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Constitutional reform: between acceleration and deferment.
The second suggestion aims at modernizing and giving effect to Parliamentary life by the following means:
" The current Constitution will continue in effect until the referendum on the fifth mandate of President Mubarak. The law on elections will continue to be applied until the formation of the 2005 assembly. In prevailing circumstances the "bundle of political reform laws" will not be implemented because of the risk this poses. For instance, the current constitution will be an obstacle to any significant reform of the electoral system because of the 50% restriction. Reforming the relationship between the government and the assembly will be governed by two stipulations. Firstly, the government must not be accountable to the Shura Council and while being accountable to the People's Assembly; only the president can appoint ministers or dismiss them. The other stipulation is that the wide legislative and executive powers given to the president without any form of accountability must be prohibited by the Constitution.
" The government's announcement of the start of the Constitutional reform process should follow principles of political party pluralism, annulment of the Committee on Political Parties Affairs, independence of the bodies supervising elections, annulment of the 50% quota, separation between the presidency and the government, governmental accountability to parliament, resolving the issues of the legislative role of the Shura council, the duration of the presidency term of office and empowering local councils to call governors to account.
" Taking critical steps in the next few months. These changes would not require any constitutional or legal amendments, however they would pave the road towards the emergence of a new parliament more expressive of the political map in Egypt and less vulnerable to what the present body is exposed to. This would make the new council capable of initially discussing constitutional amendment followed by political reform laws. The most important of these steps are:
Formation of an independent national committee for the elections. This Committee alone should be concerned with supervision of all stages of the election process and monitoring its fairness. It should in particular ban the use of public funds and public facilities in elections and guarantee the neutrality of the official media; television broadcasting, radio and "national" newspapers.
Formation of a working group to ensure the impartial use of public funds during the elections. It could perhaps be under the leadership of the vice-president of the Administrative Review Institution, specialized members of the Central Institution for Auditing, the Central institution for Organization and Administration, the National Council for Human Rights, the Center for Cabinet Information and general intelligence services. The working group/task force will monitor public funds and civil servants (especially governors) and present a report to the President who decides on its distribution.
President Mubarak should give up the leadership of any political party to make the 2005 elections representative of the real balance between political parties.
Formation of a national committee to study constitutional amendment and to present its proposals to the new Assembly (October 2005).In particular, this committee should study proposals to "re-structure" the second section of the fifth chapter concerned with legislative powers in order to reduce the president's legislative powers, reduce each assembly's term to four years and annul appointment of members to the People's Assembly.
3. Consolidating decentralisation of power
Participants in the forum stressed the necessity of consolidating decentralisation of power and awarding broad competencies to local authorities in different governorates in order to realise good governance. They referred to the fact that decentralisation should be comprehensive and complete.
It is not mere transfer of responsibilities without power, and not power without financial empowerment. Likewise, it is not about giving local councils more power without preparation of the appropriate atmosphere that encourages citizens to partciapte and to choose persons qualifies to bear responsibility before their voters, who exercise their roles objectively far removed from motivations of personal gain. Above all, decentralisation is an expression of political will and personal conviction. To achieve all the aforementioned, it is necessary to:
1. Give effect to texts concerning decentralisation in the current laws
Current laws pertaining to public services such as Education Law no.139 [1981] and Local Administration Law no.43 [1979] and its amendments acknowledge the importance of decentralisation and public participation. Moving to decentralisation does not therefore require waiting for a new law on public participation in Egypt to be passed because it is possible to realise it through existing legislation.
In addition, the delegation of ministers' powers and competencies to governors should be widened, especially in those ministries that have not transferred their competencies to local units. As for the governor's relation to ministerial branches; a governor should have real and effective powers in directorates and should have an active role in choosing ministerial deputies and in appointing and dismissing civil servants to whom he is superior according to the law. Within this framework, the importance of transformation from centralisation, multiple organisational levels in the pyramidal system to decentralisation and multiple decision-making centers and reducing vertical levels should be emphasised.
2. Realising a balance in the relationship between municipal councils and executive councils.
If the constitution states that power should be gradually transferred to municipal councils, and if supervision of executive councils is a role of these councils, then effect should be given to this supervisory role. Hence, municipal councils should be given the right to question the president and members of the executive council. In the case of questioning of the governor by the municipal council, the matter may be submitted to the President who decides either to relieve the governor of his post or dissolve the council within one month of the submission. As for presidents and members of other executive councils, they can be appointed through the governor after securing the approval of the district municipal council of the district. The latter should have the right to withdraw confidence from the president or members of the appointed members provided the matter is submitted to the governor who has the right to withdraw confidence or return the whole matter along with his own point of view to the concerned public council. The municipal council may then reconsider the subject again, this time with the right to issue a ruling to dismiss the person in question from his office.
3. Representation in municipal councils should be on the basis of population size.
Representation in municipal councils should be on the basis of population size rather than on the basis of the number of administrative divisions or townships. The aim is to achieve equality and justice in representation between different local units - this is not the case in the current system.
4. Review of the number of municipal levels:
The number of municipal levels should be reduced to two; the governorate (as the first level) and the city, the town and the district (as the second level). Each level should have its own competencies and powers exercisable without interference from the other. According to this proposal, the governorate will be the first level including local municipal units for cities, villages and districts (in case of division of cities, especially one-city governorates to different districts). The governorate will exercise its authority throughout the governorate while leaving specific competencies to the second level. There will exist a direct relationship between the second level (city, district, and village) and the governorate. Some cities with a special character like Luxor can also exist provided that their powers are restricted to those distinct domains unique to the city while leaving other domains and competencies not directly related to the distinct nature of this city to the governorate.
5. Formation of municipal unions
If the Supreme Council of Municipal Administration can not perform the function assigned to it, municipal unions may be formed, each including municipal units with similar characteristics and complement each other such as the Union of Egyptian Cities and the Union of Egyptian Villages, quite similar to the Council of Governors.
The aim of these unions, which should convene regularly, is to study problems concerning the municipal units that constitute each union, to propose appropriate solutions and to exchange opinions and experience so that each would benefit from the other, especially from those successful experiences and solutions applied in certain municipal unions. Each union can undertake studies and research that examine local problems facing its members in order to consolidate ties between them. In this way, these unions can exercise the role originally assigned to but not actually performed by the general secretariat of municipal administration. Each union can offer a special prize, awarded to the best municipal unit each year which fosters competition between members of municipal units to provide high quality service. The prize is to be awarded according to the standard of performance assessment which will have preset and agreed on criteria comprising the speed with which citizens' problems are solved, cleanliness and basic services.
6. Defining the tasks of each municipal level
Precise definition of the competencies of each municipal level should exist to clarify which functions this level can perform and which it cannot because they encroach on the jurisdiction of central authorities. This will facilitate the process of calling to account and evaluation of municipal leadership; will eradicate the attribution of responsibility to others, and will limit interference of the central government. The role of ministries or executive authorities may be restricted to technical areas while leaving executive and administrative powers to municipal units. Likewise, each municipal level should have defined powers that should not be interfered with by another level (e.g. the governorate). The governorate's specialties may relate to what concerns all its residents because it will be more capable of performing than the first level (city, district, village).
6. Introducing mechanisms to evaluate performance of municipal leaders and units
A project should exist to measure and evaluate the performance of municipal institutions, to allow identification of positive aspects of its performance, which should be preserved and consolidated, and other aspects that require management and improvement in order to take appropriate measures.
The importance of evaluating the performance of municipal leaders and units arises from the fact that focusing on governmental performance is inappropriate and inadequate for accurate judgment of the real competence of these systems. Hence, emphasis should be put on directing performance through measuring quality of service and consumer satisfaction. Such a measurement includes both quantitative and qualitative parameters. Publicising the results of quality of service measurement will uncover aspects that require development. Other methods of improving municipal quality of service include quality awards, a quality assessment mechanism. Quality of service measurement also aims at making clear to citizens the criteria for measuring administrative success. It also helps institutions to realise a minimum quality level which will serve as a starting point for realising higher levels. Additionally, there are citizen's charter schemes that affirm quality of service and levels expected in services as well as comprehensive quality management systems that focus on consumer's expectations and attempt to meet or even surpass them.
7. Consolidating municipal funding:
Municipal funding can be consolidated by the following means:
A. Granting municipal units greater powers to manage local budgets:
Each municipal unit should have a separate budget prepared and approved on the municipal level. There is no need to include municipal funds in the general budget as this leads to carrying over surpluses in the budget to the next year. In fact, the relationship between municipal and general funds should be restricted to financial aid allocated to municipalities in order to fulfill those burdens set by the state for which local funds are insufficient. Municipal authorities should also be allowed a degree of freedom to move amounts around within the budget in order to increase moderation in the use of public resources allocated for specific projects.
B. Allowing municipal units to impose fees and taxes:
A line should be drawn between fees and taxes pertaining to the central government and those pertaining to municipal units. The latter should be given the freedom to impose or waive taxes and fees.
C. Development of workers' technical and administrative capabilities:
Many offences related to the assessment and collection of taxes and fees result from the low competency levels of those working in municipal tax collection departments. It is therefore important to develop the capabilities of those employees and teach them skills allowing them to accurately estimate of revenues. This will narrow the gap between estimates and actual revenues. At the same time, tighter control of the collection process should be exercised.
Technical and economic studies should be made before embarking on any project to avoid its being discontinued or turning out to be of limited benefit after completion. This necessitates the availability of technical and administrative staff to plan, execute and supervise investment projects in municipalities. It also requires the availability of information guaranteeing the proper distribution and allocation of these projects on the basis of objective rather than personal or political criteria. At the same time, municipal units should coordinate between each other and the central government in order to realise harmony in local development projects.
D. Renewable supplies of financial resources:
Municipal units should themselves continually search for renewable sources of autonomous resources because these units are most aware of financial activities and developments occurring under their jurisdictions. Municipal units should then suggest methods of increasing these resources. They can also propose cancellation of fees whose costs exceed their revenues.
E. Regulating municipal public spending
Reports from the central institution for auditing reveal waste of public funds and indiscretion in public spending. Hence, precision and objectivity are needed in public spending decisions. These decisions should contribute to local development plans and should be accounted for and monitored. Within this framework is included the revision of laws and charters regulating collection and spending of finances from municipal public resources becomes necessary. These laws require precise definition of acceptable domains for spending municipal funds.
F. Outsourcing contracts to private companies
Some services can be assigned to specialised private companies in each municipal unit to take over services originally performed by these units. For instance, a company specialised in budget housing may undertake such projects at a municipal level while another company may undertake cleaning projects etc.
4. Requirements of the current economic phase:
Participants called for the following:
1.The first article of the constitution, which reads "The Arab republic of Egypt is a state of socialist democratic order that is founded upon the alliance of working forces of the people" must be replaced by a new text describing Egypt as a democratic state founded upon political plurality governed by the law.
2. Revision of article 4 of the constitution which states: "The economic foundation of the Arab Republic of Egypt is a socialist democratic system based on justice and sufficiency in a manner preventing exploitation and conducive to minimising disparities between incomes". This article needs revision in the light of the change from the public to the private sector introduced by the government in the mid 1970s. These policies have escalated palpably in the last few years, thus conflicting with the basic features of the "socialist system" in which public ownership is the rule while private ownership disappears or is tightly restricted.
3. A statement that the national economy is founded on many principles including:
Freedom of economic activities without monopoly or exploitation
Freedom of investment in public and private projects; the law should regulated rules regarding implementation of such projects.
Cooperation between public and private sectors that complement each other to realise economic development.
Confiscation and nationalisation of funds must be prohibited.
The government's role in development and provision of basic services must be clearly stated in addition to a clear constitutional provision stating strengthening citizens' economic and social rights.
4. Drawing up of a constitutional provision that prevents harmful monopoly practices, whether originating from the private sector or public production institutions and units.
5. Inclusion of a constitutional provision prohibiting all forms of economic corruption originating from any source which penalises its perpetrators from both the private and public sector and municipal administrations according to the law and through ordinary courts without executive interference or the use of exceptional courts.
6. A provision stating that intellectual property is protected and is not subject to confiscation measures regardless of the causes along with the state's right to impose proper legislative procedures to protect intellectual property.
Likewise; political forces, political parties, civil society institutions, scholars, Shura Council and People's Assembly members who participated in the forum agreed that the aforementioned constitutional amendments should be accompanied by the following essential legislative and political measures:
i.
Annulment of the state of emergency, release of political detainees and pardon of political prisoners in cases not involving violence. Retrial of prisoners convicted by military courts before customary courts. Abolition of laws and articles opposed to public liberties and human rights. A decisive end to torture practices and legal pursuit of its perpetrators.
ii.
Guarantees of free and fair elections. Establishment of a permanent independent legal committee specialised in running elections and public referenda chosen by the central committee of the Cassation court. Replacing old voters' registries with registers to match national registry records until the "national number" project is finalised.
iii. Allowing political parties freedom of formation under the supervision of the ordinary courts alone and making party membership open to all Egyptians regardless of sex, colour or religion and subject to the rules of democratic endeavor. Lifting of the legislative and political siege imposed on political parties and lifting of restrictions on peaceful public activities including the right to demonstrate, go on strike, convene and hand out statements.
iv. Prohibiting the National Democratic Party from dominating public institutions and manipulating them for its benefit.
v. Endorsement of the independence of professional syndicates, trade unions, NGOs and other civil society groups in order to create a civil society capable of contributing to democracy and progress. Abrogation of Law no. 100 [1993] on professional syndicates.
vi. Freedom to issue new newspapers and ownership of media should be guaranteed. The state media and press should be liberated from the influence and control of the executive authority and the ruling party. Equal opportunities should be given to parties, political powers and all democratic currents to express their ideas and viewpoints in public-owned media pending the amendment legislation governing the radio and television and the realisation of the media's independence from the executive authority.
vii. Acknowledgement of the judiciary's unique jurisdiction to rule on all conflicts and disagreements including appeals that question the legitimacy of members of the People's Assembly and Shura Council's membership of these bodies.
viii. Adherence to international human rights agreements, conventions and treaties. Signature and approval of international human rights declarations and conventions and review of reservations made by Egypt to these documents which have generally undermined the liberties they state.
ix. Adherence to principles of transparency, good governance and accountability in all governmental practices at all levels from the central government to local administration. Implementation of immediate measures for economic and administrative reform and to counter corruption and theft of public funds.
The Egyptian Constitutional Platform
On the conclusion of the proceedings of EOHR's ninth intellectual forum participants agreed on the creation of the Egyptian Constitutional Platform which brings together elite judiciaries, university professors, party leaders, civil society institutions, human rights specialists People's Assembly members. This platform was formed with the aim of producing clearly defined recommendations on constitutional reform, mechanisms and time-frame required to implement it.
The platform includes the following members:
1. Professor Ebrahim Darweesh, Professor of constitutional law, Cairo University.
2. Abou El-Ezz Al-Hariri , member of the People's Assembly
3. Ahmed Abd El-Aziz , Cassation Court lawyer
4. Professor Ahmed Thabet, Professor of political science, Cairo University.
5. Bahei Eddin Hassan, Head of the Cairo Center for Human Rights Studies
6. George Ishak, member of the Egyptian Movement for Change
7. Professor Gihad Awda, Professor of political sciences, Cairo University
8. Hafez Abu Seada, Secretary General of the Egyptian Organization for Human Rights
9. Professor Hassan Nafa'a, Professor of political science, Cairo University
10. Hussein Abdel Razeq, Coordinator of the Committee for the Defence of Democracy and Secretary General of the Tagamma' party.
11. Counsellor Said El-Gamal
12. Salah Eissah , Editor-in-chief, Al Qahira newspaper
13. Mr. Abdallah Khaleel , Cassation Court lawyer
14. Dr. Essam El-'Eryaan, Former member of the People's Assembly
15. Dr. Ali El-Sawi, Professor of political science, Cairo University
16. Farouk El-Ashri, member of the political office , Nasserist Party
17. Farid Zahran, director of Al- Mahroussa Center
18. Farida Al Nakash, Editor-in-chief of Adab wi Naqd magazine
19. Dr. Fouad Abdel Moneim Reyad, Member of the National Council of Human Rights
20. Mr.Negad El-Borei, director of the Group for Democratic Development
21. Nehad Abo El-Qomsan, director of the Egyptian Center for Women's Rights
22. Magda Mourice, co-editor in chief of Al-Goumhoreya newspaper
23. Dr.Magdy Abdel Hamid, president of the Egyptian Society for the Development of Social Participation.
24. Professoer Moustafa Al-Nasharty, professor, Faculty of Economics and Administration.
In their closing remarks participants stressed that where political will for democratic reform exists, constitutional amendment through a national dialogue bringing together political forces, political parties, civil society institutions and intellectual leaders in order to define articles requiring amendment, the philosophy of amendment, its aims and the time-frame needed for its implementation should be the starting point for such reform.
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