Constitution in the making

02-10-2013 05:54 PM

Adel Mounir

Efforts at rewriting Egypt’s Islamist constitution are going on full speed
Egypt spent no more than one year under Islamist rule,

 and emerged with a bitter legacy. When the Islamist regime was overthrown last July by massive public will and consequent military intervention, Egyptians had on their hands the daunting task of undoing the damage the Islamists had worked, and rebuilding a modern, democratic Egypt. There was of course the urgent business of bringing back the lost security, a task complicated by Islamist terrorism; and getting the economy up and running after it had come to a virtual standstill under the Islamists.   
But first and foremost, Egyptians had to get going with laying the groundwork for a State that embraces the aspirations of the people for freedom, democracy, and social justice. A new constitution was needed. To borrow the words of Pope Tawadros II, this was “a national responsibility of the first order”.

The panels
The new constitution was to be a rewrite of the 2012 Islamist-backed constitution which was finalised in an overnight session by an overwhelmingly Islamist panel and rushed through a referendum held by Egypt’s then Islamist president Muhammad Mursi. It was approved by some 64 per cent of a voter turnout of little more than 30 per cent, since the referendum came on the heels of a constitutional declaration by Mursi in which he had grabbed power and immunised the constitutional panel against being contested by law. It also resulted in a spate of public protest that was among the bloodiest Egypt saw during the last decades.
Last July, with the interim government barely two weeks in office, a panel of ten legal and constitutional experts was tasked with revising the 2012 constitution and redrafting, adding or deleting, whatever it deemed necessary. A 50-member committee was then formed out of representatives selected by the various sectors of the Egyptian society to review the draft written by the Committee of the Ten, work out whatever changes required, turn them over to a legal team for drafting, then to the interim President Adly Mansour to put the draft constitution to referendum in a matter of 30 days.
On 1 September, the Committee of Fifty convened for the first time. It had 60 days to accomplish its task.
The panel comprised 50 figures from a wide array of political strands, but the Muslim Brotherhood refused to take part. The Salafi al-Nour Party represented the Islamists. Prominent politician and former chief of the Arab League Amr Moussa was elected to head the panel. Three deputies were also elected: former Brotherhood leader Kamel al-Helbawi, human rights activist Mona Zulfaqar, and the world-renowned cardiac surgeon Magdi Yacoub.

Who represents Islamists, who represents Islam?
The Nour Party had started out being hesitant about joining the Committee of Fifty on grounds of what it said was a bias against the Islamic stream, and only accepted to join following internal deliberations.
The party deplored the under-representation of Islamists, whom they claimed were only represented by Nour Party and Helbawi. This claim, which clearly implied there was no-one to defend Islam except Islamists, had politicians and mainstream Egyptians all in an uproar; insisting that all but the three Church representatives in the panel were Muslim, and questioning who gave the Islamists the right to be the only representatives of Islam. “It is unacceptable that Islamists—the representatives of political Islam—should monopolise the representation of Islam, as though we were all non-Muslim,’ was a sentiment widely voiced.  “Al-Azhar representatives are Muslims; and Islam is not restricted to specific political ßparties,” Mr Helbawi commented.
When Nour Party finally decided to join, it said it was to defend the articles that confirmed the country’s Islamic identity.
The three major Churches in Egypt were represented in the panel: Anba Pola, Bishop of Tanta represented the Coptic Orthodox Church; Anba Antonius Aziz, Bishop of Giza represented the Coptic Catholic Church; and Safwat al-Bayadi, head of the Evangelical Church represented it.

International standards of human rights

Right from the start, it was obvious the panel was likely to completely rewrite the 2012 constitution. The spokesman for the Committee of Fifty, Muhammad Salmawi said: “The general drive inside the committee is for total change of the constitution; every single article of the constitution will probably be changed one way or another.”
Most articles which originally defined the State’s role as “the State ensures” were changed to read “the State is obligated to”. Predictably, the first articles approved were the non-disputed ones: those dealing with citizenship, social solidarity, and equal opportunity.
Article 37 originally read: “Every individual is entitled to dignity; it is non-compromisable and the State is obligated to respect and protect it”. It was rewritten as: “Every individual is entitled to dignity, it is non-compromisable, and it is the compulsory duty of all State authorities to ensure it. The provisions of the Universal Declaration and the International Covenants of Human Rights are basic principles that may not be breached”. This is the first time the Egyptian constitution invokes standards of international treaties.
A separate article was added to condemn and ban torture; previous constitutions included this provision as part of other articles defending human dignity.
Articles which concern specific sectors, among them the judiciary, police, armed forces, and media were amended upon demand from the respective sectors. Press freedom was ensured, and imprisonment was banned as a penalty in publishing lawsuits.
A proposal by the Police and Military to vow allegiance to the people rather than to the president was passed.
In case of women rights, the term “provided it does not violate the principles of Islamic sharia” was deleted, as proposed by the Committee of Ten.

No discrimination

The draft constitution grants the president of the republic the powers of the head of the executive authority, handling matters of defence and national security.
The Committee of Fifty approved the formation of an upper house for Egypt’s parliament. The lower house was named the House of Representatives, and the upper denoted House of Elders (Senate). It was given a role in supervising and approving legislation, and a quota of its members was approved for peasants and workers, women, and Copts; but the proportions of the quotas have not yet been specified.
The Church representatives made a proposition to validate the status of the Egypt Council of Churches in an article which states that: “The Egypt Council of Churches includes the families of Orthodox, Catholic and Evangelical Churches acknowledged in Egypt in accordance with its by-laws. The Council enjoys an independent legal personality and financial safeguard.”
Discrimination was criminalised. It was defined as discrimination based on race, colour, religion, gender, language, and—for the first time—disability.
Three new articles were added. The first concerns protecting the Nile and other water resources against pollution, and defending Egypt’s historical rights in the Nile waters. The second obligates the State to care for youth, create opportunities for them and enable them to assume public positions; and ensure care for citizens with special needs. The third article includes provisions for preserving the environment.

Disputed articles
Education warranted special attention by the panel. The draft cites basic, obligatory education to cover 12 years of education and specifies minimal government spending on education: 4 per cent of the GDP for basic education, 2 per cent for higher education, and 1 per cent for research. An article was added to stipulate the State is obligated to offer balanced education of ethics and values based on texts from the three heavenly religions. The Nour Party strongly objected, its representative saying that such a stipulation implicitly recognises other religions and acknowledges them to be equal to Islam, which the party saw as unacceptable. But Nour’s objection was overruled.
Discussions raged over the right of the judiciary, police, and military to vote; with many insisting they should not be involved in the political process but should serve national interests regardless of politics. Until Watani International went to press the issue had not been resolved.
The second article in the constitution: “Islam is the State religion, Arabic its official language, and the principles of Islamic sharia (law) the main source of legislation” gave rise to huge controversy, with Islamists attempting to change “principles of sharia” to plain “sharia” which would be wider and allow more fundamentalist laws. It was finally decided to maintain the article unchanged.
Heated debate also raged over the third article: “The canons of Egyptian Christians and Jews are the main source of legislation for their personal status laws, religious affairs, and the selection of their spiritual leaders”. Proposals to replace “Christians and Jews” by “Non-Muslims” were denied by many, including al-Azhar, on the claim that it would open the door to “creeds and heresies alien to the Egyptian community”. Again, the dispute remains as yet unresolved.
Members also disagreed about the right granted to al-Azhar to revise all laws relating to sharia and considered it a setback to the system of “Guardianship of Islamic Jurists”. The 1971 constitution which was replaced by the one written in 2012 shouldered the Supreme Constitutional Court with that responsibility.

Islamist propositions rejected

The Nour Party proposed to ban the drafting of any law which would violate Islamic sharia and that rights and freedoms must be practiced only in accordance with the fundamentals of the State and the society, a clause that would open the door to the existence of such movements as the vice police. It also proposed the restoration of four articles of the 2012 constitution, which had been deleted by the Committee of Ten, and which were flagrantly geared towards the Islamisation of the society where culture, language, and social norms are concerned.  Among them was the notorious article 219 which gave a wide, ambiguous definition of Islamic sharia that would practically allow tailored interpretations to be used to whatever end the political regime in power wishes. All these propositions were rejected since it was not among the prerogatives of the Committee of Fifty to restore articles cancelled by the Committee of Ten.
And in a move seen by Nour as a “sword drawn” against Islamists, the draft constitution explicitly banned political parties founded on religious grounds or with any religious reference framework.

Just who is Egypt?
Perhaps the most conspicuous debate was that which concerned the identity of Egypt. Article 1 defines the Arab Republic of Egypt as a sovereign State; the term “civil” was added after much resistance by Nour Party.
According to Professor of Economics and Political Sciences Hazem Hassan, the draft included nothing about the “Egyptian Nation”, only “Islamic” and “Arab”. Dr Hassan was not alone in his concerns, and a ‘correction’ was made in the form of an additional section proposed by Mr Salmawi and directly approved by the panel which delineates the multi-source Egyptian culture: the ancient Egyptian, Coptic, and Arab Islamic, together with the Nubian, Bedouin, and modern cosmopolitan additions.
It is hoped that as many as can be of the disputed articles should be resolved by mid-October when the panel should recess for Eid al-Adha—the Muslim sacrificial feast. Directly after the Eid the panel should go over the draft, article by article, to finally endorse it and hand it over to President Mansour. Any yet unresolved articles should be then finalised.

WATANI International
2 October 2013

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