Expanding the powers and mandate of Egypt’s president
An amendment to the Constitution or a violation of its provisions?

Egypt’s political sphere should be occupied by discussions about the forthcoming presidential elections, set to begin in a few months, in preparation for the close of President Abdel Fattah al-Sisi’s current term in June 2018. Many had hoped that the conclusion of Sisi’s term might also signal the end to Egypt’s political stagnation.

However, the political conversation has veered off in another direction entirely due to MP Ismail Nasr Eddin’s suggestion to amend the 2014 Constitution to extend presidential term in office from four to six years. An official proposal has not yet been submitted to Parliament.

The conversation has become polarizing. While the move has garnered the support of the pro-government majority force in Parliament, the Alliance to Support Egypt coalition, the privately owned Al-Shorouk newspaper reports that Cairo University political science professor Mustafa Kamel Sayed has collected over 1,000 signatures on a campaign voicing its rejection to the move.

Eddin’s intention isn’t new, however, having first been floated in February 2017. In addition to proposing changes to Article 140 – which stipulates that a presidential term in office lasts for four calendar years, and that “the president may only be re-elected once” – the parliamentarian set his sights on five other articles, including Article 146, which requires the president to secure the approval of Parliament before dismissing or appointing members of the Cabinet and Article 103, which mandates that MPs should not hold positions outside of their duties in Parliament. Eddin also asserted that Article 190 should be amended to strip the State Council of some of its powers.

The suggestion was tabled for the past six months, reemerging with an August 9 announcement. Eddin tells Mada Masr that he will soon enumerate the specific constitutional articles he’ll petition Parliament to amend when it convenes at the start of October.

On the same day as Eddin’s announcement, Parliamentary Speaker Ali Abdel Aal criticized the Constitution during a meeting with constitutional law professors affiliated with Mansoura University, according to Ahram Online.

“Egypt’s 2014 Constitution in its current form does not help serve the country’s needs in the long run,” the speaker of Parliament is quoted as saying. “Many of the articles in this Constitution should be reconsidered, such as the article that allows the president to appoint a Cabinet minister only after getting Parliament’s approval.”

Eddin has seemingly backed away from the rampart that his amendment is meant to extend Sisi’s time in office. In comments made to Al-Shorouk on August 20, the MP said that amendment to Article 140 would not apply to Sisi’s current term but to the next presidential term.

And yet the MP’s proposal has been preceded by comments from officials in the government, most notably former Parliamentary and Legal Affairs Minister Magdy al-Agaty and Abdel Aal, that have disqualified any amendments to the constitutional articles regulating the presidency. On different occasions, Agaty and Abdel Aal said that the Constitution would render such changes as unfounded.

During a December 13 meeting of Parliament’s Constitutional and Legislative Affairs Committee which was chaired by MP Bahaa Abou Shaqa and had been tasked with discussing amendments to Egypt’s Criminal Procedure Code and the Court of Cassation’s appeals process, and laws overseeing terrorism and the protection of public facilities, Agaty singled out the presidential terms as untouchable. “Do not worry about the referendum,” he said. “It is just a formal procedure that we can settle. However, the Constitution itself bars altering the presidential term.”

This was followed by a direct refusal from Abdel Aal in a house session on December 14. “Those who repeat the lies that Parliament wants to amend the Constitution to extend the presidential term seem to have overlooked that there is a governing article in the Constitution that prevents changing the presidential term, unless the amendment relates to more guarantees and freedoms.”

“It is almost pointless to remind the public and government that the majority of articles […] have yet to be implemented. To implement the constitutional articles that 20 million citizens have already approved by referendum should be the more pressing concern.”

Both officials are referring to Article 226 of the Constitution, which states that “texts pertaining to the re-election of the president of the republic or the principles of freedom and equality stipulated in this Constitution may not be amended, unless the amendment brings more guarantees.”

Nonetheless, Eddin justifies his intention to amend the presidential term, telling Mada Masr that it is not appropriate for an MP’s term in Parliament to span five years, while the presidential term lasts four.

Yasser Omar, the deputy head of Parliament’s Budget and Planning Committee, believes that amending the presidential term and ensuring that Sisi remains in office for another presidential term is “a priority that Parliament must ensure in the beginning of its third session.”

He tells Mada Masr that the Constitution does allow for the duration of the presidential term to be changed, as long it does not affect the number of terms a president can serve. Therefore, Parliament can, according to Omar, go forward with Eddin’s proposed amendments, inserting a transitional article that would allow Sisi to end his first presidential term in 2020, as the state budget does not make provision for the financial costs that would come with holding a constitutional referendum in the same year that presidential elections are to be held.

Maher Aboul Enein, a professor of constitutional law at Cairo University, rejects Omar’s interpretation of the Constitution. For him, the text of the Constitution is “clear and is not subject to further interpretation.” He tells Mada Masr that Article 226 prohibits the amendment of the articles relating to the reelection of the president, and that any changes would be unconstitutional and would be struck down by the State Council.

MP Major General Kamal Amer, the head of Parliament’s National Defense and Security Committee and the leader of the Alliance to Support Egypt coalition, argues that talk of a constitutional amendment does more harm than good to the president’s image. “Sisi is a gift from God to Egypt, and we have to preserve this gift,” he tells Mada Masr.

It would be more prudent, he adds, for MPs to support Sisi’s run for a second term. “Discussing the duration of the presidential term gives cynics a chance to doubt the intentions of the president,” he says.

Free Egyptians Party member Ayman Aboul Ela, who heads Parliament’s Health Committee, says the party has not formalized its stance on the proposed change to the presidential term, but he notes that the motion has the support of a majority of the legislative body. In Aboul Ela’s estimation, the amendments are nothing more than a social dialogue to discern general opinion, given that Parliament will not begin any procedures to amend the Constitution until the start of its third session on October 4.

The timing would practically make the referendum on constitutional amendments a call for early presidential elections in the eyes of MP Mohamed Badrawy, the head of the Egyptian National Movement Party’s parliamentary bloc.

Badrawy says it is almost pointless to remind the public and government that the majority of articles that Abdel Aal and Alliance to Support Egypt MPs are calling to amend have yet to be implemented. To implement the constitutional articles that 20 million citizens have already approved by referendum, he says, should be the more pressing concern.

“Discussing the duration of the presidential term gives cynics a chance to doubt the intentions of the president.”

Aboul Enein contends that the current discussion around changing the presidential term is meant to serve as a litmus test for amendments at the end of Sisi’s second presidential term in 2022. Political accommodation is too much of a priority for the current government, he says, for it to risk Sisi’s policies and popularity. Instead, he sees Eddin’s proposal as a sign of a lack of coordination between Parliament, the president and Sisi’s close associates.

A constitution of  “good intentions”

In a speech at a July 2015 iftar dedicated to issues related to Egyptian families, Sisi called the 2014 Constitution “very ambitious.” However, he added that if Parliament did not use the document’s power in the context of Egyptian patriotism, the Constitution “could cause great harm to citizens and the country.”

“We will not pursue exceptional measures,” Sisi said. “Parliament might act dangerously, and intentionally or not can sink everything we’ve done.”

Two months later in September 2015 in comments at an university student conference, Sisi broached the issue again, pitting the Constitution against state building. “It has been drawn with good intentions, but good intentions do not build states,” he said.

Sisi’s remarks coincided with others from within the government calling for the preparation of a proposal to amend the constitutional articles under the Executive Powers, specifically those concerning Parliament’s ability to withdraw trust in the president, in addition to Article 156 relating to the parliamentary review of decrees issued by the president during the absence of the legislature.

Aboul Ela says that the will to amend the Constitution in Parliament extends beyond changes to the presidential term in office to what MPs see as issues that contradict the normal practice in other nation’s constitutions.

For example, he points to the 2014’s Constitution’s language concerning progressive taxes and minimum budgetary allocations on health, education and scientific research. None of these issues, according to Aboul Ela, should fall under the purview of a constitution, but are best managed by laws.

He also argues that several of the Constitution’s provisions have not made sense in practice, including those that grant the State Council authority to review legislation and those that allow for a discrepancy in the term lengths that the president and MPs enjoy.

Abdel Aal – who was on the committee of 10 legal experts who were given a mandate to amend Egypt’s Constitution in 2014 – voiced a similar complaint to parliamentary reporters when he attributed the paltry flow of legislation – Parliament issued four laws in the first half of last year – to the “obstacles” that the constitutional two-thirds mandate for a draft law to pass through the house places on the legislative authority.

Other MPs soon joined the speaker in his criticism.

On June 1, 2016, MP Hassan Eissa, the head of Parliament’s Planning and Budget Committee, criticized the 10 percent of gross national product minimum allocation to health, education, higher education and scientific research expenditure. In comments to parliamentary reporters, Eissa described the measure as a “mere dream” and considered the Constitution to be wrong to oblige the government to adhere to expenditure benchmarks. Yasser Omar, the committee’s deputy head, agrees with Eissa, saying that compliance with constitutional budgetary constraints is “catastrophic,” because “spending a specific sum on sectors such as education and health cannot simply be done just because the Constitution requires it.”

MPs’ inclination to amend the Constitution was also apparent amid criticism for Agaty’s proposed transitional justice bill that would have broached reconciliation with the Muslim Brotherhood. At the time, Agaty responded to the criticism by pointing at the Constitution. “This is not my personal opinion. I didn’t add anything new,” he told parliamentary reporters in June 2016. “Those objecting to my statements should read the Constitution, which obliges us to reach national reconciliation among different sectors of people.”

Calls to amend the Constitution picked up further after each of the deadly terrorist attacks that occurred in Egypt in recent months.  After the funeral for victims of the December 12 St. Peter and St. Paul Church bombing, Abdel Aal affirmed that Parliament was determined to confront terrorism with the “appropriate measures and legislation, even those that would require amendments to the Constitution itself.”

“Parliament is responsible for taking the appropriate legislative measures to confront developing terrorism. I state this very clearly: If necessary – I repeat – if confronting terrorism requires amending the Constitution, then we will amend it in such a way that the military court can look into crimes of terror,” he said.

Abdel Aal’s statement on amendments to the Constitution that would have extended beyond Article 204, which regulates military trials, to others that MPs judges ineffective garnered broad approval in the house.

It was a sentiment that was furthered after approximately 50 people were killed and over 100 injured in the 2017 Palm Sunday bombings and Egypt imposed a state of emergency. MP Yasser Omar argues that the constitutional limitations hamper the government’s ability to maneuver. “Egypt is in a state of war,” he says. “It is necessary to extend the state of emergency. However, the Constitution limits it to six months. Therefore, [the Constitution] should be amended.”

“Egypt is in a state of war. It is necessary to extend the state of emergency. However, the Constitution limits it to six months. Therefore, [the Constitution] should be amended.”

Article 226 of the Constitution authorizes the president or one-fifth of Parliament to propose an amendment to one or more articles. Parliament would then have 30 days from the date of receipt to discuss the amendments, by which date it would have to accept by a simple majority of its members to grant the request for an amendment in whole or in part. If the request is rejected, the same amendment may not be proposed again before the next session. However, if the request for an amendment is approved, the text of the articles to be amended will be discussed within 60 days from the date of approval. If approved by a two-thirds majority of Parliament’s members, the amendment will be put to a public referendum within 30 days from the date of approval.

Articles 141, 142 and 143 of Parliament’s internal bylaws detail the mechanism by which Parliament is to handle proposals to amend the Constitution. First, the speaker of the house presents the proposal to amend the Constitution to Parliament general committee within seven days of having received it. The committee will then prepare its opinion on the proposal within seven days, which it will then submit to a plenary session. If MPs approve the amendments, the speaker of the house will notify the president of the decision and the grounds on which it was made, in order to send the amendment out for a general referendum.

Translated by Asmaa Naguib


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