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Wednesday, March 16, 2011

Egyptian Constitutional Reform, Take 1

In the midst of tragic and jarring world events in Japan, Libya, and Bahrain, we should not take our eye off of the ball in Egypt as it sets the pace for reform in the Arab world.  To open first post-revolutionary chapter in Egyptian history, the Supreme Council of the Armed Forces (SCAF) has set a milestone referendum on 10 new constitutional amendments for Saturday.  Within just days of its ascent to power, the SCAF appointed a Constitutional Amendment Committee and gave it just 10 more days to propose amendments dealing with parliamentary and presidential elections.

 The proposed amendments have been controversial in Egypt.  Proponents say these changes abolish the worst excesses of the old regime, meet key demands of the protestors, show that the military is serious about change, and represent a crucial early move forward toward eventual democracy.  Indeed, many changes seem like a step in the right direction -- like imposing presidential term limits, requiring a public referendum to extend the despised emergency law for more than 6 months (Article 148) and abolishing Article 179, which allowed Mubarak to commit heinous acts in the name of national security.  The drafters also wisely sidestepped political conflict by leaving thorny political issues unaddressed.  The amendments leave intact the provision against forming political parties “with a religious frame of reference” (Article 5), which effectively bars the Muslim Brotherhood from forming a political party. 

 The proposed amendments may pave the way for the Egyptian judiciary to take a leading role in democratic transition.  The Supreme Constitutional Court would have the ability to decide eligibility for members of parliament (Article  93).  Judges with positions held by seniority – not appointees -- would have broad powers to fully supervise presidential elections (Article 88).  Rather than having an independent electoral commission or international observers primarily supervise the first democratic elections in the largest country in the Arab world, Egypt would rely on a judiciary developed under Mubarak to supervise the reform of its other governmental institutions.  This appears to signal trust in the judiciary and a desire for Egyptian self-reliance by the CAC.  However, it is a well-known fact in Egypt that that not enough judges exist to supervise countrywide elections in a single day.  The framers of the amendments wanted the judges to have technical assistance from outsiders, or left open the possibility of electoral manipulation inherent in elections that occur over multiple days. 

 While the amendments represent a positive start, these rushed, superficial constitutional revisions alone will not lead to substantive democratic change in a deeply flawed system.  Organizing a vote in a country of 83 million is an overwhelming logistical task when previous elections were outright rigged by the Mubarak regime.  Without appropriate time to prepare internal or external monitoring, the referendum process itself is fraught with opportunities for fraud.  Moreover, the SCAF appears to be ramming the amendments through as a package with little opportunity for public debate or dissent on individual provisions.  This does little to promote democratic discourse, and evokes tactics long used by authoritarian regimes to preserve power under democratic guises. 

Perhaps most importantly, these constitutional amendments are hollow without support from the rest of the Egyptian legal and political system.  The constitution in its entirety was suspended by the SCAF, and they will retain power to enact the new amendments.  Much of the enabling legislation that gives life to these provisions will remain the same as it was under the Mubarak regime until a new parliament can be elected to change it.   Political parties, largely absent from the proposed amendments, have an unspecified role in the new Egyptian political ecology.  No matter the result of Saturday’s referendum, it thus remains unclear whether what appears to be monumental constitutional change in Egypt will result in any change at all.  

Posted by Jill Goldenziel on March 16, 2011 at 11:08 PM | Permalink

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