Editorial: Egypt’s constitutional dilemma

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By Rania Al Malky

In a week that began with the dramatic storming of State Security Investigations premises to stop the criminal burning and shredding of documents; was highlighted by violent, armed sectarian clashes which claimed lives and caused tens of injuries; then ended with an attack on Tahrir Square protesters that cleared the sit-in, the emphasis on restoring law and order has unfortunately drowned out the far more crucial issue of debating the proposed constitutional amendments ahead of the March 19 referendum.

To reiterate what I wrote in my editorial last week, and despite my unequivocal belief that it is every human being’s fundamental right to demand their social, political and economic rights, I was against the continued sit-in in Tahrir precisely because it was only a matter of time before the protesters would be attacked, not only by thugs affiliated with the former regime, but also by ordinary people whose livelihoods have come to a complete stop and misguidedly blame the protesters for their plight. The violent dispersal of the gathering in Tahrir and ensuing, indiscriminate arrests by the military police as well as the claims of torture in custody, has opened up another can of worms.

The protesters are not solely to blame for the chaos, but that said, their continued presence in Tahrir had compromised attempts by the new interim government to restore order. It has also empowered the remnants of the former regime in their undeniable efforts to wage a counter-revolution, infiltrating protests, stoking divisions among Egyptians and between the people and the army, spreading sectarian rumors and doing whatever it takes — with a little help from their friends in State Security — to bring down the new cabinet.

Unknowingly, the actions of those holding legitimate protests for legitimate causes have played into the hands of the criminals who will not let go without a fight, even if it costs us the constitutional future of Egypt.

Instead of being distracted by the sinister shadows of sectarian strife and gang street fights we must all focus on the biggest threat of all, that is the threat of a yes vote in the upcoming referendum on the proposed constitutional amendments.

First a disclaimer. I believe that it is of utmost importance to restore political normalcy within the next six to seven months both for economic and strategic, national security reasons. My reservations about the proposed amendments in no way suggest that I’m advocating the postponement of legislative or presidential elections to give new parties enough time to organize. This is unfortunately a luxury we cannot afford in this phase of Egypt’s democratic transition. What I am saying, however, is that much more can be done at this point to ensure that the proposed constitutional amendments do not contribute to a setback that would ultimately defeat the purpose behind making these amendments in the first place.

There is no denying that most of the amendments have met long-standing demands by Egypt’s opposition. Under the proposed changes the president would only be allowed to serve two four-year terms, instead of unlimited six-year periods; judicial oversight of elections has been reinstated; any future president will be obliged to appoint a deputy within 60 days of his appointment; candidacy criteria and conditions for presidential elections have been eased; and stringent rules have been put in place to make it difficult to maintain a state of emergency.

However, as it was pointed out by leading intellectuals and public figures like former IAEA chief Mohamed ElBaradei, who gained a BA degree in law at Cairo University and a doctorate in international law at the New York University School of Law in 1974; Justice Tahani El Gebaly, Egypt’s first female judge and vice president of the Supreme Constitutional Court; as well as leading Egyptian political analysts like Amr Hamzawy, research director and senior associate at the Carnegie Middle East Center in Beirut and Secretary General of the Arab League Amr Moussa, the proposed amendments are far from sufficient.

Pundits have criticized the fact that no changes have been made to limit presidential powers that are instated in over 30 articles in the constitution.

Amended Article 75 has been one of the most debated. The article was not among the protesters’ demands and introduces stringent rules regarding eligibility criteria for presidential candidates. According to the amendment a potential candidate cannot be a dual national — which is understandable — but would still not qualify even if he/she drops the second citizenship or is married to a non-Egyptian.

Apart from the fact that the change clearly discriminates against hundreds of thousands of Egyptians who are no less “Egyptian” than others who carry a single nationality, the amendment seems to aspire to some ideal of a “pure” race that does not exist.

The main criticism however, has been directed at Article 189. According to an analysis by the Carnegie Endowment, this article 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 Shoura Council, which would draft a new constitution within six months and submit it to a popular referendum.

However, I agree with critics that it is not clear whether this assembly will be restricted to existing members of parliament or will allow for the appointment of individuals who are not MPs. Even though it is true that the addition to Article 189 renders the reactivated 1971 constitution provisional, it merely “allows” such a process of drafting a brand new constitution, rather than makes it obligatory within a specified timeframe.

The fear of future constitutional stalemates are not exaggerated but can be simply allayed through a few sovereign decisions by the ruling Supreme Council of the Armed Forces that will not hinder the fast track towards political stability. Suggestions include a revision of the constitutional amendments that would bear in mind the controversial changes and widening the scope of the amendments to include articles that give the president extraordinary powers.

Such moves do not require months and months to implement and if done with enough openness and acceptance of the need to accommodate the views of a wider segment of Egypt’s intelligentsia, as well as trusted and credible political and social actors, we could reach enough consensus to ensure that the path towards stability is not impeded.

In the final analysis only open democratic practices on all levels will steer Egypt in the right direction. Postponing vital steps towards the ultimate goal of building a democratic civil state based on the rule of law, respect for human rights and upheld by strong institutions will only prolong the chaos. We need to hold elections as soon as possible but must make sure that the resulting legislative assemblies and the emerging president are governed by a constitution that can neither be abused nor exploited for the benefit of a few at the expense of the greater good.

Rania Al Malky is the Chief Editor of Daily news Egypt.






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