PROPOSED CONSTITUTIONAL REFORMS MOVING FORWARD

C O N F I D E N T I A L SECTION 01 OF 04 CAIRO 000245

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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.

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PARLIAMENTARY STURM UND DRANG
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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

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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.

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CRITICISM OF THE AMENDMENTS
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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

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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.)

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CHANGES TO JUDICIAL ELECTORAL SUPERVISION TO BE IMPLEMENTED
DURING COMING SHOURA COUNCIL ELECTIONS
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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?"

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VIEW FROM THE JUDGE'S CLUB
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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."

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CAIRO RUMOR MILL WORKING OVERTIME
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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