Constitutional Amendments ,A Stone in Muddy Water
This report is issue no. 23 of LCHR’s Civil Society series. The report presents an analysis to the current argument in Egypt about issues related to the political and parliamentary reform process including the issue of constitutional amendments.
The report shows that Egypt must implement a comprehensive program for political, economic and social reform, including the cancellation of the emergency law, releasing the detainees, compensating them, prosecuting those responsible for torture crimes, providing guarantees for free and impartial elections, allow the right to form political parties, syndicates and associations without any binds or interference, improving the conditions of citizens’ economic, social and political rights, reducing the presidential authorities and supporting the judiciary independence.
The report also discusses why and how constitutional amendments take place. It also presents the concept of the constitution, how constitutions are developed, their historical development and the types of constitutions.
The report also presents more than 20 examples of constitutional articles that need to be amended or canceled in order to support the right to authority circulation and improve the conditions of citizens’ participation and asserting the necessity of the judiciary independence.
Then the report presents some recommendations that can contribute in changing the overall conditions in Egypt. As change is subject to stopping the despotism of the state foundations and using violence against citizens, in addition to providing citizens with economic and social services that include educational and health care. That is the only way for a peaceful change that guarantees a better future for everyone.
First : Why And How Are The Constitutional Amendments Made ?
The call for a change of a law or constitution is in reality a call for substituting prevailing texts with new texts . There is a debate now in Egypt between the political powers and the legists , on whether to amend the current constitution , or substitute it entirely with a new constitution for the state of Egypt . But we assert that the problem is not in the texts but in the reality that produced these texts , and in which these texts move . It is a fact hidden from most minds . On one hand the current constitutional texts differ a lot from the actual movement of reality , and on the other hand the texts represent , for most legists who took upon themselves the task of changing the constitution , the first and most important priority .
There are two things that must not leave our sight when looking at the texts of the constitution ;
First : Their indication of the actual power balance which produced them .
No legal or constitutional text can come out into life unless the social , culture , economic , and political interactions are gathered under certain circumstances , to fulfill certain needs , that worry these interactive powers into birthing the text.
Second : Their indication of the actual power balance , under which they move . They are implemented , ignored , or neglected entirely , according to the power of who wants them implemented , ignored , or neglected on all levels that control the conditions of the society .
The Egyptian history , at least , is full – since the 1919 revolution till now – with tens of examples that indicate this . Nevertheless , the common school in Egypt is the one that raises the considerations of legal form above all considerations , in spite of the widespread and sometimes conflicting interpretations by some supreme courts in Egypt of the text , and in spite of the actual economic , social and political reality . An example of that is what happened in the case of selling the public sector .
We believe that the current Egyptian constitution , is a son of that school , which raises the value of texts , regardless of the real different power balances in society . Thus each of the different political currents , which had even a small contribution in making the constitution , have competed to insert texts in the constitutional document , that represent it’s ideas .
These texts represent their establisher’s semi sanctifying view of texts , and their establisher’s hearty welcoming of the special nature of these texts . This matter becomes obvious when we recall the circumstances in which this constitution was issued . In the aftermath of the conflict between Anwar El Sadat and his opponents inside the socialist union , which was the only political organization at that time in 1971 , after the death of Nasser in the end of 1970 . It was the conflict Sadat ended in his favor on the15th of may ,1971 .
In our opinion the texts of the constitution were governed by the nature of the relationship between two specific currents:
First : A current consisting mostly of leftists . In that time they wanted to exploit the conditions resulting from the conflict to guarantee more protection for the economic and social rights , and to guarantee that they are included in the texts of the constitution . This current has succeeded a huge success in achieving it’s goal . A successes represented – especially before the 1980 amendment – in most of the texts of the first part ( 6 articles ) , and in some texts of the first , second and third chapters , and most of the texts of the second chapter in the second part ( 20 articles at least ) . These are the two parts concerning the state and the essential constituents of society . In addition to this direct representation of the ideas of this current , it’s spirit and demands have infiltrated most of the texts of the constitution , especially the duties laid upon the shoulders of the state authorities and it’s different organizations .
Second : A liberal current . It seems that hopes of retuning to activity had filled this current after Sadat succeeded in getting red of the Nasseric leaders , who exchanged hostility with this current through a whole decade at least . This current has succeeded in including several liberal texts in the constitution , which manifested itself in several articles of the third and fourth part of the constitution concerning the public freedoms , rights and duties ; and the supremacy of law . It became a custom after the 25th of July , to include such articles in the issued constitutions . In the new constitution such articles are more tight and thorough than the previous articles .
What each current reached represents real ambitions , which were represented inside and outside the regime , and expressed in more than one occasion .
In our opinion Sadat had his eyes on other matters originating from or following the conflict from which he had just come out a victor . He wanted to confirm the superiority of his authority over all the other authorities , so that the situation he found himself in , after he was elected president , where all the keys of power were not in his hands but in the hands of others , will not be repeated .
He wanted to polarize the different currents and activities in the field . He didn’t mind complying to their demands concerning the texts of the constitution , especially if this compliance made him a supporter of democracy . It was an image he gave about himself after he ended the conflict of 15th may . In consequence the texts of the constitution came out as a mixture of all these effects . Most of the authorities were in the hands of the president , who became the center of the constitutional system . Yet the texts contained lots of rights ; public and private freedoms ; and economic , political , and social rights for the people . It included a lot of implications that represent socialism and liberalism in the same time . But in reality the power balances have thrown their shadows on matters . The authorities of the president have always been confirmed and assured , until he was able to control matters alone , in the same time the state’s economic and social obligations , which the constitution enumerated , have fallen back gradually . As for the constitutional texts concerning the supremacy of law , the independence of the judiciary , and the public rights and freedoms , the executive authority has alternated between respecting and ignoring these texts according to what this authority sees and estimates .
Why the call for a change in the constitution ?
If we do not put much importance on the texts themselves , and see that the nature of the prevailing power balances , and the willingness of the executive authority to abide by the constitutional texts , and if it guarantees protection and respectability for the texts or not , are the things that matter in any case , then the logical objection that comes to mind naturally must be concerned with the usefulness of the call for a change in the constitution . We do not mean to deny the importance of the texts themselves , but we wanted to draw attention to these points about the demand to amend the constitution texts . We wanted to assert that the texts , especially the legislative texts , are important in 3 regards :
The First Regard : Concerns the principal of legitimacy . A legitimate act , which is consistent with the texts of the constitution , the law and with the customs and habits that surround them , cannot possibly be the same as an illegitimate act , committed by some authority in violation with these , texts , habits , and customs just because the nature of the prevailing power balances make it possible for this authority to commit such an illegitimate act and implement it without any fear of responsibility or supervision , as it is the strongest and prevailing authority in the country .
The Second Regard : Concerns the power balances themselves . The presence of some texts in a document , which is considered obligating to all the powers in the society , must be translated into a kind of power balance , even if it was a hidden one , represented only in the wishes and ambitions of it’s groups and individuals
We have already pointed out that the texts of the current constitution were a result of Sadat’s desires , and a result of his interaction with the desires of two currents existing in the field , one of them a leftwing and the other a liberal one . It was an interaction that was made under specific political conditions . Therefore it is possible to say that the process of producing texts is a process governed by the prevailing power balances at that time , regardless of the capabilities of these balances to protect these texts afterward , and the continuance of these balances without a change in the elements or the conditions that produced them .
The Third Regard : Which is more connected to the second regard , because if the texts are the result of a reaction between power balances under a certain condition , then it is impossible to ignore all the texts contained in a document of the same nature , in one step , especially if that document was a constitutional document . On the contrary , the practical reality always proves that ignoring some constitutional texts which concern some political rights or organizational aspects , always carries with it giving more importance to the application of other texts that govern other organizational or legal aspects , or maybe drafting more accurate and useful texts concerning other aspects , equivalent to what has been ignored .
In addition to the three previous regards , the texts gain importance from two principal matters :
The First : The judiciary itself is bound by the text , whatever it’s discretions and interpretations , in the end it is governed by the legal text , regardless of the text’s convenience or of it’s justice . In a very indicative response to the saying that the function of the judiciary was to administer justice , one of the great French Jurisprudents pointed out in a mocking statement that the function of the judiciary was to administer law .
The Second : So long as we are talking about the judiciary , then we are talking about a real authority that is capable of providing real protection for the contents of the texts . The texts here must not be out of context or content or lacking the sympathy of the powers , which are capable of protecting and advancing it . In a case such as this the importance of the texts are not limited to casting an illusionary legitimate form upon some conditions and rights . The best example for this is the economical developments that are happening now in Egypt , which implement in accelerating steps the free economy policies , in spite the fact that articles (23:39) in the second chapter of the Egyptian constitution talk about an economic system completely different from what is happening now in Egypt . For example article 24 stipulates that “ The people shall control all means of production” , and article 37 stipulates that “ The law shall fix the maximum limit of land ownership” . But what is happening now in Egypt is in total contradiction of that .
But our call for a change in the constitution is not limited only to trying to respond to the needs of the present state of matters , but because we also believe that there is a danger threatening a fallback in the accumulation of constitutional rights we have achieved , due to worsening political , economic , cultural and social conditions , here is not the place to talk about them . We only point out the suffocating crisis’s , which the people and most of the political powers suffer , and which the state organizations also suffer , like the judiciary… etc.
In addition to this is the trespassing of the executive authorities on the other authorities by ignoring the judicial rulings and by not implementing the legislative texts . Add to this the dangers of continuing to administer the emergency law , the thousands of citizens inside the prisons as detainees without any judicial rulings against them , and the refusal of the authorities to guarantee the right of organizing for the citizens and the political powers ( the parties – associations – unions ) without it’s guardianship ( the Committee of the Parties Affairs ) or it’s administrative restrictions imposed upon the organizations of the civil society , in addition to the state adopting free market and economy polices , which participated in the displacement of hundreds of thousands of workers and the issuing of the laws of free agricultural lands , which caused the displacement of hundreds of thousands of farmers and the withdrawal of the state from providing services and from providing social , educational and health care . These dangers push the social balances into a stage of danger and disorder , which we wish the state authorities to pay attention to , so that it may reshape it’s relationship with the citizens and return the lost social and economic balance , by guaranteeing the right to a good life , freedom and security and equal distribution of wealth and social rights for every voter , if it cares for the future of our country .
Second : The Development , Concepts and Types of Constitutions
In this section we will examine several issues , like the concept of constitution , and the ways by which the constitutions develop and their types , in addition to other issues , which we will discuss successively :
The concept of the constitution :
The constitution can be defined as the document that contains the philosophy of governing , which the state foundations implement . In another phrase , the constitution means the document of a certain state , which contains it’s political , economic , social , and cultural organization ; and which organizes the different authorities and the relations between them , and the rights and freedoms of the individuals or what could be called “the public rights and freedoms” . Regarding form , the constitution is the document issued by the constituent authority , or the authority by which the constitution was born , or by which it was developed , taking notice that modern constitutions intentionally include constitutional matters and subjects in their texts in a detailed way , to prevent any potential assault on the rights and freedoms , or an authority assaulting another authority , and to clearly define the political organization of the state , so that it may be possible to tighten the constitutional supervision over the state authorities . Modern constitutions deliberately make these provisions detailed . But the ordinary legislator still has various fields and areas , to issue the ordinary legislations but not the constitutional ones . Custom , constitutional jurisprudence or the judiciary may contribute in covering this insufficiency by joining the ordinary legislator in filling these areas , which the constitution has left out . Therefore we can say that the constitution may contain subjects that are not essential or not constitutional , or that it may also drop or leave out intentionally , some constitutional subjects , which the left out areas represent , or the not constitutionally filled areas . We notice that the constitution may be issued in one document , or in several documents . In this case the constitution is issued by an instrument , way, method , or authority other than the one which issues the ordinary laws , and according to procedures different than the procedures of issuing the ordinary legislations .
We should mention some observations here . They are as follows :
First : The constitution , as previously defined , contains essentially the political , economic , cultural , and social organization of the state ; and the public rights and freedoms . That it may contain , beside what is constitutional , matters and subjects that are not of a constitutional nature , but are more of a criminal , financial or an administrative law . The constitution intentionally includes these matters for the purpose of giving them great importance and for preserving them to achieve their stability and steadiness , and to put them in the same level with the constitutional matters .
Second : some constitutional documents may not contain all the rules and details of the political , social , cultural , and economic organization of the state , or the public rights and freedoms . Some constitutional matters and subjects may not be included in the document , like the electoral law , and other essential constitutional matters , according to their nature .
Third : Each state has it’s own constitution , meaning that there are multiple constitutions as there are multiple states . Each state cares about having it’s own constitution , at least from the subjective aspect , even if didn’t have a constitution from the formal aspect . This situation became obvious in the second half of the twentieth century , with the birth of more than one hundred and thirty states , and their emergence in the international political system , regardless of whether the political system of this state adopts the democratic way or the despotic way , in which the state is ruled by one individual and one party : the party of the majority . In addition to this , the idea of the constitution is connected to the idea of the national group , due to the development of national states , and the emergence of one hundred and thirty states during the last century . The constitution exists if the state exists , but the documents that exist under political groupings in the shape of a covenant state , or in the shape of regional or international groupings , are not considered a constitution , either from a subjective or legal aspect , even if the word constitution was stipulated clearly in the document , like in the charter of the united nations . Because it does not actually change anything that these covenants according to their nature and their political reality , are agreements or conventions between a group of states or small states and not constitutions , or at least not what is meant by the concept of constitution which this report discusses .
Ways of developing constitutions :
First of all unwritten martial constitutions do not raise any problems regarding the way they were developed . The martial constitution is born and grown as a result of tradition and habit and as a result of respect of the individuals , groups and foundations towards it , and their respond to it’s loftiness , therefore the development of martial constitutions by way of tradition does not raise any problems about their development . But what we will research here is the ways of developing written constitutions .
The constitution – as a general role – develops by way of the authority that posses the right to establish it , or what is called the constituent authority , which by turn is dependent on the political system and the type of government in the framework of which it exists . Which means that the constituent authority depends on the existing government system in the society . Hence constitutions differ according to their development , and according to the different types of governing systems , and according to what the system decides about determining and appointing the constituent authority in it ,. More than that , supposing that two kinds or more of governing systems are similar about determining the constituent authority , yet the constitutions may differ according to their birth and development and according to what the constituent authority may decide about the way it sees suitable for establishing the constitution .
There are several ways for developing and issuing constitutions , the most important of which are :
1- The grant way
2- The contract way
3- The Constituent Assembly way
4- The referendum way
we will try to briefly show the concept of each way as follows :
1- The grant way :
In an early stage in the lives of states governors , whomever they are , kings or otherwise , have possessed and practiced authority alone , in the center of which the possession and practicing of constituent authority , either from the legal aspect or the actual aspect .
These governors feared , due to the changes that happened in the society , for their aloneness in possessing and practicing authority , hence they took the appearance of being gregarious enough to issue constitutions for their people , constitutions that appeared in it’s form to limit their authority and put restrictions on it for the benefit of their people . From the formal aspect these governors have given up willingly part of the authority they posses to their people with their outward consent , although the currents of change may have forced them in reality to take this step .
The obvious meaning from analyzing this way – the grant way – is that the constitution in this case is born by the will of the king , the possessor of supreme authority or the possessor of sovereignty , where he gives up ( sacrificing ) part of his authority or sovereignty with his formal consent about the organization and practicing of this part of authority which he has given up . Hence the way the constitution developed was from above , according to the theoretical thinking in the mind of the authority possessor , while the actual reality is different than this , where the circumstances , whatever it was , force him to save himself and his pride and save whatever authority left with him , so he issues the constitution .It oblivious from the legal aspect that who can grant can also withhold , hence the possessor of sovereignty has the right in this case to cancel what he has already granted , although the actual reality asserts something else , that the forces of change in the society stand as an obstacle in the face of kings to practice the way of withholding ,for fear of the currents of change , and to please their people . Therefore time has effaced the way of grant to develop constitutions .
2- The contract or contracting way :
In a following stage of the struggle of the people for the public rights and freedoms , and in order to break the might of the absolute government , and to fight the despotism of the different forms of absolute government , there appeared the beginnings of a new phase on the road to freedom and democratic advancement , where the people have appeared as an equivalent element in developing constitutions by way of contract or contracting , in which the governor submits for some reason or the other , in translation of the change currents , whether this was done by a revolution , a coup or due to political pressure , hence the governor accepts in the end the existence of an agreement between him and the people for the constitution to be issued in this way , which necessitates that the king does not cancel it , because it was born as a result of the meeting of two wills in the shape of a contract by which the constitution was born , and the contract is the law of the contractors , it is not to be cancelled , breached , nullified or amended except by the will of the two parties .
Away from this political unrealistic justified philosophical thinking , like the grant way , the practical reality is the thing that made the governors and kings and their followers recognize the people’s right to participate in the constituent authority .
We also stand against using this way of thinking , which is based on the concept of contracting , which means that the wills of two parties have met , with their own freewill to make a specific legal effect , which is the contract or contracting in a way that gives each part the right to discuss the conditions of the agreement , and the right not to sign it or not to enter this agreement , which is also in conflict here , like in the case of the grant way , where the kings and possessors of authority were forced without having any choice to submit to issuing these constitutions , that they haven’t done this except by coercively making themselves do it , to save what is left of their authority and to continue practicing it . based on this they had to submit to the will of the people and to submit to and obey these constitutions , hence the governor has no choice in accepting or not accepting the constitution , but to abide by it , according to what the representatives of the people have prepared , and to respect it and work according to it . The role of the governor here is purely formal or imaginative and has no connection with the political reality , which asserts that the constitution is established by the people , and the governor , whomever he was , has no choice but to accept it . Based on this it is absolutely impossible to imagine the idea of contracting or contract as a way to develop these constitutions , where there is a total absence of the idea of equality between the two parties of the contract , and saying that the governors have accepted by their own freewill is also not true , which disgraces the idea of contracting and make it unacceptable besides being not right .
Away from this philosophical talking , the actual reality assets that the governor can change the articles of the constitutions , like what happened in Egypt , when Sadat was able to change the terms of presidency from two terms to a number of eternal terms , regardless of the way the amendment was made
3- The Constituent Assembly way :
This way supposes that a Constituent Assembly was elected by the people , representing them , and entrusted with the mission of establishing the constitution , so that the constitution issued by it is enforceable , as the people are the ones who issued it and whom the assembly represent . There is no doubt that this way is the best way , from all aspects to issue the constitution . As stated previously there was one propose for electing this assembly , which is “Establishing the constitution” . Therefore it was said that this assembly found itself to have gathered in it’s hands all the authorities in the state in the same time , it does not only posses the constituent authority in it’s hands , but the rest of the authorities also .
This way was developed by the United States of America , which used it in establishing it’s constitutions when it gained it’s independence from England in 1776 . It also used it in establishing and adopting it’s federal constitution , which it established in the Philadelphia conference in 1778.
It could be said that the way of establishing a constitution does not have a direct relationship with the stability of the constitution or it’s steadiness , but that there are other considerations that affect it’s stability and continuousness , that could be attributed to the degree of suitability of the constitution , the development of its interpretations and the contents of it’s texts for the prevailing powers in society . If it was underdeveloped , then it has to be amended or changed according to the circumstances . Meaning that the development of the society itself in which the constitution exists and the necessity for change are the main reasons for looking into the current constitution and if it was to be amended partially or to be changed completely . But the question remains : what are the standards for choosing the members of the Constituent Assembly ? and how to guarantee that all the classes and powers of the society are represented in it ?
4- The referendum way :
This way supposes that the people practice the constituent authority . The actual reality proves that this way is used essentially for two purposes :
Knowing the opinion of the people in an essential matter , the result of which will be either to establish the constitution or amend a text of it’s texts .
Knowing the opinion of the people in adopting or not adopting the draft of the constitution which was established by a Constituent Assembly representing the people .
Like what happened to the Egyptian constitution in 1971. The referendum way is considered one of the worst ways from the democratic development aspect or guaranteeing balance and the existence of political powers inside the governing system .
The ending of constitutions
The constitutional experiences assert that although constitutions may differ in the way they ended yet the ways of ending constitutions could generally be attributed to the following ways :
1- The normal way or the way of the Constituent Assembly :
It always remains that the people , in their capacity as the original possessors of the constituent authority , have the right to cancel their constitution in any time they want and establish a new constitution by way of another Constituent Assembly elected for the purpose of choosing a new constitution , which is suitable and agrees with the people’s hopes and ambitions , and which fills the gaps between what is achieved and what needs to be achieved , between what is accomplished and what needs to be accomplished . That is the legitimate way to end constitutions , partially amend them or completely change them .
2- The revolution or coup way :
That is the familiar way now , specially in the new born states , which emerged after the second world war , and the independence of a lot of them , which exceeded more than 130 states by the end of the twentieth century and during it’s last half
Naturally this way can not possibly be provided for in the constitution , in the first place it could not even be provided in any constitution for the way to end it’s life , but it is possible to provide in it for the way to amend it , which all constitutions provide for . It provides for the procedures that must be followed in order to make a change it , which completely agrees with the procedures that were followed in issuing it .
If the jurisprudents of the constitutional law have agreed that the revolution or coup are similar in wanting to omit the parts of the constitution which are in conflict with their goals . Some of them differentiated between the coup and the revolution on the basis that the revolution emanates from the people but the coup emanates from an authority , whichever it was , governing or military , like the army . According to this the goals of the stagers of the revolution differ from those of the stagers of the coup . The stagers of the revolution aim generally at making various political , economic and social reforms according to the reality of each society in which the revolution happened , That only way for them to do these reforms is by seizing power , hence the authorities of government are transferred to the stagers of the revolution . Consequently they amend the constitution to make it suitable for the changes in the society , which produced this revolution . This differs from the political change caused by a coup , which can not , in any case , lead to the a change in the constitution .
Types of constitutions and their amendments :
Constitutions may be similar in most of their contents , like the values of the societies from which they have developed , the relations between the authorities , and the rights and freedoms of the individuals . Yet these constitutions differ essentially according to their source , and according to their degree of flexibility . We will approach their types and the way they are amended , successively as follows :
1- According to the source : codified and uncodified constitutions :
By codified we mean the technical or official codification , hence the constitution is considered codified if it was issued in the shape of a document – or several documents by the constitutional legislator . as for the uncodified constitutions , it is the constitution that derives its provisions from another way other than the way of the constitutional legislator , which means that it was not issued in the shape of a document . The codified constitutions are the dominating constitutions now in the constitutional law , while the uncodified constitutions ( the unwritten constitutions ) have decreased . The example that always comes into mind is the English constitution , it is a classic example on this type of constitution , where the constitutional legislator does not intervene in establishing it , and does not issue a document for it . Nevertheless most constitutional conditions in the United Kingdom now are codified in the shape of multiple constitutional documents .
2- According to the standard or way of amendment : flexible and inflexible constitutions :
Jurisprudents agree that the flexible constitution is the constitution which does not require special procedures to amend it , meaning there is no difference between it and between the ordinary law from the legislative aspect . In another phrase the flexible constitution is the constitution that can be amended by the usual legislative way and by following the same usual legislative procedures , and by the same legislative authority that passes and amends ordinary laws . based upon this there is no need for following special procedures to amend the constitution , rather the legal authority is the authority that makes and amends public legislations .
as for the inflexible constitution it is the constitution that requires specific procedures for it’s amendment , which are more strict than the procedures for amending the ordinary legislation , hence there are more difficult or complicated conditions and procedures that must be followed when desiring to amend the inflexible constitution , meaning that the inflexible constitution can not be amended by an ordinary law .
The purpose behind the inflexibility of constitutions , is to achieve a kind of stability and steadiness for the constitution , so that it’s provisions may be stable , and away from continuous amending , altering , and changing . For this reason the constitutional document aims at providing for the existence of a special organization that makes the amendment of the constitution not an easy matter .
Although the inflexible constitutions may be various and different , yet they seek to guarantee stability by two ways , either by prohibiting amendment or by permitting it under special conditions . we demonstrate this as follows :
Constitutions that prohibit amendment :
It is not reasonable that the establishers of constitutions would resort to prohibiting their amendment in an absolute way , which means imposing an absolute prohibition on their amendment . they usually resort to kinds of prohibition :
First : temporal prohibition . Which means not toughing the constitution for a specific period of time for the purpose of protecting it and for the purpose of enforcing all or some of the texts of the constitution provisions for a period of time , enough for stabilizing and steadying it in the conscious of the political group and in the certainty of the nation , and this before permitting the contemplation of amending it , like for example the constitution mentioning a positive privilege for the women , Coptic or farmers and connecting this with a certain period of time .
Second : subjective prohibition . The reason for it is to protect certain texts and provisions in the constitutions , for the purpose of protecting it and not trying to touch or amend it . That kind of prohibition is concerned mainly with the essential provisions in the constitution , specially what is related to the governing system .
3- Amending the constitutions :
Constitutions differ in the procedures they determine for their amending , the reason for this difference and variance is attributed to various considerations , and some are attributed to political considerations , which are represented in that the decided organization for amending the constitution must take into consideration the authorities which the governing system is based upon . The reason for this is that the decided organization for amending the constitution in the semi direct democratic system , must take the people and the Parliament into consideration . That the decided organization for amending the constitution in the parliamentary system , must take the Cabinet and people into consideration . That the decided organization for amending the constitution in the presidential system , must take into consideration the form of the state and the states inside the federal union and the Parliament and so on .
There are technical considerations , represented in the drafting ways and methods , which the establishers of the constitutions adopt , the most important of which are :
Providing for the similarity in legal conditions between the development of the constitution and its amendment , specially if the developer of the constitution was a Constituent Assembly . The reason for this is that where a constitution is to be developed by an elected body , then the provided way for amending the constitution in this case , is the same way that was followed in establishing the constitution , which means electing an assembly for this purpose .
To be limited to organizing the essential fundamentals in the constitution , leads it’s establishers to be strict in organizing the procedures for it’s amendment . On the contrary , including details in the constitution , makes them more acceptant towards facilitating its amendment . In light of this we would like to show the different phases that the amendment of the constitution goes through .
The most important of which are :
The proposal for amendment
The proposal for amending the constitution could be for the Parliament alone to make , or for the Cabinet alone ( the executive authority ) or for both of them , or for a number of individuals from the people , or for the people and Parliament together .
The constitutions under which the executive authority rules , is the authority that makes the proposal to amend the constitution . This way was the most common way in old times , where the government or the head of the state ( the king ) is the one dominating the destines of the state , hence he is entrusted with the right to propose the amendment of the constitution . But most constitutions in most states of the world have retracted from this now , due to the power of the legislative authority against the executive authority . In the states where the three authorities are truly independent the right for amendment , in most constitutions , is for the Parliament alone. The right for proposing the amendment of the constitution is for the Cabinet – the executive authority – and the Parliament to make together , and this is under the constitutions that try to make a balance between the executive and legislative authority . the right for proposing constitutional amendment may be for the people to make . The last way is the one which the constitutions of most third world countries follow :
The current Egyptian constitution of 1971 has given this right separately to each of :
· The president of the republic
the People’s Assembly
Article 189 stipulates that “ The President of the Republic as well as the People’s Assembly may request the amendment of one or more of the articles of the Constitution. The articles to be amended and the reasons justifying such amendments shall be mentioned in the request for amendment . If the request emanates from the People’s Assembly, it should be signed by at least one third of the Assembly members . In all cases, the Assembly shall discuss the amendment in principle, and the decision in this respect shall be taken by the majority of its members. If the request is rejected, the amendment of the same particular articles may not be requested again before the expiration of one year from the date of such rejection. If the People’s Assembly approves an amendment, in principle, the articles requested to be amended shall be discussed two months after the date of the said approval. If the amendment is approved by two thirds of the members of the Assembly, it shall be referred to the people for a plebiscite. If it is approved by the people it shall be considered in force from the date of the announcement of the result of the plebiscite.” referendum
The sad thing is that the procedures which the constitution requires for its amendment are easier from the realistic aspect for the president of the republic than for the People’s Assembly !
Approving amendment , in principal , or approving the proposal for amendment , in principal :
It is noticed that most constitutions give the Parliament the authority to decide about the proposal for amendment , on the basis that the Parliament represents the whole nation and the most suitable authority to decide about the proposal for amendment and show it’s necessity and the need for it
In addition to the approval of Parliament on the proposal for amendment the constitutions of the united states and Switzerland have necessitated the approval of the people , and that is better from the aspect of democracy .
Preparing the amendment :
In Switzerland the constitution allows the Swiss people to prepare a draft for the amendment aside from giving this right to the representative Assembly .
Some constitutions may require the election of a special body or committee to be entrusted with proposing the draft of amendment , yet most modern constitutions entrust the Parliament with this task , on certain conditions that guarantee seriousness and the safety of procedures , whether these conditions and procedures were represented in the whole Parliament preparing the proposal by voting on it , or the by the necessity for a certain percentage to be existent in it’s meeting , or in the necessity of dissolving the Parliament and making new elections to form a new Parliament to be entrusted with this task . But the best way to practice democracy is give this right to the Constituent Assembly and to the people the source of all authorities .
Adopting the amendment :
Most constitutions , specially those that were issued after the first half of the twentieth century gives the right for adopting the final amendment for the constitution to the same body , authority or entity that established and adopted the constitution . This body , as stated previously , is either an elected body for this purpose , or it is the Parliament under certain conditions , like the approval of the people , or that the draft for constitutional amendment be referred to the people for a plebiscite , like what the Egyptian constitution of 1971 made , where it required that the amendment be referred to the people for a plebiscite according to the third paragraph of article 189 of the constitution
Plebiscite alone is a bad way to adopt constitutional amendments , specially in the states that suffer from political despotism .
Third : The Historical Developments of The Egyptian Constitution
Following the first world war Egypt has witnessed a revolution , which is considered one of the most violent revolutions in the history of the colonies in that period , it’s outbreak surprised everybody including the leaders of the national movement , who hadn’t expected the Egyptian people to have such an ability for change and progress…This was the1919 revolution , which was characterized by it’s comprehensiveness and the participation of all the classes of the people in it , including the farmers of the countryside and the workers of the cities , even the Egyptian army sympathized with the events of the revolution . From this approach it represents an important episode in the Egyptian political and social development . The important political accomplishments of this revolution are : the termination of the protectorate in 1922 , the promulgation of the 1923 constitution , and the return of parliamentary life .
The 1923 constitution was like the beginning of a new page in the history of the country , but the conditions of the first years of it’s implementation prevented this . The Egyptian life witnessed at that time a bloody conflict between three forces :
The Wafad Party , which represented the current of the national movement and attracted vast masses of the people and defended their freedoms .
The Palace who didn’t like the restrictions the constitution imposed on his absolute ruling and kept waiting for the chance to change it , and was baked up in this by the parties of the minority .
The British who intervened to achieve their own interests and force their will .
The king used his right in dissolving the Parliament , in a way that resulted in the existence of high degree of political instability and the suspension of the parliamentary life , like what happened on the hands of Ahmed Ziwar pasha in 1925 , and the cabinet of Muhammed Mahmmoud pasha in 1928 , then the constitutional coup of Isamail Sedqi pasha in 1930 . The royal decree number 70 was issued on October the 22nd , 1930 , which stipulated in it’s first article the abolishing of the 1923 constitution , the dissolving of the Chamber of Deputies and the Senate , and the promulgation of a new constitution , and a new electoral law was also issued . The explanatory note touched on the reasons for changing the constitution , it asserted the necessity for the constitution to represent the social conditions , that the 1923 constitution has copied from the constitutions of the advanced states without having the social reasons necessary for it’s successes in Egypt .
The 1930 constitution is considered by all measures a setback in the development of the Egyptian democracy . It limited the power of Parliament and supported the power of the king and the executive authority . It put restrictions on the right of the Chamber of Deputies to withdraw it’s trust from ministers , and stipulated that the request must be signed by 30 members at least , that it must contain the matters under debate , that the request must not be open for debate before 8 days from its submission , that it not be voted upon except after two days from the closing of debate , and that it be issued by a majority of the Chamber . It also lengthed the period that follows the dissolving of the Chamber of Deputies , in which the elections for the new Chamber are held , and made it 3 months instead of 2 , and made the new Chamber convene in 4 months instead of 10 days , like the 1923 had stipulated . It shortened the period the Chamber was in session , and made 5 month instead of 6 , and allowed for the members of Parliament to be trailed if they criticized his royal highness or any member of the royal family . It allowed for the dissolving of Parliament before adopting the new budget , it abolished the direct ballot system and restored the two phases indirect ballot system and adopted the universal suffrage for first class voters – The electoral college as for the second class voters or the delegates who elect the members of Parliament it adopted the restricted ballot system by stipulating a financial quota , and by raising the minimum age for the voter to be 25 years . It also raised the required percentage to amend the constitution and made it two thirds of the members . The constitution supported the authority of the king and the cabinet by raising the percentage of appointed members in the senate to three fifth and by stipulating that the king alone has the right to appoint senate members and has the right also to appoint the highest Muslim religious officials in the country . It supported the king’s legislative authority , by forcing the Parliament not to look into a draft law rejected by the king in the same session , and that if the Parliament looked into it in a later session , it was required to obtain the majority of two thirds to become a law . It did not commit the king to convoke the Parliament for an extraordinary session based on the request of the majority of the majority of the two houses . It gave the government the right to issue legislations through the necessity regulations , in the periods the Chamber was dissolved in . It canceled the necessity to convene the Parliament for an extraordinary session to present these decrees to it . It gave the cabinet the right ti raise new funds in the absence of Parliament , and to transfer these funds from chapter to chapter in the budget without the need for the ratification of the Parliament .
Sedqi continued to rule by this constitution in the face of a violent resistance from the people and the parties until his cabinet resigned in September of 1933 . The political parties formed a front that demanded from the king to restore of the 1923 constitution , and indeed the king issued his royal decree on the 12th of December , 1935 , which stipulated that “ The constitutional system of the Egyptian kingdom shall be the system which was adopted by the royal decree number 42 of 1923”
The 1923 constitution continued until it was abolished on the 10th of December , 1952
After the outbreak of the 1952 revolution in July of the same year , it’s first provisional constitution was issued in 1956 , The texts contained in that constitution , and in the later constitutions , only represent the desires of the presidential establishment from the formal and subjective aspects .
In spite of this , none of these constitutions could have been issued without granting the Legislative Assembly some authorities and jurisdictions , but regrettably no Legislative Assembly during the regiment of Gamal Abdel Nasser practiced these jurisdictions , because it’s members were aware of the real balances in society , even the Nation’s Assembly did not , even for once , withdraw it’s trust from the Cabinet or from one of it’s members , which is it’s right constitutionally , since the 1964 constitution . The 1956 provisional constitution gave absolute power to the president of the republic , and on the other hand reduced the jurisdictions of the Representative Assembly , which lead to the weakness of the supervising rule of the Assembly . Despite the right given to the Assembly by the 1964 constitution to practice supervision over the government , to the extent of withdrawing it’s trust from it , the 1964 constitution gave the president the right to dissolve the Nation’s Assembly .
The political conflict in the field of making decisions continued to be confined to the top of the pyramid of power , as for levels other than that level , a viewpoint prevailed that saw that politics was essentially no more than a group of administrative problems , and that disputes may be about these problems , and about raising the level of performance , but without touching on the political choices and priorities itself . Choosing and determining political priorities continued to be one of the rights of the presidential establishment , to the extent that any demands or political priorities became illegitimate even if it was legitimate to think about or to express it as long as it did not come from the presidential establishment , which monopolized the right to think for the society and to determine it’s choices , and the others have only the right to think in the limits of what it has settled upon .
That matter had reached its summit when the choices and priorities determined by the presidential establishment were called the national aims and demands of the Egyptian people , hence opposing these aims and presenting a substitute for them was considered and opposition to the national will of the Egyptian people .
The 1971 constitution :
The 1971 constitution was an amended copy of the constitutions and constitutional promulgations issued since 1952 . Despite the amendments that were made on the distribution of jurisdictions between authorities here and there , and despite it being more close to the principle of separation between authorities , it continued to preserve the special position for the presidential establishment , as it becomes clear from revising some of it’s articles .
Article 73 stipulates that “The Head of the State is the President of the Republic . He shall assert the sovereignty of the people, respect for the Constitution and the supremacy of the law. He shall safeguard national unity and the socialist gains and maintain the limits between authorities in a manner to ensure that each shall perform its role in the national action.”
This article has expressed the core of the political system in Egypt when it didn’t consider the president among the authorities existing in the society , despite being the strongest and most important of them , and placed him above them to supervise their work and maintain the limits between them.
“The President of the Republic, in conjunction with the cabinet, shall lay down the general policy of the state and shall supervise its implementation in the manner prescribed in the Constitution.” ( article 138 ) . It is obvious that the president of the republic is the main active party in this process , due to the right he possesses in appointing the Prime Minster and the ministers , and it is natural that he chooses them according to his desires and tendencies . More likely the political choices and priorities were previously determined by the president and maybe by some of his close assistants , but there remains some technical aspects in this policy that only experts and specialists can deal with , so the role of ministers would mostly be to fill this technical insufficiency , and from here came the technical nature that characterizes the work of ministers , and the big role played by specialized college professors , whose share in participating in the political life was limited in comparison to their academic and scientific interests . In the same time the People’s Assembly does not practice it’s supervision regularly on the cabinet ( article 127 of the constitution ) , which points out the limits of the supervising function of the People’s assembly , as it is mostly limited to the technical matters and not the political principals and priorities , which are practically the jurisdiction and competence of the president of the republic , who the People’s Assembly can not submit to it’s supervision except in the case of the president being charged with high treason ( article 85 ) , which is hard to imagine happening in the case of the power balances of the Assembly , and consequently it’s political rule is reduced .
The president of the republic derives this power from several things , like being the Supreme Commander of the Armed Forces ( article 150 of the constitution ) and the Supreme Chief of the police ( articles 5 , 184 of the constitution ) . Also the President of the Republic has the right to proclaim a state of emergency , after submitting it to the People’s Assembly ( article 148 ) . He also has the right , on the authorization of the People’s Assembly, to issue resolutions in certain fields ( article 108 ) . And above all this , he has the right to take urgent measures to face any danger that threatens the national unity or the safety of the motherland or obstructs the constitutional role of the State institutions ( article 74 of the constitution ) . And above all this the President of the Republic has the right dissolve the People’s Assembly after a referendum of the People. ( article 136 of the constitution ) , and so it is obvious that the President of the Republic has almost all the political authorities in the country in his hands .
On another hand the 1971 constitution was issued before the party life was restored , due to this the constitution was amended in the 22nd of may , 1980 , so that article 5 stipulated that “ The political regime of the Arab Republic of Egypt is based upon the multi-party system” . But this amendment did not find it’s reflection in the other articles of the constitution , and so it’s main construction continued to be based on the president having all the authorities in his hands , so that the decision of the constitution to restore the party life has not resulted in amending the hierarchy of authority distribution in the political system . As a result of this the president of the republic did not become committed to choose a the Prime Minister and the ministers from the party which won the majority in the Parliament , so that the executive establishment united around the person of the president without any binding relation with the party life in the country .
Forth : The Proposed Constitutional Amendments
The development of the political , economic , cultural , and social conditions in our area , and the increased role played by the United States of America in the last period and it’s presentation of the Middle East initiative , and it’s demanding of the governments about the necessity of implementing democracy , has affected the political conditions in the area . The western initiatives have committed the government to respond to the changes in strategies , policies , plans , and persons , so that it may keep pace with these developments in a way that ensures it’s stability . There were threats and dangers of opening the door of political violence to make these changes .
If the political systems do not succeed in translating all of this into resolutions that achieve the changes , they may be in danger and threatened generally to lose stability and lose the future and present of these frozen systems . As for the Egyptian political system , with all it’s contents , it needs to change , due to the conditions and outside pressures on one hand , and due to the worsening political and living conditions of the citizens on the other hand . Some of these inside changes concern the canceling of the emergency law , releasing the detainees , allowing the right to form political parties, syndicates and associations without any supervision or administrative interference , guaranteeing the freedom of publishing newspapers ; improving work conditions , income , and good life for the citizens and among these demands the amendment of the constitution . Opinions have differed in this matter , an opinion went to say that that it is worthier to establish a new constitution suitable for the political , economic , cultural , and social changes that happened in the society since the issuing of the current constitution in 1971 till now . The current constitution was established under a totalitarian system , it inherited from the previous stage the unity of the political system whereas the multi-party became the basis of the political system . The prevailing economic system at the time of establishing the constitution was based on socialism and the pioneering of the public sector , it’s leadership of progress and it’s bearing the main responsibility in the development plan . The situation has changed and the system has implemented the free market policies , which was accompanied by a social and cultural development . All this requires , from the point of view of some , establishing a new constitution that is suitable for the fundamental changes that happened in the society , in most states of the world .
Another opinion went to say that the 1971 constitution is considered an important step towards establishing the principals of democracy and constitutional legitimacy and protecting personal freedoms . because although it adopted a lot of the political , economic , and social principals , which were prevailing in the previous stage of it’s issuing , yet on the other hand it asserted the constitutional legitimacy by establishing the Supreme Constitutional Court , which is competent in supervising the constitutionality of laws , and provided for the guaranteeing of personal freedom and the inviolability of personal life . Which makes the existent constitution with it’s essential constituents suitable for facing the latest social and political developments , after amending some of it’s texts seeking a constitutional reform , which is suitable for the political , economic , cultural , and social developments that happened in the Egyptian society .
Because of this the existent constitution must be preserved , due to the lot of essential principals it contains , and which we should cling to , after making the necessary amendments for the different developments and for achieving the potential constitutional reform in Egypt . They are as follows :
1- The necessity of reducing the presidential authorities :
It is noticed that although the existing constitution adopts some principals of the parliamentary system , which is characterized by the separation of authorities , yet it has come much closer to the presidential system , specially concerning the authorities of the head of the state in the ruling matters , and that is because all the authorities of the state are centered around the person of the president of the republic without any responsibility or questioning . According to the current texts of the constitution he is :
– The head of the state ( articles 73 – 85 )
– The head of the executive authority ( articles 137 – 160 )
– The head of The National Defense Council ( article182 )
– The supreme commander of the armed forces
– The supreme chief of police
– The head of the Supreme Council of Judiciary Organizations
The supreme chief of sovereign organizations in the state , like : ( The Administrative Control Authority , the Central Auditing Organization , the Central Agency for Organization & Administration , the Intelligence Agencies with all it’s forms and types , the competent national councils , and tens of organizations and different agencies )
– By virtue of the constitution he practices and issues legislations ( articles 144 , 113 , 112 , 108 , 74 )
– The one who convokes or dismisses the People’s Assembly ( articles 101 , 102 )
– The one who appoints the prime minister and the ministers , and they are responsible before of him
– The one who appoints 10 members of the People’s Assembly , and appoints third of the members of the Shoura Council
– The one who appoints , relives and segregates the highest civil officials of the state
– The one who appoints the heads of the judiciary organizations
– The only one who has the right to appoint or not appoint a vice president . He is the head of the ruling party
– The one who could convoke all the members of the Shoura Council and the People’s Assembly if he attended a session to deliver a statement
– The one who appoints or recommends the appointment of the editor-in-chiefs of the official newspapers
Because of this , the canceling or amendment of these articles is necessary to reduce the authorities of the president and increasing the authorities of the Parliament in order for it to fulfill it’s role in issuing legislations , supervising the performance of the executive authority and making general policies .
2- Guaranteeing circulation of authority and promoting participation of citizens :
Article 76 of the constitution has organized the election of the president of the republic from multi candidates , it stipulated : “ the President of the Republic shall be elected by direct public secret ballot . For candidature for presidency of the republic to be acceptable, a candidate should be supported by at least 250 elected members of the People’s Assembly, the Shura Council and Municipal Councils in governorates , provided that supporters be at least 65 members of the People’s Assembly, 25 members of the Shura Council and 10 members of each of the Municipal Councils of at least 14 governorates . The number of supporters from the People’s Assembly, the Shura Council and the Municipal Councils of governorates shall be increased with a percentage equal to the number of any of those councils.
In all case, supporting more than one candidate shall not be permissible . The law shall organize the procedures of all that, and political parties that completed fives continuous years before opening the door for candidature, practiced their activities ever since and won at least 5% of the seats of elected members in both the People’s Assembly and the Shura Council may nominate one of the member of their supreme board in accordance with their standing orders, provided that a candidate is a member of that board for a least one year ….”
And due to the conditions , obstacles and restrictions , which the text of the article proceeds to stipulate and which are impossible to exist in any party , due to the domination and trespassing of the government ( the ruling party ) on the sum of conditions in Egypt we think that this article should be amended once more to become as follows :
“ the President of the Republic shall be elected by direct public secret ballot . For candidature for presidency of the republic to be acceptable , a candidate should be supported by at least 10000 citizens from 10 governorates , or 150 members of elected municipal councils , representative councils , and the boards of directors of the labor , professional , and farming syndicates , and by leaders of parties , which have representatives in one of the two representative councils , provided that there are 10 members of both the People’s Assembly and the Shura Council among the supporters .”
The reason for the amendment is as follows :
– The existing article contained details , the place of which is the law and not to the constitution .
– The percentage for candidature provided for in the said article exceeds the amount required for expressing the seriousness of the candidature , or in another phrase exceeds the reason for stipulating such a percentage , because the required percentage is provided for in the article to guarantee the seriousness of the candidature and not to prevent it , in order to open the door for a more democratic live based on competition and circulation of authority
And to achieve this purpose article 77 has to be amended as well , it stipulates that : “The term of the presidency shall be six Gregorian years starting from the date of the announcement of result of the plebiscite. The President of the Republic may be re-elected for other successive terms.”
We propose that the text is returned to what it was before the amendment , which was conducted on the 22nd of May, 1980 , so that the president may be re-elected for another term only , to establish the principals of democracy and circulate authority in Egypt .
To also achieve this there as a necessity to amend article 139 , about appointing a vice president . We propose that the appointing of a vice president be a necessity and not an option , so that he may take the place of the president in case the President of the Republic , due to any temporary obstacle, is unable to carry out his functions , according to article 82 . For this we propose the amendment of article 139 of the constitution , so that a vice president could be elected from the people to carry out the functions of the president in case there is a temporary obstacle which prevents the president from carrying out his functions .
As a result of this article 84 should be amended , which stipulates that:
“ In case of the vacancy of the Presidential office or the permanent disability of the President of the Republic, the Speaker of the People’s Assembly shall temporarily assume the Presidency. In case the People’s Assembly is dissolved at such a time the President of the Supreme Constitutional Court shall take over the Presidency on condition that neither one shall nominate himself for the Presidency. The People’s Assembly shall then proclaim the vacancy of the office of President . The President of the Republic shall be chosen within a maximum period of sixty days form the date of the vacancy of the Presidential office. ”
To be as follows : “ In case of the vacancy of the Presidential office or the permanent disability of the President of the Republic, the Vice – president shall temporarily assume the Presidency. In case the Vice – president is absent , the Speaker of the People’s Assembly shall temporarily assume the Presidency. In case the People’s Assembly is dissolved at such a time the President of the Supreme Constitutional Court shall take over the Presidency on condition that neither one shall nominate himself for the Presidency. The People’s Assembly shall then proclaim the vacancy of the office of President . The President of the Republic shall be chosen within a maximum period of sixty days form the date of the vacancy of the Presidential office. ”
Also the amendment of 82 , by substituting the words “ to represent him or take his place “ with the words “ to deputize “ . because deputizing in this case is done by virtue of the constitution , and not according to a decision .
3- Promoting the separation of authorities and supporting the Parliament :
The constitution must promote the separation of authorities , and his texts must contribute to stop the trespassing of the executive authority on the judiciary and the legislative authority . For this we must :
Amend article 136 , which stipulates that : “ The President of the Republic shall not dissolve the People’s Assembly unless it is necessary and after a referendum of the People. In such a case, the President of the Republic shall issue a decision terminating the sessions of the Assembly and conducting a referendum within thirty days. If the total majority of the voters approve the dissolution of the Assembly, the President of the Republic shall issue the decision of dissolution. The decision dissolving the Assembly shall comprise an invitation to the electors to conduct new elections for the People’s Assembly within a period not exceeding sixty days from the date of the declaration of the referendum results. The new Assembly shall
convene during a period of ten days following the completion of elections.” So that its text may be like that :
“The President of the Republic shall not dissolve the People’s Assembly unless it is necessary . The decision dissolving the Assembly shall comprise an invitation to the electors to conduct new elections for the People’s Assembly within a period not exceeding sixty days from the date the decision dissolving the Assembly was issued . The new Assembly shall convene during a period of thirty days . The President of the Republic shall not dissolve the People’s Assembly again for the same reason .”
There are a lot of texts that need to be canceled or amended to reduce the authorities of the president on one hand and increase the authorities of the People’s Assembly on the other hand , as we stated before .
The reason for this is to make the Parliament represent the political , social , cultural , and economic trends in the society , so that it is a true presentation of the will of the people , and make a balance between the legislative and executive authorities , and promote the supervising authority of the People’s Assembly over the government and the executive authority , and also promote the jurisdictions of the People’s Assembly concerning the making of polices , specially the elected body entrusted with that .
Work must be done on more than one axis to strengthen the role of Parliament :
First : Amending the electoral system to be done by the List PR System – a party centered proportional representation system , due to the privileges it achieves , like weakening the influence of money and the administrative interventions ; and family , tribal , and religious fanaticism , and because it allows the voter to compare on the basis of the political program of the party , and accomplishes an amount of justice in distributing seats according to the percentage of votes that each list has obtained , and opens the field for women to enter Parliament and include their names in the list , it also allows the representation of the minority parties in the Parliament . We see that to avoid any challenge against the unconstitutionality of the of adopting the List PR System , it is better to put a text in the constitution that allows the adopting the List PR System according to what the law organizes .
Second : To stipulate on the complete judicial supervision over all the processes of the elections , due to the trust the Egyptian people have given the judiciary , and due to the nonexistence of an independent organization guaranteed to be neutral like the judiciary . There is no avoidance of adopting the complete judicial supervision over the elections according to the interpretations of the Supreme Constitutional Court of article 88 of the constitution , stating that “ the complete judicial supervision over the electoral process , makes the society more acceptable of the fairness of the elections , in spite of the trouble the members of the judicial organizations go through in bearing this responsibility .”
Third : The necessity of canceling the text concerning designating an illusionary percentage no less than 50 % for farmers and workers . Because this designation has lost the legal an social justifications for it’s existence . The social , cultural , political , and economic change in Egypt , and the games and tricks played by the government , have led the text to lose it’s essence . The Egyptian Parliament is the one who issued the legislations , which threw the farmers out of the land , due to the implementation of law number 96 of 1992 and the issuing of law number 203 , which led to the selling of companies and factories and in turn to the displacement of millions of workers and farmers . These laws were issued by the members of the People’s Assembly , which the illusionary number of farmers and workers among them is no less than 50 % !! . In addition to the constitutional conflict this designation carries in it’s folds , as the constitution provided for the existence of this percentage in the same time it has also provided for the general equality between citizens . Truth be said there no objection to the existence of a positive privilege , either social or typical , provided that it is bond by a specific time period , so that it there is a possibility to improve the condition of the class and make it enjoy the pleasures issued in it’s favor .
Forth : The necessity to amend article 93 , where the 1971 constitution has the given the current constitution in this article the competence to the People’s Assembly to decide upon the validity of the membership of its members , after the Court of Cassation investigates the validity of contestations on membership referring it by the People’s Assembly . Consequently the decision reached by the Court is not binding to the People’s Assembly , and Memberships shall not be deemed invalid expect by a decision taken by a majority of two-thirds of the Assembly members.
We propose in this matter that article 93 be amended so that the judiciary is competent to decide upon the validity of the membership , either regarding the aspects of invalidity , which are raised about the nomination decisions preceding the voting process , or the disputes that circle around contesting the validity of the voting process itself . the procedures for implementing decisions are the same procedures for implementing and respecting court decisions .
The reasons for this amendment are as follows :
– The matter of deciding upon the validity of the membership is actually a matter of deciding upon a dispute about if a candidate deserves to win in elections , which is the competence of the judiciary to decide upon .
– The contestations regarding the invalidity of one of the conditions of nomination , which is the competence of the judiciary to decide upon , leads to the invalidity of the nomination , hence the invalidity of the membership , even if a court decision was issued after the Assembly convenes .
– Giving the competence to the People’s Assembly to decide upon the validity of the membership of its members , makes it an opponent and a judge in the same time , and takes this dispute from the hands of it’s natural judge , and reefers it to the Assembly , which is not it’s job or nature to look into these disputes .
– It is not convenient that the role of the Court of Cassation is limited to investigating and deciding , in spite of it being on the top of the judiciary system and of it being the court whose judgments , in settling the disputes between citizens , are final and conclusive , and can not be contested by any other party
The text of the article can be as follows :
“ The Court of Cassation shall be competent to decide upon the validity of the membership of the members of the People’s Assembly . The Speaker of the Assembly shall refer the contestations on membership presented to him to the Court of Cassation within fifteen days as from the date on which the Assembly has been informed thereof . The court shall issue a final judgment within ninety days from the date on which the contestation is referred to the Court of Cassation . The Assembly shall be bond to implement the court decision in this matter .”
The fifth of these proposals is the necessity to amend article 115 of the constitution , by deleting the phrase “ The People’s Assembly shall not make modifications in the draft budget except with the approval of the government.” , which is stipulated in the text of article 115 , so that The People’s Assembly shall have full authority in modifying the draft budget .
The sixth of these proposals regards the necessity of giving the People’s Assembly the right to withdraw its confidence from the government , by amending article 127 of the constitution to be as follows : “The People’s Assembly shall determine the responsibility of the Prime Minister, on a proposal by one-tenth of its members. Such a decision should be taken by the majority of the members of the Assembly. It may not be taken except after an interpellation addressed to the Government and after at least three days from the date of its presentation.”
4- Guaranteeing the independence of the judiciary :
In the field of constitutional reforms regarding supporting the independence of the judiciary , and asserting the principal of a fair trail before a natural judge , we see a necessity to cancel article 173 concerning the Supreme Council of Judiciary Organizations , which stipulates that : “A Supreme Council, presided over by the President of the Republic shall supervise the affairs of the judiciary organizations. The law shall prescribe its formation, it competences and its rules of action. It shall be consulted with regard to the draft laws organizing the affairs of the judiciary organizations.” Because it’s jurisdictions have been reduced after establishing the Supreme Judiciary Council , and the other councils in the rest of the judiciary organizations , it is suitable to cancel it to assert the principle of judiciary independence
– Canceling article 179 concerning the Socialist Public Prosecutor , which stipulates that : “The Socialist Public Prosecutor shall be responsible for taking the measures which secure the people’s rights, the safety of the society and its political regime, the preservation of the socialist achievements and commitment to socialist behavior. The law shall prescribe his other competences. He shall be subject to the control of the People’s Assembly in accordance with what is prescribed by law.”
Because the justifications for establishing this organization have ceased to exist , due to the political , economic , cultural , and social changes . Which necessitates the canceling of martial courts for civilians , such canceling supports the unity of the judiciary , and implements the principle of the natural judge .
Fifth : Final Observations and Recommendations
Ending the life of constitutions and it’s cessation for the benefit of rising new constitutions is the law of life , which does not alter or change , and if we did not come across , in almost any constitution , on the way to end it’s life – even most jurisprudents see that the matter of ending constitutions is not among the subjects of the constitutional law – yet most constitutions include texts about how to amend them , to face the different developments of life , therefore when we call for a change in the current constitution we do not originate a heresy , on the contrary we are following the law of development . We would like to assert that the Egyptian state , since 1952 and until now has nationalized the society , and the president of the Republic has nationalized the state , because the state is a moral entity , hence all matters has ended up in the hands of the President , who is , in the end , the natural person , who possesses a will and action , by which he can change the course of the state , a matter which has happened two times since 1970 till 1981 , where the course of the state has changed in two opposite directions , from Gamal Abdel Nasser to Sadat to Hosni Mubarak .
It is time for this nationalization process to end , by implementing a number of recommendations . The most important of which are :
1- Canceling the emergency state and releasing the detainees and pardoning the prisoners and political detainees and compensating them , and to retrial the convicted by a martial court before a natural judge . Abolishing the laws and legal articles opposing public freedoms and human rights in the penal law , or in any other law , and putting an end to torture practices , and pursuing and prosecuting the committers of these crimes .
2- Amending the Egyptian constitution to support the right to authority circulation and the citizens’ participation in administrating the country . Promoting the supervising role of Parliament , and stopping the trespassing of the executive authority on the judiciary and legislative authority . Providing guarantees for free and impartial elections , by full judicial supervision aver all the phases of election , and dealing with the inefficiencies that prevent free and impartial elections .
3- Allow the right to form parties for all Egyptians without discrimination because of religion , color or sex , to support the principals of democratic work in the framework of a civil constitution . lifting the political and legal siege imposed on the political parties, syndicates and associations , and removing the bonds on mass activity , including the right to demonstrate , strike , sit-in , hold conferences and distribute statements .
4- Guaranteeing the independence of the professional and labor syndicates , the national associations , and the civil society organizations , to seek after a national community capable of contributing in building democracy , by abolishing law number 100 of 1993 concerning the professional syndicates , and law number 12 of 2003 , and by amending the law of forming political parties by canceling the Committee of the Parties Affairs .
5- Allowing the freedom of publishing newspapers and possessing news media . Freeing media organizations and the national press from the domination of the executive force . Giving an equal chance for the political parties , political powers , and all the political currents and movements to express their opinions and ideas in the media organizations owned by the people , and achieve it’s independence from the executive authority .
6- Guaranteeing the right to the independence of the judiciary , by canceling the supervision of the executive authority over it’s work , and by canceling all exceptional courts .
7- The commitment to implement the items of international covenants , conventions , and agreements concerning human rights . Signing and ratifying the declarations and international conventions concerning human rights . Reconsidering the reservations Egypt has expressed about these covenants , which reduces the rights included in them .
8- Abidance by the principal of transparency in all the practices of the government on all the different levels , starting with the central government and ending with the local administrations . Taking immediate procedures for administrative and financial reform . Standing against corruption and the plundering of public money
9- Improving the living conditions of citizens and voters in Egypt by guaranteeing chances for suitable work and fair wages , and the security of land and housing ownership . Guaranteeing social insurance and health and education care for citizens .
We know that texts do not alone guarantee change and improvement of conditions in our country , but change is dependent on stopping the despotism of the state , and the violence it uses against citizens . Stooping their abusing treatment and threatening them that this is the only insurance the government has for a peaceful change that guarantees a better future for everyone , and a safe future for our country , that guarantees freedom , dignity , and a good living for all it’s sons.
Land Center for Human Rights (LCHR)
A non-profit, non-governmental organization