The Constitution: Egypt’s Job One

Eleven days before he finally resigned, Hosni Mubarak may have had a chance to reverse his fortunes. Suddenly filled with a spirit of peacemaking and reconciliation, the president offered up a smorgasbord of “reforms” he promised to make.

Among them was amending several articles of the Egyptian Constitution. Calls for these amendments had been going on for years. So central were they to the political well-being of the Egyptian people that foreign powers – principally the United States – had intervened, privately and publicly, to persuade its most dependable Middle East ally to actually get something done.

But it was too late. The people in the crowd in Tahrir Square didn't believe their president. They had heard it all before. Mubarak was through.

So, days later, the task of rewriting the constitutional amendments fell to a committee appointed by the military panel now governing Egypt.

Why is this important? Because over the years, the Mubarak regime created amendments to the Egyptian Constitution. Their purpose was to make it virtually impossible to become a candidate or a recognized political party, or to have competent and independent monitoring of all elections.

Writing these new constitutional articles is a modest assignment. The committee is not mandated to rewrite the entire constitution; that may come later. But the committee's work is nonetheless critical, for it will be addressing the articles that, more than any others, have promulgated one-man rule in Egypt, kept the opposition from forming legal political parties and, thus, effectively marginalized all candidates not named Mubarak.

The committee will work to be responsive to the leaders of the Tahrir Square opposition. They want the constitutional changes to reflect clearer separation of powers, strengthening of an independent judiciary and less power for the president. That won't all happen by writing a few amendments, but it's a start.

And unless the committee finishes its work and the public votes “yes” in a scheduled April referendum, it will be impossible to hold a presidential election in November.

Here, with thanks to Reuters, are the articles the committee is working on:

Article 77 of the suspended constitution allowed the president to seek re-election indefinitely. After specifying the length of the president's term, the article says he “may be re-elected for other successive terms.”

The term of the presidency is six Gregorian years starting from the date of the announcement of the result of the plebiscite that is used to decide the winner. The opposition has frequently called for a two-term limit on the presidency. This is a customary practice in many democratic countries.

Article 88 cancelled the direct supervision of elections by the judiciary. Replacing it in 1977 was the Supreme Electoral Commission, of which the opposition has been widely critical for its lack of independence. Parliamentary elections were largely controlled by the Ministry of Interior.

The opposition has always called for constitutional changes to deter election rigging, which has been a widespread practice in Egypt for many decades. Supervision of selections by the relatively clean-handed judiciary was seen by the opposition as a deterrent to vote rigging. Current practice has resulted in election results that were patently fraudulent and which earned Egypt the disrespect of many of its most important allies.

Article 93 dictates that the eligibility of members of the People's Assembly can be decided only by the Assembly itself. The ruling National Democratic Party (NDP) majority has used this article to ignore court rulings invalidating election results.

Article 179, which will be eliminated, allowed the president to refer any terror-related case to any judicial body, which gave him the right to use military courts.

Article 189 says the president can ask parliament to approve an amendment or parliament can propose its own amendments. But all amendments must be approved in a referendum.

Heading the constitutional committee is retired judge Tareq al-Bishry, reputedly respected in legal circles for his independent views. Marwa Al-A'sar of Egypt's Daily News reports that al-Bishry has been a strong supporter of an independent judiciary, though legal experts have said the Egyptian judiciary was subjected to increasing political meddling during Mubarak's 30-year rule.

Many in the opposition are voicing criticism of their new military bosses for not acting quickly to lift the so-called emergency law, which has been in effect continuously, with one brief hiatus, for thirty years. The emergency powers were implemented in 1981, after the assassination of President Anwar Sadat.

Mubarak made numerous promises to repeal these laws but never followed through. In the last few years, the Mubarak regime introduced a set of 34 new constitutional articles meant to be substitutes for the emergency laws.

But Mubarak's critics say the amendments would have enabled a replacement of the emergency laws with something just as authoritarian – but permanent.

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The 34 new articles were approved by a vote in parliament, which was dominated by members of the NDP. They would have written into permanent law emergency-style powers that, according to Amnesty International, would have been used to violate human rights.

A week later, the articles were put to a popular vote. Government officials said they were approved by more than three-quarters of voters, although the turnout was low – 27 percent according to official figures, and other independent groups measured even lower numbers.

The opposition, led by independent supporters of the banned Muslim Brotherhood movement, boycotted the vote, saying the lightning referendum did not give them a chance to mount a proper “no” campaign.

The 34 new articles never became part of the Egyptian Constitution.

But, in whatever form, the emergency laws have been used to trash the human rights of thousands of people who found themselves in conflict with the police and the security services. Capricious detentions. Incommunicado imprisonment. Torture. Police impunity. Denial of legal and family visits. Deaths in detention.

It is clear that democracy cannot flourish when laws like these are on the books and are being widely used. So, hopefully the new military leaders will lift the emergency laws even before the April referendum.

But that moment is down the road a bit.

The first order of business now is the composition of four or five constitutional articles. And, even at this early stage, the handover of the rewriting to a committee has not gone without criticism. Thirty-one human rights organizations have criticized the amendment committee constituted by the military.

Rights groups say that committee membership is tilted toward particular ideologies, that the committee includes former Mubarak officials and that it is a male-only group, despite the presence of many qualified women.

The organizations also charged that, in 2005 and 2007, some committee members belonged to legislation committees under the former regime, where they helped prepare flawed legislation and constitutional amendments.

The rights groups also said that the committee lacked constitutional law experts who were independent and trusted by the public. Nor did the committee reflect Egypt's political and social diversity, they declared.

They said it looked like a coalition between members of the former regime and the Muslim Brotherhood.

Michele Dunne, a senior Middle East analyst with the Carnegie Endowment for International Peace, told Truthout that the drafting committee has adopted “a very fast process.” But, she adds, “We should also bear in mind that the articles to be amended were very controversial and lawyers and NGOs had already done a lot of spade work on how they should be amended, so perhaps some of that work will be used now.”

But even if the committee completes its work on time and an April referendum overwhelmingly approves the new constitutional articles, the new Egypt will have simply taken another of many baby steps toward democracy.

The emergency law must be addressed. Some new rules will have to be written regarding parliamentary elections and parliamentary power. Someone is sooner or later going to have to take a look at the opaque web of business and economic interests spun by the military's crony capitalism. The issue of corruption probably does not require any new laws, but, rather, the implementation of laws already on the books.

The former Mubarak ministers now charged with corruption were charged as a last-gasp distraction by Mubarak. Their guilt or innocence will be decided by a court, but there is nothing to suggest that they would have been charged with anything at any time, absent the Mubarak crisis.

To what extent the military will welcome the agenda reflected in the charges is questionable. Every senior military man now on the ruling council owes his appointment – and, in many cases, his prosperity – to Mubarak.

Arguably, the most important next step for Egypt, beyond amending the constitution, is the emergence of a leader. Many in the country are calling for a leader capable of exercising “adult supervision” over the incredibly diverse souls who slept in Tahrir Square, just as many others are saying that only the youth of the country can carry the spirit of the uprising from Tahrir Square into the presidential palace.

Notes of caution have been delivered to the folks in the square by thousands of commentators inside and outside Egypt. They have been cautioned about euphoria. They have been told that “democracy is not a plan.” They have been warned about faux leaders, about running too fast, about trying to get everything absolutely perfect.

That's not possible, and it is undisputed that these young people and their elders are going to make mistakes along the way. Expect them to be made, and undoing them can be easier.

And follow the advice of Rami Khoury, the Lebanese-born, American-educated journalist and policy wonk:

It takes time and energy to re-legitimize an entire national governance system and power structure that have been criminalized, privatized, monopolized and militarized by small groups of petty autocrats and thieving families.

Tunisia and Egypt are the first to embark on this historic journey, and other Arabs will soon follow, because most Arab countries suffer the same deficiencies that have been exposed for all to see in Egypt.

Make no mistake about it, we are witnessing an epic, historic moment of the birth of concepts that have long been denied to ordinary Arabs: the right to define ourselves and our governments, to assert our national values, to shape our governance systems, and to engage with each other and the rest of the world as free human beings, with rights that will not be denied forever.