Constitutional challenges ahead

September 5th, 2012

The 100-member assembly in charge of drafting Egypt’s new constitution has completed much of its job, but thorny issues remain – Published on Al-Ahram weekly online, by Gamal Essam El-Din, 30 August – 5 September 2012.

The five committees belonging to the constituent assembly tasked with drafting Egypt’s new constitution have made a lot of progress over recent days, leading officials to issue a series of statements regarding the approximate completion date of the new constitution. 

According to Prime Minister Hisham Qandil speaking on 25 August, a draft of the country’s new constitution will be complete and ready to be put to nationwide referendum by the end of September.

However, Qandil’s statement has been greeted with suspicions, the Press Syndicate pointing out on Sunday that Qandil is not a member of the assembly and that because of his capacity as a member of the government he is not officially authorised to give statements about the work of an independent body.

“This is not to mention the fact that the assembly is facing the spectre of dissolution, pending a court ruling slated for 22 September,” Gamal Fahmi, a member of the syndicate’s board, told Al-Ahram Weekly. If the assembly is dissolved by the court ruling, President Mohamed Mursi will be empowered to form a new body to draft the constitution … //

… The SCC is currently regulated under the fifth chapter of the present constitution, which grants its judges final say on the constitutional validity of the country’s laws and decrees. It also grants members of the SCC’s board immunity, such that no one, including the president of the republic, can dismiss them from their jobs.

A verbal clash between Mekki and the SCC’s board of judges erupted last week, when Mekki sharply criticised the SCC’s ruling that had invalidated the People’s Assembly, Egypt’s lower house of parliament, on 14 June this year, leading to its dissolution.

According to Mekki, “the ruling was politicised and showed that the judges of the Court are involved in politics.” Mekki’s statement provoked a backlash from SCC judges, who accused him of interfering with the court’s business and trying to strip it of its powers.

Mekki has also rejected a proposal that would group military tribunals and civilian courts under one chapter of the new constitution. The proposal was submitted by General Mamdouh Shahin, legal advisor to the former ruling Supreme Council of the Armed Forces (SCAF), on the grounds that it would end the negative view of military tribunals.

Shahin said that “citizens should know that there is no difference between military and civilian courts, and this should be included in the new constitution.” Mekki rejected this argument, saying that “military and civilian courts are of different natures and can not be grouped under one chapter of the new constitution.”

Members of the committee were divided on the issue and decided to refer it to the constituent assembly for discussion and a vote.

A further thorny issue has been Article 2 of the new constitution, which deals with Islamic Sharia law. The Salafist, or ultraconservative Islamist members of the assembly, at first insisted that the text of Article 2 should read that “Islamic Sharia [rather than the principles of Islamic Sharia] is the main source of legislation in Egypt.”

After a compromise with members of the Islamist Freedom and Justice Party (FJP), the Salafis changed their position, approving an amendment to the article if Al-Azhar was made the main authority on Islamic Sharia law.

This was fiercely rejected by liberal deputies, who expressed fears that such a prerogative being given to Al-Azhar could be exploited to impose a dogmatic interpretation of Islamic law at the expense of freedom of thought and the overall progress of society.

Assembly spokesperson Wahid Abdel-Meguid told journalists that “the idea of making Al-Azhar a supreme reference on Islamic Sharia could be a mixed blessing, especially if the Muslim Brotherhood manages some day to bring Al-Azhar under its control.”

Pressure from the Salafis and other Islamist members of the assembly caused Manal El-Taibi, a human rights activist, to withdraw. In a statement issued on 16 August, El-Taibi said that “liberal members of the assembly are being harassed by Islamists to approve the drafting of several religious articles in ways that go against freedoms and human rights and the democratic ideals of the 25 January Revolution.”

A third sticking point came to the fore last week when Minister of Local Administration Ahmed Abdine recommended that provincial governors be selected by election rather than appointment. Abdine told the assembly’s local administration sub-committee on 16 August that “after the democratic revolution of 25 January, people will not longer accept the idea that provincial governors should be appointed rather than elected.”

“Governors who are elected are likely to be stronger and be capable of implementing development plans without objections from citizens,” he said.

Mahsoub said that “another proposal is that provincial governors be appointed by the president of the republic, but only after consultation with the cabinet and the approval of the two houses of parliament.”

“The provincial governors are part of the executive authority, and for this reason they must remain appointed by the president of the republic,” Mahsoub said.

Instead of electing provincial governors, as is the case in the US, Mahsoub said that “elected municipal councils should be reinforced and granted supervisory powers, including the right to question officials and to issue writs, such that they can act as watchdog mini-parliaments over the performance of provincial governors and municipal officials.”

Assembly spokesperson Abdel-Meguid said the total number of articles in the new constitution could reach 250, as opposed to the 211 at present. “This is because the powers in the new constitution will be divided between the president, the parliament, and the judiciary,” indicating that “this division requires writing new articles defining the powers of each and making sure that there is an appropriate balance between them.”

Under the former 1971 constitution, most powers were held by the president.

Abdel-Meguid indicated that “drafting the articles regulating the relationship between the president and the parliament has not caused clashes between members of the assembly.”

“But I think that when they are publicly discussed they could cause debate, because many Egyptian politicians, including members of the assembly and the former secretary-general of the Arab League, still cling to the idea that a presidential system is better than a mixed parliamentary-presidential one, since it is thought that it will do more to help the country on the path to stability.”

He said that “because there was consensus among members that the constitution should reflect the 25 January Revolution’s ideals on freedoms and liberties, the chapter on these things was the first to be drafted.”

Abdel-Meguid said that some had thought that the articles regulating the national press would be controversial, but that this had not been the case.

“There is a consensus that the national media should no longer be regulated by the state or the Shura Council,” the upper house of parliament, he said. “As requested by the Press Syndicate, the national press will be regulated by an independent media authority, as is the British BBC, and it will not be subject to any kind of state control.”
(full long text).

Links:

What happened to the money? A judicial commission was formed this week to investigate money smuggled out of Egypt by cronies of the former Mubarak regime, on Al-Ahram weekly online, by Gamal Essam El-Din, 30 August – 5 September 2012;

The IMF loan, encore: Renewed interest in aid from the fund has stirred new controversy, on Al-Ahram weekly online, by Niveen Wahish, 30 August – 5 September 2012;

South Africa frees first batch of miners: Release follows earlier decision to drop murder charges against 270 workers over deaths of colleagues, on AlJazeera, with 2 short-videos, Sept. 3, 2012;

Swedish government sites hit by cyber attacks: Websites of government, armed forces and Swedish Institute go offline, but no group has claimed responsibility yet, on AlJazeera, Sept. 3, 2012: An unidentified group supporting Julian Assange has reportedly claimed responsibility on Twitter [AlJazeera] …
… and related article: Cyber war and peace – Greater dependence on networked computers and communication leaves the US more vulnerable to attack than others, April 21, 2012 (with 2 short-videos).

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