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Reforming the constitution
Published in Al-Ahram Weekly on 10 - 02 - 2011

Constitutional amendments are central to the national dialogue between Omar Suleiman and opposition forces, reports Gamal Essam El-Din
In his speech on the night of 1 February President Hosni Mubarak promised a new package of constitutional reforms, including amending articles 76 and 77 of the constitution. On 4 February Omar Suleiman, the newly-appointed vice president, said in a television interview that Article 88 could also be amended to allow full judicial supervision of elections. Following meetings between Suleiman and opposition forces on 5 and 6 February articles 93 and 179 were also placed on the table. The vice president made it clear, however, that Article 82, allowing the president of the republic to delegate his powers, was off limits.
Changes to articles 76 and 77, says constitutional expert Mohamed Nour Farahat, have the potential to change the political face of Egypt in the next few years. "They could end the long established Pharaonic style of government in favour of a democratic and liberal one. For thousands of years Egyptians have had no say in choosing their rulers. Following the 25 January protests this could change."
Article 76 was first amended in February 2005 following pressure from the administration of President George Bush. The amendment replaced the selection of the president via public referendum with multi-candidate presidential elections. It included tough conditions, however, which made it impossible for independents to stand. Article 76 was amended again in 2007, making it a little easier for opposition parties to field presidential candidates but still excluding independents.
Farahat believes the article must be revised to allow for independent presidential candidates.
"This is very important to allow prominent public figures such as Arab League head Amr Moussa and former director of the International Atomic Energy Agency (IAEA) Mohamed El-Baradei to run."
It is a significant step forward, says Farahat, that Mubarak has finally accepted that Article 77 be amended.
"When the constitution was drafted in 1971 it stipulated that the president of the republic would stay in power for no more than two six- year terms. It was in 1980 that MPs from the ruling National Democratic Party (NDP) asked parliament to amend the article to make it possible for the president to be re-elected for additional terms."
Vice President Suleiman also said, "there is no objection that amendments include Article 88 of the constitution". In July 2000 the Supreme Constitutional Court (SCC) ordered that elections must be placed under full judicial supervision to comply with Article 88. Elections to the People's Assembly and Shura Council in 2000 and 2005 were held under full judicial supervision, the result being an increase in the number of opposition MPs.
Following President Mubarak's decision to re- amend Article 88 and eliminate judicial supervision the ruling NDP swept the elections, securing more than 95 per cent of seats.
In its dialogue with Suleiman opposition forces demanded the newly-elected People's Assembly be dissolved and new parliamentary elections held under full judicial supervision, i.e. that Article 88 revert to its pre-2007 form. Suleiman's response was that it is impossible to dissolve the People's Assembly, given the limits on time and the lack of the necessary numbers of security forces.
"It is better at the moment that the Court of Cassation, as empowered under Article 93 of the Constitution, investigates existing appeals filed against the results of the elections to legitimise the assembly. Then it will be possible to re- amend Article 88 of the constitution to re- institute judicial supervision in future elections."
Some 1,560 appeals, affecting 486 deputies, are pending. They will, says Farahat, take time to hear -- parliamentary speaker Fathi Sorour has said the process will take at least two and a half months. And should the courts find against a large number of sitting MPs it will take yet more time to organize new polls.
On Tuesday Serri Seyam, chairman of the Court of Cassation, was entrusted by Mubarak to lead a 10-member committee tasked with implementing the national dialogue's recommendations concerning articles 76, 77, 88 and others. The committee includes several reformist judges and constitutional experts, alongside opposition activists Mahmoud Mekki, Yehia El-Gamal and Ahmed Kamal Abul-Magd. Old guard regime loyalists who promoted 2007's 34 amendments, including Fathi Sorour, were excluded from the committee.
Political analyst Amr Hashem Rabie views these developments as a significant step towards constitutional reform.
"The regime looks sincere about its promises of reform and change," he says, "though it remains necessary that pressure from Tahrir Square continues to keep up the momentum."
Other proposed amendments include Article 179, changed in 2007 to allow the president of the republic to refer civilians to military tribunals, and Article 93, which makes the People's Assembly the final arbiter of appeals filed against the results of parliamentary elections. Currently, the Court of Cassation, which is entrusted with investigating appeals, must refer its findings to the People's Assembly where they are required to be passed by a two-thirds majority.
"Article 93 needs to be re-amended to give the Court of Cassation the final say in appeals," insists Rabie.
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Texts of constitutional articles under review
Article 76:Nomination for presidential elections shall be allowed for political parties provided they were founded five years before the date for candidacy nominations, have been active throughout this period and have at least three per cent of the total of elected seats in each of the People�s Assembly and Shura Council, or the equivalent of this combined percentage in one of the two houses. The presidential candidate to be fielded by any party must have held high office for at least one continuous year.
As an exception from the above paragraph, the above-mentioned political parties shall be allowed to field candidates in any presidential elections to be conducted within the next 10 years, starting from 1 May 2006 provided that one of its members has won a seat in the People�s Assembly or Shura Council in the most recent parliamentary elections.
Article 77: The term of the presidency is six years, starting from the date the result of the election is announced. The president of the republic may be re-elected for other terms.
Article 82:If on account of any temporary obstacle the president of the republic is unable to carry out his duties, he shall delegate his powers to a vice president or the prime minister in case there is no vice president. The person who will deputise for the president shall not be allowed to request amendments to the constitution, dissolve the People�s Assembly or Shura Council or dismiss the government.
Article 88: The necessary conditions stipulated for becoming a member of the People�s Assembly shall be defined by law. The rules of election and referendum shall be determined by law. The ballot shall be conducted in one day. A supreme commission characterised by independence and impartiality will supervise the elections as regulated by law. The law shall define the functions of the commission and the way it is formed and ensure its members are either current or retired judges. The commission will take charge of forming the general committees which will supervise the elections at the level of voting districts and committees which will supervise polling and vote-counting. The general committees should be formed of members of the judicial authorities in accordance with the rules and measures regulated by law.
Article 93: The People�s Assembly shall be the only competent authority to decide upon the legality of the membership of its deputies. The Court of Cassation shall be entrusted with investigating the election appeals submitted to the assembly. The appeals shall be referred to the Court of Cassation within 15 days as from the date on which the assembly was informed of it, while the investigation shall be completed within 90 days. The result of the investigation and the decision reached by the court shall be submitted to the assembly to give a final say about the legality of its deputies. The membership of a deputy shall be deemed invalid only upon a decision taken by a majority of two thirds of the assembly�s deputies.
Article 179: The state will assume the responsibility of safeguarding security and public order in the face of the dangers of terrorism. Special rules of identification and investigation required for combating such dangers shall be regulated by the law under the supervision of the judiciary and in a way that can not be hampered by the measures stated in articles 41, 44 and the second paragraph of Article 45 of the constitution. The president of the republic is empowered to refer any terrorist crime to any of the judicial authorities stated in the constitution or the law.


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