President Abdel Fattah al-Sisi took the constitutional oath on June 2 before Parliament, officially inaugurating his second, four-year term in office.
By virtue of the Constitution, this term should be his last. However, a source at the legislature’s General Secretariat tells Mada Masr that “a process has been set in motion to amend the Constitution, especially the articles pertaining to presidential terms.”
According to the source, who spoke to Mada Masr on condition of anonymity, the most likely scenario currently making the rounds within parliamentary circles is that a proposal to amend several articles will be submitted at the beginning of the next session, scheduled to be convened in early October. In the meantime, the source says, there are discussions on how to go about amending said articles.
Constitutional Article 226 is at the top of the list. The most popular course, according to the parliamentary source, is to remove the last paragraph in it.
The article governs the procedures for amending constitutional provisions and is meant to safeguard the provisions pertaining to rights, freedoms and presidential terms against amendment.
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 articles to be amended and the grounds for amendment must be specified in the request.
In all cases, the House of Representatives shall discuss the request within 30 days as of the date of its receipt. The House of Representatives shall issue a resolution to accept the request in whole or in part by a majority of its members.
If the request is rejected, another request to amend the articles in question may not be submitted before the following legislative session is convened.
If the amendment request is approved by the house of representatives, [the House] shall discuss the provisions of the articles to be amended after 60 days as of the date of approval. If approved by two thirds of the members of the House of Representatives, the amendment shall be put to a public referendum within 30 days as of the date of such approval. The amendment shall take effect as of the date on which the result of the referendum, and the approval by a valid majority of participants, are announced.
In all cases, provisions pertaining to the re-election of the president of the republic or the principles of freedom and equality may not be amended, unless the amendment brings more guarantees.
The last paragraph of the article specifically regulates introducing amendments to articles pertaining to the re-election of the president and to general freedoms. “In all cases, provisions pertaining to the re-election of the president of the republic or the principles of freedom and equality may not be amended, unless the amendment brings more guarantees,” it stipulates.
But the upcoming round of amendments may extend beyond removing the last paragraph of Article 226. According to the source, an amendment to the first paragraph of Article 140 is also being considered, such that a presidential term would be six years long, instead of four. If this proposition materializes, the source says, there are no provisions in the Constitution that would prevent it from applying to the current presidential term. Sisi would be able to serve six years, as well as seek re-election again.
According to the source, who was well informed of the proceedings within the 50-member committee that drafted the 2014 Constitution, there was talk at the time the document was being drafted of introducing a measure that would prevent any amendments to the presidential term from applying to the president under whom the amendment is introduced. The measure would have followed Article 145, which states that a change in the president’s salary may not come into effect during the term of the president under whom such change is approved. This proposed provision, however, was eventually voted out, the source recounts.
Mada Masr spoke to several relevant figures regarding the proposed amendments. Member of Parliament Afifi Kamel, an expert in constitutional law and a member of the legislature’s Constitutional and Legislative Affairs Committee, opposes such changes, arguing that the Constitution has not been in force long enough to be amended.
Sisi himself already put an end to the amendment controversy, Kamel points out. In a 2017 interview, the president said that he has no desire to introduce any amendments that would enable him to remain in office “after the term allowed by law and the constitution.” Those championing the call for amendment, Kamel argues, are overlooking the fact that the constitutional article pertaining to presidential terms may not be amended. And even if the length of the presidential term is changed, the amendment would not apply to Sisi, if the limit remains two terms, he adds.
For Kamel, voters voted on a four-year term, and the logical order — should the presidential term become six years instead of four — would be for the amendment to apply to the next president.
But General Yehia al-Kedwany, the secretary for Parliament’s Defense and National Security Committee, argues that the Constitution is not set in stone. Rather, he contends that it may be amended to serve the public interest, especially given the fact that it was drafted at a “critical time,” during which the country was going through a transformative stage and “there was an inclination to appease all groups.” He also notes that there are other constitutional articles, not connected to the presidential term, that must be amended.
Indeed, it is likely that MPs will propose amendments to several other articles, specifically those pertaining to the constitutionally mandated minimum government allocations to healthcare, education and scientific research, according to the parliamentary source. Both Parliament and the Cabinet are in agreement regarding the need to amend these articles, as the government finds it infeasible to allocate the percentage of gross domestic product (GDP) to these sectors currently provided in the Constitution. The constitutionality of every annual budget law that has been passed since the Constitution came into effect in 2014 has, therefore, been suspect.
Article 18 of the Constitution provides that the government must allocate no less than 3 percent of the GDP to healthcare, and that this percentage shall increase gradually until aligned with global averages. Article 19 provides that 4 percent of GDP shall be allocated to pre-university-level education. Article 21 provides for allocating 2 percent of the GDP to university-level education, and Article 23 provides for allocating 1 percent to scientific research.
According to the parliamentary source, Article 121 is also expected to be amended, especially given that Parliament Speaker Ali Abdel Aal has repeatedly bashed it as an impediment to the legislature.
The article that Abdel Aal has found to be a thorn in his side pertains to the quorum for voting on laws complementing the Constitution, tying the validity of any meeting or resolution to the attendance of the majority of the house.
A meeting of the House of Representatives, and the resolutions it passes, shall not be valid unless attended by the majority of its members.
In cases other than those requiring a special majority, resolutions shall be issued by an absolute majority of the members in attendance. In case of a tie of vote, the matter in deliberation shall be considered rejected.
Laws shall be approved by an absolute majority of attendees, provided that they constitute no less than one third of the members of the House of Representatives.
Laws complementing the Constitution shall be issued upon the approval of two thirds of the members of the House of Representatives. Laws regulating the presidential, parliamentary and local elections, political parties and the judiciary; pertaining to judicial bodies; and regulating the rights and freedoms stipulated in the Constitution shall be deemed complementary to it.
Kedwany finds that the “public interest” necessitates introducing amendments to certain articles of the Constitution, including the one pertaining to the military judiciary. He proposes that they be amended such that defendants facing trial in cases related to acts that have compromised national security may be referred to military courts, in order to combat terrorism and deliver prompt justice.
Article 204 of the Constitution, however, prohibits the trial of civilians before the military judiciary, except for crimes that constitute direct assault against the Armed Forces and its affiliated personnel and facilities, as well as crimes related to conscription.
Furthermore, Kedwany believes that the article pertaining to the renewal of the state of emergency is “no longer adequate for the needs of the country,” considering “the conspiratory scheme [the country] is facing.” Instead of the currently stipulated maximum of three months per proclamation, Kedwany advocates that a declaration of the state of emergency should place it in force for at least a year, while remaining renewable as needed.
The MP also has concerns regarding the articles that lay out the competencies of the president, particularly the article stipulating that Parliament’s approval is required to pass any presidential decision to dismiss or reshuffle a Cabinet. Such decisions, Kedwany states, are inherently within the president’s jurisdiction as head of the executive branch of government. This current stipulation restrains the president in managing ministers and hinders the dismissal of corrupt members of his staff, he says.
Currently, Article 147 of the Constitution requires the president of the republic to secure a majority vote from Parliament to approve any Cabinet dismissal. A Cabinet reshuffle may be taken after consultation with the prime minister and the approval of an absolute majority of a Parliament session in which at less one third of the legislature is present.
Salah Fawzy, an expert in constitutional law who was on the 10-person expert committee charged with drafting the Constitution, shares Kedwany’s viewpoint in favor of the amendments. Fawzy argues that there are several reasons that merit amending the Constitution, one of which is that certain provisions within it contravene one another. Articles 107 and 210 — pertaining to the validity of parliamentary memberships — are two of the examples Fawzy points to. The former stipulates that the Court of Cassation shall adjudicate in disputes related to the matter, while the latter bestows that same jurisdiction upon the Supreme Administrative Court.
Additionally, Fawzy notes that the Constitution should not include provisions such as those in Article 32, which addresses contracts to extract natural resources. For him, the periods provided in the article are “very unrealistic” for long-term investments.
Article 32 of the Constitution prohibits the disposal of the state’s public property. It also provides that the right to extract natural resources or public utilities may only be granted or conceded by force of a law and for no longer than 30 years. The same requirement applies to the exploitation of quarries, small mines and salterns, but with a maximum concession period of no longer than 15 years.
Fawzy attributes the need to introduce amendments to the Constitution — although it has been less than five years since it was approved by a public referendum — to the fact that “the 50-member committee did not heed the recommendations of the 10-person expert committee while preparing the final draft.”
The 10-person expert committee, he elaborates, submitted a draft that comprised 197 articles, including a preamble, to the 50-member committee. The latter, however, introduced a multitude of amendments, producing 247 articles that eventually made it to the public referendum. According to Fawzy, several members of the 10-person expert committee voiced objections to the language of certain provisions, but the 50-member committee disregarded their concerns.