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Constitutional reform: between acceleration and deferment.
Introduction:
Since its establishment in 1985, The Egyptian Organization for Human Rights (EOHR) has organised an intellectual forum bringing together intellectuals, thinkers, politicians and jurists to discuss topical human rights and democracy issues. EOHR has chosen constitutional reform as the topic for its 2005 seminar.
The issue of constitutional reform has been raised recently. Political forces of all trends have agreed on the necessity and the inevitability of such reform. However, debate focused on the proper timing for initiating this reform, the priorities, the main issues targeted and means of its implementation.
Some demanded partial amendments to the preexisting 1971 Constitution including amendments to articles pertaining to the method of election and presidential powers. These views called for the election of the president through a free direct vote in a multi-candidate election, limiting the president's term of office to a maximum of two mandates, annulment of the state of emergency and instituting legislations that guarantee free and fair elections to pave the way towards political diversity and exchange of power.
Others demanded amendment of section four of the Constitution (concerned with state powers) in order to change Egypt from a presidential to a parliamentary regime. Still others called for an alternative Constitution, stressing that the text, application and interpretation of the 1971 Constitution can no longer fulfill even the bare minimum of people's long-deferred hopes and ambitions. They therefore stressed the inevitability of introducing a new democratically-oriented Constitution which extends liberties to all. A Constitution that abrogates exceptional laws, including the 1981 Emergency Law and the "custody" and "disrespect" laws, and repeals or amends laws regulating political parties, the press and the exercise of political rights and transforms Egypt into a parliamentary republic. This camp therefore regards it as essential that a brand new "cloth" is created rather than to trying to "patch up" one that is already worn out. Finally, some consider constitutional reform unnecessary in the present time, for the reason that there are other aspects in which reform is more pressing.
Amidst this debate, EOHR held its ninth intellectual forum entitled Constitutional reform, between acceleration and deferment from the 15th -17th February 2005 attended by more than 100 participants representing various political parties and currents, People's Assembly and Shura Council members, civil society institutions, intellectuals, university professors, constitutional law scholars and public figures.
The forum considered the various views surrounding constitutional reform. It also examined the demands of political parties regarding the method by which the president is elected and the constitutional powers granted to him, separation and balance between the three branches (executive, legislative and judicial), ways of giving effect to the legislative branch and its role in monitoring and calling to account the executive branch, ways of moving from the centralisation to de-centralisation of authority and the necessity of matching economic changes to constitutional texts.
The forum's proceedings were concluded with a round-table discussion entitled Towards a common vision of constitutional reform: timing and content, aimed at defining priorities, mechanisms and time-frames for this reform.
Presented below are the recommendations which came out of the forum together with an appendix including its agenda. The seminar's papers and discussions are expected to be issued soon.
Recommendations
At the close of the forum participants concurred on the fact that comprehensive and radical constitutional reform is crucial in order to bring Egypt out of the state of political stagnation it has been experiencing since the 1970s, as well as for the following reasons:
1. The philosophy and spirit of the current constitution conflicts with the present Egyptian reality. The 1971 Constitution, amended in 1980, was instituted under political, economic, local and international conditions different from those prevailing now. The new Constitution must, for example, deal with the conversion of the economic system from a socialist democratic to a free market system and other policy changes. Important international issues such as intellectual property, the role of the private sector, the new role of the state and international judicial supervision should be incorporated to the constitution.
All the aforementioned developments as well as many others, both local and international, necessitate changes to many constitutional texts in order to keep up with existing circumstances at all levels; political, economic, social and cultural.
2. Violation of a number of constitutional texts through the imposition of exceptional laws, in particular the ongoing application of the Emergency Law since 1980 which has become the quasi-constitution of the country. Not to mention the large arsenal of laws which oppress public rights and liberties, freedom of political parties, professional syndicates, trade unions and different institutions of the civil society.
3. Absence of an effective role for the legislative authority. A quick reading of the Constitution reveals that articles 137 and 138 appoint the president of the state as the president of the executive authority who lays down state policy in consultation with the cabinet and oversees its implementation. Furthermore, parliament plays no role in the formation of the government. Article 81 states that legislative authority should be possessed by the People's Assembly; however, in reality the exact opposite is true. Domination by the executive power has made the legislative branch the exclusive power of the government.
These and other issues make constitutional reform - the doorway to political, economic and social development in Egypt - an absolute necessity. A strong consensus exists among various political parties and powers, members of the People's Assembly and Shura Council, civil society institutions, intellectuals and constitutional law scholars on a number of political, legislative and economic issues included in the Constitution that require reconsideration whenever Constitutional reform is discussed. These issues are:
1. The method by which the president is elected and the constitutional powers granted to him; participants agreed on three main points that deserve special attention:
A. The method by which the president is elected.
Article 76 of the Constitution states:
The people's assembly nominates the president; this nomination is put forth for citizens for a referendum. Nomination for the post of president by the people's assembly requires a proposal from at least one third of its members. A nominee who obtains the majority of votes from two thirds of members of the people's assembly is put forth for people's referendum. If the nominee can not secure the aforementioned majority, the nomination is to be repeated within two days from the date of the first ballot. A nominee who secures the absolute majority of the assembly is put forth for citizens for a referendum. A nominee is considered president of the republic by obtaining the absolute majority of the number of votes cast in the referendum. If the nominee can not obtain this majority, the people's assembly nominates another candidate; and the same procedures are to be followed in his nomination.
Participants demanded amendment of the method by which the president is elected, stating that it would probably be appropriate to effect this change before the upcoming presidential referendum in order to ensure that the president is elected in direct elections in a multi-candidate race for the following reasons:
The importance of the president's post and the broad powers granted to him under the constitution as a result of which the president should be elected through a direct multi-candidate ballot.
The method referred to in article 76 which refers to the referendum as one step among other steps towards choosing a president, is flawed in its phrasing because the basis for a referendum, as established in constitutional law and political studies, is to explore the people's opinion regarding topics or subjects rather than individuals. It is also established, in theory and in practice that choosing an individual for a post should take place via the natural method of an election rather than a referendum. This naturally necessitates plurality of candidates.
In addition, the wording of article 76 overlooks the fact that there is only one way to occupy the post of president in republican systems - including the French system which influenced the Egyptian legislator - free democratic choice among more than one candidate each approaching the elections with a different political manifesto.
In the last few years, Egypt has taken strides that can not be overlooked on the road to deepen democratic practices and values of political diversity. It is therefore essential to remain on this path at all levels including the method of electing the president.
B. The presidential term of office
Article 77 of the Constitution, amended in 1980 states:
The term of presidency is six years starting from the date on which the results of the referendum are announced. Re-electing the president for other terms is allowed
The Constitution previously prohibited reelection of the same individual to the post for more than two terms. Participants affirmed the necessity of amending this article because it allows indefinite re-election of the president for successive terms of office. They therefore recommended that the president's term of office be limited to a five -year term renewable only once, The president should also relinquish party affiliations during his term in office.
C. The president's power to appoint one or more vice-presidents
Under article 139 of the Constitution "the president can appoint one or more vice-presidents, assign their competencies or relieve them of their posts". It is understandable from this text that the president's power in this regard is conditional, that is to say that there is no obligation on the president to appoint a vice president. Other articles of the Constitution (articles 82 &85) clearly indicate that the vice-president should assume presidency temporarily until the impediment preventing the president from carrying out his functions is removed. For instance, Article 82 of the Constitution states "If a temporary impediment arises that prevents the president from exercising his competencies, he should delegate the vice-president". Article 85 adds that in the case of the president being charged with capital treason or a criminal offence and the people's assembly issuing a verdict with a majority of two thirds of its members voting for the charge "The vice-president should assume the presidency till judgment in the charge is reached."
Participants in the seminar affirmed that the aforementioned articles make obligatory the appointment of at least one vice-president. Obviously, this can only be realised through amendment of article 139 of the Constitution which must state, unambiguously, the necessity of having a vice-president elected alongside the president among different candidates.
D. Presidential powers
The Constitution currently places all powers in the hands of the president. Of the 55 articles in the constitution related to powers and competencies, the president is exclusively empowered with 35 of these powers constituting about 63 % of total constitutional powers. The legislative authority (the People's Assembly and the Shura Council) have been left with only 14 of these powers. The president's powers include:
Setting boundaries between authorities ( Article 73)
Control of the executive ( Article 142)
Appointment and dismissal of the prime minister and cabinet ministers
Appointment and dismissal of civil servants, military officials and political representatives ( Article 143)
Power to issue regulations to implement the law ( Article 144)
Founding and organisation of public facilities and institutions ( Article 146)
Signing of treaties ( Article 151)
Assuming highest command of the armed forces and chairing the national defense council ( Articles 150 and 182)
Chairing the supreme council of Judicial establishments ( Article 173) and the Police establishment ( Article 184)
Declaring a state of emergency ( Article 148)
Proposal of, and issuing laws (Articles 109, 112), issuing laws in the absence of the People's Assembly if necessary (Article 147) appointing 10 members of the People's Assembly ( Article 78) and one third of the members of the shura assembly( Article 196). The president also has the right to dissolve the People's Assembly (Article 136)
Article 74 describes the president's powers in exceptional circumstances:
If a danger arises that threatens national unity or public safety or hinders institutions of the state from performing their constitutional role, the president can take prompt measures to face this danger, make a statement to the people and hold a referendum on these measures within 60 days of undertaking them.
Participants generally agreed that the majority of this article had been inaccurately reproduced from article 16 of the French constitution issued in 1958. However, article 74 of the Egyptian constitution extended the president's exceptional powers and therefore requires prompt amendment for the following reasons:
1. It is noticeable here that the French text from which this article was reproduced considered that the dangers that allow the president to exercise his exceptional powers are those that interrupt the normal functioning of state institutions. In contrast, the Egyptian legislator expanded the president's exceptional powers as evidenced by the fact that the mere hindrance rather than complete interruption of normal functioning of state institutions is sufficient to allow the president to exercise these exceptional powers
2. The French text obliged the president to consult the prime minister, the president of the national assembly, the president of the senate and the president of the constitutional council before he could exercise any exceptional powers. Article 74 of the Egyptian constitution only indicates that the president must make a statement to the people aimed at explaining the exceptional reasons that prompted him to take specific measures.
3. Article 74 of the Constitution, regardless of the aforementioned remarks, is nothing more than an embellishment given that articles 108 and 147 allow the president, (both in the presence and absence of the people's assembly) to issue decrees with the power of the law to counter exceptional circumstances.
In this regard, participants affirmed that despite enjoying wide powers, the president is not accountable to any institution despite the fact that it is a well established tenet that no authority can exist without accountability. The Constitution only describes two instances in which the president can be prosecuted; where he commits capital treason or a criminal offence punishable by the law following a proposal submitted from one third of the members of the People's Assembly. The decision to prosecute requires the approval of two thirds of members (Article 85). This accountability is both very limited and difficult to put into practice due to circumstances surrounding formation of the People's Assembly.
In the light of these articles, participants agreed on the necessity of restructuring authorities in Egypt with domination of the legislative authority over the executive power. The legislative authority must monitor and call to account the executive's performance as one authority can only be checked by another authority.
2. The supervisory role of the legislative authority
Participants highlighted the absence of parliament's supervisory and legislative roles except for some powers that are occasionally exercised. The current constitution has deprived the People's Assembly - which is meant to represent the national and monitor government spending of public funds - of two fundamental powers:
1. Denial of the People's Assembly right to introduce partial amendments to the state budget without government approval (Article 115, second paragraph). Therefore, the People's Assembly can only entirely approve or entirely reject the budget. Budget approval is a well established parliamentary power in all democratic countries and was a power enjoyed by the House of Representatives in 1923. In fact, the power to scrutinise state spending was historically the reason for the establishment of elected representative bodies to call to account financial measures by governing authorities whether in imposing taxes or determining public expenses.
2. The current constitution also denies the People's Assembly its right to withdraw confidence from the government and force it to resign immediately, a fundamental way of imposing public will - embodied in the people's assembly - on the executive. Its supervisory role otherwise becomes pointless. Article 127 of the Constitution currently states that where confidence is withdrawn from the government, the People's Assembly must prepare a report within 10 days which is given to the president who can in turn return it to the assembly in 10 days. If the Assembly re-ratifies it again, the president can make the disagreement the subject of a referendum within 30 days during which time the Assembly adjourns. If the results of the referendum back the government the People's Assembly is dissolved, otherwise the president accepts the government's resignation.
Forum participants stressed that the complexity of these procedures which make possible the dissolution of the People's Assembly together with the doubt surrounding the integrity of the election process and the return of members of the people's assembly to their seats make withdrawing confidence from the government unthinkable.
Important articles requiring revision and reconsideration include the following three. The first, article 87, pertains to the 50 % quota of People's Assembly seats reserved for peasants and workers. The second, Article 93, describes the Assembly's power to determine the legitimacy of the membership of its own members. Finally, the third, article 115, pertains to the People's Assembly fiscal competencies.
A. The 50% quota of seats reserved for peasants and workers
Article 87 of the Constitution states:
The law shall determine the constituencies into which the State shall be divided and the number of elected members of the People's Assembly must be at least 350 persons, of which one half at least must be workers and farmers elected by direct secret public balloting. The definition of the farmer and worker shall be made by law.
While the 50% quota for peasants and workers may have been justifiable from the onset of the 1952 revolution until the early 1970s due to the nature of this phase of Egyptian society's development and the political values which prevailed at the time, this is no longer the case in the light of the gradual changes witnessed following the 1973 October war. It is therefore essential to amend Article 87 to annul the quota for the following reasons:
There is no justification for one group of society enjoying a privilege not enjoyed by others by setting aside for them a percentage of seats in parliament.
Setting aside 50% of seats for workers and peasants, is a flagrant violation of the principle of equality between citizens described in Article 40 of the Constitution which states that all citizens are equal before the law, with equal rights and obligations.
Public service, including membership in parliamentary councils, must only be assumed by those capable of performing it. There is no place for giving a certain group privileges when it is not necessarily qualified to shoulder its responsibilities.
Noteworthy in this regard and related to reservation of a preset percentage of seats for peasants and workers is the ongoing and sharply divided debate which began in the mid 1980s on the value of setting aside a quota of seats for women.
B. The People's Assembly's power to determine the legitimacy of the membership of its members
Article 93 of the Constitution states:
The People's Assembly shall be the only authority competent to decide upon the validity of its members. A Court of Cassation shall be competent to investigate the validity of contestation presented to the Assembly, on being referred to it by the President of the Assembly. The contestation shall be referred to the Court of Cassation within fifteen days as from the date on which the Assembly was informed of it, while the investigation shall be completed within ninety days from the date on which the contestation is referred to the Court of Cassation.
The result of the investigation and the decision reached by the Court shall be submitted to the Assembly to decide upon the validity of the contestation within sixty days from the date of submission of the result of the investigation to the Assembly.
The membership will not be deemed invalid except by a decision taken by a majority of two-thirds of the Assembly members.
It is clear in the text that the People's assembly is uniquely concerned with resolving the legitimacy of membership of its members. The Cassation Court's opinion on cases surrounding Assembly membership must be given but is not binding on the People's Assembly. In other words, the court's opinion is merely consultative and the People's Assembly has the right to ignore it without having to justify its decision.
Article 93 of the Constitution is undoubtedly flawed, as it is not in line with the fundamental principle that no one may be a judge of his own cause. The text is also flawed because legitimacy of membership of the People's Assembly is essentially a legal process given that it pertains to the integrity of the election process from both a procedural and objective perspective. This means that an impartial judicial party should be appointed to perform such a function. It is also practically impossible for the Assembly, in the light of its domination by a one party, to take a decision regarding the legitimacy of the membership of one its members whose election was proven beyond doubt to be procedurally and objectively flawed.
Therefore, Article 93 should be amended in order to keep the issue of legitimacy of the People's Assembly membership out of the assembly's jurisdiction in order to remove awkwardness and ensure objectivity.
It should be clearly stated that only the judiciary (specifically the Supreme Constitutional Court, the Cassation Court or the State Council) may judge cases surrounding the legitimacy of People's Assembly membership.
3. Ratification of the state budget
This competency is dealt with by articles 115 and 118 of the Constitution. Article 115 clearly states:
The draft budget should be submitted to the People's Assembly at least two months before the start of the fiscal year and is not considered valid except with approval of the Assembly.
This text clearly contains a critical flaw that necessitates its amendment to bring it in line with well established parliamentary traditions that award representative bodies genuine powers. In the final analysis, it is clear that the provision prohibits the People's Assembly from making any changes to the projected budget without the government's approval. This is against a well established tradition that regards financial supervision as an important function of legislative bodies which can not be carried out except by exercising all relevant powers including proposing changes to the general budget as applicable. In this regard, it is all essential to remove the last sentence of Article 86 of the constitution that explicitly states that the Assembly's exercise of its powers and its supervision of executive authority must be "according to the manner prescribed by the Constitution". There is no need for this sentence as it well established that it has to be so.
Amendment of article 118 of the constitution may be also beneficial. This article obliges the government to submit the final audit of the general budget within one year of the end of the fiscal year. This period should be made no more than six months in order to guard against repeating a mistake and in order to allow it to be rectified in time.
To give effect to legislative bodies, participants in the seminar put forward the following suggestions:
The first suggestion is merely to give effect to the parliamentary implementing statute and code of conduct. These can be implemented even within the context of the present political climate and existing internal charter, will establish greater transparency and will open the door to deeper reforms.
The second suggestion is to amend the statute itself, not during the term of the current assembly but after "better" elections for a new parliament.
There are many "measures" that should be taken before the conclusion of the current assembly's term including:
Implementation of the electronic voting screen,
Making available Assembly records, for a fee or necessary or making them available to a private publisher to sell them and obtain profit for the Assembly. In particular, sessions' proceedings, agenda, final audit in the assembly and voting records should be made available. Entire sessions should be continuously broadcast a territorial station and on the radio without interruption.
Re-organisation of staff and employee job titles as well as the general secretariat by an independent technical committee, and
Provision of places for overnight stay and offices for members from the constituencies fit for the Egyptian parliament.
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