CONSTITUTIONAL REFORM AND THE OUTLOOK FOR

C O N F I D E N T I A L SECTION 01 OF 04 CAIRO 003495 SIPDIS E.O. 12958: DECL: 05/09/2015 TAGS: PGOV KDEM EG SUBJECT: CONSTITUTIONAL REFORM AND THE OUTLOOK FOR DEMOCRACY IN EGYPT REF: A. CAIRO 3424 ¶B. CAIRO 2536 ¶C. CAIRO 1509 Classified by A/DCM Michael Corbin for reasons 1.4 (b) and (d). -------------- Summary -------------- ¶1. (C) Egypt's People's Assembly (PA) is expected to approve on May 10 legislation that would amend Article 76 of the constitution to allow, for the first time, the direct and competitive election of the President. The bill was approved by the PA's legislative affairs committee and endorsed on May 8 by the Shura Council, parliament's upper house, after two months of study, drafting, and debate in the wake of President Mubarak's late February call for the amendment. Once approved by the PA, the amendment will be put to a public referendum in late May before it takes force. Two surprises in the draft are that it allows individuals/independents, (as well as party-nominated candidates) to compete, and that a grandfather clause (to be applied this year only) will allow any licensed political party to name a presidential candidate. (This exceeds the expectation that only parties currently seated would be allowed to field candidates this year.) However, a range of opposition figures, reform advocates, and independent observers are heaping scathing criticism on the PA's draft, arguing that the hurdles it sets for independents to qualify, and for parties to nominate their own candidates, are impossibly high. Critics charge the modalities spelled out in the bill reduce the President's constitutional amendment initiative to a gimmick that will leave voters with no more say in the selection of their president than they had under the old referendum system. ¶2. (C) Our own view, grandfather clause notwithstanding, is that prospects for a seriously contested presidential race this year are dubious. Even if we ascribed to the GOE the best intentions in pursuing this amendment, the opposition parties, overall, are so disorganized, ill-led, and penilless (as a result of both their own incompetence and longstanding NDP sabotage) that serious presidential competitors are unlikely to emerge. As for the long haul, any possibility that the terms set forth in this draft could be assessed as fair and equitable would be tied to the execution of fully transparent and competitive parliamentary elections this fall - an outcome itself dependent on a decisive break from past practices. As this initiative moves forward, we need to make clear to our GOE interlocutors that we have noted the reservations many of credible Egyptians and underline that if this amendment is to be assessed as a genuine political reform step it will have to be accompanied by transparent parliamentary elections this fall. End summary. -------------- The Process -------------- ¶3. (SBU) Apparently relying on leaks from parliamentary sources, Egyptian newspapers began on May 5 to report details of the PA legislative committee's draft of the amendment to Article 76 of the constitution, which stipulates the country's method for presidential selection. Under President Mubarak's instructions, the committee was tasked with amending the article to allow for the president to be elected directly by the voters in a competitive process, discarding the referendum system in place since the establishment of Egypt's republic in 1952. ¶4. (SBU) In the two and a half months since President Mubarak surprised observers by calling for the amendment, the PA's legislative affairs committee, tasked by speaker Fathy Surour, has taken the lead in drafting the legislation that spells out the modalities and parameters of the constitutional amendment. Both houses of parliament made a point of holding a number of public hearings on the issue, and there has been extensive commentary in both official and independent Egyptian media on the subject. ¶5. (C) The key issue throughout the debate on the amendment has been the formula by which prospective candidates can qualify to run for president. Political analysts and opposition leaders have repeatedly urged that the PA not set the bar too high for candidates to qualify, lest most or all serious potential contenders for the post be excluded. As the details of the legislative committee's draft came to light in early May, it appeared to most observers that this advice was disregarded. -------------- The Fine Print -------------- ¶6. (SBU) In the draft widely reprinted by Egyptian papers over the weekend of May 6, the bill stipulated that candidates unaffiliated with political parties may run for president, provided they secure at least 300 nominations from elected members of the legislature, to include at least 65 of 444 elected members of the PA, at least 25 of 88 elected members of the Shura council, and at least 10 elected members of local councils in each of at least 14 of 26 provinces. ¶7. (SBU) Licensed political parties may also nominate candidates for the presidency, provided they have been in legal status as recognized parties for five continuous years and secured at least 5 percent of the seats in each of the PA and the Shura Council in the most recent parliamentary elections. The bill also puts in place a grandfather clause exempting parties from this requirement for the 2005 elections only, essentially opening the competition this year to any of the 14 licensed and operating opposition political parties. (Note: Four other parties are licensed but currently "suspended" - mainly due to pending internal leadership disputes. Previous speculation among observers was that independents would be excluded from the process and that the grandfather clause would apply to only parties currently seated in parliament. End note.) ¶8. (SBU) Regulating the presidential elections would be a nine-member commission, chaired by the President of the Constitutional Court, and including three senior jurists and five "neutral" members of the public of whom three would be named by the PA and two by the Shura Council. Controversially, the bill stipulates that the decisions of the committee are final and not subject to dispute, contestation, or appeal. Justice Minister Aboul Leil was quoted in several Egyptian dailies on May 9 as stating that the national referendum (required to ratify an amendment to the constitution) would be held before the end of the month. -------------- Reactions: Generally Negative -------------- ¶9. (SBU) Among opposition parties, and a range of independent observers and commentators, reaction so far to the PA's draft has been negative. The opposition Wafd Party's daily newspaper pronounced its verdict in unequivocal terms on its banner headline: "Assassination of Political Life in Egypt: The state does not believe in political pluralism...Its insistence on imposing the control of the NDP is clear...The state will have a free hand in supervising the elections." ¶10. (SBU) Khaled Mohieldin, honorary chairman of the leftist Tagammu' Party who had stated (but not formally announced) his intention to run for President said that he was now reconsidering in light of news of the PA's draft amendment. Speaking to the independent daily Al-Masry Al-Youm, Mohieldin denounced the draft, saying it reduced the amendment to a de facto referendum. He also described the requirement that parties secure at least five percent of the seats in the PA and the Shura as obstructive. Mohieldin said he would make a final decision on his candidacy after he the final version is approved by the full PA. ¶11. (C) (Comment: As noted in ref A, the respected (but octogenarian) Mohieldin is the only party representative other than Ayman Nour to have expressed an interest in competing for the presidency this year. His withdrawal would leave only Nour among those legally qualified to compete, although Nour, who faces a criminal forgery trial in late June, may well be subsequently disqualified by revisions to the law on political rights, also due before the current parliamentary session ends in June. End comment.) ¶12. (C) The draft was also denounced as "unacceptable" and "undemocratic" by representatives of the Muslim Brotherhood (whose spokesman, Essam Erian, was arrested on May 6, reportedly just before he announced his own intention to "run" for president - more on MB developments septel),and by Kifaya ("Enough") a protest movement comprising a broad and eclectic range of political trends (ref A). ¶13. (C) Significantly, opposition to the draft is even coming from some key reform advocates within the ruling National Democratic Party (NDP). Usama Ghazaly Harb, the prominent liberal journalist and member of the NDP's reformist policy secretariat, was one of a handful of dissenters in the Shura SIPDIS Council during the May 8 vote. Ghad Party Vice President (and fierce GOE critic) Hisham Kassem told poloff on May 9 that disappointment in the draft was "nearly universal." ¶14. (SBU) However, Mustafa Fiqqi, another NDP parliamentarian generally viewed as a member of the party's "reform camp," was among those who endorsed the draft and urged the opposition to take advantage of the new opportunities presented by the amendment. Another NDP MP asserted to the press that the five percent rule (for parties to put forward presidential candidates) was reasonable and that "any party that can't win five percent of the seats can't claim to have a voice" in the nation's affairs. -------------- Comment: Where Do We Go From Here? -------------- ¶15. (C) We stand by our assessment (ref C) of Mubarak's initiative to amend Article 76 of the constitution as historic. The move represents a major concession of principle (that direct, competitive elections, rather than referenda, bestow legitimacy on a head of state). The move also broke the taboo on constitutional reform - it was, in essence, a climbdown from the GOE's longstanding position that the constitution was a virtually sacrosanct document, and the move has opened the door much wider for debate on further, potentially sweeping, amendments. The move has also fueled vigorous public debate, previously conducted with great caution, on the merits of President Mubarak and alternatives to him. At the same time, the notion that Mubarak, in undertaking this step, was laying the cornerstone for a truly democratic legacy is now clearly in question. ¶16. (C) It was always questionable whether this year's presidential contest would feature serious competition. Egypt's legal opposition parties, on the whole are weak, disorganized, ill-led and virtually peniless, due to the combination of NDP sabotage and the parties' own incompetence. The prospective withdrawal of the leftist Tagammu' party's Mohieldin from the race would leave only the Ghad Party's Ayman Nour facing Mubarak. As for Nour, even if he was not facing a criminal forgery trial set to begin just as the presidential campaign should be revving up, he would have been facing an uphill battle, as a relatively unknown leader of a fledgling party against the vast resources and institutional weight of the NDP. As it turns out, Nour's arrest and detention led to the near implosion and apparent hobbling of his party, and he charges (credibly, we believe) that the NDP and security authorities have been engineering aggressive harassment and disruptions of his campaign events. ¶17. (C) Beyond the 2005 presidential race, the most serious question is whether Mubarak, in pressing for this amendment, is laying the foundation for a democratic legacy for Egypt. The answer will hinge on the GOE's ability to make a dramatic break with past electoral practices in this year's parliamentary elections. The requirement that prospective independent presidential candidates obtain 300 endorsements from parliament and regional councils is primarily designed to exclude candidates from the Muslim Brotherhood and other Islamist groups, who are also prevented from operating as political parties by a constitutional ban on "religiously based parties." The endorsement requirement for independents, along with the requirement that political parties obtain 5 percent of the seats in parliament in order to put forward presidential candidates, might be assessed as reasonable hurdles in the presence of a transparent electoral system. ¶18. (C) However, no opposition party can currently meet this requirement. The largest opposition bloc (though it is not recognized as an official parliamentary bloc) is the Ghad Party with six out of 454 seats in the PA. The Wafd and Tagammu' parties each hold three PA seats - 15 others are held by "independents" linked to the Muslim Brotherhood. The NDP's overwhelming dominance in the national legislature (even greater at local levels),it is widely agreed, is the product of a variety of dubious and flawed electoral practices which have historically stacked the deck against challengers. ¶19. (C) While the introduction of judicial electoral supervision of polling stations in the 2000 elections was welcomed as a partial remedy, critics have cited a number of other obstacles to fair and transparent elections in Egypt, including outdated and easily manipulated voter lists, inequitable distribution of campaign funding, lack of media access, and subtle and unsubtle interventions of police to intimidate voters and block access to polling stations. If the 2005 elections bear any resemblance to those of 2000, the NDP will retain its strong majority in both parliament and provincial councils and, under the proposed new rules, the door will remain closed to independents and parties that would aspire to compete for the presidency. ¶20. (C) Therefore, in order for the amendment to Article 76 to be assessed as a step forward on Egypt's path to democracy, this year's parliamentary elections will have to be the country's most open and transparent ever. The GOE should make every reasonable effort to ensure that opposition candidates are afforded every opportunity to compete for seats this fall. Ironically, the GOE, to maintain the credibility of its stated commitment to political reform, will have to hope that the opposition wins as many parliamentary seats as possible in the coming elections. If the same ratio of ruling party to opposition seats is preserved, the significance of the amendment will be completely undermined. The rough tactics and dirty tricks the ruling party is allegedly pursuing against Ayman Nour's Ghad Party do not bode well in this regard. ¶21. (C) As the amendment process moves forward, we need to underscore to GOE interlocutors how much is riding on the implementation of credible, transparent parliamentary elections this fall. President Mubarak still has room for maneuver: Almost all of the criticism leveled at the draft laid out by parliament has been directed at the PA rather than himself. He could, theoretically, tell the parliament that he is not satisfied with their blueprint and ask them to revise it to improve the opportunities for genuine competition. It is also within the power of Mubarak and the NDP to ensure that the management of this year's parliamentary elections does not resemble that of past years. Visit Embassy Cairo's Classified Website: http://www.state.sgov.gov/p/nea/cairo You can also access this site through the State Department's Classified SIPRNET website. GRAY