Foreign Relations & International Law

Egypt’s Constitutional Amendments Further the Decay of State Institutions

Mai El-Sadany
Monday, June 17, 2019, 8:56 AM

On April 23, Egypt’s National Election Authority announced that a package of amendments to the country’s 2014 constitution had been approved in a national referendum.

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On April 23, Egypt’s National Election Authority announced that a package of amendments to the country’s 2014 constitution had been approved in a national referendum. Since 2013, authorities have taken increasing steps to expand presidential powers, extend military authority, exercise greater control over the judicial and legislative branches, and close the space for dissent. The new amendments push these trends further by enshrining these expanded executive powers and military jurisdiction in the country’s fundamental legal document.

The process by which the amendments were approved was irregular at best. To begin with, though the government reported that 44 percent of eligible voters made it to the polls, experts have suggested that the real turnout might have been much lower based on photos and reports from polling stations showing minimal participation compared to previous elections. Further, though the amendments were first introduced, discussed and debated by the Egyptian House of Representatives throughout the months of February, March and April, the draft text was approved in its final form by the parliamentary body less than 72 hours before the first day of voting abroad and less than 96 hours before the first day of voting inside the country. Voters had practically no time to read, understand and form an opinion on the amendments. While voters who could get to a polling station had a total of three days to participate before polls closed, voters abroad who could not get to one of the 140 polling stations outside of Egypt within the three-day time frame were not allowed to vote by mail, despite this being allowed in previous elections.

In addition, though 88.83 percent of voters were said to have approved the amendments, the government did not provide a space to challenge the amendments and engaged in an expansive campaign to ensure their passage. State-aligned political parties plastered banners encouraging a yes vote across the country. PSAs and music videos by popular artists about the referendum filled television airtime. Efforts by activists to oppose the amendments were blocked. A request to hold a protest outside of the House of Representatives to challenge the amendments was denied due to “national security” concerns, and security forces engaged in a wave of arrests in the weeks immediately prior to the referendum, involving the forced disappearance and detention of well over 70 persons. As the vote took place, journalists reported incidents of vote-buying, and videos of police officers forcing citizens to vote were posted online.

The amendments do four main things. First, they extend presidential term limits from four to six years and establish a maximum of two consecutive terms. A transitional provision changes the current president’s four-year presidential term to a six-year term and allows him to contest one additional presidential election. In effect, the amendments allow President Abdel Fattah El-Sisi to remain in office until 2024, to run for reelection that year and, should he win, serve an additional six-year term until at least 2030. Prior to these amendments, Sisi’s time in office would have come to a close in 2022.

Second, the amendments expand the role of the armed forces to include “safeguarding the constitution and democracy, maintaining the foundations of the state and its civilian nature, the gains of the people, and the rights and freedoms of the individual.” The vague language employed in this amendment can be read to empower the military with the right to interpret the constitution and determine whether it is being sufficiently safeguarded, raising significant questions about how this role will interact with and possibly supersede the roles of the judicial and legislative branches. The amendments also expand the jurisdiction of military courts over civilians by allowing the trial of civilians who commit any “attacks” against the armed forces, rather than only “direct attacks” as per the previous wording. This is particularly problematic as military courts are more prone to abuses than civilian courts; rights groups have reported violations including inadequate access to counsel, the admission of confessions obtained by torture and difficulty securing an appeal.

Third, the amendments pave the way for increased executive interference in judicial matters. More specifically, they empower the president to appoint the heads of various judicial bodies, the head of the Supreme Constitutional Court and the prosecutor-general. The amendments also allow the president to sit at the head of a supreme council for judicial bodies and entities.

Fourth, the amendments create a second chamber of parliament that will have at least 180 members—one-third of whom will be appointed directly by the president. Stacking a second legislative chamber with representatives who are not elected and are not directly accountable to a citizen constituency weakens legislative independence and furthers the trend toward a compromised parliament.

Collectively, these amendments eat away at the state’s institutions. They do so in spite of various existing constitutional obligations that commit Egyptian authorities to guarantee the separation of powers and establish clear and distinct mandates for each of the government branches, as well as international treaty obligations that require Egypt to respect various human rights.

Taken as a whole, the amendments will bring about long-term and fundamental changes to the country’s legal scheme, the nature of the relationship between the state’s institutions and its citizens, and the separation of powers. Ultimately, the amendments extend the lifeline of a president who has overseen a government that has perpetrated severe rights abuses; that has been unable to present a long-term vision for some of the country’s most complex economic, geopolitical and security challenges; and that has brought about an unprecedented consolidation of authoritarianism. They contribute to a system in which judges and prosecutors will be incentivized to act in a way that curries favor with the state and less likely to challenge government action in court because it may jeopardize promotions and benefits. They empower the military in a way that contravenes the existing powers of the legislative and judicial branches, and they create a second chamber of parliament stacked with state-aligned members at a time when the performance of the existing first chamber has already demonstrated a lack of independence and a tendency to rubber-stamp government decisions.

Egypt’s state institutions and government branches have become increasingly disempowered to serve the distinct roles they were intended to have and, in essence, to meet citizen demands. Individuals have become further disincentivized to challenge the government, and the space for dissent only continues to shrink. With Egypt facing significant nationwide challenges in the years to come—from food security to a population boom—these amendments write authoritarianism into the nation’s foundational document and raise serious questions about Egypt’s trajectory and development, as well as its ability to serve as a reliable regional and global ally.

Mai El-Sadany is a human rights lawyer with a focus on the Middle East and North Africa (MENA) region. She is currently the Executive Director of the Tahrir Institute for Middle East Policy (TIMEP), an organization dedicated to centering the insights and expertise of advocates from and in the MENA region in the policy discourse to foster transparent, accountable, and just societies. She is a member of the Working Group on Egypt.

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