Less than one week ahead of the public referendum on the draft constitution for post-Revolution Egypt, Egyptian hopes for a consensual constitution are clearly dashed.
The 100-member Constituent Assembly that wrote the draft was dominated by Islamists; so much so that out of 100 basic members and 50 reserve, the 62 secular members—among whom was the Church—all withdrew in protest against the Islamist hegemony and the persistence in excluding non-Islamist viewpoints.
Once the liberals withdrew, they were replaced with Islamist members, and the draft constitution was rushed through the Constituent Assembly overnight and handed over to President Mursi who put it up for public referendum two weeks ahead.
The rush did not go well with Egypt’s seculars who sensed an Islamist determination to have an Islamist constitution rammed down Egypt’s throat.
‘The final warning’
With President Mursi’s decisions immune to any oversight or opposition, Egyptians realise they have been cornered into voting for or against a draft constitution that is anything but consensual.
Needless to say, Islamist forces and movements are wholeheartedly behind the draft constitution. But the non-Islamsits are a force to be reckoned with, as any observer of the recent rallying in Tahrir Square can see. In fact, the numbers taking part in rallying and the force with which they rallied has been so great to the point that the Islamists decided to conduct their own counter-rally last weekend. Tuesday, however, saw mammoth-scale rallies marching on the presidential palace in east Cairo demanding that President Mursi should call off the referendum, and should rescind the Constitutional Declaration of 22 November, which gave him sweeping powers and curtailed the independence of the judiciary.
A huge disappointment
So what grievances do the seculars hold against the draft constitution? Described as “a huge disappointment” by no less a body than Amnesty International, the draft is replete with contradictory articles that guarantee neither full citizenship rights, freedom nor equality for all Egyptians.
Egyptians, individuals and groups, have been vastly exploiting virtual space and social networks to air their views on the draft constitution. Many have just posted opinion online, but many more have taken to posting expert, detailed legal and constitutional assessment of the draft. So there has been no shortage of views of value on the topic.
For starters, seculars have been unanimous in denouncing Islamist hegemony that brought about the draft, as well as the rush to push it through before the Constitutional Court may rule about its legality. Last Sunday’s Islamist siege of the courthouse in order to prevent the judges from accessing it to announce their ruling over the case was evidence enough of the terrorism the Islamist public—and authorities—have no qualms about.
“Mursi is putting to referendum a draft constitution that undermines basic freedoms and violates universal values,” key opposition figure Mohamed ElBaradei tweeted last week. The draft has come under fire for being contradictory in the sense that it takes with the right hand many of the rights it grants with the left, under the pretext that rights have to conform with sharia or with the public order.
The most conspicuous grievance with the draft constitution is that it places Egypt on the threshold of a potential theocracy by declaring the principles of Islamic sharia to be the source of legislation (Article 2) then interpreting these ‘principles’ to mean its basic, comprehensive rules as well as its “recognised sources”. These are the interpretations offered by a multitude of Islamic scholars since the seventh and up to Ibn-Taymiya in the 18th century, many of which are controversial and are not considered credible. This opens the door to having State laws and rules approved by Islamic scholars—the draft defines al-Azhar as the official adviser on such matters—to ensure they accord with sharia. In the previous constitution, it was the Supreme Constitutional Court that ruled on the constitutionality of laws. And, even though al-Azhar is currently a moderate institution, no one can tell what would happen if it falls in the hands of hardline Islamic scholars.
Seculars are especially worried that the clause in the previous constitution: “there shall be no discrimination among Egyptians based on gender, ethnicity, language, religion, or creed” has been removed from the current draft. This could open the door to legislation that discriminates against women, children, and minorities.
Article 76 stipulates that violating the constitution is a crime that warrants penalty. According to constitutional and legal opinion, crimes violate laws not the constitution, and are liable to law-defined penalties. Violating a constitution dominated by a plethora of vaguely defined sharia laws and penalties constitutes serious curtailment of freedoms.
The draft constitution grants the president vast authority. It does not make provision for a vice president. It allows the president to appoint all the heads of the supervisory bodies charged with overseeing presidential performance (Article 204). It grants him lifetime immunity on account of his membership in the senate, and he can only stand trial if caught red handed (Article 130).
The president is also entitled to appoint military leaders, the judges of the constitutional court, and one-fourth of the members of the senate-which is entitled to overrule legislation passed by the people’s assembly. He is charged with appointing the premier, but no standards or qualifications are set for the choice of premier.
It is the prerogative of the president to declare a state of emergency after consulting with the cabinet, then getting the approval of parliament, not vice versa.
The draft does not stipulate judicial supervision of elections; it charges a special commission with that task, but does not specify the requirements of membership of the commission.
The draft constitution has been heavily criticised for falling short of stipulating the right to adequate health care for all Egyptians; it merely mentions the right of ‘needy’ citizens to health care. It also falls severely short of protecting women’s rights; the only mention of woman in the draft is in her capacity as a mother. Child rights are mentioned vaguely in a manner that allows for loopholes upon application—among other things its provisions do not allow the banning of marriage of teenage girls, human trafficking, or child labour. Economic rights are lacking especially where the relation between taxation and social security is concerned. Even though the draft stipulates the right to adequate housing, it says nothing about drinking water, sanitary drainage, power and fuel supply.
Religious freedom is no longer “guaranteed” as in the previous constitution; it is merely “protected” (Article 43). The State grants the right to the freedom to practice religious rites and build places of worship for the ‘heavenly religions’ in as far as stipulated by the law.
Conspicuously absent from the draft constitution is a provision to ban the foundation of political parties based on religion.
Also absent is any clause that stipulates the independence of the judiciary.
The draft does not stipulate who appoints the president of the Central Bank, or that he should submit a report to the people’s assembly.
No article of the constitution may be changed before 10 years.
7 December 2012