The Arabist

The Arabist

By Issandr El Amrani and friends.

In Translation: How Egypt's constitution will be amended 1/2

This is the first of two translated articles selected from the Egyptian press on the process of amending Egypt's 2012 constitution, which according to Interim President Adly Mansour's Constitutional Declaration (CD) of July 8 will be amended and put to a referendum before new elections are held. This first article is an interview with Mansour's constitutional advisor, the second article contains possible amendments being considered. Both are translated by our long-standing partner, the most excellent Industry Arabic. Please give them translation jobs, you won't be sorry and you'll help them help us continue to provide this free service.

The July 8 CD calls for the formation of a committee of 10 constitutional scholars and judges tasked with preparing the amendments to the controversial 2012 text, which has approved hastily last December by an Islamist-dominated Constituent Assembly. These proposals will be then put to a second committee of 50 figures drawn from public life. While the committee of 10 (let's call it C10 for short) is appointed by the interim president, the committee of 50 (C50) is supposed to represent major corporate interests in Egypt, as per Article 29 of the CD which stipulates it represent:

...  all segments, sects and demographic diversities of society, especially parties, intelligentsia, labourers, peasants, members of trade unions, specialized federations, national councils, al-Azhar, the Egyptian Churches, Armed Forces, the police and public figures, provided that ten members at least be young people and women. Each institution shall nominate their representatives, and the Cabinet shall nominate the public figures.

There is a lot of confusion as to how this process might work as it was suggested the C10 would be the only body that can draft the text of amendments, which would mean the C50 is a talking shop with little power. The interview below, if reliable (because everything can change very quickly in Egypt), provides some clarification and at least an indication of the intentions behind this process, which has been criticized by many.

The amendment of the constitution is a key battleground for Egypt's transition, with differences not only between Islamists and non-Islamists but also within the secular camp that broadly backed the July 3 coup. There is of course whether the Islamists of the Nour Party will get to keep the conservative language of the original (the balance of power in the current pro-coup coalition makes that unlikely, unless they decide they need Nour too much in order to break Islamist unity, since the Muslim Brotherhood and some others reject the validity of this entire post-coup process). But then there are questions of the military's privileges, personal liberties and reining in the interior ministry, and much more. 

This interview provides some clarity, notably the surprise that the procedure laid out in the July 8 CD is not necessarily final. Some backers of the coup were disappointed that the CD called for presidential elections after parliamentary ones, and here it is indicated the order could still be reversed. It goes to show how so much is still at play, even beyond the immediate political crisis and assuming the coup and CD holds. 


Mansour's Constitutional Advisor: committee to amend constitution will operate free from any constraints

Interview by Samar al-Gamal, al-Shorouk, 22 July 2013

Constitutional and legal advisor to the president, Ali Awad Saleh, stated that the "Committee of Experts" tasked with amending the country’s constitution, which was formed yesterday by a decree from President Adly Mansour, will operate free from all constraints, and that the constitutional declaration recently put out by the president does not immunize any of the articles that appeared therein from amendment.

In an interview with al-Shorouk conducted by Samar al-Gamal, Saleh – who was recently appointed rapporteur of the Committee of Experts – added that the Committee of Fifty will have the power to add additional amendments to the constitution after the Committee of Experts. The Committee of Fifty will also be allowed to rearrange Egypt’s transitional stage if it feels it is necessary to hold presidential elections before parliamentary elections. Such a scenario will be proposed within the draft constitution and will be carried out if approved in a popular referendum.

In his first press interview, Saleh stated that the president will only exercise legislative authority within narrow limits and with the participation of the cabinet. He emphasized the fact that those currently administering the country are determined not to let the transitional period drag on.

He added that the parliamentary elections law and the dividing up of electoral districts have been put on hold until the constitution is done being amended. According to him, so far no amendments have been made to the constitutional declaration, adding also that no supplementary declaration has been released. He stated that for now it would be best to work and focus on amending the constitution, and that any objections to the constitutional declaration should be put before the Committee of Experts. The transcript of the interview is as follows:

Q: A decree has been issued to form a Committee of Experts for the purpose of amending the constitution. However, some details of its work have been left out. For example, who is its chairman? What is its work method? How does it receive proposals?

A: The Committee, as formed by the constitutional declaration, was not required to appoint a chairman. However, according to a decree recently issued by the president, a technical secretariat was formed comprising an administrative, clerical and technical official, along with a supporting team, for the purpose of aiding the Committee in its work. This will include receiving suggestions for proposed amendments to the constitution. The Committee itself will determine the mechanisms through which it conducts its work.

Q: And who is to determine the scope of the amendments and the articles of the constitution which are to be changed?

A: The Committee's mission will be to review the text of the 2012 constitution, while at the same time receiving suggestions and ideas put forth by various actors, political forces and popular movements. The Committee will be open to all those who seek to contribute to the process of amending the constitution. At the end of the day, it will give shape to these proposals in the form of a draft amendment that will then be presented to the Committee of Fifty.

Q: If disagreements arise, how will they be solved?

A: The Committee is supposed to be a collegial entity, and as is our custom in the judiciary, will make decisions based on the majority rule of its members. However, it will be members of the Committee themselves who will determine the means by which they will conduct their work, as opposed to it being imposed on them from outside the Committee.

Q: What if the Committee receives a suggestion from outside its ranks which does not make it into the final amendments draft?

A: When the Committee of Experts presents its work to the Committee of Fifty, it will record either in its minutes or in an explanatory brief all of the proposals it has received and its reasons for rejecting any of them.

Q: So what is the role of the Committee of Fifty if the draft amendments will be referred to it ready-made?

A: The Committee of Fifty, in so far as it represents all sectors of society according to the constitutional declaration, will determine whether or not the draft amendments it receives are complete and satisfy the will of the people, or if the constitution needs additional amendments. Then in the end it will put them forward for national dialogue.

Q: So you’re saying that the Committee of Fifty could ask for additional amendments? If so, would the text of the draft amendment then be sent back to the Committee of Experts?

A: Yes, the Committee of Fifty has the right to insert additional amendments. Most likely the Committee of Experts and the Committee of Fifty will work together in order to better achieve integration and avoid wasting time.

Q: Wouldn’t it be better then to just start with the Committee of Fifty?

A: This is one point of view. However, we feel that the Committee of Fifty already has its work cut out for it due to the time constraints. Otherwise, the Committee of Fifty would need to form various committees, similar to what happened with the country’s previous Constituent Assembly, such as the system of government committee, the executive branch committee, the drafting committee, etc. All this would require more than the two months allotted.

Q: Simply adding amendments to the Muslim Brotherhood’s constitution does not satisfy people's aspirations. Is it possible to devise a brand new constitution all together?

A: The Committee of Experts is bound by the constitutional declaration and the decree issued regarding the committee’s formation to insert amendments into the suspended constitution. It is true that on the street and in the media it appears that there is a genuine desire for a new constitution. However, this matter is up to the Committee of Fifty, in so far as it represents society.

Q: What about those articles included in the constitutional declaration? Does their inclusion in the declaration protect them from being amended?

A: No, it does not protect them at all. The Committee of Experts has complete freedom to consider all the articles in the constitution. The constitutional declaration only governs Egypt’s transitional period, and the articles in it do not place any restrictions on the Committee of Experts or the Committee of Fifty.

Q: There exist fears related to freedoms, particularly with regards to the status of the military establishment and oversight of it, in addition to the articles dealing with religion. Do you envision that the Committee of Experts will amend these controversial articles?

A: The Committee will operate free from any restrictions.

Q: Will the Office of the Presidency offer up any ideas regarding specific amendments?

A: The Office of the Presidency is keen on leaving such issues to specialists, and does not seek to play any role or offer any guidance in this process.

Q: What about guidance from the military establishment regarding amendments?

A: We so far haven’t received anything from them. If the military establishment has any ideas regarding amendments they can forward those ideas to the Committee of Experts.

Q: We know that there exists an interplay of forces which may perhaps cast its shadow over the process of amending the constitution. So what guarantees do we have?

A: The guarantee is that the people want a constitution that can bring about a national consensus and help the country achieve progress. We do not want to take a step backwards. Therefore, the Committee of Experts was created to include those with a great deal of experience, who do not have any partisan affiliation, and who are united by a single goal: to put out a good product. For this reason as well we do not want to restrict their work.

Q: At the end of the day these are appointed committees. If the Committee of Experts understands things so well, does this not also apply to the Committee of Fifty?

A: The Committee of Fifty will be appointed, but according to nominations, criteria and specific rules to be determined during the work of the Committee of Experts.

Q: Why was it not decided that the Committee of Fifty should be elected?

A: We do not want to repeat the previous experiences and drag out the transitional period – which we've laid out very precisely. What we want at the end of the transitional period is for state institutions to be restored. Elections may not necessarily produce the ideal body, to say nothing of the high cost of running elections and other details involved. For example, will such elections be direct elections, or will they take place in two stages, with the people choosing a group of representatives who then select the Committee? Doing it this way would require more time, while those who are currently overseeing the country’s transitional period do not want to drag it out. Rather, what they want is a satisfactory constitution, in addition to functioning executive and legislative branches.

Q: Wouldn't it be possible to lodge an appeal against the constitutionality of such a formation? Similar to what took place with the previous Constituent Assemblies?

A: This grounds of this formation were made clear in the constitutional declaration, and there does not currently exist any appeal against the constitutionality of any text in the declaration. Rather, the challenge comes from the un-constitutional nature of legislative texts, and so it is not possible to appeal against the Committee's formation.

Q: What if the Committee of Experts disagrees with the Committee of Fifty regarding an article, who will decide the issue?

A: In my personal opinion the final say would lie with the Committee of Fifty. Such criteria and the mode of coordination between the two committees will soon be drawn up. Right now our focus is on the Committee of Experts and granting it the opportunity to begin its work.

Q: The constitutional declaration talks about societal dialogue – how do you envision that this will be conducted?

A: This dialogue will serve to gauge the people's orientation, in so far as they are the ultimate source of power. What I mean of course is not a dialogue with all 90 million Egyptian citizens, but rather surveying the views of various actors,and an exchange of perspectives between them and the Committee. This will take place during the Committee's work. Then, after the the constitution has been drafted, a whole month will be given to the people to read the draft constitution.

Q: In response to objections by a number of Egyptians – particularly the country’s youth – to the constitutional declaration, the Office of the Presidency promised to release a supplementary declaration or a series of decrees with legal force to amend the original declaration. Will such an amendment process actually take place?

A: As of now there has not been any amendment or supplemental declaration. I think what is best now is to move past the issue of the constitutional declaration, and begin the process of working on and thinking about the amendments to the constitution itself, and to submit such suggestions to the Committee of Experts.

Q: Of course you have heard the objections being made about the country’s road map and the powers of the president – what is your opinion regarding these issues?

A: I think the primary concern regarding the powers of the president has to do with the legislative powers he possesses. The constitutional declaration states that the president can only exercise legislative power after consulting the cabinet. As a close confidant of the president, I am saying that he will only exercise legislative authority within a narrow scope.
Usually legislation is made through a draft law prepared by one of the country’s various ministries and proposed to the cabinet. From there it will make its way to the parliament and then on to the president. Another way for legislation to be made is for parliament to propose a law.
However, at the moment there currently is no parliament, which leaves us with just the first option. If the president receives a proposal, he will then forward it to the government. In any case, the cabinet will also participate in this process.

Q: Is there a vision for the upcoming legislative agenda?

A: A law was passed having to do with Military Medical Academies which the Shura Council had approved before it was dissolved. Now we are trying to grant cabinet the power to take up legislation before it is presented to the president.

Q: The most prominent point brought up among the various objections made to the constitutional declaration has to do with the order of the road map, as the main call made within the declaration was to conduct presidential elections first.

A: Early presidential elections was one of the demands when the previous president was around, so that he would have to run for election again against other candidates. However after the events of June 30, we feel that it is more appropriate to start with the constitution and then for a parliament to speedily take over legislative authority. Presidential elections would then be conducted based on an elections law passed by parliament.

Q: However, the constitutional declaration states that presidential elections should be called just one week after parliament convenes.

A: I know that it is a short period of time. However, if the constitutional amendment committee believes that that arrangement is inappropriate for the country's current conditions and that the best thing to do is to hold presidential elections before parliamentary elections, it could propose this scenario and a referendum would then be held based on provisional regulations, and a date for presidential elections would be set for after the referendum held on the constitution. Either way, the matter will be left up to the committees.

Q: Does this not violate the constitutional declaration?

A: The declaration governs the transitional period. However, when the people – who are the source of power – take part in the referendum on the draft, the constitutional declaration will expire and the country will begin to be governed by the new constitution that the people will have approved.