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Egypt's Revolutionaries Face Constitutional Battle

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EGYPT STATE SECURITY

Throughout the 18 days of protests, which began on January 25, Egyptians demanded the "fall of the regime." And while February 11 was celebrated like any major feat, most realize that the end of a regime is not simply the fall of its patriarch, but rather the dismantling of the structure that anchored him. For this reason, one of the earliest demands of the revolutionaries was the amendment of the constitution to guarantee Egyptians equal opportunities for political participation. Many months before the revolution, the National Association for Change (NAC) initiated a campaign to collect 1 million signatures demanding constitutional amendments that would reverse the numerous prohibitive clauses which made democracy impossible and concentrated power in the hands of the formerly ruling National Democratic Party (NDP).

Shortly after president Hosni Mubarak's resignation, in a step to address the revolution's demands, the Supreme Council for the Armed Forces appointed a committee led by Chancellor Tareq Bishri to review the constitution and draft amendments to open up parliamentary and presidential election processes. From the outset, the committee was criticized for failing to represent the majority of Egyptian society. For example Nawal El-Saadawy offered a scathing condemnation of the committee for failing to include women, and many Copts complained that it did not consult Coptic legislators. Nevertheless, most waited to see what the committee would propose.

Admittedly, some of the proposed amendments resonated with public demands. For instance: article 77 limits the president's service to two terms each lasting 4 years; article 88 re-establishes complete judicial oversight of the electoral process; article 139 requires the appointment of a vice-president; article 148 permits the extension of State of Emergency beyond a six month period possible only by public referendum; and article 93 gives the Supreme Constitutional Court the authority to decide on the validity of membership in the People's Assembly. Tamir Moustafa, the author of The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (2007) and a professor at Simon Fraser University, has expressed some optimism about the amendments, saying that while they "do not constitute a fundamental break from the past, they do open a viable path to further political reform."

However, most analysts and constitutional experts have argued that the amendments are insufficient because they are grafted onto a defunct and corrupt constitution which needs extensive revision. At a recent briefing in Washington, DC, organized by the Arab-American Anti-Discrimination Committee (ADC), Adjunct Professor of Law at Georgetown University Sahar Aziz discussed the loopholes in the constitution. She argued that "limited constitutional reforms cannot replace the necessary comprehensive legal reforms required to transition to an effective and sustainable democracy." She further suggested that the "pace of reform should slow down to permit new parties, especially those that will represent the youth and minority groups, to develop and competitively run for Parliamentary offices."

Many believe the amendment to article 76 -- regarding the eligibility for presidential nomination -- are still too restrictive. It suggests that the candidate must be endorsed by 30 members from the People's Assembly or the Shura Council, collect 30,000 signatures from Egyptians from 15 governorates, or be a member of a party that holds at least one seat in parliament. Given the current political parties in Egypt, their under-representation in the last parliament and weak public outreach due to decades of marginalization, these conditions are prohibitive. Article 76 is far more problematic for subsequent elections, as a nomination will require securing 65 members of the People's Assembly, 25 members of the Shura Council Council, 10 members of local councils in at least 14 governorates. This is a near-impossible feat for a candidate without significant means and strong institutional support, and may therefore privilege former regime members. There needs to be a complete rewriting of article 76 to create a more accessible road to the presidency for more eligible Egyptians.

Aziz further argues that statutory emergency laws need to be amended to limit the use of military courts in adjudicating criminal matters. Political party laws need urgent redress to ensure functional and viable political participation, as well as laws governing the registration and legal parameters of NGOs and civil society institutions. For these and many other reasons, few of the revolutionary groups have expressed any real optimism about the amendments suggested.

Mohamed ElBaradei rejected the amendments outright and called for a complete review of the document. This would require more time and force a reversal of the elections schedule outlined by the Supreme Council for the Armed Forces -- constitutional referendum, parliamentary elections, and finally presidential elections. ElBaradei has pressed for a "presidential council" to oversee government affairs and see through this process, which would serve until a conducive timeline for changes is instituted. A conference entitled "Dostur Baladna" (Our Country's Constitution) was held on March 7 to discuss the proposed amendments. The resolutions announced by the participants reiterated ElBaradei's call that the 1971 constitution be annulled completely.

Lest anyone forget, the last time the constitution was amended in 2007, the modifications of 34 articles passed in a sham referendum marred with irregularities and miniscule voter participation. Despite the NDP's iron grip on the process and a predetermined outcome, the greatest problem for the amendment's opponents still prevails today -- the majority of Egyptians are not acquainted with the constitution at all. Even of those who have some awareness of it, many might be tempted to accept the draft by the rosy language of the amendments or because they feel enough has been accomplished already.

While the revolutionaries did call for quick action, they did not ask to either forgo the people's right to negotiate the constitutional changes or the time to inform the public about the repercussions of the proposed amendments if passed. By setting the referendum date as March 19, it appears the military's rush to confirm the amendments will come at the expense of informed public participation. And unless revolutionary groups can rally swiftly and effectively against the amendments, they run the risk of seeing them pass and losing a genuine opportunity for change.

To get their way, the revolutionaries must convince the Supreme Council for the Armed Forces and Essam Sharaf's government to scrap the referendum altogether and resort to another approach. This has already begun with fully-fledged campaigns in the print media, television and online. With barely a week before the scheduled vote, the armed forces have set up a committee to monitor reactions to the proposals. As well, a branch of the cabinet created a poll page to survey public opinion. So far the majority of votes are opposed. However, there is no guarantee that the military will comply. So far, they appear intent to move forward with the 19 March vote.

If the referendum does proceed, those in power now will likely benefit from the dilemma that stands before Egyptians at the voting stations -- take what is being offered and postpone substantial change, or opt for the most ambitious yet uncertain outcome. And while a revolution by definition is a complete overhaul and not a concession to the old state of affairs, many Egyptians are increasingly wary of further dissent. For those who want to see the revolution fully realized, they must do the impossible. In record time, they must convince the majority of Egyptians of the counterintuitive: That the only road to real reform is to say no to what looks like real reform. But this revolution has repeatedly shown it is capable of the impossible.