Constitutional Amendments and Elections

            The committee to propose amendments to the constitution has completed the first, and primary phase of its work.  It has submitted a report to the Supreme Committee of the Armed Forces (SCAF) proposing a series of amendments to the existing but presently suspended constitution.  The texts of the proposed revisions has not been made public but Tariq al-Bishri, retired judge and chair of the committee, made a fairly complete presentation of the gist of the proposals at a press conference. 

            I don’t think anyone has actually disagreed with the content of the proposed revisions although at least one item has attracted some puzzlement so in one sense they are positive, uncontroversial and welcomed.    In addition the committee has already made some important proposals about the mechanics of voting that are widely welcomed and will considering proposals about amending some relevant existing legislation.

            Despite the assertions of the committee’s independence, there is very little reason to doubt that SCAF was aware of the proposals as they were debated or that they will come as much of a surprise to the military leaders.  So the proposals are quite likely, after some period of public debate, likely to be put before the public for a referendum as planned in April.  Parliamentary elections may well follow in June with a new presidential election tentatively scheduled for August although this is not yet clear.  The electoral sequence will give us some idea of just what kind of regime will emerge from this huge upheaval.  The rapidity of the proposed schedule is not, as far as many Egyptians are concerned, an especially good omen but as with so much else things change greatly with immense rapidity these days in Egypt.

            What has stirred significant debate are two items connected with the committee and its agenda.  The first is whether the existing constitution should have been (or even can be) amended.  The second is whether the committee should have considered several important clauses that it avoided.  Since Americans (and I would guess also Europeans) tend to focus on the role of the Muslim Brothers in elections and whether Egyptians are ready for democracy (Bernard Lewis says no but Nicholas Kristof says yes), it might be useful to expand a bit on the discussions that Egyptian legal scholars and professionals are having these days. 

            For several weeks there has been a significant, albeit minority, body of opinion that the constitution neither should have been amended nor in fact can be amended.   Although this sounds like an outrageously radical idea that only a handful of people could hold, it is a well-considered idea propounded by several important legal figures including a former head of the Judge’s Club and a sitting Supreme Court Justice.  One form of this argument is that the massive demonstrations in Tahrir themselves destroyed the old regime and its foundational documents.  Another is that since the SCAF itself has no constitutional existence (there is a military council mentioned in the Constitution but it’s not SCAF and it’s headed by the now-resigned president Mubarak) and has taken control of the government by extra-constitutional means the constitution is not “suspended” as the military believes but has ceased to exist.  This is not a majority opinion but there is no doubt that, with parliament dissolved and the constitution suspended, Egypt is in something of a constitutional and legal limbo for the time being while crucial decisions about the restoration of civilian rule, the timing and order of elections, ministerial organization and even the minimum wage are all made by military decision.  So far this has been done military announcements rather than military decree.  Just this morning (March 1) the military decided that, for the time being, there will be no sales or purchase of real property in Egypt.

            Within the legal profession and among the Egyptian public and certainly among the members of SCAF, however, the dominant view appears to be that the constitution, although suspended by a non-constitutional body, continues to have some kind of ghostly existence.  More to the point, the existing constitution, as amended, will be the basis for the re- constitution of civil government in Egypt.  This, along with some of the proposed changes, has real consequences that may not be immediately apparent.

            Before January 25, 2011 Egypt had just held elections that eliminated the opposition from essentially any role in parliament.  It was in part widespread public revulsion at the open and wide-spread fraud that sparked the January revolt.  In the normal course of business the 2010 parliamentary elections were due to be followed by presidential elections in the fall of 2011.  These elections were to be conducted under a very restrictive set of constitutional provisions that made it nearly impossible for anyone other than an official leader of the government National Democratic party (widely believed to likely be Mubarak’s son Gamal in the event Mubarak himself did not choose to run again) to the office of president. 

            One thing that is important to keep in mind is that under the existing constitution the president is an extremely powerful figure.  Although a parliament must meet in November according to the constitution, the president may convoke it earlier.  It does not seem to have the power to convoke itself.  The President also chooses the Prime Minister and other minister as well as the Vice President.  The President may also issue decree-laws but while the president may propose constitutional amendments he may not himself make them.  In the “ordinary” constitutional scheme, then, there should be a presidential election in the fall of 2011. 

           

            So what has the amendment committee proposed?  They have not changed very much of the president’s power.  They appear primarily to have focused on vastly expanding the openness of the electoral process and to have limited those areas of presidential power which have been most resented, most egregious and which may be inherently most liable to abuse.  They have assumed that, even if the old constitution temporarily will be in place, it will be re-written within the next year.

            It has also proposed that voting be based not, as in the past, on the basis of registration on electoral registers but simply based on the presentation of the national identity card (or so-called “national number”).  This is certainly also a welcome change and would be broadly similar to the use of so-called “motor-voter” rules in the United States.  It would ensure that citizens easily be able to use the franchise.  The old system was clumsy at best and extremely prone to abuse and falsification at worst.  No Egyptian will soon forget the viral videos of election officials “casting ballots” wholesale during the 2010 elections while voters were frequently denied physical access to polling stations.

            In regard to presidential elections they have made it much easier to run for president.  Effectively any Egyptian citizen (and only those who are solely Egyptian citizens) who is the child of Egyptian citizens (and married to an Egyptian citizen) can run if they can get 30,000 other citizens from several provinces to sign petitions.  In other words, anyone with even relatively small support spread across the country can run.  Parties with even a single seat may also nominate candidates.  The presidential election itself will be supervised by the judiciary.  It is not clear why marriage to an Egyptian citizen is a matter of principle but it does, along with the revised provision that candidates can only have one citizenship (Egyptian), have an immediate practical effect.  It means that Nobel prize winning chemist, Ahmad Zuweil, who was considering a run for the presidency can now disband his efforts.  Although born in Egypt, he is an American citizen and is married to a Syrian.  Thus one possible “technocratic” and non-professional politician has been eliminated.  Two figures who remain are Muhammad Baradei, the former head of the International Atomic Energy Agency, who is well-known in the US and has been in Egypt for over a year and Amr Moussa, the secretary-general of the Arab League and former foreign minister (for Mubarak) in the 1990s.   The proposals would also require the president to appoint a vice-president rather than making the vice-president an elected office.

            Other changes in the constitution eliminate parliament’s absolute right to seat its own members.  Where the present constitution gives the Court of Cassation (the highest appellate court) the right to look into complaints about election practices the parliament is not required to abide by the court decisions.  The revisions would transfer the final decision on seating members (at least in regard to electoral practices) to the Supreme Constitutional Court.  This would make Egypt one of the few places where the legislature is not the judge of its own members.

            The proposals also severely limit the ability of the president to invoke a state of emergency.  In effect, the president cannot invoke such a state on his own for more than a week nor can he continue it for more than 6 months without winning a plebiscite.  The committee also proposed eliminating the president’s right unilaterally to transfer terrorism cases to any tribunal of his choice.  Mubarak often referred civilians to military courts but that would no longer be possible and cases would once again necessarily be tried in what the constitution refers to (somewhat opaquely in the view of more than a few scholars) as their “natural” jurisdiction or in the official translation “competent judge.”

            One other proposed constitutional amendment is to allow, in addition to the president who already has this right, half of the legislature to request amendments to the constitution or the writing of a new constitution.  Given that the committee has proposed that the new parliament elect a constituent assembly within 6 months of its own convocation and that a new constitution be voted on within 6 months after that this last proposed amendment may seem supererogatory.

            As of this morning the schedule for the restoration of civil government looks like this:  in early April a plebiscite on whatever proposed amendments SCAF puts before the people (probably all of them).  As things stand now it has been proposed that parliamentary elections be held in June and presidential elections in August. 

            So here is where things get interesting if a bit technical.  Under the existing constitution Egypt has a bicameral legislative body.  Legislative power lies with the  People’s Assembly (Maglis al-Shaab) which is wholly elected based on districts.  Under the existing constitution half the seats in this house must be held by workers and peasants.  While these are broadly defined, it has proven difficult in the past for largely middle class parties (such as the Muslim Brothers and the Wafd but this would certainly be the case for many “youth” or “Facebook” parties) to find enough workers and peasants to run.  SCAF could propose scrapping this bit of Nasserist window-dressing which reinforced the power of the state but if not it may, paradoxical as it may seem, limit rather than enhance democracy. 

            There will probably be more parties running.  The moderately Islamist party, Wasat, has just been given legal status by the relevant court decision.  The Muslim Brothers have announced that they will form a party to be called the Justice and Freedom party which will abide by the principles of the MB without necessarily being directly subordinate to it (and yes, everybody—including members of the MB—are as puzzled about what that means as are you and I), there are plans to create a unified leftist party as well as a January 25 party.  No doubt there will be more.  In addition there is always an 800-pound gorilla somewhere.  Here it is the government National Democratic Party of Husni Mubarak.  Despite repeated requests by activists it has not been dissolved.  While the party may be widely discredited among many sections of the population (notably urban and as class sectors) it may also have a second life as the primarily patronage-driven network many academic observers believe it had become in the past decade.  In other words, the NDP may remain as a vehicle for already-existing political professionals at the local level to maintain access to the state.

            The so-called Shoura Council is not exactly a second legislative branch.  Some people have argued that, in the absence of a federal system, it simply ought to be abolished.  It does not legislate but it does have the right to advise and comment on legislation.  Like the People’s Council half of its members must also be workers and peasants but in addition one-third of its members are directly chosen by the president. 

            It is now somewhat easier to see why the sequence of elections from here on out matters.  If parliamentary elections are held first and if SCAF decides that parliament can meet before November without being convoked by the president then it can begin the process of writing a new constitution.  It can do so without someone wielding the still-great powers of the president in the wings.  It can also do so without having presidentially appointed-members in its midst although it may still have a large number of NDP deputies.  Such a parliament might well be interested in enhancing its own power relative to that of the executive.

            Amr Moussa has a different proposal.  He would prefer that Egypt retain a strong presidency.  He would also prefer that the presidential elections precede parliamentary elections and he has made it clear in interviews that he expects, certainly if elected to the office himself, that the president and not parliament will play a key role in writing the new constitution or significantly revising the old one.  Should the president be elected first he will wield significant powers, official and unofficial, over the two elected bodies.  Baradei has not yet made his ideas explicit but he has suggested that the more quickly elections are held the less likely it is that the ideals of the January 25 revolt will be put into action.  He, like many others, fears that quick elections favor already organized political forces (certainly the MB but also the NDP or whatever remnants of it contest for power).  Like some of the legal experts as well as many activists he seems to prefer a longer period in which a socalled technocratic (or caretaker) government rules while a constituent assembly is elected and a new constitution written.  This current of opinion therefore argues for a longer transitional process but (and this is important) one not overseen by the army.

            The huge and on-going demonstrations in Tahrir Square are now a thing of the past.  While there may be more large demonstrations, they are at least for the moment not continuous.  The economy is disrupted by strikes but these frequently come and go.  Workers obviously feel empowered to demand higher wages or better treatment and there is much to be said simply for changing the very complicated (and inherently not very fair) way in which wages are calculated.  But these do not challenge the political system in the way that massive revolt of late January and early February did.

Reporters and op-ed writers have moved on to Libya, Wisconsin, or other places where courageous people are accomplish exciting goals.  I certainly would not expect Tom Friedman or Nicholas Kristof to remain in the Semiramis Hotel and follow the minutiae of Egyptian constitutional law and politics as it gets played out           

in meeting rooms both ornate and shabby or in the connecting corridors.  But in fact that is where the next phase of Egyptians’ struggle to achieve a more accountable political system is going to be played out.  The decisions will seem to be dry, technical and remote.  But they will be profoundly consequential and their effects will be wrenchingly immediate (as with Zuwail’s candidacy) as well as long-term.