Egypt is in dire need of a new constitution, no one can argue with that.
The 1971 constitution was declared void following the January 2011 Revolution, and thus the need for one to replace it. Yet it looks like efforts to write a new constitution have been star-crossed right from the beginning.
For starters, the first constituent assembly tasked with drafting the new constitution was formed last March and was a few weeks later declared non-constitutional by Egypt’s Supreme Constitutional Court. The second assembly was picked by the People’s Assembly which was in turn declared non-constitutional and dissolved by court order last June. This threw long shadows over the constitutionality of the second assembly yet, while awaiting a court order on the issue, the assembly went into overdrive to write before the court may declare it invalid a draft constitution for Egypt. This task was completed earlier this month, and a first draft has been posted on the Internet at www.dostour.eg for everyone to see and post their comments.
Just how Islamist?
Not surprisingly, the draft constitution drew vast controversy. At first glance, it would appear as though no sector of Egyptians approves of it. Harsh criticism has come from the judiciary, various political forces, economists, rights activists, writers and intellectuals, women, peasants, minorities, emigrant Egyptians, as well as the Islamist currents. The Islamists in particular should have been happiest, given the loud accusations by non-Islamists that the constitution has been written so as to appease their every demand. Yet their disapproval centres over how radical the Islamic-based articles in the constitution should be.
The two major religious entities in Egypt, the al-Azhar and the Church, have not, so far, given an explicit opinion regarding the draft constitution.
The Supreme Constitutional Court
Perhaps the most weighty rejection of the draft constitution came from the Supreme Constitutional Court (SCC) which issued a statement accusing the draft constitution of curtailing the independence of the court and cutting back on some of its major competences.
The new constitution declares the SCC an independent judicial authority in its own right, meaning it is independent of all other authorities—the judiciary included. This secures the SCC’s absolute impartiality, especially given that it is called upon to rule on the constitutionality of laws and rules, and upon contested judgements. But the draft goes on, however, to place the SCC as part of the judicial authority.
The SCC statement criticises the draft constitution for not citing three of the main roles of the SCC: ruling on final judgements, ruling on disputes regarding the execution of its rulings, and requests by its members. The stipulation that the president is entitled to appoint the head and members of the SCC is an unprecedented regression, according to the statement, and grants the executive authority the upper hand over another, separate authority.
The judiciary
Judge Ahmed al-Zend, head of the Egypt’s Judges Club—the de facto judges’ syndicate—describes the draft constitution as “shocking and disappointing”. He says the draft constitution is short on guarantees for the independence of the judiciary, and is ambiguous on the role of the public prosecution. “It gives the impression that there is deliberate intention to trifle with the judiciary and the prosecution; the new constitution affords no guarantees against the sway of the legislative authority over the judicial authority.”
Judge Amir Ramzy, who is also member of the Cabinet’s Justice Committee, says the draft constitution has been tailored to the Islamist current which today rules Egypt. “It has the potential of turning Egypt into a radical Islamic State,” he says.
The political forces and the economists
According to Karima al-Hifnawi of the Egyptian Socialist Party: “The draft constitution includes ‘elastic’ articles that do not serve the interests of the Egyptian citizen, especially where health and education are concerned”.
The Misr al-Qawiya (Powerful Egypt) party announced its rejection of the constitution for a variety of reasons, not least because it does not clearly stipulate any anti-discrimination principles. It moreover grants the military powers that make it more powerful than the elected bodies.
Another party which has rejected the draft constitution is the leftist Tagammu party. Its head, Rifaat al-Said describes it as “a base for a Salafi – Ikhwani (Muslim Brotherhood) tyrannical State”. He stresses that Egypt is today in need of a Constituent Assembly that represents the broad spectrum of the Egyptian people, and that would write a civil, democratic, consensual constitution.
The draft has also been criticised by al-Misriyoon al-Ahrar (The Free Egyptians) party for citing only a single reason for which to take the president to account, that being high treason. Furthermore, Bassel Adel of the political office of the party says, the draft does not require that Egypt should have a vice president, which was an option in the previous constitution. It also grants the president new powers and prerogatives that had not been in the previous one, even as it places newly-stipulated restrictions on the media.
The economists
As far as Egypt’s economy is concerned, the draft constitution has missed defining its economic system. Economic expert Ahmed Sayed al-Naggar says that it is elementary that the constitution should stipulate the economic model followed by a country, which goes missing in the current draft.
For his part, Ayman Abul-Ela of the Egyptian Democratic Party applauds the draft constitution for stipulating minimum and maximum wages for all but, he says, this is not sufficient. It should stipulate maximum ‘income’ instead of maximum ‘wage’, in order to root the principle of social justice.
Mr Abul-Ela applauds the draft article which bans military trials for civilians.
Egyptians in the Diaspora
On their Facebook page, Egyptians in the Diaspora announced their rejection of the draft constitution. Their rejection is based on the sweeping powers granted to the president, not least among which is his entitlement to appoint all the heads of supervisory bodies that should monitor the acts of the president and the government, as well as his being granted life immunity on account of his membership in the Senate.
The draft is also criticised for making no mention of the independence of the judiciary or forensic medicine, and for curtailing the role of the Central Accounting Agency to supervise public funds only to the exclusion of private funds. The draft also fails to mention who appoints the president of the Central Bank, or to stipulate that a statement should be presented to the parliament.
Writers, artists, and women
The draft constitution has nothing at all to say about the role of Egypt’s intellectuals, cultural figures, or artists, a fact which has come under fire from the union of Egypt’s writers. “This means Egypt is voided of its ‘soft power’,” a statement by the union says. The draft constitution stipulates that one-fourth of the members of the senate should be appointed by the president, from among previous officials, ambassadors or ministers. “As though there are no writers, artists or men and women of culture in this country,” according to the statement.
And in case of women, the majority is disappointed with the draft constitution’s outright disregard of their rights. Mervat al-Tallawi of the National Council of Human Rights says the constitution should have defended the rights of women and minorities; these rights should not have been left as a favour to be granted or withheld by the president. The draft should have explicitly defined Egypt as a civil, democratic State which honours the rights of women and minorities and rejects all forms of discrimination based on race, colour, gender, or creed. As for the Article 36 which stipulates that women’s rights should be respected inasmuch as they do not contradict with Islamic sharia, Ms Tallawi says, it has the potential to be exploited to curtail the rights of women.
…And the Salafis
The Salafis have rejected the draft constitution, claiming it disregards the implementation of Islamic sharia. They have threatened they would rally Egyptians to reject it, since they allege that the text cited in the draft and approved by the SCC since the 1971 constitution: “the principles of Islamic sharia” does not encompass the fullness of sharia.
The question which now begs an answer is the obvious: Who is for the draft constitution? It appears that, so far, the only group to fully endorse it is the Muslim Brotherhood.
WATANI International
28 October 2012