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The referendum scheduled for Saturday 19th March 2011 is intended by Egypt’s Supreme Military Council to be seen as a defining moment in the country’s democratic transition. With the cold, wet sensation of ink drying on their index fingers, millions of Egyptians will confirm their approval or rejection of eleven proposed amendments to the flawed constitution that has served them so poorly. In contrast to the sham elections of the Mubarak era, where vote rigging, bribery, and intimidation masqueraded as democracy, this referendum is intended to be a free expression of the people’s will – a ground-breaking occasion not only in Egypt’s new Revolution, but in its modern history.
Yet, this optimistic picture is belied by the numerous problems lying just beneath the surface; problems that go to the very core of Egypt’s supposed break from the autocratic past. Prominent among these are the wholly inadequate measures taken to redress the numerous defects in the constitution. Operating under the blanket of public joy that heralded the fall of Hosni Mubarak, the Supreme Military Council has overseen a process of constitutional amendment so rushed and incomplete that it has barely begun to touch on the central faults within the constitution, particularly the overwhelming power of the President, and the tremendous scope for corruption and abuse by the government.
There are some welcome elements of the proposed amendments:
The President’s six year term in office is to be reduced to four years, and no person will be permitted to serve more than two terms (Article 77);
The President will be required to appoint a Vice President within 60 days of taking office (Article 139);
The judiciary will have ultimate responsibility for supervising elections (Article 88), and deciding on any legal challenges to election results (Article 93); and
The article in the constitution permitting the suspension of human rights in cases deemed by the government to involve ‘terrorism’ will be deleted (Article 179).
Though these proposals are certainly positive, they do not constitute even the minimum measures necessary for amending a constitution that inhibits genuine, functioning democracy. If ratified by the public, this abridged exercise in constitutional amendment will have done almost nothing to alter the hazardous imbalance between the power of the President on one hand, and that of the parliament and judiciary on the other. The President will still retain the bulk of his sweeping powers (far in excess of those granted to the presidents and prime ministers of democratic states), the Shura Council will continue to exist as little more than an advisory body lacking a true legislative capacity (with one third of its members appointed by the President), and the basic political structure so exploited by the previous regime to the cost of the people will be largely unchanged.
This dire situation is exacerbated by the strikingly negative elements of the other proposed amendments:
If allowed to lapse for merely a single day, a six month state of emergency declared by the President, and approved by the parliament, could be declared again for another six months without the need for a public referendum (Article 148). As such, the government would still have the power to suspend the basic rights and liberties of the people for an extended period of time, in a similar fashion to the previous regime.
In addition, any Egyptian citizen who has ever had dual citizenship, or whose spouse or parents (whether Egyptian or not) has ever been a citizen of another state, shall be barred permanently from being a candidate in a presidential election (Article 75). With a single stroke, this measure would ban millions of Egyptians at home, and abroad from standing for the highest office in the country. Not only would this disqualify such celebrated Egyptians as Nobel laureate Ahmed Zewail (an Egyptian and US Citizen), it would also disqualify an Egyptian such as the country’s first President, the late Mohammed Naguib (whose mother was Sudanese, and today would be considered a foreign citizen).
Finally, a comprehensive constitutional amendment process shall only be instituted at the request and option of the President (with Cabinet approval), or at least half of the members of both the People’s Assembly and the Shura Council, whose members themselves will select who will draft a new constitution (Article 189). As such, there is no guarantee of further constitutional changes beyond the present 11 proposed amendments, and in the event of a new constitution being drafted, the people’s involvement will be limited to a ‘yes’ or ‘no’ vote at the very end of the process.
While such measures are clearly retrograde, they have been presented to the public as positive steps towards democracy. Such an inaccurate presentation is extremely worrying, as demonstrated in the case of the declaration of a state of emergency, where the loophole mentioned above permitting the extension of emergency law beyond six months has been largely concealed. One of the central demands of the millions whose struggles and sacrifices made the 25th January Revolution a reality was that a new constitution should be written to eliminate the abuses of the past, and secure liberty and prosperity in the future. The 11 proposed amendments do not offer this.
The clarion call of 2011 has been: “The people demand the removal of the regime”. In the past five weeks, a stubbornly resistant President has been forced from office, former ministers and members of the former ruling party have been arrested, and a pro-revolution Prime Minister has been sworn in. Yet, the legal instrument that provided cover for the manifest abuse and corruption of the Mubarak era remains. Without genuine constitutional reform, the power of the President – and the enfeebling of the parliament, the judiciary, and the people – will continue. In these circumstances, it is instructive to consider why the most enthusiastic supporters of the current amendment process are the National Democratic Party, and the Muslim Brotherhood.
Whether by design or unintended consequence, the manner in which this referendum has been organised is in direct opposition to the goals of the Revolution. For those who believe in the sacred value of the purple stained ballots that they will cast, Saturday will be a day of crucial significance, not merely for themselves, but for the future of their country.
Tamer O. Bahgat is a transnational lawyer with a predominant International Law Firm in London, with experience in corporate and international law, and a focus in economic and constitutional reform in emerging markets.
Khalid El-Sherif is a legal and policy professional with experience in regulatory reform, public and private international law, with a focus on development in the Arab World.