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Egypt: Likely Constl AMD’s & Potential Tracks

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Talk on likely constitutional amendment had started before Abdel Fattah al-Sisi won a new term in office early April, 2018. Among the proposed amendments, a draft law was submitted in February, 2017 to the House of Representatives (parliament) by MP Ismail Nasr al-Din in order to grant Sisi the capacity to appoint and dismiss members of the government, to abolish the two-term barrier for presidential candidacy so that Sisi could run for a third term, and to extend the presidential term to six years instead of four. However, the proposal was later withdrawn following an uproar raised at that time. The issue was temporarily closed, especially after Parliament Speaker Ali Abdel-Aal had visited the US Congress and denied presence of any plans to amend the Constitution, adding that Nasr al-Din’s proposal was not even discussed by the Egyptian parliament. Also, Sisi later expressed unwillingness to amend the Constitution. However, the Constitution amendment plans have not totally been excluded; but they were rather postponed to the post-election period.

First: Likely Constitutional Amendments

There is a series of constitutional articles (in Sisi’s 2014 Constitution), which some observers suggest they may be subject to likely constitutional amendments in Egypt during the coming phase, including:

Articles (18, 19, 21, 23):

There are some paragraphs in Articles: 18, 19, 21, and 23 that observers believe they are likely to be amended by the regime, as follows:
– Article 18: “The State shall allocate a percentage of government spending to health equivalent to at least 3% of Gross National Product (GNP), which shall gradually increase to comply with international standards.”
– Article 19: “The State shall allocate a percentage of government spending to education equivalent to at least 4% of the Gross National Product (GNP), which shall gradually increase to comply with international standards.”
– Article 21: “The State shall allocate a percentage of government spending to university education equivalent to at least 2% of the Gross National Product (GNP), which shall gradually increase to comply with international standards.”
– Article 23: “The State shall sponsor researchers and inventors and allocate a percentage of government spending to scientific research equivalent to at least 1% of the Gross National Product (GNP), which shall gradually increase to comply with international standards.”

Article (32):

Article 32 of the Constitution is also expected to be among prposed amendments as it contains paragraphs that regulate the exploitation of natural resources, seen by the government as “very difficult” in the course of long-term investments. Also, it prohibits disposition of the State’s private property as follows:
– “Disposing of State’s public properties is prohibited. Granting the right of exploitation of natural resources or public utility concessions shall be by virtue of a law for a period not exceeding thirty (30) years.”
– “Granting the right of exploitation of quarries, small mines and slatterns, or granting public utility concession shall be based on a law for a period not exceeding fifteen (15) years.”

Article 121:

The expected amendments may also include Article 121 which the Speaker of the House of Representatives repeatedly described as an obstacle to the Parliament activity. Article 121 states that:
– “The meetings of the House and resolutions passed thereby shall not be deemed valid unless attended by the majority of its members.”
– “In cases other than those requiring a special majority, resolutions shall be passed by the absolute majority of the members present. In case there is a tie of votes, the subject matter in deliberation shall be deemed rejected.”
– “Laws shall be issued by the absolute majority of the members present, provided that such majority constitutes not less than one third of the House members.”
– “The Laws deemed complementary to the Constitution shall be issued by a majority of two thirds of the House members. Laws regulating presidential or parliamentary or municipal elections, political parties, the judiciary, related to judicial bodies and judicial organizations, and those regulating the rights and freedoms stipulated in the Constitution shall be deemed complementary to the Constitution.”

Article (107):

Also Article 107 of the Constitution is expected to be amended. It states that:
– “The Court of Cassation shall have jurisdiction over the validity of membership in the House of Representatives. Appeals shall be submitted to the Court of Cassation within a period not exceeding thirty days from date on which the final election results are announced. Appeals shall be adjudicated within sixty days from the date of the receipt thereof.”
– “In the event that a judgment declares a membership invalid, the invalidity of the membership shall be effective as of the date on which the court judgment is notified to the House.”

Article 147:

Observers also say that Article 147 of the Constitution will be subject to likely amendments to allow Sisi to “ relieve the government from carrying out its duties”, and appoint and dismiss ministers without need to consult with the prime minister or the parliament. It states that:
– “The President of the Republic may relieve the government from carrying out its duties, subject to the approval of the majority of the members of the House of Representatives.”
– “The President of the Republic may conduct a cabinet reshuffle after consultation with the Prime Minister and approval of the House of Representatives by an absolute majority of the members present, which must not be less than one third of its members.”

Article 204:

This article, which addresses the military judiciary in the Constitution, is also likely to be amended in the coming period to allow the referral of defendants in cases of damage to national security to the military judiciary, under the pretext of combating terrorism and achieving a speedy justice.
Article 204 of the current Constitution states that: ”No civilian shall face trial before the Military Court, except for crimes that constitute a direct assault against military facilities or camps of the Armed Forces, or their equivalents, against military zones or border zones determined as military zones, against the Armed Forces’ equipment, vehicles, weapons, ammunition, documents, military secrets, or its public funds, or against military factories; crimes pertaining to military service; or crimes that constitute a direct assault against the officers or personnel of the Armed Forces by reason of performing their duties.”

Article (226):

The articles relating to Article 226 constitutes a major problem to the government’s plans to conduct constitutional amendments, because it protects the articles relating to presidential terms, rights and freedoms in the constitution. Thus, it represents an obstacle in the way of proposed amendments. However, there is more than one proposal to address this article, most notably to delete the last paragraph, as Article 226 states that:
– “The amendment of one or more articles of the Constitution may be requested by the President of the Republic or one-fifth of the members of the House of Representatives. The request shall specify the articles requested to be amended and the reasons for such amendment.”
– “In all cases, the House of Representatives shall discuss the amendment request within 30 days from the date of its receipt. The House shall issue its decision to accept the request in whole or in part by a majority of its members.”
– “If the request is rejected, the same articles may not be requested to be amended again before the next legislative term.”
– “If the amendment request is approved by the House, it shall discuss the text of the articles requested to be amended within 60 days from the date of approval. If approved by a two-thirds majority of the House’s members, the amendment shall be put to a public referendum within 30 days from the date the approval is issued. The amendment shall be effective from the date on which the referendum’s result and the approval of a valid majority of the participants in the referendum are announced.”
The last paragraph of Article 226 states that: “In all cases, texts pertaining to the re-election of President of the Republic or the principles of freedom or equality stipulated in this Constitution may not be amended, unless the amendment brings more guarantees.”

Article (140):

In addition to a proposal to delete the last paragraph of Article 226, there is another proposal to amend the first paragraph of Article 140 of the Constitution to include increasing the term of the presidential term from four to six years. The first paragraph of Article 140 states that:
– “The President of the Republic shall be elected for a period of four calendar years, commencing from the day following the termination of the term of his predecessor. The President may only be reelected once.”

Second: Potential Tracks

Within the context of these constitutional articles, and in light of the current political situation in Egypt, a number of basic tracks for the proposed constitutional amendments emerge as follows:

Scenario 1: Limited Amendments to Extend the President’s Mandate

Constitutional and legal views differed with respect to passing any likely amendments to the president’s mandate. While a panel of constitutional jurists stressed that any amendment of the president’s mandate was ruled out by the Constitution, others said it was likely. However, this scenario is based on the possibility of extending the president’s term in office to six years, not four, on the pretext that four years are not sufficient for the president to implement his program, and that he should have enough time to confront and defeat terrorism. Owners of this proposal considering extending the presidency term to six or eight years instead of four will be sufficient to enable Sisi to carry out his program.

Scenario 2: Allowing Sisi to Remain in Power Forever

This scenario is based on the introduction of a new “popular document” supported by the government to help Abdel Fattah al-Sisi pass constitutional amendments that would allow him to continue to govern the country unconditionally “in view of the country’s challenges in order to achieve development, promote the State, and face those who seek to destabilize security and stability”. It is expected that the parliament would play an important and fundamental role in this regard in the absence of any kind of accountability. It is also expected that it would be easy to pass the upcoming constitutional amendments with unprecedented high majority vote.
However, the second scenario is most likely in order to enable Abdel Fattah al-Sisi to remain in power forever; because those who come to power through a military coup do not step down via political practices. So, it is not expected that Sisi would respect the Constitution or even be preoccupied with any political mechanisms. Since the 2013 coup d’etat, the military institution – which is currently under Sisi’s control after he had restructured the Supreme Council of Armed Forces (SCAF) to ensure loyalty of SCAF members, and disposed of all potential competitors – has completely dominated the various political, economic, military and security dimensions in the country. Sisi has also been keen on preventing any likely opposition to his absolute powers.

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