PROPOSED CONSTITUTIONAL REFORMS MOVING FORWARD

C O N F I D E N T I A L SECTION 01 OF 04 CAIRO 000245 SIPDIS SIPDIS NSC FOR WATERS E.O. 12958: DECL: 01/03/2016 TAGS: PGOV KDEM EG SUBJECT: PROPOSED CONSTITUTIONAL REFORMS MOVING FORWARD AMIDST VIGOROUS DEBATE REF: A. 06 CAIRO 7251 ¶B. 06 CAIRO 6327 Classified By: Minister-Counselor for Economic and Political Affairs William R. Stewart for reasons 1.4 (b) and (d). ¶1. (C) Summary: The Egyptian parliament, having accepted "in principle" President Hosni Mubarak's constitutional amendments package, will discuss its specifics and language in committee over the next two months, before the full People's Assembly and Shoura Council resume debate on the issue on March 17. While there has been broad-based opposition criticism of several aspects of the proposed reforms, opposition parties (except the Muslim Brotherhood) are fractured, even internally, regarding the amendments. NDP sources tell us that changes to Article 88 (scaling back direct judicial supervision of elections) will be implemented in time for the late spring's Shoura Council elections, while the proposed changes to the electoral system are not likely to be enacted until the next Parliamentary session (beginning in November). The influential Judges Club is reportedly consulting with its branches nationwide before going public with formal recommendations on the amendments, but nonetheless Club leadership has voiced strident public opposition to the expected changes to Article 88. End summary. -------------- PARLIAMENTARY STURM UND DRANG -------------- ¶2. (SBU) On January 17, Egypt's parliament approved "in principle" the thirty-four constitutional amendments proposed in late December by President Mubarak (ref A). (Note: In a technicality required by Egyptian law, before detailed debate can begin on proposed constitutional amendments, the People's Assembly and Shoura Council must accept them "in principle." End note). Discussion of the specific language of the amendments and "formal hearings" will be held over the next two months in the PA's Constitutional and Legislative Affairs committee, which will then submit a formal recommendation on the amendments to Parliament and the Shoura Council on March 17, following which both legislative houses will vote on the constitutional changes, and a national referendum will subsequently be held. In the January 17 vote, 316 parliamentarians supported the amendments package, 102 voted against (88 Muslim Brotherhood MP's, 10 independents, 2 Al Wafd MP's, 1 Tagammu MP, and 1 NDP MP),and 24 parliamentarians were absent from the session. In the parallel Shoura Council vote, held on January 11, the amendments were unanimously approved "in principle." ¶3. (C) The January 17 People's Assembly session was marked by theatrical debate (with one NDP parliamentarian even threatening to strip as an expression of his disdain for one of the amendments),and unusually loud public criticism from the floor from NDP MP's (although only one ultimately voted against the amendments). Prominent NDP parliamentarian Shereen Fuad (protect),a member of the Constitutional and Legislative Affairs Committee, told poloff recently that "many" NDP MP's are particularly uncomfortable with two aspects of the amendments package - that the new amendments will allow for the President to dissolve Parliament without a national referendum (which is currently required in order to disband the Assembly),and that the changes will result in the likely subsequent adoption of a proportional representation electoral system (Note: The vagaries of Egyptian electoral politics and the weakness of NDP party discipline are such that many current NDP parliamentarians ran in the 2005 elections as independents, against the official NDP candidate, and only re-joined the party after winning the election. End note). Fuad noted that several NDP parliamentarians, concerned about having to run on a party list in the future, are advocating that Egypt adopt the "German model" of a "mixed" electoral system, with fifty percent of PA seats being elected on a party list, and fifty percent directly elected in first-past-the-post balloting. ¶4. (C) The MB was the sole parliamentary political bloc to maintain party discipline in the January 17 vote (all 88 MB MP's voted against the amendments). In a surprise move, Al Wafd party leader Mahmoud Abaza, whose party has been loudly critical of the planned changes, voted for the amendments, as part of a reported horse-trade with presidential son and NDP Assistant SYG Gamal Mubarak (whom Abaza met with the week before the vote). According to speculation among Egyptian political analysts, Al Wafd pledged to support the constitutional amendments, in return for the NDP's promise to consult with Al Wafd leadership when shaping the new CAIRO 00000245 002 OF 004 electoral system. Abaza's decision has caused significant discord and vehement public criticism of Abaza from other Wafd leaders, and two other Wafd MP's voted against the amendments. Despite his "yes" vote, Abaza has continued to be publicly critical of several aspects of the amendments package, particularly the purported "roll-back of personal freedoms," and the lack of an imposition of presidential term limits. ¶5. (C) The discord within Al Wafd was mirrored within other opposition groups. Tagammu leader and Shoura Council member Rifaat El Said voted for the amendments in principle, while Tagammu's sole MP voted against them. Notwithstanding his vote supporting the constitutional changes, El Said continues to assert publicly and in conversations with poloff that they are "a mix of the good and bad," objecting to the continued "overwhelming" presidential prerogatives ("particularly that the President appoints the Prime Minister"),and perceived attempts to "drive a wedge" between political parties and independents. Hussein Abdel-Razek, secretary-general of Taggamu, calls the proposed amendments, "marginal and tricky." ¶6. (SBU) A statement released by the ten independent parliamentarians who voted against the amendments noted that Mubarak's proposed changes are "honey mixed with poison .... the disadvantages of the amendments greatly outweigh the advantages." The statement asserts that the amendments "seek to eliminate independents from the political arena under the pretext of reinforcing legal parties" and that the GOE aims to "constitutionalize the rigging of elections" by eliminating full judicial supervision and adopting a proportional representation electoral system, among other criticisms. Independent MP Anwar El Sadat (nephew of the late president) noted to poloff that the amendments are a "declaration of war" on independent politicians, and a "tremendous lost opportunity for Egypt." However, other members of the independent bloc (a loose coalition of liberal, leftist, and Nasserist MP's) voted for the amendments. -------------- CRITICISM OF THE AMENDMENTS -------------- ¶7. (SBU) Opposition legislators and activists from across the political spectrum have been broadly critical of the substance and scope of the proposed amendments. Criticism from all sides has largely centered on: -- The lack of any changes to Article 77. There is near complete consensus among oppositionists and activists that Article 77 should revert to its original language (before it was amended in 1980),which stipulated that the president should not remain in office for more than two consecutive terms. -- The rollback in direct judicial supervision of elections. Opposition ire has focused on the proposed changes to Article 88, which will result in the removal of judicial supervision at all polling stations, to be replaced by a government-appointed elections commission (composed at least in part by judges) tasked with elections oversight. Oppositionists warn this change opens the process to more vote rigging and electoral corruption. -- Changing Article 136 so as to allow for the president to dissolve Parliament without a national referendum. -- Not easing the onerous Article 76 requirements for independents to run for the presidency. -- Changes to Articles 62 and 94 to lay the ground-work for a new electoral system (expected to be proportional representation, which would likely narrow the opportunities for independents to run for legislative office). -- The rollback of personal freedoms in advance of the new Anti-Terror Law. Article 179 will likely be changed to give the government the flexibility to maintain various powers it would otherwise lose with the de-activation of the Emergency Law. Changes to Article 179 will theoretically allow for the suspension of rights currently guaranteed by Articles 41, 44, and 45 (no search, detention, inspection, wire-tapping, inspection of correspondence, or restriction of movement without a judicial or prosecutorial warrant). Al Wafd MP Mohammed Mustafa Sherdy told us, "This amendment will embed the Emergency Law in the Constitution." ¶8. (SBU) In addition, MB legislators (but no others) have CAIRO 00000245 003 OF 004 been publicly critical of the proposed amendment of Article 5, so as to ban the formation of any political party based on religion, race or origin. While MB parliamentarians had previously introduced a draft law that would prohibit the establishment of political parties on a religious basis, they oppose the amendment of Article 5 because, in their analysis, it "conflicts with constitutional Article 2" (Note: Article 2 states that "Islam is the Religion of the State ... the principal source of legislation is Sharia (Islamic jurisprudence)" End note.) -------------- -------------- CHANGES TO JUDICIAL ELECTORAL SUPERVISION TO BE IMPLEMENTED DURING COMING SHOURA COUNCIL ELECTIONS -------------- -------------- ¶9. (C) In a January 23 meeting with poloff, Mohamed Kamal (NDP secretary for political education and training, member of Gamal Mubarak's inner circle, and a personage intimately involved in the amendments process) noted that the expected changes to Article 88 will require subsequent modifications to the Electoral Law ("to work out the new details of how elections will be supervised"). Kamal predicted that, following the April national referendum on the amendments, Parliament will quickly enact the "needful changes" to the Electoral Law, in time for a new electoral oversight system to be in implemented for the late spring Shoura Council elections. However, other constitutional amendments relating to elections (i.e., a new electoral system) will not be in force in time for the Shoura Council elections. Kamal noted that the amendment to Articles 62 and 94 (relating to the electoral system) will "not directly specify which electoral system Egypt will have - the door will be left open to all possibilities, including that we stick with the current electoral system, move to a "mixed" system, or full proportional representation." Kamal admitted that there is "significant disagreement" within the NDP regarding the appropriate electoral system, and so the specifics of the new system will not be addressed until the next parliamentary session (starting in November),when the Elections Law will be modified to "reflect the new amendments." ¶10. (C) Regarding expected changes to Article 76 (requirements for presidential candidates),Kamal noted that the amendment will ease the requirements for candidates from political parties, but "will not touch" the high bar set for aspiring independent candidates. "We will lower the current requirement," that a political party needs to hold five percent of the seats in the People's Assembly and Shoura Council in order to field a presidential candidate - "that percentage of seats will be lowered, and there will probably be a 'grace period' of 5-10 years in which all legal political parties will be able to run a candidate, or perhaps just those political parties which have parliamentary representation .. we have not yet worked out the details." ¶11. (C) When queried as to the possibility that Article 77 might be amended to impose presidential term limits, Kamal stressed that he "highly doubts" that will happen. He commented that, as Article 77 was not presented to Parliament as part of the amendments package, "it cannot be addressed now ... the President would need to formally submit any new change to Parliament, which would need to vote to accept it in principle, then debate it for two months, and a separate referendum held ... so it is too late for Article 77 to be included in this package of constitutional amendments, even if there were the desire to amend it, which I do not think there is." Mohamed Sameh Amr, legal advisor to Minister for Parliamentary and Legal Affairs Mufeed Shehab, confirmed to poloff on January 29 that "there is no legal mechanism at this point for Article 77 to be added to the current package of amendments ... it could be addressed separately, at a later date, but not in the context of the currently proposed reforms." ¶12. (C) In response to poloff's questions about the logic behind giving the President the right to disband Parliament without a national referendum, Kamal asserted that "so many new powers are going to be given to Parliament, that we needed to balance them by giving the President a stick to hold over the legislature." He also commented that the "biggest challenge the NDP will face in the next few months vis-a-vis the amendments is in dealing with the MB ... specifically, will they boycott the national referendum on the amendments or not?" -------------- VIEW FROM THE JUDGE'S CLUB -------------- CAIRO 00000245 004 OF 004 ¶13. (C) On January 20, the Egyptian Judges Club held an internal seminar focused on the constitutional amendments, reportedly attended by 250 judges and constitutional scholars from around Egypt. Zakariyya Abdul Aziz, head of the Club, was reported in the Egyptian press as calling on MP's to "reject the amendments ... because their main aim is to exclude the judiciary from fully supervising elections." Abdul Aziz was also harshly critical of "abusing the constitutional texts related to public freedoms." Alexandria Judges Club President Mahmoud El Khodairy called on the government "to request international supervision of elections if you are afraid of the righteous judges of Egypt!" Influential jurist and prominent Club member Hisham El Bastawisi told poloff on January 23 that the Cairo Judges Club is now consulting with subsidiary Judges Clubs from around Egypt, following which, consolidated national Judges Club recommendations on the amendments will be released. Bastawisi was dismissive of the recent call from presidential chief of staff Zakariyya Azmy to Club chairman Abdul Aziz, in which Azmy reportedly said President Mubarak welcomes the judges participation in a dialogue on the amendments, and recommended that the judges send their recommendations to the parliamentary speaker. Bastawisi commented that such GOE attempts at outreach are viewed with "skepticism and wariness" by the judges, as "judging from past history, when the government asked for our opinion and input on various laws, and then ignored it completely, I am not optimistic that the pattern will be any different this time." -------------- CAIRO RUMOR MILL WORKING OVERTIME -------------- ¶14. (C) In Cairo think-tanks, salons, and amidst the activist community, discussion is focused on the planned amendment of Article 88, with conventional wisdom judging that the government's intent is to facilitate the rigging of the coming Shoura Council election, without interference from judges. This year's Shoura Council election is particularly important, as it will be the first electoral contest for the regime following the MB's 2005 parliamentary gains. Also, as any aspiring independent candidate for the presidency needs the support of 25 Shoura Council members, the MB may choose to contest the election vigorously, in order to try to have the option of running a presidential candidate in the future. Less widespread speculation posits that once the amendments are approved, Mubarak will dissolve the parliament in order to rid the assembly of troublesome MB and independent MP's. Other conjecture centers on the theory that the amendments are modestly increasing the PM's powers so as to pave the way for Gamal Mubarak to be appointed PM, instead of President. RICCIARDONE