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Fierce debates plague final drafts of Egypt's constitution

The 100-member Constituent Assembly has finished three quarters of the country's new constitution; as it prepares to reconvene post Eid, unresolved issues continue to cause contention

Gamal Essam El-Din , Monday 20 Aug 2012
Constituent assembly
Constituent assembly session (Photo: Ahram)
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Views: 3613

Egypt’s Constituent Assembly is in the final weeks of drafting the country’s new constitution, with as much as 70 per cent of the document already drafted, according to assembly member and newly-appointed Minister of State for Parliamentary Affairs Mohamed Mahsoub.

"As for the remaining 30 per cent of the new constitution," Mahsoub told Ahram Online, "this is expected to be written in the weeks immediately following Eid Al-Fitr holiday, so that the entire draft of the new constitution could be ready for public discussion by the middle of next September."

After adjourning on the 16 August following a busy few weeks of work, the five committees of the constitution-drafting body are expected to reconvene immediately after the Eid Al-Fitr holiday.

"We do not have any time to waste, we want to put the final draft of Egypt’s constitution to a public discussion and review it as soon as possible," the assembly’s Chairman Hossam El-Ghiriani told its members last week.

Mahsoub affirmed that he believed the constitution would then be put up for public referendum by the middle or end of this October.

The drafting process consists of three phases, Mahsoub explained.

 "In the first stage, the Assembly’s five committees were required to hold hearing sessions after which they began drafting the different chapters of the constitution," Mahsoub said. explaining that some of these committees were forced to branch off into sub-committees to finish the job.

For example, the system of government committee, he said, branched into two subcommittees: the first focusing on local administration and the second on judicial authority.

Mahsoub also disclosed that the freedoms and rights committee was the only group to finish a draft of its chapter.

The second stage, according to Mahsoub, sees all the committees submit initial drafts of their completed chapters to a team tasked with compiling the constitution as a whole before the document, in its final form, is discussed in plenary meetings by the entire 100-member assembly. This phase, Mohsoub explained, is expected to be completed by the end of next week.  

After this a first and second reading of the document by the whole assembly will take place.

 "These readings will be aired live so that all of Egyptians can follow it minute by minute and give their comments on each point," Mahsoub added.

However, the assembly still faces an uphill struggle in the closing weeks of the constitution-drafting process, with certain unresolved issues potentially making it difficult for the constitution to be completed within such a short time period.

 The first sticking point relates to the regulation of the High Constitutional Court (HCC).

On 15 August, Minister of Justice Ahmed Mekki and Judges’ Club Chairman Ahmed El-Zind gave two contradicting points of view about the future role of the HCC during a meeting of the assembly’s judicial authority subcommittee.

Minister Mekki said the HCC should no longer be referenced in an independent section in the new constitution.

"It should be included in the chapter dealing with judicial authority as a whole or under what I call unified justice," Mekki explained, adding that this was not an attempt to strip the constitutional court of its powers. "Rather the aim is to restructure the judicial authority as a whole by grouping all judicial authorities and courts under one section."

Mekki’s view was strongly rejected by El-Zind and some members of the HCC’s board, such as Hossam Bagato, who insisted that the HCC must be kept independent of other branches of the judiciary and remain regulated under a separate chapter of the constitution.

"This is necessary to stress the sovereign nature of the HCC and its supreme role in preserving constitutional rights and freedoms," Bagato asserted.

The performance of the HCC is currently regulated by the fifth chapter of the constitution which grants its judges the final say on the constitutional validity of laws and decrees. It also gives its members of HCC’s board judicial immunity so that no one, including the president, can dismiss them from their jobs.

Heated verbal exchanges between Mekki and the HCC’s board of judges erupted last week.

The justice minister sharply criticised the HCC’s 15 June ruling which invalidated the People’s Assembly (Egypt’s lower house of parliament). According to Mekki, "the ruling was politicised and showed that judges of the court are still involved in politics."

This statement provoked a strong backlash from the HCC’s incumbent members who accused Mekki of interfering in the court’s business and doing his best to strip it of its powers.

Mekki also strongly rejected a suggestion that military tribunals and civilian courts be grouped into one chapter.

The proposal, submitted by Major General Mamdouh Shahin, the legal advisor for the Supreme Council of Armed Forces (SCAF), intended to end the "negative public view" of military courts.

Civilians facing military trial has been a key grievance of activists and the subject of many protests against the country’s leaders since the ouster of Hosni Mubarak.   

Shahin asserted that "citizens should know that there is no difference between military and civilian courts and this should be included in the new constitution."

This argument was rejected by Mekki and other members of the assembly, who agreed that military and civilian courts should be separated and not grouped under one chapter in the new constitution.

Article 2 dealing with Islamic Sharia law was another thorny issue for the constitution-drafting body.

The ultraconservative Salafists members insisted, at first, that the text of Article 2 reads that "Islamic Sharia – rather than the principles of Islamic Sharia - should be the main source of legislation in Egypt."

After a compromise was reached with members of the Muslim Brotherhood’s Freedom and Justice Party (FJP), Salafists changed their position, approving that the article be amended with the stipulation that Egypt’s highest Islamic authority Al-Azhar becomes the main reference on Islamic Sharia laws.

This, however, was fiercely rejected by liberal members who expressed fears that this religious prerogative could be exploited to impose a dogmatic interpretation of Islamic law at the expense of free thinking and progress of society.

The assembly’s spokesperson Wahid Abdel-Meguid told journalists that "the idea of making Al-Azhar a supreme reference on Islamic Sharia matters could be a mixed-blessing weapon especially if the Brotherhood managed some day to bring Al-Azhar under its control."

Pressure from the Salafists and other Islamist members forced Manal Al-Taibi, a human rights activist, to withdraw from the assembly.

In a statement issued on 16 August, El-Taibi asserted that "liberal members of the assembly are being harassed by Islamists to approve drafting several religious articles in a way that goes against liberties and human rights and the democratic ideals of the January 25 Revolution."

A third contentious issue erupted last week when Minister of Local Administration Ahmed Zaki Abdeen strongly recommended that provincial governors should be selected via elections rather than by appointment.

Speaking to the local administration subcommittee on 16 August, Abdeen said that “after the democratic revolution of 25 January, citizens will no longer tolerate that provincial governors come by selection rather than by election.” He argued that elected governors are stronger and more “capable of implementing development plans without facing much objection from citizens.”

Minister Mahsoub, however, disclosed another proposal that provincial governors should be appointed by the president after consulting with the cabinet and following the approval of the two houses of Egypt’s parliament.

Mahsoub argued that “provincial governors are part of the executive authority and for this reason they must be chosen by the president of the republic.”

Instead of electing provincial governors, as is the case in America, Mahsoub said it is recommended that elected municipal councils be reinforced and granted sweeping supervisory powers – including the prerogative of directing questions and interpellations, "so that they could act as strong watchdog mini-parliaments over the performance of provincial governors and municipal executive officials."

The constitution is also expected to be longer than previous documents. Assembly spokesperson Abdel-Meguid said the total number of constitutional articles could reach as many as 250 (rather than 211 in the 1971 Constitution).

"This is largely because the powers in the new constitution will be delicately divided among the president, parliament, and the judiciary," said Abdel-Meguid, adding that "this division requires writing new articles about the powers of each authority and making sure that there is a balance between them." Under the now-abrogated 1971 Constitution, most of the powers were held by the president.

Abdel-Meguid also asserted that the drafting of the articles regulating the relationship between the president and parliament was not a matter of contention between members of the assembly.

"But I think issues might occur when the constitution is open to public discussion," Abdel-Meguid added, "these articles could cause a lot of problems because many politicians in Egypt still cling to the idea that a presidential system – rather than a mixed parliamentary-presidential one – is best for the country until it stands on its own feet and recovers stability."

He also told Ahram Online that "because there was consensus among members that the constitution should reflect the January 25 Revolution’s ideals on freedoms and liberties, the chapter on this subject was the first to be drafted completely."

Abdel-Meguid allayed fears that the articles regulating national press would be the hardest for the assembly to agree upon.

"There is a consensus that national media should no longer be regulated by the state or the upper consultative house of Shura Council," Abdel-Meguid affirmed, "as demanded by the Journalists’ Syndicate, the national press will be regulated by an independent media authority like the BBC and it should not be subject to any kind of state control."

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