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The Constitutional Amendments... The Crisis ...... The Amendment’s Challenges.
Maat’s Vision to The Coming Constitutional Amendments The constitution is regarded as the fundamental law of state and it is on the top of all its legal planning and has supremacy that any other legal  base under it dos not have .This supremacy related to what the constitution include of the organization of the senior state powers and its specializatio
Tuesday, February 20,2007 00:00
by MAAT Center For The Juridical And The Constitutional Studies

Maat’s Vision to The Coming Constitutional Amendments

The constitution is regarded as the fundamental law of state and it is on the top of all its legal planning and has supremacy that any other legal  base under it dos not have .This supremacy related to what the constitution include of the organization of the senior state powers and its specializations , limits ,regulations  on one side and its relations to the citizens and their rights on the other side .

This means that the concept of the constitution means: this document which contain the state’s philosophy that springs from the faiths and values related to its people’s civil heritage and which contribute to put a comprehensive vision of the political party’s movements frame in the state and define its aspects and aims in the time scale in which people see that this ideology able to be applied in.

This does not mean that the constitutions are away from the idea of eternity  as the life changes either locally or international is one of the main elements of the causes of the constitutional amendments process which may exceed it to the stage of constitution revolution against all previous ideologies . The standers to evaluate the results of this amendments lies in its background ,so if it was a result of aware democratic process in which all national powers participate the matter will be a good step towards reform ,but if it was something else so the retreat of the development stages will be the result.

Thus we can say that the Egyptian constitutional experience, as one of the offered change examples, its main reason was the changes witnessed in the international and the Egyptian local arena as a whole which make the constitutional amendment a necessary matter ,because the current Egyptian constitution issued in 1971is suffering now from a gap between its provisions and statements , and the reality of the Egyptian political experience on the real life not only on the background of to what extend it awarded the people democratic freedoms and rights ,but also we mean the crisis that the provisions failed to follow important developments on the national and international arenas.

If the Egyptian political arena witnessed wide argument about the  essence of the constitutional amendments needed for the Egyptian environment and about whether the Egyptian constitution suffer from a crisis in only some of its provisions or that the amendment issue exceeded to the need to change 71st constitution as a whole which is the opinion adopted by most national  powers  ,but the announced official situation of the government ended this argument for the benefit of making just constitutional amendment .This is a step supported the reform if it done on the background of real faith that the essence of the constitutional systems concerned with state of bodies.

If 1971’s constitution ,in article No. 189 gave the republic president the right to call for the amending of one article or more of the constitution ,then the real paradox arise about the president’s right to amend 34 article of the constitution according to what happens really ,specially that the suggested amendment call includes articles related to the ruling system in its precise details, and to the state’s philosophy in administrating its resources ,its economy ,the peoples property ,and public rights and freedoms . This means that the matter in its reality exceeds to laying down new constitution but with the same procedures of the constitution amendment which is the matter that the constitutional schools never witnessed  before . The guarantee that the parliament will be the headquarter of these amendments do not libel the legality of it  as there is huge difference between the issue of the constitution amendment on one hand ,and this of laying down new one on the other hand , the matter which exceeds to the necessity of establishing  a foundational association that expresses all peoples powers to be responsible for laying down the new constitution to enable us to say that it was a  result of a sufficient democratic process and a public real view expresses the philosophy they accepted on one side.  On the other side , the Egyptian parliament in its current statue does not express really apolitical balance in representing all public parties ,through  the problem of its formation in which the ruling party has a majority exceeded 75%of its members, which make the guarantee of its ratification of the constitutional amendments of 34 articles  an un sufficient and ineffective guarantee to protect the public freedoms and rights . The great evidence of this is what happened in the amendment of article No.76 , and the parliament approval of it in spite of all its defects and its public rejection  which was one of the causes to amend it again .

If we leave the issue of the legality of amendment 34 article of the constitution, remains the talk about the ruling party’s vision of the articles suggested to be amendment according to the releases of the official bodies. This obliged us to oppose one by one with argument:-

Firstly , the republic president’s statements expressed that the main aim of the amendment suggestion is to achieve harmony between the constitution provisions and the economics and political current statues by which the constitution do not oblige the society with a definite economic system can not changed until the constitution’s provisions changed. As a result the first articles suggested for the amendment were those which have a socialism trend [articles1,4,12 the first paragraph ,and 24,30,33,37,56 the second paragraph ,59,73,180 the first paragraph ]provided that  the first article will articulated to assert the nationalism concept instead of the  statement "the people’s working forces".

The reality is that the amendments suggested for these articles according to what is offered ,on one hand represent partly a real need specially because the asserting of the nationalism principle became necessary ,if we have in respect the crisis witnessed in the arena in this field .On the other hand ,the abandon of the socialist philosophy means to adopt a different philosophical trend and ideology which can not adopted by one party ,the republic president or the ruling party, alone without charging the other national and political parties specially because the results of this stage will not affect one body alone but it will affect all people .Also the issue of the extend to which the Egyptian economy needs the public sector and the economical subsidy to people of middle and limited income and some of the socialism aspects still regarded as a matter of difference in spite of the government’s sever direct towards privatization policies which still rejected by people . On the same respect the state can not overstep the issue of defining its philosophy in administrating its economy and leave the matter open without adopting definite ideology , the paradox of this unilateral amendment . Also some articles in which the socialist articles will deleted , the offered substitute articulations dose not released yet ,specially as some of it related to the organization of some public rights and freedoms , for example the provision of article No. 56 of the constitution which organize the right to establish syndicates and unions which represent a general fear that the new articulation -adding a paragraph or more - may harm  this right. In this case the constitution in its general trend will be like the law No. 100 of 1993 -which organize this right- in putting obstacles and restricts to prevent the effective participation of the syndicates in the national role ,but the cause of this trend will be the constitution it self , that will be the door to make the accuse of any provision of law to be unconstitutional rejected , because the reference of these restricts will be what is in the constitution it self.

Also about the amendment of article No.5 by adding what concerned of asserting the principles which control the Egyptian personality and the principle of not differentiate between the citizens on grounds of religion ,origin or race . This amendment will be a repetition of the provision of article No. 40 .Also their is no necessity to mention it in this article which concerned with organizing another matter which is the right in establishing parties, unless this amendment carry in its details another restrict ion on the freedom to establish parties which the amendment strengthen according to the suggested form which add a third paragraph to the this article aimed at banned the practicing of any political or party activity ,and the establishing of parties on religious ,or racial ground .This means that the banning according to the suggestion will not only include establishing parties ,but it will exceed to the right  to practice any political or party activity which is a prejudice and restrict on the right of political participating  guaranted by all international charters . In many of the examples of the civil democratic states which has a great party experience ,it is permitted to establish a legitimate official political parties with religious background , this matter constitutionally banned by the suggested paragraph .So that it is clear that the amendment of this article done on a political background rather than a reform trend.

The reality ,is that this amendments in one of its deep weak points tackled the issue of the right of the republic president to announce the emergency case according to the provision of article No.74 of the constitution , and suggest to add another ,ineffective, guarantee by stating that the danger ,which  threats the national unity or nation’s  safety or that hinder the state’s bodies to play its constitutional role, shall be current and great in one side . On the other side it states that the president has to held talks with the Prime Minister , the spokesman of Peoples Assembly ,and the head of Shura Council before deciding the fast procedures to confront this danger. In evaluating this guarantee  ,it is in part  include an important thing that the danger has to be current and great to prevent continuing the enforcement of the emergency provisions which is happening now . But the issue of evaluating that the danger is current and great still one if the president’s  authorities alone because the talking with the Prime Minister ,the Spokesman of Peoples Assembly ,and the head of Shura Council is a legal inefficient matter without the obligation to follow the opinion resulted from the talks .Thus the article does not tackle the matter of the constitutional judge if there is an disagreement between the president, the Spokesman of Peoples Assembly ,and the head of Shura Council . This means that their opinion is just a consultation and has on legal power. The reality is that the amendment of this article was one of the main elements of the president’s election program which contain the ruling party’s vision to the reform at the coming period and include the announce of issuing a new terrorism law instead of the continuing applying of the emergency case and its provisions.  Also this program tackled the adding of a new article to the constitution instead of article No.179 which concerned with the system of the Socialist Attorney General to organize the terrorism challenging ,which gave this article an importance because the Egyptian and the international jurisprudence still different greatly about the concept of terrorism and defining its elements . So how the matter will be when it is stated in the constitution without having an agreed definition define its legal concept and without an effective guarantee of the authorities given to the president according to the provisions of article No.74 of the constitution which the suggestion to its amendment according to the official statements will dedicate the security bodies and may form a real danger on the public rights and freedoms even in the constitution it self.

In this trend of the amendment and reform vision adopted by the ruling system ’the national party ’ , we can scrutinize the fate of article No.81 of the constitution ,concerned with that the president should appoint a vice-president ,and that its implementation will still as it is without appointing vice-president . The evidence of this is that the suggested articles include articles No.84,85also to replaced it with another provisions permitted that  the Prime Minister to deputize for the  president in the case the vise-president can not be present ,and that the one how deputize the president shall not practice the most great decisions such as the resignation of the government and the dissolution of people’s Assembly and the calling for amending the constitution . If we evaluate what the suggestion offered to support the reform ,we see that it represents a retreat in the reform process if  it compared with the current provision . The current provision give the Spokesman of People Assembly the authority to preside the state in the case of their is no president and after him the head of Supreme Constitutional Court if the Peoples Assembly is dissolved , this applying the legality concept , because the people have the authority ,and they elected the president and give him the authority of the position ,on one hand . On the other hand the parliament is the legal representative of people ,so the Spokesman of it  has the priority of leading the state in the case the president is not present either the mater will regarded as illegal . So the amendment of this article according to the suggested articulation will arise an important question about the real motive of the amendment specially as it is clear that the matter is not to support the constitutional reform  .

Also the articles suggested for the amendment include article No.88 which concerned with giving the law the authority to organize the conditions should be in the members of People’s Assembly ,and talked the issue of the judicial supervision on the elections .We see that this article if it need to be amended, so it will guarantee the effectiveness of the judicial supervision on the elections process from the purifying of tables until giving it the right to judge the appeal related to the membership of one of the Peoples Assembly’s member which obliged the amendment of article No. 93 of the constitution that give this authority to the People’s Assembly alone .But the suggested amendment never tackled these matters ,but instead it lessens  in its details the judgment’s authority in supervising the election process by stating that the election shall done in one day which is impossible according to the judge’s numbers to have a comprehensive supervision on it  inside the main and subcommittees, specially as the suggested amendment of this article will contain the increasing of the election committees which is not necessary to be stated in the constitution . These problems can not solved by stating the establishment of special judicial committee to supervise the elections as the mechanism of establishing this committee did ont stated , but we has to notice that the president of the judicial bodies in Egypt appointed by the president and the forming of the supervision committee will contain these bodies presidents . Then where is the effective guarantee of the neutrality of this committee, specially as the neutrality and integrity of elections related to the democratic process in any state .

It is important to mention that by scrutinize the suggested constitutional amendments  it is clear that it adopt a trend towards lessen the judicial authority relation with the election process generally as we mentioned before on one hand . On the other hand ,the issue of forming the Supreme Judgment Council which article No.173 turned it from the constitution to the law ,is included in the amendments, but it add nothing except stating a new formation of the Supreme Judgment Council in the constitution instead of its formation in the law to include the appointed judicial bodies presidents, the matter which ignore the requirements of a lot of the judicial authority itself and a lot of the national powers that suggest the mechanism of election to select the members of the Supreme Judgment Council ,the official representative of this authority .Also the new suggestion of this article remains the president’s presidency of this authority and of the Supreme Judgment Council according to the new form , the matter which keep the guarantee of the independency of the judicial authority, which is one of the pillars of the legality and democracy of any system ,without amendment granted a real direction towards the constitutional amendment.

Finally, as a result of scrutinize the aspects of the suggested  constitutional amendments , we notice that its major trend is clear concerning the relation between the legislative authority and the executive authority , and we can say that it is the core of the real amendment that has in its details real constitutional reform ,and which include the amendment of article No.115concerning with giving the parliament wide authority of supervision over the general budget and to gave it the right to reform it not only endorse it as in the current provision of this article . Also article No.118 in which it is suggested to lessen the period between the financial year and the period of announcing the final account of the state , because the period stated in the current provision delay the parliament supervision of the government execution of the budget for a long time. And article No.172 that concerns with lessening the procedures to report the responsibilities of the P.M before the parliament ,to give the People’s Assembly greater role in taking back confidence from the government without restoring to referendum . Also a special part will be added to article No.133, that the P.M must present , during a short period after the formation  of the government ,the program of his cabinet to the People’s Assembly that has the right to accept or refuse it ,provided that the article must specify the constitutional rules in case that it refuses the government’s program.

In respect of commenting on the weakest article of those will be included in the amendment , we would say that they are those related to organizing the relation between the parliament and the executive authority ,i.e. article No.136 which is ,according to the official declarations , will be reformed in a way that allows the president to dissolve People’s Assembly without referendum .If the people themselves have the right to elect the parliament members ,so how this decision of dissolving the parliament be the right of others .

If we accept  this amendment that allows the parliament to tack back confidence without restoring to public referendum, because it is according to the democratic principle the only legitimate representative of people , so their is no need for public referendum in case of tacking back confidence from the government as the parliament’s acceptance means people’s acceptance .But to authorize this power to the president alone is a question that needs reconsideration and revision because it might harms the legitimacy of this amendments as it means the violation of what is stated in the constitutional jurisprudence and the constitutional traditions which form violating the legitimacy that is guaranteed by all democratic systems .

It is worth -mentioning that some of the proposed amendments include good trends ,such as the trend to granted Shura Council wide legitimate specializations in comparison to those according to article No.194, 195, 205. Also what concerns strengthen the role of the cabinet and widening the specializations of the government in addition to  those that are already there. This will be done through adding paragraphs to articles No. 138, 141that organize the president’s participation with the council in putting down and executing the general policy , appointing the ministers and their deputies and in adding new articles that assure the rights of each citizen to live in a good environment and the general commitments to proptect this environment .Besides, the addition of a new paragraph to article No.78 that aims at putting an end to the varying views concerning the beginning of a new presidency period after electing the president to avoid the overlap stated by the recent provisions between the presidency period and the following one.

Yet there are some of the articles whose suggested amendments are unclear ,such as the provision of article No.161 that organizes the local administration .It has been announced that the amendment suggested of this article will include improving the system of the local administration and enhancing its executive authorities ,without considering its real problems or finding effective solutions .This is the case of article No.85 that includes the issue of accusing the president of the high treason without defining this treason or organizing that trial he will be subjected to in case of committing this crime or the punishments that might be applied to him, but the article leaves all this to the law that did not issued yet by the parliament. Also article No.76 which will be reformed according to the declarations of the official bodies ;that it will be reformed to facilitate the parties’ candidacy for the presidency without actually specifying its aspects ,mechanisms or structure .

Eventually, we cannot but to assure that while we talk about constitutional amendments that might end the political depression and care for creating a real democratic atmosphere , our real requirements are much more than the suggested amendments as the constitution’s crisis is not that of its provisions as it is a crisis  of adopting new ideology

,specially if we conceder the long period and the changes that took place on the international and local arenas since the constitution of 1971.These changes are so great that they become part of history ,and this must followed by  the amendments of not only the constitution but the whole ruling ideology . This can not be achieved just by suggesting constitutional amendments even if they include 34 articles ,because the change dimensions needed for the reformation march in the Egyptian experience are much greater and deeper than that .

In spite of the fact that the constitution of 1971and its provisions did not represent the whole national ambition after the historical events that Egypt passed through at that time ,yet it was issued according to national agreement upon adopting  a unified philosophy ,i.e. the socialist philosophy as a result of the prevailing socialist movement at that time .But the constitutional amendments suggested recently are amendments of no identity or certain philosophy ,but it responds to some demands of amending some articles that are not urgent to be amended in comparison to other articles that are in urgent need to be amended as they harm the system’s democracy ,such as article No.77 which eternize the ruling period of the president and also article No.75 which do not lay real conditions for the one who  will have the right to rule this state, except that he should have been Egyptian of Egyptian parents and he should also have been enjoying his political and civil rights and that his age should not be less than 40 years, without putting down conditions that identify the extend of his actual suitability to this position .If we have in mind that the constitution is a birth certification of a state in the international society ,so the base of the constitutional supremacy became  an inevitable matter  ,and the error in the constitution became an error the system and people has to suffer .In the case of these error the talk about the legality or the democracy is nonsense  ,and the ruling system will not be responsible for this error alone ,but we, people, participated in it and in its effects on the coming generations.

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