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'Constitution cannot be patched'
Published in Al-Ahram Weekly on 14 - 04 - 2005

Parliamentary discussion of President Mubarak's proposed constitutional amendment began yesterday, reports Gamal Essam El-Din
The People's Assembly and Shura Council yesterday embarked on a series of sessions to discuss President Hosni Mubarak's 26 February call to amend Article 76 of the constitution to allow more than one candidate to contest presidential elections.
The sessions come against a backdrop of a feverish debate over political reform in Egypt. Next week will also see the fifth round of national dialogue meetings between the ruling National Democratic Party (NDP) and 14 opposition parties. The round will focus on proposed amendments to the 1977 law regulating the performance of political parties.
Yesterday's meeting was the first hearing held by the People's Assembly and Shura Council. The People's Assembly will devote three more sessions next week to the proposed amendment, the Shura Council two.
Parliamentary speaker Fathi Sorour took charge of reviewing the opinions of several professors of constitutional law on Mubarak's proposed amendment. Foremost among them were Tharwat Badawi, Souad El-Sharqawi, Ramzi El-Shaer and Ahmed Kamal Abul-Magd, who is also deputy chairman of the National Council for Human Rights. The meeting was attended by Justice Minister Farouk Seif El-Nasr and Parliamentary Affairs Minister Kamal El-Shazli. The meeting, held in closed session, lasted four hours.
The constitutional experts focused on three principles governing the application of Article 76: that presidential hopefuls must obtain the backing of a quorum of elected MPs in the People's Assembly, Shura Council and elected members of municipal councils; that a commission of judicial and political figures must oversee the presidential election and that the election itself should take place in one day.
A consensus emerged among the consulted experts that the selection criteria for candidates must err on the side of leniency. They also agreed that although Mubarak's proposal is an important step Egypt is in desperate need of a new constitution rather than amendments patching up the old.
Tharwat Badawi, veteran professor of constitutional law, said the current constitution had been stillborn. "The constitution promulgated in 1971," he said, "was not the one drafted by leading professors of constitutional law." Instead the 1971 constitution had been tailored by a handful of law professors close to late President Anwar El-Sadat "in order to serve the needs of President Sadat and provide him with sweeping powers at the expense of the legislative and judicial branches".
Souad El-Sharqawi agreed with Badawi, arguing that Egypt needs a new constitution that balances in authority of the executive, the judicial and the legislative. "This is neccessary," said El-Sharqawi, "to ensure the power of the president of the republic does not undermine the powers of the judiciary and the legislative."
The experts differed on the way in which the rules governing the presidential election should be applied. Badawi opposed candidates having to obtain the backing of elected MPs in the Assembly or Shura Council. "This principle could undermine Mubarak's proposal given the Assembly and the Council are monopolised by the ruling National Democratic Party (NDP)." He preferred a system under which candidates obtain the signatures of registered voters, though the number, he said, "must not be so big as to discourage prominent independent political figures from nominating themselves".
El-Sharqawi shared his rejection of candidates obtaining support from elected MPs and instead proposed a two phase election: "While the first would be contested by many candidates, the second run-off would be between the two with the highest number of votes."
The majority of legal experts rejected the NDP's proposal that the commission supervising the presidential elections include members of the executive authority. They criticised the suggestion it be chaired by the minister of justice and suggested the chairman of the Supreme Constitutional Court instead. The Egyptian Judges Association had earlier in the week threatened to refuse to supervise elections in the absence of legal guarantees of their independence from the executive. The judges are due to meet today to coordinate their position should such guarantees not be forthcoming. Meanwhile, Prime Minister Ahmed Nazif told Reuters on Tuesday that the government was working to ensure that integrity will be the hallmark of the forthcoming parliamentary and presidential elections.
The Shura Council session included a number of former prime ministers, parliamentary speakers and foreign ministers. The meeting, according to Shura Council Chairman Safwat El-Sherif, also included the chairman of the Press Syndicate, Galal Aref. The four-hour session considered constitutions adopted in several Arab and European countries.
The decision to close the session to journalists, said El-Sherif, was intended to allow those participating absolute freedom in expressing their views.


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