Egypt’s Referendum on the Constitut

The start of this week witnessed voting by the nationwide and extraterritorial electorate in a referendum on the constitutional amendments that were recently approved by the Parliament.[1] The package of proposed amendments comprises changes to already existing Articles in the current Constitution as well as additions of new Articles, that affect all branches of government as shown below. The current Constitution has been in force since January 2014, replacing the 2012 constitution that was suspended in June 2013. In what follows, we will present the constitutional amendments and compare them to the previous provisions.

Executive Powers

1. Presidential Term

The Amendment to Article 140 of the Constitution increases the presidential term to six years (up from four). In addition, while the current constitutional Article provides that “it is not allowed to re-elect the president except once,” the proposed amendment states that “the president is to not assume presidency for more than two consecutive presidential terms.” The addition of ‘consecutive’ here could leave room for the holding of this post for more than two presidential terms (or 12 years) if there is a break between both time periods. The amendments also add a new Article to the Constitution, Article 241 (bis.) which states that “the current President’s term ends after the passing of six years from the date of announcing his election as president in 2018, and he could be re-elected one more time”. This could allow the current President to continue ruling as Egypt’s president till the year 2030.

2. Vice-President

The amendments bring back the position of the Vice-President, which was removed from the 2012 constitution. As per the proposed amendments, the President has the right, but not the obligation, to appoint one or more vice-presidents and to specify their powers, and the President could also remove the vice-president(s) from office. The Vice-President is to replace the President in case the latter is temporarily unable to exercise his powers, with the Prime Minister undertaking such replacement if the Vice-President is unable to or if the position of Vice-President is vacant (which is a similarity with the 1971 constitution).

3. The Armed Forces

The amendments expand the functions of the armed forces to include the broad mandate of the protection of the constitution and democracy, the safeguarding of the basic foundations of the state and its civilian character, and the defending of the rights and freedoms of individuals. The amendments also affect military justice, amending the cases in which civilians are to be tried in military courts. As per the amendments, these cases include attacks on military or military-related establishments and materials. The current Constitution provides that such attacks are “direct” but the proposed amendments remove such qualification (i.e., any action seen as an attack, even if not direct, could qualify for a military trial). Furthermore, the amendments add “establishments protected by the military” to the list of places that if attacked could subject the attacker to a military trial. In addition, the amendments make permanent a temporary constitutional provision that requires the approval of the Supreme Council of the Armed Forces on the appointment of the Minister of Defence, which was only applicable till 2022 as per the current Constitution.

Legislative Powers

Organized parliamentary life in Egypt began in 1866, under Khedive Ismail, although there are some historical narratives that trace some form of parliamentary activity or the other to the century before. In all cases, the 1923 constitution changed the nature of Egypt’s parliamentary structure by ushering in a two-house parliament – consisting of a House of Representatives and a Senate – that exercised legislative powers rather than merely holding an advisory status. This bicameral model was temporarily suspended from 1957 to 1980, with a National Assembly (later renamed People’s Assembly) being established in place. Following this, in 1980, the bicameral system was reinstated, with a People’s Assembly (lower house) and a Shura Council (acting as the consultative upper house) put in place. Then, on 6 July 2013, the Official Gazette published a constitutional declaration by the interim president abolishing the Shura Council, and accordingly, the current 2014 Constitution changed, yet again, the nature of parliament in Egypt such that it followed a unicameral model, replacing the People’s Assembly with a House of Representatives.[2] The proposed amendments for this week’s referendum reincarnate the consultative council in the form of the Senate. According to the proposed amendments, the Senate will be responsible for studying and proposing what it deems necessary to support democracy, societal peace, social foundations, and general rights, freedoms, and duties. Yet it seems that the amendments limit the Senate’s role to a consultative one, for unlike the 1971 amended constitution which required the Shura Council’s approval in the following cases, the amendments to the current Constitution merely provides that the Senate’s “opinion is to be considered”: proposed constitutional amendments, and peace, alliance, and sovereignty-related treaties. The Senate’s opinion is to also be considered on draft laws (referred to it by the President or House of Representatives), the draft of the general plan for social and economic development, and policy-related affairs (connected to internal or foreign relations) referred to it by the President. In addition, the amendments do not delve into the procedures to be followed in case of disagreements between the Senate’s opinion and that of the House of Representatives or in cases of the dissolution of the House of Representatives. The proposed amendments also set the membership of the Senate to at least 180, for a tenure of five years and with no requirement of changing at least half the members every three years as was previously the case. Two-thirds of the members are to be elected and the remaining third is to be appointed by the President (which is an increase from the quota provided in the 2012 constitution that made it optional for the President to appoint no more than a tenth of the elected members, but which is a return back to the 1971 constitution wherein the President appointed a third of the members). As for the House of Representatives, the proposed amendments add a quota on women’s participation in the House of Representatives, setting it to at least a quarter of total parliamentary seats. Simultaneously, however, the amendments remove the notion of “balanced representation by electorate” while upholding “fair representation by population and governorates” when electing the House of Representatives (and the Senate).

Judiciary Powers

Among other things, the amendments expand from the executive branch’s oversight over the judiciary. For starters, the President is to appoint the heads of judicial agencies and bodies, from amongst the most senior seven of their deputies; such appointments are for either 4 years or the remaining years till the head’s age of retirement (whichever is closer), and deputies are to be appointed as heads only once during their career. Furthermore, despite the provision that each judicial agency/body is in charge of its own affairs, the amendments specify that “shared inter-agency affairs” are to be supervised by a ‘supreme council for judicial agencies and bodies,’ which is chaired by the President. In specific, the secretary-general of this council is to be appointed by the President (in rotation among the council members) and the council is to review the conditions for appointing, promoting, and disciplining the members of these agencies and bodies in addition to commenting on draft laws that regulate these agencies and bodies, with decisions being passed after the approval of the majority of the council members (including its chair, i.e., the President or his deputy). As for the public prosecution, the amendments slightly changed the method of appointing the public prosecutor. In the current Constitution, the public prosecutor is to be chosen by the Supreme Judicial Council, with his appointment being issued through a presidential decree. The proposed amendment tweaks this such that the Supreme Judicial Council is to nominate three potential candidates, from whom the public prosecutor is selected and appointed by the President. The President’s powers are also extended to the Supreme Constitutional Court (“SCC”), for the proposed amendments confer the power to choose the SCC president, his deputies, the head of the Commissioners Authority, and the commissioners themselves to the President, thus effectively changing it from an internal matter wherein the SCC general assembly made such decisions (with the appointments occurring through a presidential decree) to one where the President makes such decisions. Finally, the State Council’s powers are tightened. Among other things, the amendments remove the Council’s power to formulate draft laws and legislative decisions, only allowing it to review such draft laws and legislative decisions when they are referred to it.    [1] House of Representatives Decision amending certain provisions of the Constitution, Official Gazette, Issue 15 (bis.) (c), 17 April 2019. [2] Al-Ahram Weekly, “Egypt’s 150-year parliamentary history”, Gamal Essam El-Din, available through this link; A History of Egypt: From the Arab Conquest to the Present, Afaf Lutfi Al-Sayyid Marsot, 2nd ed., Cambridge University Press.