Thursday, February 17, 2011

Egypt and Democracy: The Problem With Egypt's Constitution

Well, the best way to get any information these days isn't necessarily blogs, but twitters, so I am going to work with what I've been provided.

First, there is the difficulty of following very liberal Egyptian bloggers/tweeters who have their own hopes and dreams. Most of them optimistic even as they voice concerns about the military being in charge of the interim government and who they have invited to the constitution committee.

Second, to see past our own fears and hopes. American media and analysis is torn between those touting the second Iranian coming in Egypt and those who echo our liberal Egyptian bloggers' hopes that the MB, for instance, has little support and Egypt is really quite liberal (compared to Saudi Arabia and Iran, yes; to the United States or other European nations, no).

Then there are all the usual bogeymen in the ME at play with the addition, that Sandmonkey tweeted about, the military being stretched quite thin doing police work as well as border patrol/control. The Egyptians are going to have to understand those realities when it comes to tourists coming back. Security is going to be a tad bit suspect until proven otherwise.

Egypt's parliament is very likely to look something like this:

25 - 30% Muslim Brotherhood (Mostly disguised as "Independents"; discuss later)
25 - 30% Socialist/Labour Parties (Not NDP, include hardcore left, Taggamu, etc)
15 - 20% Former NDP (Under some other name/party; discuss later)
15 - 20% Liberal/Communist parties (Liberals=amalgam of American like Dem/Repub;
include some NDP reformists/rejectionists; Communists speak for themselves)
5 - 10% Variable of any of the above including some portion of Coptic Christians.

Looking at the situation as it is, some have voiced serious concerns about the make up of the constitutional amendment committee that has some very serious implications as to who the military believes has power and what the constitutional issues might be:

More than 60 women's and community groups condemned the panel, saying it is an all-male group that "excludes half of society."

"This casts doubt on the future of democratic transformation in Egypt after the revolution, and raises questions about ... whether the revolution was seeking to free the whole society or only certain segments," the statement said.

More than that, these legal experts draw more from the "old school" and the "MB" associated lawyers' union. How exactly is this group going to insure freedom of expression, freedom of religion, equal rights for women, protection of children (ie, child labor laws), the right to free association (ie, unions if they want them and they are a big deal in Egypt), etc, etc, etc?

The Supreme Council, as per the complaints, has not been very open about how the selection of these so called legal experts occurred. What was the criteria?

Sandmonkey suggested via twitter that the Council was meeting with mostly MB, labour unions, Coptic Christians, etc, because they represent the most vocal and troublesome aspects of the potential new Egypt and they want to get them out of the way or settled in some manner so Egypt can go on. The military, with its numerous building projects, European type extravagant malls and tourist destinations under its direct ownership, would be interested in getting Egypt back to "normal" as quickly as possible.

This makes El Baradei's concerns about how they are going about the constitutional adjustments very legitimate and should concern the US and any liberal Egyptians. Fast isn't better. Open is better. The Supreme Military Council would do better to have more press conferences to let people know exactly what is happening and this constitutional committee would be better off if it was out in the open, known membership and ideological/party affiliations.

That is likely why the people continue to protest. They do not trust the process and it is hard to blame them.

From inside and out, if the constitution is much more open, I would predict the above outcome (more to come on that). One of the major obstacles that will have to be overcome is the current constitutional restrictions on who can run and what committee or individuals have the power to disenfranchise any candidate or party.

The list of restrictions and hurdles a candidate must clear before being accepted to run under the current constitution is astounding. Some of them are simple and hark back to Jim Crow laws in the US, obviously meant to exclude the poor and uneducated. For instance, "must be able to read and write". While that seems legitimate to insure that any member could legitimately comprehend and participate in the legislative process, the purpose of exclusion is obvious when we understand that 30% of Egypt's population is illiterate or "under educated". Add in "poor" and we have a giant swath of society that is disenfranchised. At least from becoming a representative in parliament.

They must submit reams of documents to the "security directorate", obviously to weed out any potential undesirables, have their application reviewed by a judge who can disqualify them on various grounds including not doing compulsory service in the military or having a legal waiver there of, review for a criminal record (not that unusual, but depends on if you live in a police state where once upon a time saying "Mubarek sucks" could get you a police record) by judges who owed their allegiance to the once ruling NDP.

Then there is the necessity of presenting a 1000 Egyptian pound "security" to the security directorate (sounds like an opportunity for bribery) that could also be used to exclude any political potential. One thousand Egyptian pounds is equal to appx. $172 US dollars. Considering the recent report that most Egyptians live on less than $2 US dollars a day, that excludes a healthy number of potential candidates without wealthy and powerful backers.

Of course, US elections are often won by the party/candidate with the most money, but that does not exclude anyone from running. They simply won't get very much media coverage.

Other issues that are likely to need attention are that the Interior Ministry over sees the elections by overseeing the electoral commission and alleged "independent judiciary". Since the IM has been under the control of the NDP and the minister is selected by the president, that has put voting fraud on the top of everyone's list. In fact, this power could be abused by any political group who wins the parliament and prime minister or presidential post (who ever in the future will hold the power to select ministers).

In short, the candidate rules for running for parliament or any other office need to be drastically overhauled. It is very exclusionary and is rife with rules and regulations that practically beg for corruption and fraud.

What the constitutional process for elections needs is simplification. Some language in the electoral rules as set out by Act No. 73 needs serious review. For instance, the restriction of a candidate because they were dismissed from a government job for "disgraceful reasons". Do those include being disrespectful to the once supreme leader of Egypt, cursing the NDP, the regime in general or not being a member of the selected political party? That rule also begs to be abused.

Then there is a rule that says voters can only register and vote once. That's great, but Article 11 goes on to say they can register in their home domicile or where they work, have major interests, where their family is from, etc, etc, etc. Based on our own problems with registration and verifying voter eligibility, this seems seriously to lend to voter fraud. In fact, one of the major concerns of 2005 and 2010 was the NDP stuffing the ballot boxes by having the individuals go from district to district in major population areas to vote more than once.

Another interesting rule is that the governor of any governate/district can order election "propaganda" to be removed, at the candidates expense, if it violates some rules listed some place else. Governors who are appointed by the president. Who is deciding what electioneering material violates the rules? This seems likely to turn into a party turf war where various parties, especially the one that wants to remain in control, could tear down any political advertisements with little oversight.

In reality, this list could go on and on and on. That is the current problem. Everyone wants elections now! They want a new constitution or amendments now! It is easier said than done. Egypt's electoral process is so full of holes and various rules that could be easily abused that it is difficult to see how anyone could believe they actually had a free and fair election if it was held in the next 6 months, much less the next 60 days as some have demanded.

Egypt's People's Assembly

How the seats shake out would first depend on whether there are any changes to parliamentary districts/constituencies and whether the election of representatives changes from "one winner" to a party list seating of representatives. Something that has been pushed for in the past by various political parties. Generally those who are seriously out of power by the last ruling party, the NDP and are looking for a more "representative" government.

The difference between "one winner" system and the "party list" are best represented by two countries with parliaments. England would be the best representation of the "one winner" representative elections. Similar to US congressional seating, each party puts up a candidate in the individual district/constituency for each of the available seats. The voters go to the ballot box and the person with the most votes wins that constituency/seat. Thus, if there are two seats in the district, one could be conceivably won by a liberal and other by the Labour party (or whatever party).

The party list system would be best represented by recent experience in Iraq. In this system, each party puts up a list of candidates to be seated. Each district votes with each individual voting for a party instead of a candidate. The seats are apportioned first based on the percentage of votes each party gets. Example:

Four seats in the constituency

Six parties

Party A gets forty percent of the votes; Party B gets 20%; Party C gets 20%; Parties D, E, and F gets 5% respectively

Party A would get two seats; Party B gets one, Party C gets one and the others are left out in the cold

Usually, there are certain requirements as to the make up of the candidates. For instance, in Iraq the parties had to have at least 25% women and, depending on how many seats they took in the elections, 25% of the seats would have to be given to women. Thus, if Party A won an over all 100 seats out of 250, they would have to seat 25 women. The rest of the seats would be given to candidates on the party list in descending order. Therefore, the top 75 on the list would be seated and anyone after that is out of luck as would be any voter who wanted some other candidate.

Unfortunately, in this scenario, staying in a parliament seat and at the top of the list has a lot less to do with what the individual constituency wants or needs and a lot more to do with party politics and agenda.

In Egypt, the assembly currently has 222 constituencies. Each constituency has 2 seats. The current constitution requires that one seat is reserved for a "professional" while the other is reserved for "laborer/agricultural worker". In regards to the above mentioned "Jim Crow" law that states the person must be able to read and write in a country with 30% illiteracy, that seems to leave the second seat only open to likely wealthy farmers or some form of manager from an industry although Article II of Act No. 38 says that a "laborer" must be enrolled in one of the trade unions. Trade unions who must be approved by the centrally controlled government and whose candidates must be first vetted by that government.

How that protects representation for laborers from any industry is difficult to comprehend. Especially in a country whose socialist bent was originally established for the protection of the laborers. Go figure.

Egypt's system is a "one winner" system. Run offs occur when any individual candidate does not achieve a clear majority over the other candidates. A run off election would consist of the top four candidates competing for the available votes in the district. The candidate with the most votes wins.

The question is whether the current system will remain in place along with any recent laws passed that affected the number of seats. For instance, a recent law created 64 seats for women. While many women's organizations were excited by the addition, the control of parliament by the NDP made that move seem less than liberal or representative.

Another issue that will need to be addressed in the electoral/constitution reform will be the rule that anyone running for parliament must be 30 years or older. Since 2/3 of the population of Egypt is 30 yrs old or younger, this makes an interesting conundrum considering the age of the revolutionaries and "youth movements" involved who were demanding equal representation.

Other issues that make the parliament unrepresentative is that the president has the right to appoint ten members of parliament according to Act No. 38. This was allegedly used to insure minorities received representation in the parliament, but seems more likely to have been used to stack parliament with even more politicos who were dependent on the president's good will for their existence.

Anyone interested in running for parliament would have to really love Article 5.6:

He shall not have been deprived of his membership by a decision of the People’s
Assembly or the Shura Council due to the loss of trust or repute, or breach of the
duties of his membership, according to the provisions of Article 96 of the

There are those words again. Thus, all the power for selection and election of candidates reverts back to a governing body who has every reason to protect their position by disallowing candidates through very generic language.

What remains constant is that the apparatus of selecting candidates and elections seems extraordinarily bent towards the party in power at any given time. That means that one party, like the NDP, could obtain the majority and perpetrate their rule in perpetuity by simply following the laws that they themselves set up.

That is what Egypt has already experienced. That is what Egypt will experience if it does not review every letter of the law and reform it or throw the constitution out completely and start over again. Unfortunately, they don't appear to have time to make these decisions and may not get the time based on continuing conditions in the streets.

Nobody ever said that democracy was easy. It 's dictatorships that generally disregard the rules or make them up as they go along. The rest of Egypt is going to have to work hard for patience and lots of comprehension.

One of the things that either the transitional committee or an ad hoc group could do is go through the Egyptian constitution article by article along with any amendments or relative "acts", invite comment and expect to have members of this so called constitutional committee talk about what they see and what they hope to do through whatever media sources available.

It is time for people to know what their government looks like, what they hope it will look like and how long the process may be to get there if they don't want another president elected one time and one time only in the next two decades.

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