Friday 11 February 2011

BBC News - At a glance: Egypt's constitution

11 February 2011 Last updated at 10:52

At a glance: Egypt's constitution

Egypt's constitution is the subject of much discussion and debate for two reasons. First, the opposition says the constitution is fatally flawed and is demanding key amendments. And second, it sets out the procedures for any transfer of power, should President Hosni Mubarak step down, as the protesters are demanding.

The protesters have many complaints about the constitution, and some want an entirely new document written from scratch. But over the short term, the protests have focused on succession mechanisms.

Nathan J Brown, professor of political science and international affairs at the US George Washington University, analyses the articles at the heart of the debate.

ARTICLES AFFECTING THE TRANSITION OF POWER ANALYSIS

Article 82 Should the President be unable to perform his duties due to any outstanding circumstances, his duties will be performed by the vice-president, or (if there is none) the prime minister. The person performing these duties may not request constitutional amendments, dissolve parliament, or dismiss the cabinet.

If President Hosni Mubarak were temporarily unable to serve, the acting president would not be able to amend the constitution or call new elections for a new parliament. Since presidential elections are due in September, that would mean that the current constitutional and legal provisions would still be in effect - and those provisions effectively shut out the opposition. Some opposition figures have suggested that the second sentence of this article be effectively ignored and that Mr Mubarak hand over power provisionally to Vice-President Omar Suleiman, who would then oversee constitutional amendments and new parliamentary elections. Others want to avoid this article completely by having Mr Mubarak resign.

Article 84 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 60 days from the date of the vacancy of the presidential office.

This article would hand the presidency over to People's Assembly Speaker Fathi Surour, who is not trusted by the opposition. And it would require new elections - and since there would be no time to amend the constitution, it would be under the old rules. But the opposition still wants Mr Mubarak out now. Some figures have tried to find a way around the need to schedule new elections without violating the constitution, but the main body of the opposition has swung behind the demand that this provision simply be ignored.

Article 85 The President must cease work immediately after a charge [treason or criminal offence] is issued against him, at which point the vice-president or (if there is none) the prime minister assumes the presidency temporarily, in accordance with the restrictions stipulated in the second clause of Article 82 until a decision is reached on the charge.

This article simply repeats the flaws of Article 82.
MAIN CONTESTED ARTICLES ANALYSIS

Article 76 (key clauses) Each political party, for which at least five consecutive years have passed since its establishment before the opening of candidacy, and which has been active the entire period, and whose members obtained in the last elections at least 3% of the seats in the People's Assembly and Shura Council, or an equivalent number of seats in one chamber, has the right to nominate for the presidency a candidate who has been a member of the party's senior leadership for at least one uninterrupted year. An exception to the foregoing is that each of the indicated parties, if it holds at least a single elected seat in either of the chambers, may nominate a candidate who has been a member of the party's senior leadership for at least one uninterrupted year in presidential elections that take place in the 10 years following 1 May 2007.

This article makes it close to impossible for any party but the ruling National Democratic Party (NDP) to nominate a candidate for the presidency, because only it could marshal the number of signatures from MPs and other elected officials. The latter part of the article cited here does seem to give opposition parties a chance, but the only ones that qualify under its provisions are the small and weak Wafd and Tajammu parties, as well as four others that are virtually unknown. And those parties can only put forward names from their own leadership, barring them from nominating a popular independent (such as Mohamed ElBaradei) or a candidate from the Muslim Brotherhood. In short, the system is effectively designed to allow either the incumbent or a candidate handpicked by the current holders of power to be elected with only nominal opposition. The opposition would prefer to have a system open to all parties and to leading independents.

Article 77 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.

Some Egyptians like to joke that they want to be able to use the term "former president". Egypt has had only three presidents since 1954, so the opposition wants shorter terms and term limits.

Article 88 The conditions to be fulfilled by the members of the People's Assembly shall be defined by law, which shall set out the rules on the organisation of the ballot. The ballot shall take place in one day. A Higher Committee which enjoys independence and impartiality shall supervise the elections in the manner regulated by the law. The law shall set out the competencies of the committee and the procedure for its formation. Current and former members of judicial bodies shall be among its members. The committee shall form the general committees supervising the elections at constituency level, and the committees charged with the monitoring of the ballot operations and the counting of the votes. The general committees shall be composed by members of judicial bodies, and the counting of the votes shall take place under their supervision in accordance with the rules and procedures defined by the law.

Before 2007, elections were supervised by the judiciary. Considerable abuse was still possible (harassment of the opposition, vote buying) but there was some limitation on manipulation at the polling place. In 2007, a new system was brought in that formed an election committee. While the committee had some judicial members, it inspired much less trust. And in fact, the 2010 parliamentary elections were widely regarded as the most problematic in recent memory. The opposition wants a return to full judicial monitoring of balloting as well as guarantees for a fairer electoral process.

Article 179 The state shall be responsible for protecting security and public order from the dangers of terrorism. The law will set stipulations concerning procedures for investigation and identification of suspects which the state deems necessary in confronting these dangers, provided that the procedure stipulated in the first clauses of Articles 41 and 44 and the second clause of Article 45 of the constitution do not obstruct such an effort. All will be carried out under the oversight of the judiciary. The President has the right to refer any crime of terrorism to any judicial authority under the constitution or the law.

This language on terrorism has been used against political opponents. For instance, the president has referred leaders of the Muslim Brotherhood to military courts for trial. Egypt has lived in a state of emergency with only brief interruptions since 1939. Article 179 was viewed as part of a process of taking supposedly emergency measures and converting them into permanent constitutional language. The opposition wishes to end the state of emergency; they also want to prevent any attempt to convert emergency measures into regular legislation.
via bbc.co.uk

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