Problems on hold
This week I resume tackling the topic of the constitutional amendments proposed in a request submitted to the House of Representatives by 155 MPs. Once the House ensured the request fulfilled the required constitutional and procedural conditions, a House majority of 485 out of a total 596 MPs consented to putting it up for debate. House Speaker Ali Abdel-Aal thus referred the proposed amendments to the parliamentary committee for constitutional and legislative affairs to receive relevant suggestions from MPs, members of the public, and entities concerned. The proposals should then be put up for sessions of societal dialogue for a 45-day period, after which the committee would study the amendments proposed and draft a report to be presented to the House of Representatives’ general assembly for voting. If rejected, the entire file is closed; if approved, the amendments would be put up for public referendum.
I will here resume my last week’s outline of the amendments proposed.
• Setting a unified system for the appointment of the heads of judicial authorities, the public prosecutor, the head judge of the Supreme Constitutional Court; and the establishment of a supreme council for mutual judiciary affairs.
My comment: I went back to the current Constitution’s third chapter on the judicial authority, which includes articles on general rules, the judiciary and the public prosecution, State Council judiciary, Supreme Constitutional Court, judicial authorities, lawyer practice, [legal] experts … In every one of these branches, the Constitution explicitly stipulates independence of the judiciary, sets the system for choosing the candidates to fill its top posts, ensures their immunity against dismissal from their posts and spells out the guarantees. I thus intend to diligently observe the discussion of the proposed amendment to assess its implication and content. I believe such an amendment must be approved by representatives of the judicial authority, as stipulated by Article 185 of the Constitution: “Every judicial authority or establishment shall be in charge of its affairs; it should have an independent budget the full elements of which the House of Representatives shall discuss and, once approved, shall be included in the State budget as one figure; and it [the judicial authority or establishment] shall be consulted on draft laws regulating its affairs.”
As for establishing a supreme council for mutual judicial affairs: we already have a supreme council for the judiciary. What is the difference between the current and proposed council, and what addition would the proposed one offer?
• Reformulating and intensifying the role of the armed forces; appointing the defence minister upon approval of the Supreme Council of the Armed Forces; and endowing vital establishments and public facilities with legal protection.
My comment: As regards the demand that the defence minister’s appointment should hinge on the approval of the Supreme Council of the Armed Forces, the current Constitution stipulates that “the defence minister is the commander-in-chief of the armed forces, and is appointed from among the ranks of its officers”. Apart from that, I need to follow the prospective discussions on reformulating and intensifying the role of the armed forces. This role was clearly defined in article 200 of the current Constitution as: “The armed forces belong to the people; their role is to protect the country and ensure its security and the safety of its lands; the State alone establishes these forces; it is banned for any individual, authority, organisation, or group to establish military or quasi-military organisations, groups or militias. The armed forces shall have a supreme council as defined by the law.” Likewise, I could not grasp what was meant by the proposal of “endowing vital establishments and public facilities with legal protection”, since legal protection is regulated by the law, and security protection is the charge of the police, whereas the armed forces are charged with military protection. I hope the prospective discussions explain the matter.
• Establishing and regulating an upper house in parliament.
My comment: I am and have always been a staunch supporter of establishing an upper house in parliament, whether under the name Shura Council, literally Consultative Council, which existed in Egypt for decades as a twin parliament, or under the name “Council of Elders” or “Senate” as in the pre-1952 Revolution years during which Egypt was a monarchy. In all cases, I see an upper house as a legislative ‘safety valve’. I had previously tackled this issue in detail in 2013 during the process of drafting Egypt’s current Constitution, in an editorial printed on 1 December 2013 under the title: “Legislative safety valve”. Back then I wrote: “Upper houses of parliaments are not created as arenas for political gossip or research centres; were this the case they would have certainly been a waste of time and money. But as the name “Shura (Consultative) Council for Laws” suggests, the raison d’être of the council is legislation. Whereas some see the Shura as merely second fiddle to the lower house of parliament, others see its role in scrutinising and reviewing the bills referred to it from that house as pivotal. If the Shura approves a bill it passes; if it finds it flawed in any way the Shura refers it back to the lower house for rectification. The process ensures that laws passed are flawless. Previous experience has proved that unjust, incompatible laws may be rushed through, only to be eventually contested in court and ruled unconstitutional. An upper house in parliament would ensure the constitutionality of laws are checked before they are passed.
“The qualifying measures for membership in the Shura should be different than those which apply in case of the house of representatives. To run for the lower house, candidates must enjoy strong street presence or at best family or clan support, factors that carry considerable electoral weight but which have nothing to do with legal or legislative expertise. In case of Shura membership, academic experience, reasonable age, and expertise in the legal and legislative fields should count. In this context, it may be advisable to have a proportion of MPs appointed by the president of the republic to the consultative council, according to specific standards of competence, the holders of which may not be willing or capable of running for elections. We might take as role model the UK parliament with its House of Commons and House of Lords, or the US’s House of Representatives and Senate.”
• Finally, there was a proposal to annul the National Authority for the Press and the National Authority for the Media, two authorities responsible for State-owned press and media respectively, but the proposal was withdrawn.
We will be closely following what goes on about the proposed amendments in the “constitutional amendment kitchen”; if approved, the people will have the final say on them through the public referendum.
Watani International
24 February 2019
