Confusion overshadows decision to elect Egypt's president before constitution ‎

Salma Shukrallah, Tuesday 3 Jan 2012

Legal experts claim that the government's decision to draft a new constitution before presidential elections conflicts with the amendments approved by a popular referendum in March

woman at referendum
A woman shows her inked finger after casting her vote in a constitution referendum at a school in Cairo, 19 March, 2011 (Photo: Reuters/Asmaa Waguih)

Egypt’s Minister of Parliamentary Affairs Mohamed Attia declared on Sunday that the presidential elections will be held only after a new constitution is drafted and approved.

While Attia’s statements clarified the confusion over what steps will follow the parliament’s formation, it has left many wondering to what degree such a decision is in harmony with the results of the constitutional referendum held on 19 March, which left many assuming presidential elections will be held before the constitution is finalised.

A member of the committee which drafted the amendments approved in March, Judge Tarek El-Beshry, has condemned the decision in several interviews, insisting that such a decision does not follow the sequence specified in the nine amendments that millions voted for last spring.

According to El-Beshry, who took part in the committee that was appointed by the ruling military council (SCAF) to amend the 1971 constitution, the presidential elections should take place before the new constitution is drafted.

On 19 March, 77 per cent of voting Egyptians voted in favour of the amendments detailing the criteria for presidential candidacy, the voting process by which a president should be chosen, the maximum length of a presidential term and the criteria for parliamentary candidacy.

The amendments also dictated that the president, together with half of the parliament, is to demand the drafting of a new constitution by a constituent assembly which will be composed of 100 members chosen by the elected parliament members.

However, the constitutional declaration announced by the SCAF on 30 March contained a total of 63 articles, not just the nine amended and approved by the referendum.

Reformist Judge Ahmed Meky, the deputy head of Cairo's Appeals Court, shed light to Ahram Online on the issue.

According to Meky, the SCAF's final legal package on 30 March included article 60 which states that the SCAF is to call for the first meeting between the lower and upper houses of parliament – whereas the 19 March amendments did not include this provision.

Instead, the 19 March agreed-upon scenario, Meky points out, specified that the president together with half of the parliament will demand the drafting of a new constitution, after which the lower and upper houses will assemble to choose the constituent assembly which will draft the new constitution.

Meky explains that replacing “President” with “SCAF” in the constitutional declaration announced on 30 March, revealed an undeclared change of plans on the SCAF’s part.

Meky points out the original amendments approved on 19 March envisage the presidential elections coming before the constitution – shown by the fact that the referendum articles specify the rules guiding presidential elections.

“If the presidential elections were meant to take place after the drafting of the new constitution then there would have been no need to amend the articles related to presidential elections on 19 March; they [rules for presidential elections] would have simply been dictated by the new constitution instead,” explains Meky.

“Now that the new constitution will be drafted first, there will be much confusion as to which criteria and rules will guide the presidential elections if those included in the new constitution come out to be different from those dictated by the articles approved by the March referendum.”

The decision that a new constitution is to be drafted before a president is chosen to take over the authorities of the SCAF also implies that military rule will be prolonged, a consequence which conflicts with the demand of many activists for an immediate handover of power to a civilian administration.

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