| A referendum on a controversial set of constitutional amendments is the nation’s first experiment in true democracy in decades By Randa El Tahawy |
| For the more than 18.5 million Egyptians who participated in the March 19 referendum, it was the first genuinely free democratic experience for decades. And an eagerly awaited one — 41 percent of the nation’s eligible voters turned out to vote on a package of constitutional amendments that will shape the upcoming election process. Despite vehement and at times bitter debate in the run-up to the referendum, the amendments were approved by an overwhelming 77.2 percent of the vote, paving the way for the transition from the military-run provisional government to a democratically elected one.“I am 56 years old and this is the first time I vote in my life,” said Sanaa, an enthusiastic voter waiting in the long women’s queue to cast her ballot at a school in Heliopolis.
Sanaa’s tale was echoed throughout that Saturday, declared a public holiday by the governing Supreme Council of the Armed Forces (SCAF), with crowds gathering on corners and coffee shops to show off their inked fingers as proof they voted.
Said Sadek, a sociology professor at the American University in Cairo (AUC), notes the referendum was a learning exercise in democracy and politics. “It was the first time the Egyptians did not know the results of the elections beforehand. It trained Egyptians about accepting differences and [taught them] about tactics used by some political forces to misinform them and guide their votes.”
Sadek is not surprised by the turnout, one of the highest in decades. “The feeling of freedom also propelled many to vote anywhere,” Sadek says.
SHAPING EGYPT’S POLITICS
A panel of legal experts, headed by former State Council First Deputy Tarek El Beshry, was tasked with drafting the amendments, which mainly address presidential and parliamentary elections, in less than a month. They were presented to the public on February 26, allowing for a brief period of public discussion and possible further changes before the referendum on March 19.
The SCAF confirmed the results and that the amended articles are now in effect, but at press time the council had not issued the promised constitutional declaration that would create the framework for actual elections. Local media reported that the delay was due to disagreements among the committees drafting the declaration, with independent daily Al-Masry Al-Youm’s English website reporting that the committees were seeking a “consensus among political forces.”
Excluding the 12 articles affected by the March 19 referendum, the rest of the Constitution remains suspended. The awaited declaration is expected to indicate how authority will be exercised until the parliament and president are elected and clear up confusion over whether or not parts of the 1971 Constitution will be brought back into effect as well as what the role of the SCAF will be during the transition.
The suspended Constitution was approved by popular referendum under late President Anwar El Sadat and was amended for the fourth time last month. Chief Justice of the South Cairo Court Ahmed Mostafa explains that these amendments were shaped to ensure the transitional phase leads to fair parliamentary and presidential elections. They also added significant changes to many articles that were long contested by the public.
THE AMENDMENTS
The amendment of Article 75 came as a surprise to many since it was not among the protestors’ demands and was not mentioned in the original list of articles the committee was tasked to amend. Specifying the requirements for a presidential candidate, Article 75 stated that the president should be an Egyptian, born to Egyptian parents and over the age of 40. The amended article now also stipulates that the president may not hold a second nationality currently or at any time in the past and that the president cannot be married to a non-Egyptian.
Critics of the amendment say it clearly targets potential candidates such as Ahmed Zuwail, an American-Egyptian scientist and the 1999 Nobel laureate in Chemistry.
Mostafa explains that this article might pose a problem by excluding dual-national candidates who are willing to give up their other nationality to qualify. However, he does not see it as problematic. “I think that if Zuwail weren’t here nobody would have objected to this.
As far as I know there are a lot of constitutions that have this requirement,” he says, adding that it can also be seen as holding back Gamal Mubarak, the younger son of the former president, from running since both he and his mother have British passports.
But many, including Malak Khalil, a young Cairo-based lawyer, do not share this view. Khalil believes it isn’t fair to put an absolute ban on everyone with dual nationality or who are married to foreigners. Khalil also objects to the fact that the article does not take into consideration people who have a second nationality due to circumstances beyond their control, like being born abroad.
“I understand that dual nationality may, in some cases, reflect dual loyalties,” Khalil says, “but to tackle this issue, the article could have highlighted that the president may not hold a dual nationality during his term instead of extending the ban in such an abusive manner.”
Seen as a significant step forward, the March 19 changes to Article 76 ease the requirements to run for president. In 2005, the article was amended to allow multi-party presidential elections but placed heavy restrictions on candidacy, nearly making it impossible for any politician outside of the once ruling National Democratic Party (NDP) to run for office. The new article now makes it possible for the presidential candidate to be nominated in any of three ways: endorsement by 30 members of the People’s Assembly or Shura Council; endorsement by 30,000 eligible voters, with at least 1,000 endorsements from at least 15 governorates; or membership in a political party with at least one seat in either of the houses of Parliament.
Mostafa says it is great the candidacy requirements have been eased, noting that the required number of endorsements is far more achievable now. However, he does think the requirements might be too easy now, in the sense that it makes room for nearly 20 candidates to present themselves, which could splinter voting. Too many candidates, he argues, means the person with the most votes might not have a majority of the overall votes cast.
“[This] might result in having the president win with 25 percent of votes and this would be very wrong because he won’t be representing the people,” he says. Mostafa suggests adding a clause requiring a run-off among the top two or three candidates, so the president would be the person who clearly has the majority of the votes and represents the people.
The newly amended Article 76 also establishes a committee composed entirely of senior judges by virtue of their position — no appointees — to supervise the presidential election from the opening of the nomination period through the announcement of results. The commission’s decisions will be final.
The insistence that presidential elections be returned to judicial supervision is a core opposition demand. The article also stipulates that the Supreme Constitutional Court reviews all laws pertaining to presidential elections to determine if they are constitutional. This presumably would ensure that there is no challenge to the legitimacy of an election after it is held. “I think that when we hold presidential elections there can’t be appeals,” the judge says. “We can’t keep it up in the air like that, at least for the period that we are in.”
Article 77 shortens the presidential term from six to four years and establishes a limit of two terms.
Article 88 establishes complete judicial supervision over all elections and referenda — from the announcement of elections to the announcement of results and specifies that electoral rolls, voting and counting will be supervised by members of the judicial apparatus nominated by their higher commissions. In the past, the elections were to be supervised by an independent entity that had to include but was not solely formed of judges and didn’t supervise all aspects of elections.According to Mostafa, this move is a positive one but might pose some problems to judges in the sense that they will be overwhelmed with work. “Of course the judge will do a great job, but all these judges have court cases to oversee,” he explains. “So you can imagine that in a year where there are at least four elections, people can forget about their cases being resolved quickly.”
Article 93 gives the Supreme Constitutional Court, not Parliament itself, the authority to decide and enforce legal challenges to parliamentary races. In the past, electoral challenges for most cases went to the Court of Cassation, Egypt’s highest court of appeals. It would issue its judgment but then refer to Parliament for enforcement. This procedure was abused as large numbers of MPs were simply allowed by their colleagues in Parliament to hold their seats, even after the court had ruled their election invalid.
Article 139 now obligates the president to appoint one or more vice presidents within 60 days of being elected. Previously it allowed for a vice president but did not require one. “Some people do not agree that the president should appoint them,” says Mostafa “They want people to elect the vice president along with the president.”
Article 148 now restricts the government’s ability to impose a lengthy state of emergency by saying the president must submit a declaration of emergency to Parliament within seven days. It also restricts the duration of the emergency period to no more than six months, which can be extended only by approval in a referendum. In the old article, no limits were set on an emergency state, and the president could declare a state of emergency with the People Assembly’s approval.
While Mostafa applauds this article, he says it is not very practical. He notes that if the country is in a real state of emergency it would be difficult to hold a national referendum.
Article 179, which allowed constitutional provisions protecting human rights to be waived in cases of terrorism, was eliminated. “This article puts an end to the hell that we have been living in for 30 years.” Mostafa says, echoing the sentiments of the article’s many critics. “This emergency law was practiced in a the wrong way,” he added, noting it allowed Mubarak to arrest whomever he wanted and make the Interior Ministry his private police force.
Article 189 was also a strong source of controversy. The old article allowed the president or at least one-third of the Parliament to ask to change articles of the Constitution, which could then only be approved by a majority of the Parliament.
The amended article adds a provision that in effect requires the next Parliament to draft a new Constitution. Specifically, the provision stipulates that for a new constitution to be drafted, it has to first be requested by either the president — with Cabinet approval — or at least half of the members of both houses of parliament.
It calls for a constituent assembly of 100 members to be elected by a majority of the elected members in a joint session of the People’s Assembly and Shura Council, which would draft a new constitution within six months and submit it for a popular referendum.
Mostafa explains that the original amendment proposed by the SCAF-appointed panel did not put an obligation to completely change the Constitution, which is why the provision calling for the constituent assembly was added.
“People who say that it is not an obligation are wrong. They didn’t understand the wording. Legally this is an order,” says the judge.
“Everyone wanted to see an obligation added to the article [itself] and it can’t happen because this is going to put a date to the article. What if the committee to change the constitution doesn’t finish on time, [in which case] this article will not be viable anymore.”
Mostafa adds that Article 189 includes another clause to address the Shura Council body. Since two-thirds of the Shura Council are elected and one-third appointed by the president, the clause stipulates the council will pursue their duties even if the one-third is not appointed yet, in order not to halt any of the processes of drafting a new constitution.
Many people have strongly opposed this article, including Khalil. “This amendment does not take into consideration the demands of the January 25 Revolution,” she says. “It does not give the people the right to choose a new legitimate constitution. I disagree with the sequence of events presented in this article: elections first then drafting a constitution. How can a constitution that supported dictatorship still be in place and support democratic elections?”
YES OR NO
Khalil’s argument about the legitimacy of the 1971 Constitution is at the center of the vehement debate over the amendments. The referendum presented the 12 amendments as an ‘all or nothing’ package: a “yes” vote meant the voter approved all 12, and a “no” meant he or she rejected them all.
In two short weeks, campaigns for yes and no — backed by civilian activists, heavyweight politicians and legislators on each side — ranged from handbills and banners to media debates. Even within each camp, people voted yes or no for entirely different reasons.
In the no camp, many demanded that a new constitution should be written rather than amending a document they felt lost its validity with the fall of Mubarak’s regime. Some even went as far as tagging it “Mubarak’s constitution.”
“We are amending a constitution which actually died between January 25 and February 11,” said Amr Hamazawy, a political science professor at Cairo University and the research director and senior associate at the Carnegie Middle East Center in Beirut, in a March 17 interview aired on Nile FM radio. “We went out on the streets, we made a revolution not only to remove Mubarak from the presidential palace; we removed the regime. And the constitution of 1971, that was a constitution with which the Mubarak regime ruled Egypt. So it stopped as soon as the regime ended.”
Hamzawy has been a prominent figure in debates over Egypt’s political transition. In multiple interviews during the run-up to the referendum, he argued that rejecting the amendment package would force the SCAF to allow for a realistic time frame to draft a new balanced constitution that reflects the demands and rights of all Egyptians and not just the existing political parties, which are the only ones ready for elections on such short notice.
Apart from the amendments themselves, Hamzawy, Khalil and other critics have issues with holding early parliamentary elections. Their argument is that the NDP and Muslim Brotherhood stand to benefit from early elections as the dozens of smaller parties set up following the uprising have yet to fully organize themselves.
“If we rush into parliamentary elections without enough active political parties, which is the case today, we run the risk of ending up with a parliament that does not reflect the Egyptian people,” says Khalil,.“One which will mainly be composed of ex-NDP members and members from the Brotherhood since they are the two most active and experienced parties.”
Mostafa acknowledges this risk but says he doesn’t expect these party members would try to cling to power as they are afraid of the public’s reaction.
Khalil says not being able to vote on each amendment individually was another problem. “I disagree with the voting procedure being one vote for all amendments as it does not give the opportunity for people who agree with some amendments to express their agreement,” she says.
Many campaigning for a yes vote felt that approving the amendments would help restore stability to the country and believed that the sooner the transition takes place, the better it will be for the country.
Mostafa explains that both scenarios entailed risks but that accepting the amendments was a safer choice. “I want the army to leave as soon as possible,” he says. “I am afraid that they will cling onto power. I am also afraid the NDP and the [former] State Security would start creating problems between the army and the people.”
Ibrahim El Houdaiby, a 27-year-old political activist, also felt the threat of having the army stay longer and gain legitimacy as a ruler was a more pressing concern the threat of not being ready for elections. “I see the acceptance of these amendments as a cooperation between the citizens and the army,” he says, “and it sets up a transition that we all agree on.”
El Houdaibysays that the amendments establish a clear mechanism on how to draft a new constitution within a shorter time frame, while still ensuring free and fair elections.
The debate also took on a religious tone, with many politicians and Islamists urging people to vote yes as a religious obligation. Approving the amendments, they claimed, would ensure that the controversial Article 2 would not be removed from the Constitution. (Article 2 was not included in the package of amendments, and the March 19 referendum results do not affect its status or guarantee its future in any way.)
Last amended under Sadat in 1980, Article 2 states that Islam is the religion of the state and that the principles of Islamic Law, Shari’a, are the principal source of legislation. Many civil activists, both Muslim and Christian alike, have called for the removal of this article to make room for a secular state.
Advocates of Article 2 have portrayed the calls for a secular state as an anti-Islamic notion and succeeded in raising concerns for many.
“I voted no to the amendments but I was worried that when drafting the new constitution they would remove Article 2,” said Mervat Eid, a 52-year-old housewife.Members of the Salafi movement and the Muslim Brotherhood were among the advocates of the yes vote, declaring it a religious duty for all Muslims. Adverts and statements appeared in newspapers, on television and in fliers urging pious Muslims to vote “yes.”
Following the referendum results’ announcement, prominent Salafi Sheikh Mohammed Hussein Yaqoub labelled it a “victory for religion,” claiming that people said yes to the marriage of religion to politics — and that the fight was not about the Constitution, but the place of religion in this society. “All religious people, from all trends, were in one camp, saying ‘yes’,” he told his followers in a sermon rebroadcast on the video sharing website YouTube.
A group calling itself the Shari’a Association for Worker Cooperation through the Qur’an and Sunna ran an advertisement in the March 16 Arabic edition of the state-run Al-Ahram daily saying the January 25 Revolution was a gift from God which needed to be protected. The advert continued: “The entire leadership of the association considers it to be an Islamic duty that every Egyptian voices his/her agreement to the amendments as a first step toward the later formulation of a complete constitution. Gradual reform can’t be rejected by any sane person. We see giving up on this duty as a negative deed rejected by Islam.”
TRANSITION TO DEMOCRACY
Experts have been disappointed by how the debate surrounding the referendum turned into a religious debate playing on stereotypes about the implications of voting yes or no.
Rabab El Mahdi, assistant professor of political science at AUC, was expecting the yes vote would win by a majority, but didn’t think the number would be as high as 14 million.
El Mahdi was also disappointed by the framing of the results. She says that some political forces have “dishonestly” dubbed the yes vote as a means to stability and a confirmation of the legitimacy of religion, whereas rejecting the amendments came across as a route to chaos, “which is not true.”
Sociology professor Sadek agrees and says that the referendum was presented to the people as if yes is stability and a return to normalcy, while rejecting the amendments would keep the country in limbo and would waste more time. “With almost 40 percent of the population below the poverty line and one-fifth of the economy in the informal sector, it was clear that the main issue for many would be stability and return to normalcy, more than technical differences over constitutional articles,” he says.
With the constitutional decree shaping up the future of the country experts agree that many challenges are ahead.
From an academic perspective, Sadek sees the future shaping up in four different phases: revolution, the counter-revolution, a new political order and the consolidation of the new political system. “Egypt at present and for two years will continue to experience the first three stages at the same time,” he explains. “As soon as a new constitution is drafted, parliamentary and presidential elections held, we enter the fourth stage of consolidating the new political system that would empower Egyptians and protect their human rights thus leading to real development.”
El Mahdi says now the most important thing is for people to organize into political entities, parties and committees, so they can get their voices heard and keep certain political tendencies from hijacking their voices. She explains: “There needs to be enough mobilization […] to put pressure on the candidates, be they for parliament or presidential elections, to adopt a program [that fulfills] the revolution’s demands [for] social justice, with freedom and that ends the mechanisms for corruption mechanisms.”
Regardless of the results, many are optimistic about the future of Egypt, seeing that what is currently happening hasn’t been seen in decades. Despite the differences of opinions, people have generated a new wave of interest in the future of the country and politics in general. For that alone, the March 19 referendum gets two inked thumbs up. |
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