Although the proposed constitutional amendments have been widely criticized, there is a lot of uncertainty as to how to fruitfully express those concerns. Because the referendum comes in a package deal, the options are confined to yes, no or abstention. Is there a “smarter strategy” available now, before the referendum? I argue so.
I would like to focus–within the amendments–on the provisions that set a path for the drafting of a new constitution for Egypt, explore possible approaches to the referendum, suggest that political forces find a workable solution through negotiations, and even consider requesting the Supreme Council cancel the proposed referendum.
The decision to appoint a committee to amend the 1971 Constitution caught many by surprise.The take-over of Egypt’s Supreme Council of the Armed Forces following former President Hosni Mubarak’s resignation on 11 February had the effect of voiding–or in its own words, suspending–the Constitution. The legitimacy of the committee appointed by the Supreme Council to propose amendments soon came under question as it struggled to define the scope of its mandate in reshaping the Constitution. The problem was compounded when the committee’s so-called “neutral” interventions–which purported not to favor any particular political group over any other–into the text of the Constitution were not as neutral as the committee claimed. Although the legitimacy of the referendum is also questionable, given that it arises from a now-defunct Constitution, that fact has not stopped it from being used to restore legitimacy to the Constitution, albeit in an amended form.
The inclusion of the transitional provisions, which allow for the drafting of a new Constitution, was saluted as a tribute to popular sovereignty. Yet even those provisions turned out to be far from "neutral," as they tend to favor the interests of certain political groups at the expense of others. Aside from the wide criticism of amendments per se, the transitional provisions generate concerns because they reflect a political vision that that may not account for the views of groups that were not represented on the committee. The institutional timeline for elections, the indirect election of the constituent assembly (the assembly in charge of drafting the new constitution), and the absolute majority (of the elected members of both houses of parliament) required for electing members to such an assembly are particular points of contention.
I wish to draw your attention to this last point. If the proposed amendments pass, a majority of Egypt’s parliamentarians must vote in favor of a nominee in order for the nominee to become a member of constituent assembly; a simple majority–where the number of votes in favor outnumber the votes against–is insufficient.
Absolute majorities are generally stipulated to guarantee the election of non-partisan candidates. But this is not the aim of a constituent assembly, where all positions should be represented as proportionally as possible. By representing the widest sector of society possible, proportional representation in the constituent assembly would vouch for the legitimacy of the agreement it produced. By stipulating an absolute majority (i.e. 50 percent plus one of the elected members of both houses), smaller groups will need to seek the support of larger ones in order to get their members elected to the assembly. Let’s consider two not-unlikely scenarios. Scenario #1: If two major political groups together scored beyond the 50 percent plus one in the parliamentary elections, any candidate failing to win the support of both could not make it into the constituent assembly. Scenario #2: If one political group scored beyond 50 percent plus one, all the candidates would need at least some of that group’s support in order to find representation in the assembly. I don’t expect major political groups to make use of such a provision to exclude minor political groups from representation on the constituent assembly, but the absolute majority stipulated by article 189 would give the major groups the upper hand in deciding “who” will represent the minor groups.
The accelerated schedule of the referendum does not allow much time to prepare political platforms, but it will inevitably be the first electoral test for the forces that weren’t represented on the amendments committee. Campaigning for the 'no' or for abstentions seem politically costly and with low potential gains. Furthermore, a ‘no’ may not simply be read as a rejection of the amendments (and for a new constitution), but rather in support of the pre-25 January text of the defunct Constitution. Non-participation in the referendum, on the other hand, could be interpreted as a continuation of decades-long voter apathy rather than as an expression of opposition to the amendments.
Rather than engaging on an uncertain campaign on the referendum, a “smarter strategy” now available to political and intellectual forces not represented on the amendments committee is to petition the Supreme Council to review and rescind part of those provisions, or even call off the referendum before 19 March. This strategy has been fruitfully chosen by the members of the Court of Cassation, who successfully petitioned the Supreme Council. Though the amendment proposed by the committee for article 93 afforded jurisdiction to rule on the validity of parliament memberships to the Supreme Constitutional Court, the Court of Cassation issued a statement requesting that that jurisdiction be returned to itself by the Supreme Council. The Supreme Council has accepted the petition and amended the text released by the amendments committee to comply with the Court of Cassation’s request.
Moreover, the decision of the Supreme Council to appoint two committees under the supervision of General Mamduh Shahin to monitor reactions to the amendments ahead of the referendum encourages political forces to pursue this “smarter strategy”, and is a reassuring sign that the Supreme Council is responsive to the concerns raised over the amendments. It is also an opportunity that political forces cannot afford to miss, if they want to avoid giving the upper hand regarding the choice of who will represent them on the assembly that will draft the constitution for the new Egypt to those who are likely to score better in parliamentary elections due to their greater experience in organizing and mobilizing voters.
Gianluca Parolin is Assistant Professor of Law at the American University in Cairo, and also teaches Nuzumsiyasiyyawa-mabadi' al-qanun al-dusturiyy in the English Section of Cairo University Law School.
