New Constitutional declaration imminent, as Egypt's debate on fundamental rights rages on

Zeinab El Gundy, Monday 11 Jul 2011

Amid fierce debate over what should come first out parliamentary elections or the drafting of a new constitution, a third course of a supra-constitutional principles declaration is in the works

polling station
An Egyptian man fills in his ballot indicating "Yes" at a polling station during voting for a referendum on constitutional amendments at a polling station in Cairo March 19, 2011 (Photo: Reuters)

A couple of days ago Maj General Sami Enan, chief of staff of the Egyptian Armed Forces, met representatives from 11 Egyptian political parties to discuss, among other matters, the issuing of a supra-constitutional declaration ahead of parliamentary elections.

On Sunday, Mohamed Fadaly, the head of the Public Freedoms Committee attached to the National Consensus conference, revealed to the media that Maj Gen Enan has commissioned the committee to work on a new constitutional declaration comprising 20 supra-constitutional articles to end the debate raging over which first, elections or constitution.

The expected constitutional declaration, or rather the expected supra-constitutional principles proposal, is nothing new; it was suggested before by several prominent legal and political leaders and political groups. 

During the intense debate over whether a new constitution should be drawn up ahead of elections, some hit on a third solution that would strike a balance between respecting "the will of the majority" (those who voted in favour of constitutional amendments in last March’s referendum) and safeguarding the civic (that is, non-religious) character of the Egyptian state. 

Until now several bills of rights and supra-constitution principles declaration have been proposed by potential presidential candidates and political movements. All of these bills of rights are based upon the Universal Declaration of Human Rights but differ in their attitude towards the political system and status of the army. 

The first bill of rights was suggested by potential presidential candidate Mohamed ElBaradei in his ‘Egyptian Bill of Rights’, which comprises two parts: ‘basic principles’ and ‘basic rights.’ The basic principles cover the intrinsic form of a new Egyptian state: its system of governance, religion, language and the position of the army. The basic rights deal with the fundamental human rights standards Egyptian citizens should expect. 

The final version was released by ElBaradei's campaign late last month after amending the articles. His Egyptian Bill of Rights attracted a considerable debate and criticism, especially in relation to article 8 that deals with education. 

In the first draft of the bill, the article stated that: “Every Egyptian has the right of education and the state is obliged to provide free and obligatory education in the primary and basic stages and that the university education’s admission would be equal on the basis of competence and not on the basis of financial capability.” 

Many politicians and activists objected as they considered it to run counter to the right to free education at all stages, established after the 1952 revolution.

ElBaradei argued that the free education in Egypt is in fact not so free and that those capable of paying should do so in order to save resources for those who truly need them. In the final version of the bill this article was omitted and replaced with one concerning the right of knowledge and culture.

The bill’s fifth article dealt with the Army: “The Armed Forces are the shield of the public and the protector of national sovereignty and they defend the independence and safety of the nation against outside threats. The Armed Forces need to lay down, develop and revise the systems that ensure fulfilling this goal.”

The second supra-constitutional principles bill to be announced was issued by the National Council headed by the renowned civil engineer and political activist Mamdouh Hamza. The council is made up of a group of prominent political figures and activists such as Supreme Court Judge Tahany El-Gabli and Nasr Farid Wasal, the former grand Mufti of Egypt. Its supra-constitutional principles bill is called ‘The Egyptian Constitution Principle Declaration’ and is made up of two sections: ‘elements of the state,’ which is about basis of the upcoming state and ‘general rights and freedoms’ that establishes the basic rights of citizens in Egypt. 

The National Council’s supra-constitutional principles bill goes into more detail than that of ElBaradei, with specific mention of presidential terms, the worker and peasants’ quota in parliament and even Egypt's relations with neighbouring countries in the Arab world and Africa. The Armed Forces are ascribed the role of protector of the republic, the democratic civic nature of the state as well as that of defence.

The declaration also suggests establishing a national defence council made up of the president, the commander-in-chief, the chief of staff and the chief of military intelligence that would only discuss the Army’s budget and defence strategies. The bill goes on to state that the Army budget would not be disclosed publicly.

This nondisclosure of the Army’s budget was also suggested in potential presidential candidate Hisham El Bastawisi’s own – and controversial – supra-constitutional principles bill. Judge El Bastawisi prepared two memos of supra-constitutional principles, which he presented to the Armed Forces National Consensus committee. The first memo, called ‘The armed forces and the national defence council’, tackles the Army, its budget and the military prosecution while the second memo tackles human rights, minorities and citizenship rights.

The first memo stirred much controversy in Egypt as it suggests giving more power to the military such as keeping its budget confidential without public disclosure for 30 years. In an interview on ONTV, El Bastawisi defended this by saying that most countries do not discuss their militaries’ budgets publicly and that currently the defence budget is undisclosed indefinitely. 

The reactions against El Bastawisi were angry and loud as well. Online activists that once supported the reformist judge attacked him on Twitter and Facebook, accusing him of taking the side the military and attempting to transfrom Egypt into another Turkey. 

The Democratic Alliance for Egypt proposed its own supra-constitutional principles, consisting of 38 articles covering human rights, general freedoms, the economy, foreign policy and the judiciary. The Alliance is made up of 28 parties, including the Wafd party and the Muslim Brotherhood group. 

After the return to Tahrir Square, the Free Front of Peaceful Change movement proposed two solutions that it believed would save the country: a civilian presidential council and supra-constitutional principles that would inform transitional justice in Egypt. The Free Front movement was among the main advocates for the constitution first campaign. 

Nevertheless, several law and constitutional experts are against the idea. Ibrahim Darwish, a constitutional law expert, considers this an attempt from the parties and ruling military council to circumvent the Constitution, stating that the only country to have issued a supra-constitution principles statement was Turkey in 1982 where the military used it to ensure their continued involvement in politics. Potential presidential candidate Amr Moussa expressed his opposition to the term supra-constitutional principles because he did not want the Constitution to be downgraded to a secondary document.  

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