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Divisions dog Egypt's Constituent Assembly

The future of Shura Council, electoral system and press freedoms still in the balance as heated debates divide the constitution-drafting body

Gamal Essam El-Din , Wednesday 26 Sep 2012
constituent assembly
A general view of the two chambers of parliament meeting to elect the 100 members of the constituent assembly in Cairo (Photo: reuters)
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New differences and divisions have divided the Constituent Assembly, the body tasked with drafting Egypt’s new constitution.

A meeting held by the assembly on Tuesday showed that members are still significantly divided over the fate of the Shura Council, the consultative upper house of the Egyptian Parliament and what electoral system should be adopted in the upcoming parliamentary elections. The assembly also decided to review the recently-completed chapter on freedoms and rights.

Eliminated presidential candidate Amr Moussa, requested that an exceptional session on the chapter be held after journalists complained that it was drafted in a way that targets press freedoms. This followed the resignation from the assembly of human rights activist Manal El-Taibi in August in protest of what she called “the malicious intentions aimed at charting an Islamist constitution for Egypt.”

In spite of the differences and divisions, the chairmen of the assembly's committees announced this week that the first draft of the national charter’s four chapters, Basic Components of The State, Freedoms and Rights, System of Governance and Supervisory Institutions, had been completed.

Chairman of the System of Governance Committee Gamel Gibriel, speaking to parliamentary correspondents before Tuesday's assembly meeting, said that the 100 members would be busy reviewing the first draft of the new constitution over the coming two weeks. "This will be in the form of making a first and second reading of the national charter as a whole," Gibriel explained.

He indicated that "while the three chapters on Freedoms and Rights, Basic Components of the State and Supervisory Institutions have been completely drafted, it was the chapter on the System of Governance that has taken so much time to be finalised."

Gibriel said the System of Governance Committee voted this week in favour of Islamist President Mohamed Morsi staying in office for the full four year term, until the end of June 2016.

This decision goes against calls from several secular political forces for new presidential elections after the constitution is drafted or following a transitional period of two years.

Salah Hassaballah, the only committee member who voted against the decision, told the parliamentary correspondents that "what follows in most countries is that new presidential elections are held after the country’s new constitution is approved by public referendum." His comments reflected what a number of constitutional law professors have warned since May's presidential elections.

Leaders of newly-formed coalition the Egyptian Popular Current vowed, during the inauguration rally last Friday, that they would fight against Morsi staying in power until 2016. Prominent political activist George Ishak charged that the constitution is being tailored by the Islamist-oriented assembly to serve the interests of Mohamed Morsi and his Muslim Brotherhood group.

The committee, however, has agreed on the four requirements that presidential candidates must meet in order to be eligible to run for office.

"They must be 40 years old or more and neither they nor their spouses can hold dual nationality," Gibriel explained, adding that "they also must secure the recommendations of 30,000 citizens from at least 15 governorates (out of a total 27) or get the recommendations of 30 elected MPs from the two houses of parliament: the People’s Assembly and Shura Council." Gibriel also said that a political party wishing to field a presidential candidate would be required to have at least five seats in parliament.

In addition, should there be a run-off round, a presidential candidate must secure 50 per cent of the votes plus one in order to be declared the winner.

Gibriel explained that there is a general consensus among members of the Constituent Assembly that Egypt adopts a mixed parliamentary-presidential system. "This means that the powers will be divided between the president and the prime minister, whose party receives the majority in parliament," said Gibriel, adding that "the president of the republic will retain the power over foreign policy, national security, defence and the declaration of the state of emergency."

Several powers held by the president under the former 1971 Constitution will be curtailed, including the right to dissolve parliament, Gibriel continued. The president will only be able to declare a state of emergency after getting the approval of the Cabinet and two thirds of parliament.

"Even after this, the president is only authorised to declare a state of emergency for six months, which can only be extended by another six months if the extension is approved by public referendum.”

During Tuesday's televised assembly meeting, Chairman Hossam El-Ghiryani said members are still divided over the future of the Shura Council and the electoral system.

The ultraconservative Salafist faction appear to be leading the opposition against the retention of Egypt's largely consultative upper house of parliament.

Shaaban Abdel-Alim, a Salafist assembly member, warned during the gathering that "granting this council legislative authorities will delay the passage of laws and cost the state budget more money."

Chairman of the council's Legislative Affairs Committee and Brotherhood lawyer Mohamed Touson disagreed, saying "either you abolish this council completely or keep it in place with complete legislative powers."

Touson explained that the number of countries adopting the bicameral system, a practice of having two legislative bodies, is increasing.

"76 per cent of countries with a population of more than 50 million now adopt the bicameral system," Tuson argued, explaining that it is better for Egypt to have two houses of parliament as this guards against the creation of "the dictatorship of one parliament."

In addition it will ensure that that "laws are thoroughly discussed rather than being ruled unconstitutional later by the high court."

He also said the Shura Council cost the state LE136 million last fiscal year and that "this is a very modest amount, putting into consideration that a good part of this money goes to funding political parties."

The Muslim Brotherhood is strongly in favour of retaining the Shura Council under the new name of “the senate.”

Mahmoud Ghozlan, a member of both the assembly and the Brotherhood’s Guidance Bureau, proposed during the meeting that the "Shura Council include 180 elected members (rather than 270 at present) and has mid-term elections held every three years." The president would also be stripped of the right to dissolve the body.

Speaking to the parliamentary correspondents before the meeting, Muslim Brotherhood assembly member Noureddin Ali proposed that the constitution include an article that makes it impossible to amend the constitution over a period of five years. "This article is adopted by several countries and is aimed at guaranteeing political and constitutional stability," Ali stated.

Noureddin also suggested that the president and the two houses of parliament be given the right to propose amendments to the constitution.

"If this idea is incorporated, the Shura Council would be empowered with proposing changes to the constitution,” explained Noureddin, adding that “under the 1971 Constitution, the president had an upper hand in proposing amendments to the constitution although the People’s Assembly had the same privilege.

"Under this new article, no single authority would be granted the absolute power to alter the constitution and this is good for the democratisation process."

Noureddin also stated that the committee has not reached a decision on the electoral system.

A number of the Muslim Brotherhood members support a mixed structure.

During the assembly gathering Ghozlan said, "We recommended that 50 per cent of seats be elected under the individual candidacy system, while the other 50 per cent be elected under the party-list system."

However, this proposal was rejected in favour of scrapping the individual candidacy system altogether and adopting the party-list system instead. Gibriel indicated that adopting the "list only" system would mean that Egypt's electoral districts map would need to be redrawn.

If approved, the new electoral system would have to be enshrined in law and ratified by the president.

Secular forces, in particular past members of Hosni Mubarak’s dissolved National Democratic Party (NDP), are pushing to retain the individual candidacy.

Before Tuesday's assembly meeting, Hassaballah, a member of NDP’s offshoot the "Egyptian Citizen Party" told parliamentary correspondents that the success of NDP candidates largely depends on their tribal and familial connections, consequently, the individual candidacy system best serves them.

One of the key issues dividing the constitution-drafting body concerns Article 2 dealing with Islamic Sharia law.

Islamist salafists still insist that the Article 2 should read: “the rules of Islamic Sharia – rather than the principles of Islamic Sharia – are the major source of legislation in Egypt." They argue that the Sunni Islamic institution of Al-Azhar, rather than the High Constitutional Court (HCC), should be considered the main reference on Islamic Sharia matters.

The argument of the Salafists was publically rejected by Sheikh Hussein El-Shafaie, Al-Azhar's representative in the assembly, during Tuesday's congress.

"Al-Azhar does not want to be a reference on the interpretation of Islamic Sharia laws, this should be left to HCC," he explained, "Al-Azhar would prefer keeping the wording of Article 2 as stated in 1971’s Constitution in place."

Nasr Farid Wassel, another Azhar member of the assembly, backed El-Shafaie up saying that the text which reads "the principles of Islamic Sharia" is inclusive and reflects the unanimous opinion of Muslim clerics.

"By contrast," Wassel said, "there are a lot of differences among Islamic scholars and clerics over the text 'rules of Islamic Sharia' because these change all the time, while the constitution should express fixed principles."

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