Another missed opportunity: legal comment and an alternative policy
Public policy – not unilateral constitutional declarations – is needed to rekindle the unifying spirit of the Nile Revolution
Chibli Mallat , Monday 10 Dec 2012
Text of the Constitutional Declaration, with comments in bold
The President of the Republic:
The constitutional declaration issued on 22 November 2012 is void starting from today [9 December 2012] and all its consequences remain in effect.
Both ‘declarations’ are ultra vires. A president, together with his government, can announce policies. In a democracy, as Mr Tarek El-Bishri recently expressed it, no one has the authority to issue ‘constitutional declarations’.
2- If new evidence arises, new investigations will be conducted into the killing, attempted killing, injury or terrorising of citizens between 25 January 2011 and 30 June 2012 if these crimes were related to the revolution.
If the investigations find new evidence related to the above-mentioned crimes, the general prosecution is to refer the case to the court of legal jurisdiction, even if there is a final acquittal in the case or if the court rejected the prosecutorgeneral's appeal on the acquittal.
This is either unnecessary, or a clear double jeopardy. If a person kills, he must be investigated and tried, so paragraph one is unnecessary. If he has been acquitted, it is suspicious to restart the case upon ‘new’ evidence. Paragraph 2 contradicts basic rights universally acknowledged, la taziru waziratun wizra ukhra.
3- If the people vote against the draft constitution in the referendum on Saturday, 15 December 2012, the president is to call for the direct election of a new Constituent Assembly of 100 members within three months.
The new Assembly is to finish its task within six months from its election date. The president is to then call for a referendum on the new draft presented by the Assembly within thirty days of receiving it.
In all cases, vote counting and the announcement of results in the constitutional referendum is to take place publicly in election subcommittees as soon as the voting process is finished. The results are to be validated by the head of the subcommittee.
Again, this declaration does not appreciate that a constitution is not a simple law; it is a process that cannot be rushed and needs maximum participation and maximum endorsement. The Constituent Assembly ended up monolithic (white, aging men, Islamists), with the‘yes or no’of a referendum the recognisable tool of a dictator since Napoleon. There is never a compelling reason to rush a constitution in the face of so much popular resistance. And there is no compelling void: a government and a president are in place, and they can use both common sense and the best parts of the Constitution of 1971, as Amended by the Bishri Committee and ratified on 19 March 2011.
The third paragraph raises grave concerns. It suggests no role for the judges in the electoral process.
4- All constitutional declarations, including the current one, are immune from any challenge in any court and all related lawsuits are considered void.
This repeats Article 6 of the previous Constitutional Declaration which brought people to the street in massive protests because of a Caligula-, Pharaonic style decreeing that the president is above the law.
Proposing an alternative policy
Egyptians deserve better.Certainly there could be numerous formulations for an alternativepublic policy declaration –not a constitutional declarationissued by the government (not just the president). Here is one possible formulation:
The government of Egypt is concerned by the shedding of Egyptian blood and announces a new policythat seeks to reunite the millions of people who made the Nile Revolution. This first announcement expresses our determination to prevent impunity and ensure the largest possible participation and endorsement for a new constitution:
Under the principle of accountability laid down by our Revolution, arbitrary governmental arrests, torture, and other forms of unlawful punishment since the Revolution will be investigated, and those responsible tried in the criminal court system.
Murders committed during the troubles arising after 22 November 2012 will be investigated by a committee of senior judges formed by the President of the Judicial Council, the President of the Court of Cassation, and the Prosecutor-General. The Committee will defer those responsible for the use of violence against fellow Egyptian citizens to the criminal courts. The accused will have a right of appeal.
Constitutional declarations are unilateral acts contradicting the principle of consultation and election. All constitutional declarations, since they were first issued by the military committee, are void.
The Constituent Assembly will resume its work with the aim to ensurethe largest and most diverse representation of the Nile Revolution:
Until a new Constitution has been adopted by the people of Egypt, the Amended Constitution of 1971 as of its popular ratification on19 March 2012, will provide guidance for Egyptian institutions, in the spirit of freedom and equality achieved by our nonviolent, ongoing Revolution.
The Constitution will be inspired by the legacy of Egypt’s rich legal past and the spirit of nonviolence, freedom and equality of the Nile Revolution. It will seek to provide an advanced constitutional model for all the citizens of Egypt, and for the world.
Constituent Assembly Members who have resigned will be asked to join it again. Another thirty members will be added to represent the revolutionary forces, in particular revolutionary leaders amongst women, trade-unionists, religious minorities, and the youth. The government will consult with oppositional groups to ensure the diversity of the Constituent Assembly.
The Constitution will be agreed by the CA members’ appropriate committees and voted in one text with a qualified majority of 2/3 [or ¾] for the text as a whole.
The government will consult with the Constituent Assembly to put the agreed Draft Constitution to the popular vote.