Al-Ahram Weekly Online   10 - 16 March 2011
Issue No. 1038
Egypt
 
Published in Cairo by AL-AHRAM established in 1875

'Between two constitutions'

Tarek El-Beshri, the man charged with overseeing amendments to Egypt's constitution, talks to Amira Howeidy about the current transitional phase and why parliamentary elections must precede the presidential poll

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El-Beshri, an inspiration to Egypt's movements of change; Egyptians in Tahrir Square celebrating the ouster of Mubarak on 11 February

On 14 February the Higher Council of the Armed Forces, which has ruled Egypt since former president Hosni Mubarak was forced from office on 11 February, appointed a committee of legal experts to introduce amendments to the constitution to guarantee free and fair legislative and presidential elections. The committee's mandate was limited to amending election-related articles with the possibility of drafting an entirely new constitution left until after both parliament and president have been elected.

In an exclusive interview the committee's head, Tarek El- Beshri, explains that the proposed amendments are tailored to secure "an interim transitional period between two eras, two regimes and two constitutions". The changes to 11 articles will be the put to the public in a referendum on 19 March.

A prominent judge and historian, El-Beshri has long been cited as an inspiration to Egypt's movements for change and dissent. In their 2006 general assembly pro-reform judges hailed him as the "godfather of the Egyptian judiciary".

In October 2004 he published a daring commentary under the title "A Call for Civil Disobedience". The premises and tactics it outlined were adopted by the anti-Mubarak movement Kifaya (Enough), formed a month after the article appeared. His reputation as an independent and fearless judge impeded his promotion to president of the State Council in 1993 while his nationalist views recommended him to Kifaya as their preferred presidential candidate, a proposal he turned down in 2005.

He is the author of 20 books, on Islam and Arabism, nationalism, Copts, democracy and Nasserism, Egyptian politics under the British mandate, secularism and Egypt's judiciary. In 2006 he publishedMasr bayna Al-Osian wal Tafakuk (Egypt between dissent and disintegration), a scathing critique of what he characterised as the collapse of the Egyptian state.

Proposed changes to Article 75 banning anyone married to a non-Egyptian from standing for the presidency have been criticised. Doesn't the change compromise the principle of equality between citizens?

The prohibition already applies to a number of important jobs. It applies to both the diplomatic and military corps, from the lowest to the highest ranks. A second lieutenant in the army cannot be married to a foreigner, for example. Since the president is also the commander-in-chief our assessment was that the condition should apply to him too.

The same article also prohibits anyone who has a non-Egyptian parent from being nominated. We don't choose our parents. Why shouldn't someone with dual nationality run for president if they give up their second nationality?

We didn't add the part on non-Egyptian parents. It was already in the 1971 constitution and has never been the subject of debate. It's not uncommon to find such conditions enshrined in constitutions or, indeed, in our laws here. A foreigner who obtains Egyptian nationality has the right to vote only after five, sometimes 10, years. Legislators have always sought to guarantee the Egyptianness of those occupying public office. As for dual nationality, we included it in the amendment because the Supreme Administrative Court had already issued a ruling on this issue -- applicable not to the president but to MPs -- which was implemented.

This condition applies even after renouncing the foreign nationality?

No. The ruling applies only to dual nationality. It was the subject of jurisprudential debate because a person with dual nationality has two loyalties. Should a person with two loyalties occupy a leading public post in this country or not? The Supreme Administrative Court judged not, establishing a precedent. And the post of president is far more important than that of an MP. On the other hand, giving up a foreign nationality for the sake of a job may appear somewhat pretentious.

Your committee set the minimum age for presidential candidates at 40 but not a maximum. Why?

If the public wants us to fix a maximum age limit we can do so. What we didn't want to give was the impression that we were dismissing specific people though that is what we have been accused of doing by placing conditions on non-Egyptian spouses and parents.

In the proposed amendment to Article 76 you stipulate that decisions by the committee that will oversee the presidential elections are final. Why?

The post of the president is a very important one. We introduced amendments to a constitution already constructed in a way that makes the president the centre of power. This might change when a new constitution is drawn up. It might choose the form of a parliamentary rather than a presidential republic. Or it might maintain the presidential republic but place limits and restraints on the president's powers. Right now we are concerned with amending an existing constitution so we have been obliged to take into account the importance of the post and not subject it to too many law suits by contenders, after, of course, guaranteeing a democratic and fair election.

We have introduced constitutional and legal guarantees for the monitoring of the election to ensure its fairness and as the public demanded. We have made voting possible by using the national ID card and have made judicial monitoring of the elections mandatory. The Higher Committee for the Presidential Elections comprises very senior judges from the Constitutional, Cassation and Supreme Administrative Courts. Their rulings and decisions cannot be contested. We gave them that right because they are commensurate with the responsibility.

In the draft amendments the Supreme Constitutional Court is the final arbiter of any election disputes rather than the Court of Cassation which had previously judged such cases...

This was a technical not a political decision. Each body in the judicial authority -- the Court of Cassation and Constitutional Court and the State Council -- is legally infallible. The differences between them relate to their specialisation and to different branches of the law. It's not true that the Court of Cassation could determine the validity of parliamentary membership. It was parliament itself that enjoyed that right. The Court of Cassation only provided a non-binding opinion... The Court of Cassation doesn't have what we call "the right to cancel" whereas the constitutional court does.

The draft proposal of Article 139 makes it obligatory for the president to appoint a vice president. Why can't the deputy be elected?

This relates to the entire structure of the existing constitution. We were only amending previously amended articles of the constitution. We were not amending theconstitution... For the vice president to be elected requires an entirely different constitutional structure to the one we have now... Everything related to the general structure and main pillars of the existing constitution will be subject to discussion when a new constitution is being drafted. We added a clause that makes it mandatory for the elected People's Assembly and Shura Council to establish a founding assembly for a new constitution in their first meeting. The constitution we were amending won't last for more than a year.

There is concern about the restrictions you placed on the membership and formation of the founding assembly for the new constitution. Article 189 proposes that its members be drawn from parliament. That excludes expertise that will never be represented in the parliament.

Our wording doesn't limit its membership to parliament. We said that elected members of the People's Assembly and Shura Council can elect a founding committee for a new constitution. They have the right to choose members from inside or outside parliament.

But they, and no one else, get to choose...

We had three options. Either have the president appoint a committee to draft a constitution which would mean empowering one individual to form the committee, something that seemed neither desirable nor democratic. The committee could have been elected, but this would bring problems of its own. The founding assembly should not only represent political groupings and people who enjoy popular support. It should include people with technical, legal, political and economic expertise. We were left with the third option, which was to have the People's Assembly and Shura Council, both elected bodies, choose the committee.

There is a fear that if elections are held now the Muslim Brotherhood and, because of tribalism, families of former National Democratic Party members will dominate parliament. This might be reflected in the formation of the assembly for a new constitution.

I'm much more optimistic about the results of the coming elections and don't think they'll be limited to these two. The people who made a revolution which brought together Egyptians from the streets of Cairo and other cities and governorates and more than 10 million people on a single day from diverse backgrounds to demand the same objectives... I think they are capable of ensuring they are represented in any elections that are held. Given the current revolutionary momentum elections held sooner rather than later will best express the revolution and unity. This might change later when cultural, social or class particulars surface.

But isn't that a possibility during any election campaign?

There is concern that this broad, popular momentum will break beneath the pressure of electoral competition. But this can be addressed if the political forces which made the revolution agree to certain principles and objectives to protect and secure the revolution from elements from the previous regime. This could be a consensual objective, as was the case during the revolution. Political forces can agree among themselves to divide constituencies. They can contest the elections as a coalition or with the same objectives. They can coordinate seats and percentages between them. The coalition should include the six youth movements that took part in the revolution, the opposition parties and the Muslim Brotherhood. They should overcome their differences and the Brotherhood should be considerate for the sake of unity.

Why didn't the amendments grant Egyptians abroad the right to vote?

This has less to do with the constitution or the law than with logistics. Since there will be full judicial supervision of the elections, how do we provide enough judges to oversee voting abroad?

Why did you avoid amending the draconian powers the president enjoys under the existing constitution? And what guarantees are there that the next president won't abuse these powers?

As I said we were only amending some articles of the constitution. The most important point is that it is a temporary constitution that will apply for a year or perhaps a little more. During this period the People's Assembly and Shura Council will be elected. There will be six months to form the assembly for a new constitution and another six months for a new constitution to be deliberated, by a referendum. The timetable is set out in the final clause of Article 189. I think the most important thing that was said about power is that it should be temporary and the shorter the interim period, the less likely these powers will be abused.

What will the order be for the coming phase? Parliamentary elections first, then presidential? And who gets to decide?

We think that parliamentary elections should be held first, followed by presidential... Electing a president first, in the absence of parliament, could lead to power being monopolised. Democrats and revolutionaries who want to hold presidential elections first surprise me with their trust in an individual authority, a person they don't know because he hasn't been chosen yet, while they do not trust a much wider group -- 500 MPs and 200 Shura Council members -- who represent the people. The young must trust themselves and their abilities, especially after they achieved what they achieved.

Why will the referendum lump all 11 amendments together rather than allow the public to vote on them individually?

It is for purely practical reasons. It will be difficult for many voters to go through each article one by one and there will be a lot of null and void votes if each article is assessed individually.

What about general freedoms and the right to form political parties?

Our committee wasn't asked to address them. But there should be a political parties law that allows for the formation of parties by notification only. This is currently being drafted by a separate group of experts.

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