the Supreme Constitutional Court of the constitutionality of laws pertaining to presidential elections. The requirement that the Constitutional Court review legislation before elections is presumably to ensure that there is no challenge to the legitimacy of an election after it is held; on previous occasions, the Court has found the electoral law for the parliament unconstitutional, casting doubts about the validity of legislation passed and forcing immediate new elections. The electoral commission is also given final and absolute authority over the process, perhaps to ensure there can be no doubts about the legality of any election.
Amended Article 76 is also important for what it implies about the sequence of elections and about postponing changes to the party system. When it created the constitutional review committee, the ruling military council specified that first there would be a referendum on the constitutional amendments and later parliamentary and presidential elections. It was not clear, however, in which order the elections would be held. As the existing parliament has been dissolved, the first and third routes to nomination for the presidency would work only if the parliamentary elections preceded the presidential elections.
Article 77: Shortens the presidential term from six to four years and establishes a limit of two terms. This has been a principal opposition and civil society demand since at least 2004.
Article 88: Establishes complete judicial supervision over all elections and referenda—from the announcement of elections to the announcement of results—and specifies that electoral rolls, voting, and counting will be supervised by members of the judicial apparatus nominated by their higher commissions.
This amended article would return Egypt to a system of full judicial supervision. But it would go much farther than simply return it—the article specifically ensures that the committee is fully judicial and that it has full control over all aspects of the electoral process. In the past, even when judicial supervision operated, the regime attempted to remove strategic parts of the electoral process from such supervision and also worked to squeeze non-judicial personnel into the process. For instance, the electoral rolls were notoriously manipulated and kept out of judicial control by the interior ministry. This enhanced role would put a real burden on the judiciary and probably force elections to be carried out in stages (because there are not enough judges to supervise the process country-wide in a single day). And the judges would likely need considerable technical assistance and administrative support.
Article 93: Gives the Supreme Constitutional Court, not the parliament itself, the authority to decide and enforce legal challenges to parliamentary races. Formerly, electoral challenges for most cases went to the Court of Cassation, Egypt’s highest court of appeals. It would issue its judgment but then refer to parliament for enforcement. This procedure was justified on the separation-of-powers grounds. But it also was seriously abused as large numbers of deputies were simply allowed by their colleagues in the parliament to hold their seats even after the Court had ruled their election invalid.
Article 139: Obligates the president to nominate one or more vice presidents within 60 days of being elected in an apparent effort to avoid the confusion and anxiety that accompanied former President Hosni Mubarak’s last years in office. There was some speculation that the commission would move toward an elective vice presidency; it has apparently decided not to do so.
Article 148: Restricts the ability to impose a lengthy state of emergency by saying that the president must submit a declaration of emergency to the parliament within seven days. It also restricts the duration of the emergency period to no more than six months, which can be extended only by approval in popular referendum.
As Egypt has been in an almost continuous state of emergency (with only brief interruptions) since 1939 and since the state of emergency has been routinely renewed sometimes for years at a time, this is a major change. There are gaps, however—for instance, some emergencies might make the referendum impossible, or it might be possible to allow the emergency to lapse for a single day and then declare it again. Also, it is not clear how the approval of this article would affect the current state of emergency—which the Supreme Military Council has not yet lifted despite persistent demands from the public—should it still be in place at the time of the referendum. And indeed, the military council has already made use of its emergency powers by trying some civilians (accused of violence against protesters) in military courts (bodies that are notorious for quick and reliable convictions).
In addition to revising the constitutional provisions for a state of emergency, attention also needs to be given to the law that governs states of emergency, because it is this law that determines what the authorities can and cannot do. It is unclear if such legislative changes are contemplated any time soon.
Article 179: Eliminates this entire article, which allowed constitutional provisions to protect human rights to be waived in cases of terrorism. The 2007 amendment to Article 179 was clearly aimed at taking “emergency” measures that had been in effect for a long time and embedding them in the constitutional text. Elimination of this article reverses that process.
Article 189: Adds a provision for a new constitution to be requested by either the president (with cabinet approval) or at least half of the members of both houses of parliament. It calls for a constituent assembly of 100 members to be elected by a majority of the elected members from a joint session of the People’s Assembly and Shura Council, which would draft a new constitution within six months and submit it to a popular referendum.
There has been much debate among Egyptians about whether to amend the 1971 constitution or abolish it and start over. The constitutional revision committee was authorized only to suggest amendments to the 1971 constitution, but they have used this article to allow for a completely new text. And the chair of the committee has made clear he believes that the amendments are designed to render the 1971 constitution provisional. That said, this article only allows such a process rather than requires it, as some of the committee members suggested they had planned to do. Moreover, it allows the parliament, rather than the public, to choose the members of a constituent assembly; this it is a half-way measure.
The complete text of the proposed constitutional amendments is available in Arabic and in English.
For an analysis of the controversial 2007 constitutional amendments, please refer to the paper by Nathan J. Brown, Michele Dunne, and Amr Hamzawy.