Middle East Memo: Egypt: Proposed Constitutional Changes and Their Impact on Democracy

March 21, 2007

On March 19 the Egyptian parliament passed a set of constitutional amendments that were proposed by the ruling National Democratic Party (NDP), amidst strong protests from opposition parties which have described the changes as a major blow to Egyptian democracy.

The proposed amendments to 34 articles of the constitution were formally presented to the two houses of parliament by President Mubarak on December 26, 2006. These amendments have incited a heated debate in Egyptian political circles for the past three months, as they are viewed by many as a step that would significantly undermine the reform effort in Egypt. On March 19, a number of opposition parties and movements formally rejected the amendments and 113 members of parliament in the opposition (out of a total of 454 members) voted against them. The amendments will be presented to the general public in a mock-referendum on March 26.

Background

The constitution of the Arab Republic of Egypt was adopted in 1971, one year after President Sadat acceded to power. It initially embraced a single-party, socialist government. In his 2005 presidential election campaign, President Mubarak promised significant constitutional amendments to bring Egypt a step closer to democracy.

The most recent constitutional amendment, in 2005, enabled multi-candidate presidential elections for the first time in Egypt’s history. However, this change did little to diminish the president’s tight hold on power. A previous amendment in 1980 abolished the two-term limit for presidents, enabling them to run for an unlimited number of terms. This has been the basis for President Mubarak’s hold on power for over two decades.

Since Mubarak’s re-election in September 2005, the ruling National Democratic Party (NDP), the parliament, and opposition forces have been debating further constitutional reforms. Most opposition forces have favored drafting a new constitution, whereas the regime has preferred to amend the existing one. Previous amendments have been rejected by the opposition, as they were perceived to boost the authoritarian underpinnings of the state.

Analysis

Stated Goals of the Amendments Proposed by the Ruling Regime

The NDP described four major goals for the proposed amendments:

Remove Socialism as the defining ideology of the state: The constitution would be amended to provide the government the ability to establish an economic system that is not constrained by socialist ideology, and liberalize the economy.
Create greater flexibility to change the electoral system and improve the representation of women: These amendments would allegedly increase the role of the legislature in regulating the electoral system and candidates. In addition, the political representation of women would be increased by guaranteeing female candidates a minimum number of seats in parliament.
Provide for more balance of power within the executive, and between the executive and the legislative branches: The concentration of executive powers in the hands of the President would be reduced, and more powers allocated to the Prime Minister. New regulations would require the president to consult with the Prime Minster before instituting “exceptional” Presidential powers if the country is facing danger. The People’s Assembly, and Shura Council (Upper House) are to be given more powers.
Increase parliamentary participation on budgetary issues: these amendments describe in more details the role of the parliament in setting and approving the budget.

When the NDP actually presented the amendments to parliament, it also included two important amendments that were not directly tied to the stated goals above:

Political parties based on a religious, racial, or hereditary basis would be banned.
New laws would be created to fight terrorism, and would replace the Emergency Law that has been in place for over two decades.

The Opposition’s Concerns

While opposition parties and forces for the most part agree with the stated goals of the regime’s constitutional reforms, they maintain that the proposed amendments are cosmetic and will do little to produce any significant opening of Egyptian politics if the following three key constitutional issues are not addressed:

Article 77 which allows the president to run for an unlimited number of terms: The opposition is calling for presidential term limits. Not only are these not part of the proposed constitutional reform, but other proposed amendments will make it harder for independent candidates to run for presidential elections by establishing qualifying criteria that will be almost impossible for any candidate to fill – for example, a candidate would need signatures from over 250 elected officials, effectively enabling incumbents to block new entrants into the political system.
The proposed Amendment of Article 88 ensures continued government control over elections: The proposed amendment to Article 88 limits the role of the judiciary in supervising elections by including administrative magistrates, appointed by the government, in the supervision process. This would give the government a freer hand to influence election outcomes.
Article 179, the proposed anti-terrorist law which would replace the Emergency Law, gives the government more power under the Constitution to introduce repressive laws: The Emergency Law, in place for the past twenty-six years, has been the government’s major tool to quash civil and political liberties. The opposition fears that the new anti-terrorism law will give the president the same, and perhaps even more room under the constitution to introduce repressive laws, which instead of coming under a renewable Emergency Law would in fact be enshrined in the constitution itself.

The liberal Wafd Party, the leftist Tagammu Party, the Arab Nationalist Karama Party, the Nasserite party and the Muslim Brotherhood have expressed their discontent that the Mubarak regime has failed to consider any of their demands and has blocked any outside participation in the development of the proposed amendments. The Kefaya movement- the main political protest movement in Egypt- joined these political forces and started organizing rallies and demonstrations to protest against the amendments.

Conclusion

Egypt is in serious need of constitutional amendments to reduce the concentration of power that is vested in the Presidential office in Egypt, and empower the Parliament. It will not achieve this goal unless the constitutional reforms include the following key provisions:

Presidential term limits
Limits to the power of the president and greater powers for the parliament
Exclusive power of electoral supervision to the judiciary in order to guarantee free and fair elections.
Broader rights for citizens to create political parties and non-governmental organizations.
Guarantees that new anti-terrorist laws cannot be used by the government to limit the civic and political liberties of citizens.

Above all, the proposed constitutional amendments should not be made behind the closed doors of the ruling NDP. If reforms are to be anything more than merely cosmetic, and if they are to have the legitimacy required of any effective constitution, all political forces and civil society must be included in their design and implementation. It is only through a genuine partnership between the government, the opposition and civil society that the political system can be reformed.

Constitutional amendments that foster the continuation of authoritarian practices will fail to bring about the changes that the people of Egypt are hoping for. Friends of Egypt must encourage both the Egyptian government and the opposition to work together in reforming the political system. One-sided reforms will only increase discontent in the Egyptian public, widening the gap between the regime and the people. In an already troubled region, Egypt’s prospects for reform must not be stunted by authoritarian tactics.

Khairi Abaza is a senior fellow at the Center for Liberty in the Middle East.

Egypt: Proposed Constitutional Changes and their Impact on Democracy

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