Amending the Egyptian Constitution: Six critical articles that test the military’s commitment to democracy

The most important announcement last week from the Egyptian Supreme Council of the Armed Forces was that it had appointed a committee to amend the Egyptian Constitution. The committee, chaired by retired judge Tariq al-Bishri, was tasked to draft constitutional amendments within 10 days, followed by a national referendum on the proposed amendments within two months.

Many in the pro-democracy movement have criticized the scope, timeline, and composition of the constitutional reform committee. Their concerns are understandable. Although al-Bishri is a towering intellectual figure and prominent jurist known for his outspoken criticism of the regime, the rest of the committee is far less notable. More importantly, the military has clearly excluded representation from those groups that organized the January 25th democracy movement and indeed from almost all political trends, not to mention the fact that there is not a single woman appointed to the committee.

Pro-democracy activists are justifiably concerned that piecemeal changes in the form of constitutional amendments will be insufficient to engineer a fundamental reordering of the political system. Long-time human rights advocate Bahieddin Hassan echoes the apprehension of many others when he argues that, “What is needed now is to scrap the existing constitution and not to amend it. No amendments, however extensive, would be enough to salvage it because the philosophy and spirit of the constitution are diametrically opposed to democratic values and human rights. The present constitution can only encourage despotism.”

But as I argued in a previous post, the suspended constitution contains a curious mix of liberal and illiberal articles. Of the 211 articles in the Egyptian constitution, perhaps only a dozen are fundamentally illiberal, and these are easily identified. Moreover, many of the political liberties that the democracy movement want to see enshrined in a new constitution are already present in the suspended constitution. The more intractable legal conundrum facing Egypt is that most of the legal tools that the Mubarak regime used to dominate the political system are not found in the constitution. They are instead contained in the web of illiberal legislation that governs virtually all aspects of political and social life.

Nonetheless, as the foundational document that lays out the principles of governance and the institutional configurations of the state, the constitution is a crucial document. The proposed amendments that will be unveiled later this week will either stand in the way of fundamental political reforms, or facilitate them. The proposed amendments thus provide the first concrete test of whether the military’s stated commitment to a break from the past is credible.

How, then, should we judge whether the proposed constitutional amendments are significant or not? Which articles of the constitution must be amended to enable further political reforms? Below I examine the articles that will provide the litmus test for the military’s stated commitment to democracy.

Article 5 on the Formation of Political Parties:

Article 5 effectively blocks the Muslim Brotherhood, and other groups with a religious orientation, from political life. The article states, in part, that “citizens have the right to establish political parties according to the law and no political activity shall be exercised, nor political parties established, on the basis of religion or discrimination due to gender or race.” Article 5 did not contain this restriction prior to 2007, but constitutional amendments in that year entrenched the ban on parties with a religious orientation in the constitution itself, whereas the restriction had previously only been included in the Political Parties law 40/1977. It should additionally be noted that article 5 states that citizens have the right to establish political parties “according to the law,” essentially enabling the illiberal legislation that is contained elsewhere in the Political Parties law. This pattern of referencing legislation on the books, it should be noted, is repeated in other articles of the constitution. If the constitution is to enable free and fair elections, both these aspects of article 5 will need to be amended to guarantee the unfettered right to political contestation.

Article 76 on Presidential Elections:

Article 76 is also among the most significant roadblocks to free and fair elections. This article, which is focused on the office of President of the Republic, sets a high threshold for candidates to run in presidential elections, making it virtually impossible to have meaningful contestation. Moreover, Article 76 establishes a Presidential Elections Committee that is dominated by presidential appointments. This elections committee is the sole authority in charge of every aspect of the elections, from declaring the list of eligible candidates, to supervising balloting and vote-counting, to hearing and adjudicating all challenges and legal disputes. Again, it is notable that constitutional amendments in 2005 and 2007 entrenched these illiberal features directly into the fabric of the constitution itself. This placed them beyond legal challenge in the Supreme Constitutional Court, which over two decades had emerged as the most important avenue to challenge illiberal legislation. Fundamental change in article 76 is required if a reform process is to have any meaning at all.

Article 88 on Supervision of People’s Assembly Elections:

Constitutional amendments to Article 88 in 2007 robbed the judiciary of its role in overseeing elections, a roll that judges had assumed as the result of a landmark Supreme Constitutional Court ruling in 2000. The SCC ruling forced elections to be staged over three rounds to enable judges to be present at each polling station. As a result, the 2000 and 2005 elections were the cleanest on record inside polling stations, but the regime notoriously contained this development with increased repression outside of polling stations, preventing voters in many districts from reaching polling stations. The 2007 constitutional amendment undermined this legal mandate, as well as the practical ability of judges to supervise all polling stations when elections were again to be conducted in a single day. The constitutional reform committee must amend article 88 in some fashion that provides a credible mechanism for monitoring of elections outside of the control of the Ministry of Interior.

Article 93 on Judicial Review of Election Irregularities:

Article 93 of the constitution declares, in part, that “The People’s Assembly shall be the only authority competent to decide upon the validity of its members.” This article provided the legal rational for the ruling NDP to refuse to implement literally hundreds of court rulings invalidating election results after every People’s Assembly election, when the courts determined there were egregious election irregularities. Article 93 will need to be amended if elections to the People’s Assembly are to be credible.

Article 171 on the State Security Courts:

Article 171 declares that “The law shall regulate the organization of the state security courts and prescribe their competencies and the conditions to be fulfilled by those who occupy the office of judge in them.” As with other articles of the constitution, this article does not define the procedures of the state security courts, merely stating that “The law shall regulate” their organization. The article must be abolished or radically amended to strictly define the bounds of such security courts.

Article 179 on “Public Security”:

Article 179, which was substantially amended in 2007, essentially built aspects of the emergency law straight into the constitution itself, placing these emergency powers outside of the prevue of judicial review. Article 179 explicitly states that articles 41, 44, and 45 of the constitution, guaranteeing fundamental liberties and protecting citizens from search without warrant, “shall in no way preclude such counter-terror action.” With terms such as “public security” and “counter-terror” loosely defined, article 179 again provided the regime with extensive tools to punish opponents of the regime.

The above list of articles is not a complete catalogue of the problems with the current constitution. But the articles highlighted here are the most egregious roadblocks to further political reform. Collectively, they are the litmus test for whether the military is committed to a thoroughgoing reform process. Even if the constitutional provisions above are properly amended, however, there remain a variety of legal and, of course, extralegal tools that can be used to head off further meaningful political reforms. Amendment of these articles are the crucial first test in Egypt’s uncertain transition.

–Tamir Moustafa

[Tamir Moustafa is Associate Professor and Stephen Jarislowsky Chair at Simon Fraser University, Canada. He is the author of The Struggle for Constitutional Power: Law Politics, and Economic Development in Egypt (Cambridge University Press).]