Target: a consensual constitution

This is the last in a series of four articles that highlight the objections collectively posed by the Orthodox, Catholic, and Evangelical Churches in Egypt to the country’s new constitution

. The Churches wrote down these objections in a ‘Document’ which they jointly issued and handed last December to Judge Mahmoud Mekki, who was then Vice President of Egypt, in order for him to refer it to the National Dialogue (ND) called for by President Mursi. The ND was to include representatives of all sectors of the Egyptian community, and was to work to amend the constitutional articles which had come under heavy fire from the non-Islamists, in hope of reaching a document acceptable to most Egyptians. The Churches, however, quit the National Dialogue; they realised they had been invited to participate as a mere cosmetic move that would lend legitimacy to the dialogue while in truth there was no intention whatsoever of amending the constitution. Even as I find it imperative to highlight the constitutional articles under dispute, I have grave concerns regarding the current violence on the Egyptian street, which threatens to overthrow all efforts to draw Egypt out of the chaos that currently swamps her.

Following is a number of constitutional articles that warrant revision:

• Article 102: “Neither of the two legislative houses may pass a bill without prior consultation. Each house has the right to fully or partially apply the amendments proposed. Each bill passed by one of the houses should be passed on to the other house which, in turn, should not delay it for more than two months—excluding the legislative recess. It is only passed as a law when both houses approve it.”

The Document sees that the text as such is deficient in that it does not spell out the manner of voting on bills. In this context, according to the Document, it is important to distinguish between legislation and laws that complement the constitution. In the first case, the Document says, Article 102 should stipulate that a simple majority is required, whereas in the second, a two-third majority is needed.

• Article 147: “The president of the republic is supreme commander of the armed forces. The president is not to declare war or send armed forces outside the country except after consultation with the National Defence Council and approval of the House of Representatives, with a majority of its members.” As in Article 102 and Article 148 which is concerned with the declaration of a state of emergency, the Document sees that the simple majority (50 per cent + 1) stipulated is inadequate since it allows the majority party to decide on such pivotal matters almost unilaterally. The Document proposes that such decisions may only pass with a two-thirds majority vote.

• Article 198: “The military judiciary is an independent judiciary that adjudicates exclusively in all crimes related to the armed forces officers or personnel. Civilians are not to stand trial before military courts except for crimes against the armed forces. The law defines such crimes and determines the other competencies of the military judiciary. Members of the judiciary are independent and cannot be dismissed. They enjoy the immunities, warrants, rights, and duties due to members of the non-military judiciary.” The Document demands that the clause: “except for crimes against the armed forces. The law defines such crimes” should be deleted, since there is a strong public demand that civilians should never be tried before military courts. All the drafts drawn up for the constitution had cited this demand, but this clause was added in the last minute, on that infamous night that saw this constitution rushed through approval by the predominantly-Islamist constituent assembly that wrote it.

• Article 225: “This constitution is in force as of the date of announcement of its approval by the public in a referendum, based on the majority of valid votes.” The Document demands that this article should stipulate a “two-thirds majority of valid votes”, since the constitution is a consensual document not one that expresses the majority and works to impose their will.

• Article 55: “Citizen participation in public life is a national duty. Every citizen has the right to vote, run for elections, and express opinion in referendums, as stipulated by the law. The State is responsible to include in the voter database the names of every citizen qualified to vote, without an application submitted by the voter. The State ensures the fairness, integrity, and impartiality of referendums and elections. Interference by State apparatuses in any of the above is a crime punishable by law.” In order for this article to be immune to misunderstanding or exploitation, the Document requires that two conditions should be cited. The first is that it is the right of citizens to boycott elections without incurring penalty; the second is that places of worship should not be used for political party benefits or electioneering. The proposed amendment reads as follows: “The State ensures the fairness and integrity of elections; and is committed to providing the data which guarantees the transparency of the election process. Security and administrative apparatuses are banned from interfering either directly or indirectly with the political affair, or with public elections or referendums. It is also banned to use places of worship for the purposes of political parties or to campaign for elections; violations are punishable by law.”

This concludes my presentation of the bold Document which scrutinised the constitution and exposed the flaws and deficiencies it includes. It also highlighted articles that include—whether or not well-intentionally—clauses that represent potential threats. It goes to the Document’s credit that instead of merely denouncing or condemning the flaws it offered plausible alternatives. I hope the Document, together with other sincere efforts on that front, would find its way to contribute towards reaching an amended, consensual constitution.