Any observer of the Egyptian political scene will not fail to see that the scene is rife with turbulence.
Any observer of the Egyptian political scene will not fail to see that, some three weeks into the Mursi presidency and even while we still keenly await the appointment of the new administration staff and the Prime Minster and Cabinet, the scene is rife with turbulence. Just one week after Mursi’s inauguration, Egyptians watched in horror the showdown between the new president and the highest judicial authority in Egypt, the Supreme Constitutional Court (SCC), whose ruling a month earlier to dissolve the People’s Assembly (PA) Mursi flagrantly defied and reinstated the PA. The SCC retaliated by insisting that its rulings are final and binding; Mursi backtracked and declared he would respect the law, and Egyptians heaved a sigh of relief.
No sooner had this political adventure concluded, than a new chapter of political tug-of-war opened with the workings and machinations within the constituent assembly tasked with drafting Egypt’s new constitution. Yet even the speculations and concerns over the writing of the constitution are in limbo at the moment, since the constituent assembly itself awaits a court decision to rule whether or not it is valid, given that it was formed by a PA that was ruled invalid. And in case the assembly is pronounced invalid; will its achievements, research, and newly-drafted articles be dropped, or will they be considered valid and handed over to the new constituent assembly? Given that this is the second constituent assembly; a previous assembly was dissolved by court order, but had not had the opportunity to work on the new constitution. If the current assembly is also dissolved, we will have to wait for a third assembly to write a constitution.
In the meantime, a new book recently came to my attention. The Constitution…the Egyptian Situation Predicament is a relevant, commendable study introduced by Dr Emad al-Fiqi and published by the Arab Organisation for Human Rights. The study offers definitions of ‘constitution’, the procedures of instating it, the methods of drafting its articles, the legal provisions it should include, in addition to provisions concerning the judicial authority and the constitutional court.
Among the most interesting aspects of the study is the comparative model it offers, between articles of Egypt’s last constitution, the 1971 Constitution, and their parallels in world constitutions known for their precise, comprehensive formulation, such as the constitutions of South Africa, Russia and Germany.
Following are a number of particularly capturing points in the study:
• The constitution constitutes a set of principles that define the features of the State, the ruling regime, the government and public authorities through which the State carries out its functions. It determines the competences of these authorities and their relation to one another. The constitution also determines the rights, freedoms and duties of citizens and ensures they are protected against violations and injustices.
• The constitution occupies the highest rank within the State’s legal system. It is the civil legislation that transcends all other legislation, and to the supremacy of whose provisions all legislation must submit. Any law or regulation that violates a constitutional principle or provision is therefore deemed illegitimate.
• Article 60 of the Egyptian Constitutional Declaration, which regulates the steps and procedures of drafting the new constitution, has given rise to countless problems and to the loss of much precious time. It still poses challenges and places impediments in the path of the optimal completion of this historic national task. The article stipulates no rules or specifications whatsoever pertaining to membership of the constituent assembly, the members of which are elected by Parliament. This has led to the by-now familiar dilemma that the majority of the constituent assembly members reflect the parliamentary majority itself—in the case at hand sweepingly Islamist—and is deficient in representation of not a few sectors of the Egyptian community. There are no guarantees then that the new constitution will express the will, rights, and freedoms of all the people.
• Article 60 stipulates the constituent assembly should complete the draft constitution in a maximum six months since its formation. This is a largely insufficient period to set up a constitution that ensures the transition from dictatorship to democracy, and to secure as well the rights and freedoms granted by human rights treaties and agreements. Article 60 also overlooks a significant matter; that of sounding the opinion of the people on the various articles prior to and during their drafting. This approach was successfully adopted in South Africa; the result was a constitution that represented all sectors of the nation and answered their ambitions.
• Article 60 took into account only one possibility: that, upon casting it to public referendum, Egyptians would approve the draft constitution. It appears to have never crossed the mind of the writer of Article 60 that the people might reject the draft constitution. If so, what happens? Will the same constituent assembly work amendments to the rejected draft constitution? Will a new assembly be elected to assume this role, given that the original assembly has failed to express the people’s will? And what time frame will be foreseen for the drafting of an amended constitution?
• All these predicaments led the researchers to conclude that those who stipulated Article 60 of the Constitutional Declaration have imposed their will on the people, and assumed the people would only say yes to the draft constitution. As though the people were underage or possessed no competence, and the constituent assembly was their proper guardian.
Reading this study brought to mind the heated conflict a year ago when the then [Islamist] parliamentary majority adamantly rejected all national efforts to stipulate measures for the membership of the constituent assembly, and to establish a set of supra-constitutional principles to be respected and honoured by whoever undertakes the drafting of the new constitution. The rejection was based on the allegation that any such effort “confiscated” the right of the people to write their own constitution. Yet here we are in the situation where the same figures who allegedly rejected the imposition of “custodianship” over the Egyptian people are themselves imposing their own custodianship over the Egyptians.
WATANI International
22 July 2012