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Egypt’s ruling party has seriously damaged individual and human rights protections in its constitutional amendments, but can it survive the tensions that will result as a consequence, asks Amr Hamzawy*

On 26 March 2007, amendments to 34 articles of the Egyptian constitution, whose largely authoritarian content is discouraging for hopes of meaningful political reform in Egypt, were approved in a popular referendum that was boycotted by a clear majority of Egyptian voters.

Most of the amendments deal with political rights, the electoral system, the president’s mandate, rules governing presidential elections, succession, parliamentary powers, and combating terrorism. A few articles (4, 12, 24, 30, 33, and 56) were amended to reflect the changed economic and social situation in Egypt since the 1970s. References to socialism, the alliance of working forces and the leading role of the public sector in development -- all of which were inherited from the Nasserist era of the 1950s and 1960s -- have been eliminated. With the exception of these few articles, the passage of these amendments opens the door for greater polarisation between the regime and the Islamist opposition.

The Egyptian regime has several key motives for introducing the amendments. First, it is intent on politically restraining the Muslim Brotherhood, whose unexpected gains (20 per cent of the seats in the People’s Assembly) in the 2005 parliamentary elections set off alarm bells. Second, Mubarak’s regime is trying to thwart the opposition’s attempt to form a united front that includes Islamists and liberals. This divisive strategy dates to 2005 when the regime began to offer incentives to registered liberal and leftist political parties at the expense of the banned Muslim Brotherhood. Third, the regime attempted to create a new set of constitutional tools to further entrench its hold on political life. Fourth, the regime needed to show -- albeit cosmetically -- that it was responsive to the demands of the domestic opposition and to maintain a minimum degree of international legitimacy. Perhaps the only democratic outcome of the amendments is the relative increase in parliamentary independence and in the powers of the cabinet. The dominant presidency, however, remains intact. Legal opposition parties responded in the manner envisioned by the regime: they did not object to the measures aimed at restraining the Brotherhood. For its part, the Brotherhood perceived the amendments primarily as an attempt to marginalise it politically and thus opposed most of them.

The constitutional amendments add a third clause to Article 5, which stipulates that the Egyptian political system is based on party pluralism. The clause prohibits the pursuit of "any political activity or the establishment of any political parties within any religious frame of reference ( marjaiyya ) or on any religious basis or on the basis of gender or origin". This clause prevents the Muslim Brotherhood or any other political group that derives its programmes from a religious orientation from establishing a legally recognised party. More dangerously, the vagueness of the clause gives the regime the constitutional right to accuse any civil religious institution or civil organisation of involvement in religiously inspired political activity. Although the vague language may be used to target many potential groups -- such as the Wasat Party initiative that is inspired by an Islamic frame of reference -- it is clearly aimed at the Muslim Brotherhood.

The amendment to Article 62 further restricts the Brotherhood’s scope of political participation by marginalising independent candidates. The amendment allows for a change in the electoral system from a candidate-centred system to a mixed one that depends mostly on party lists, leaving only a small, unspecified margin for independent seats. As a banned organisation that is not allowed to form a political party, the Muslim Brotherhood has depended on the candidate-centred system for fielding candidates in parliamentary elections over the years. Decreasing the number of seats contested through this system would greatly minimise the Brotherhood’s electoral chances. At best, it would allow it to keep its current parliamentary representation. It also places the burden on the movement to look for partners among legal opposition parties as it did in the 1980s, a move that would limit the movement’s independence.

The amended Article 62 also serves the regime’s purpose of widening the gap between the Brotherhood and legal opposition parties. The liberal Wafd and Ghad, the leftist Tagammu and Arab Nasserist parties -- Egypt’s most significant legal opposition parties -- could not secure more than a combined five per cent of the seats in the People’s Assembly in the 2005 race. Confronted with the Muslim Brotherhood’s ideological strength and superior organisation, legal opposition parties have a vested interest in allying themselves with the regime to marginalise the Brotherhood and expand their own legal space as opposition parties. Despite the regime’s effort to market the amendment to Article 62 as a democratic step aimed at empowering political parties and raising voter turnout, this claim has limited credibility in a context where authoritarian regulations prevent the establishment of new parties and hinder the activities of existing secular and leftist activists. The fact that less than five per cent of Egyptian citizens are organised in political parties and that most of the registered voters vote for independents in elections raises doubts about the potential for widening popular participation under a party list electoral system. The only positive aspect in Article 62 is the stipulation regarding the quotas for women in both chambers of parliament.

The regime’s third goal of creating a new set of tools to control the electoral process is realised through the amendment of Article 88. The amendment replaces the stipulation regarding judicial oversight of the elections with a stipulation that a supreme supervisory committee be established -- a committee whose membership includes, but is not limited to, current and former members of judicial bodies -- to manage oversight of elections. The judiciary has supervised elections in Egypt since a Supreme Constitutional Court ruling in 2000 that was based on the former wording of Article 88, which stipulated direct judicial oversight of the elections (the ruling stated that "The Law shall determine the conditions which members of the Assembly must fulfil as well as the rules of election and referendum, while the ballot shall be conducted under the supervision of the members of a judiciary organ."). Although repression and fraud persisted, judicial oversight of the elections resulted in a relatively more transparent electoral process, especially during the 2005 parliamentary elections. While the new Article 88 leaves the selection process to law, it is expected that the supreme committee will be subject to the regime and the president. Notwithstanding their disagreements on the amendments to Article 5 and Article 62, the Brotherhood and legal opposition parties are unanimous in their opposition to ending judicial oversight of elections. The overhaul also enjoys no popular support. The public has grown increasingly convinced that the regime is intent on rigging the elections and that only judges can uncover such practices and prevent their spread.

The fourth motive has to do with the regime’s attempt to uphold its reform-friendly image and appear responsive to the demands of the domestic opposition and international criticism regarding restrictions on political competition. The new amendment of Article 76 is a case in point. Article 76, which regulates candidacy for the presidency, was already amended in May 2005 to allow for the first multi-candidate presidential elections. The 2005 amendment stipulated that a political party that holds at least five per cent of the total number of seats in both chambers of parliament may nominate a candidate for the presidency from its senior leadership. The amendment passed in 2007 lowers the threshold to three per cent and makes the exception for any party holding at least one seat in any of the chambers to nominate a candidate for the presidency from its senior leadership in elections that take place in the next 10 years. Undoubtedly, the revised amendment increases the chances of opposition parties to participate in the next presidential elections since none currently meet the former five per cent threshold. However, it leaves intact the impossible conditions regarding the candidacy of independents for the presidency. These conditions entail gaining the support of 230 members of parliament and municipal councils, and are specifically designed to exclude the Muslim Brotherhood from the presidential race (The Brotherhood currently holds 88 seats in the People’s Assembly and is entirely absent from the Shura Council and municipal councils).

The "big disaster," as it is being referred to in Egypt, is the amendment of Article 179. The former article, stipulating the powers of the "Socialist Public Prosecutor," was replaced with an entirely new text allowing for the stipulation of an anti-terrorism law. This law would give executive authority, specifically the president and the security forces, unprecedented powers that run contrary to constitutional guarantees of personal freedoms and individual rights. The impetus for amending Article 179 is the regime’s intent on setting the stage constitutionally for the abrogation of emergency law in effect in Egypt since 1981 while enshrining most of its prerogatives in the constitution. The amendment to Article 179 essentially gives the state the right to suspend articles 41, 44 and 45 of the constitution, which provide the clearest guarantee to human rights in the Egyptian constitution, under the banner of combating terrorism. The amendment also gives the president the right to refer crimes of terrorism to exceptional courts in a manner that violates Article 68 of the constitution, according to which every citizen has the right to resort to his or her "natural judge". Article 179 is yet further clear indication of the authoritarian spirit and content of the constitutional amendments and marks a regression with regard to respecting human rights in Egypt.

The regime’s attempt to expand legislative powers and the powers of the prime minister produced a fifth category of constitutional amendments with significant democratic content. This effort will remain largely symbolic, however, if it is not followed by additional amendments addressing the overall distribution of power in Egypt. On the one hand, revised articles 115, 118, 127 and 133 give the People’s Assembly the right to vote article by article on the state’s general budget and withdraw confidence from the cabinet, forcing the president to accept the cabinet’s resignation if the Assembly insists on withdrawing its confidence. At the same time, however, revised Article 136 gives the president the right to dissolve parliament without a referendum, a requirement stipulated by the formerly worded article. On the other hand, amendments to articles 82, 84, 85, 138 and 141 introduce real changes to the role of the prime minister in the political system. These articles give the prime minister the powers of a vice-president if there is none (President Mubarak has not appointed a vice-president since his accession to the presidency in 1981). The most important of these powers are those related to succession in case the office of the presidency is not occupied and in case the president cannot perform his duties. The amendments also stipulate that the prime minister must approve or be consulted with regard to the president’s exercise of his vast executive and quasi-legislative authorities. The problem, however, is that the amendments do not fundamentally alter the distribution of power between the president and the prime minister. The president continues to enjoy sole authority over the appointment and dismissal of the prime minister.

The regime’s monopoly over political life in Egypt and the comfortable majority of the ruling National Democratic Party in the People’s Assembly allowed it to pass the amendments without any serious consideration of the demands of opposition parties or the Muslim Brotherhood. Frustration with the regime’s exclusionary attitude led all opposition groups to boycott the parliamentary vote on the amendments. Some called on voters to boycott the 26 March referendum. These formal positions belie a more complex reality.

Opposition parties and the Muslim Brotherhood agree only on their rejection of the amendments to Article 88 and Article 179. With the exception of these two articles, the regime succeeded in driving wedges between opposition forces by amending Article 5 and Article 62, which disadvantage the Brotherhood but boost legal opposition parties. Notwithstanding the opposition parties’ decision to boycott the referendum, these parties are bound to accept the amendments as a fait accompli, given their stake in maintaining good relations with the regime. Conscious of their weaknesses and their inability to pose a challenge to the regime, opposition parties have come to rely on the regime to ensure their survival. Ultimately, they will learn to adapt to the overhaul of judicial oversight of elections and the new anti-terrorism article.

The Muslim Brotherhood, Mubarak’s real foe and the clear target of the amendments, is also restricted in its ability to respond, albeit for different reasons. Over the past few months, the Brotherhood has been facing a serious security crackdown targeting high-ranking leaders and financial heads of the organisation. This has clearly crippled the organisation’s ability to mobilise and pressure the regime. The security crackdown was also coupled with a media campaign designed to raise doubts about the Brotherhood’s goals, which has cost the movement some of its popular support. The Brotherhood is trapped. It faces constitutional amendments that severely hinder its chances for political participation and effectively foreclose the possibility of forming a political party with an Islamic frame of reference. Yet the movement is unlikely to step up its criticism of the regime, fearing that this might lead to even more government repression.

The result of the popular referendum was predictable, but its long-term impact is unclear. The regime is likely to pass its undemocratic amendments at almost no cost to its immediate stability, but some difficult questions will arise in the coming period. Will the regime be able to manage the political marginalisation of the Brotherhood without driving some of its popular base towards radicalisation? Will the Muslim Brotherhood accept and try to work within the new constitutional boundaries or will it explore other alternatives, especially if faced with more repression? How will civil society organisations and human rights activists deal with the regime’s unprecedented reversal of constitutional safeguards for individual rights and freedoms?

Regardless of how these questions will be settled, Egyptian citizens have become more alienated from political life and the current polarisation will only exacerbate the problem. It is ironic that individual rights and freedoms are being confiscated at the same moment that the regime is working to enshrine the concept of citizenship in Article 1 of the constitution. The amended states that: "The Arab Republic of Egypt is a state with a democratic system that is based on citizenship."

* The writer is a senior associate at the Carnegie Endowment for International Peace, Washington, DC.

Other Topics:

Amending Democracy Out of Egypt’s Constitution
Amr Hamzawy, Washington Post - Washington , U.S