SCAF's proposal for constitution 'abuses will of the people', charge critics

Yasmine Fathi, Ahram Online, Thursday 3 Nov 2011

Political players from the Brotherhood to liberals to ElBaradei and April 6 Movement slam the SCAF and its cabinet for undemocratically setting the course for a constitution, and say army wants absolute powers

Ali Elselmy
Deputy Prime Minister Ali El-Selmy is proposing army control over political process (Photo: Reuters)

The announcement of the supra-constitutional communiqué on Tuesday has stirred a hot debate among Egypt’s political forces, with many fuming over several controversial articles in the document, while others rejected the document wholesale.

The communiqué was released to the media by Deputy Prime Minister Ali El-Selmy after he met with 500 of Egypt’s political figures to discuss the supra-constitutional principles issued by the Supreme Council of the Armed Forces (SCAF) last summer.

Also on the agenda was the criteria by which members of the constituent assembly, which will draft the constitution, will be chosen.

After a long tumultuous meeting, which saw several political players such as Ahmed Shokry of the liberal Adl Party, Abu El-Alaa Mady of the Islamist Wasat Party and human rights activist Hafez Abu Saada storm out in protest, the full communiqué was released to the public by the deputy prime minister only for it to be met by more angry reactions across Egypt’s political spectrum.

The communiqué is divided into two parts: the first comprises 22 articles that will form the “supra-constitutional principles” for the state; the second puts together the criteria for choosing the constituent assembly that will draft Egypt’s new constitution.

One group, mostly made up of Islamists, objected to the SCAF's new supra-constitutional principles for stripping any new parliament of the right of drafting the new constitution. 

The Muslim Brotherhood (MB), in particular, charged that the constitutional declaration issued by the SCAF last March, prior to all supra-constitutional principles talk, stated that any newly elected parlaiment would be fully responsible for choosing the constituent assembly that would draft the new constitution.

However, to the dismay of the Brotherhood, which hopes to win a large number of seats in the upcoming parliamentary vote on 28 November, as well as other critics, the latest communiqué states that the constituent assembly will be made up of majority members chosen by SCAF and not an elected parliament as previously promised by the army.

According to the government's latest version of proposed roadmap to constitution, 80 out of 100 proposed members on a constituent assembly will be chosen by the SCAF (from various social, religious, professional and political institutions from civil society), and only 20 will be drawn from a new parliament.

The government will chose its share of 80 members on the constituent assembly as follows: 15 members whould be drawn from judicial institutions, 15 university professors – including five of constitutional law – 15 from trade unions, five from workers unions, five farmers, five from civil society associations, one from each of the Commerce Chamber, Federation of Industries, business NGOs, the National Council for Human Rights, the armed forces, police, sports unions, student unions, Al-Azhar, the Church, ten public figures and five representative of political parties and independents, ten women and five members under the age of 35.

Meanwhile, the government's supra-constitutional principles will only allow a newly elected parliament to come up with 20 MPs to serve on the constituent assembly based on the proportional weight of various political parties in the new representative body.

Because SCAF has decided to more or less bypass a newly elected parliament in its quest to formulate a new legal document for the country, the Brotherhood accused the military council of trampling on democracy.

On top of that, several articles in the communique have stirred further controversy among critics.

The first of these is Article 9, which stipulates that the armed forces “protects the constitutional legitimacy of the nation… and that only the armed forces has the right to discuss matters related to the armed forces or discuss its budget… and the president can only declare war after gaining the consent of the Supreme Council of the Armed Forces.”

The second article in Part 2 of the communique stipulates that if the new constitution includes any articles that violate the constitutional decree announced last March, the armed forces has the right to ask the assembly to revise the said article within 15 days.

Another controversial point comes in Article 3, which says that if the constituent assembly fails to draw up a new constitution within six months, the SCAF, as acting president, has the authority to create a new assembly to do the job.

A member of the Popular Socialist Coalition Party who opted to remain anonymous told Ahram Online that the party will shun any declaration that gives the army so called “superpowers.”

“The army should abide with the executive and legislative leadership in the country,” the source said.

He also added that the party is against the current state of secrecy that surrounds the military’s budget, a fact enshrined in Article 9.

“The budget of the military should be discussed in parliament,” he added.

Basel Adel, a member of the liberal Free Egyptians Party, confirmed his party’s acceptance of the bulk of the communiqué before adding that they have reservations over some articles that need to be changed.

The secrecy set forth in Article 9 over the armed forces’ budget, for example, needs to be justified, Adel continued.

“We need an explanation as to why the budget has to remain a secret,” Adel said. “The Army budget has always been a secret in Egypt, but at the moment we need to understand why. If it is for national security reasons, then that is fine, but please explain.”

Adel also said that the Article’s statement that the army protects the constitutional legitimacy of the nation is “dangerous” as it “violates the concept of the sovereignty of the people.”

The Free Egyptians Party does not object to the Army protecting Egypt’s constitutional legitimacy, asserts Adel.

"But they need to find a way to strike a balance between protecting constitutional legitimacy and safeguarding civil liberties."

“This could be done by holding national referendums to get people’s opinions, for example,” Adel adds.

Adel added that his party also disagrees with the fact that it is the Army who says yes or no to war.

“The Army is merely an institution and shouldn’t have any role in the decision on whether or not to launch a war,” he said.

However, Adel stressed that the Free Egyptians Party does not have any problems with the criteria put in place to appoint the constituent assembly.

In fact, unlike the Brotherhood, he said that his liberal party is happy that the draft states that parliamentarians will not dominate the constituent assembly.

“This is great, because if, for some reason, the next parliament is dominated by one force, say the Islamists or liberals, or leftists, then it wouldn’t be representative of the nation,” says Adel.

“However, now we can be assured that it will represent all of society.”

Possible presidential candidate Mohamed ElBaradei has also criticised the document, slamming it as “distorted.”

“The armed forces are not a nation above the nation,” fumed ElBaradei on his Twitter account.

“There is a big difference between having a civil democratic nation that insures human rights and having military guardianship.”

The “We Are All Khaled Said” group, which helped organize the January 25th uprising against former dictator Mubarak, also slammed the document, charging that army oversight of the nation’s legitimacy would represent an unjustified interference in Egypt’s political life.

The group’s online admins added that there is no reason why the military’s budget should not be discussed by the public. In most nations, the admins elaborated, parliament has the right to question the army about its budget since nobody can be expected to monitor themselves.

“We Are All Khaled Said” also slammed the idea that only the armed forces need approve any law related to themselves. This, the group says, means that the president and parliament will not have the right to produce laws to govern the half a million Egyptian citizens serving in the armed forces.

“The charter makes the military council more powerful then the president and the parliament,” the group said. “So when the newly elected president calls the head of the armed forces and asks him about the details of the budget, he gets told ‘it is none of your business, your question is unconstitutional?”

The April 6 Movement, another one of the main participants in the January 25th revolution, also announced their rejection of the charter.

“We want basic principles that protect the dignity of the people, but principles that give the military the right to control the Army are completely rejected,” the Movement said.

Even though the liberal Wafd Party has largely accepted the charter, Essam Sheeha, a member of the party’s Supreme Council, said that the draft document does not tackle the issue of whether or not the constitution can be amended in the future, leaving open the possibility for any political force which takes over the country to make its own changes.

The Islamist Wasat Party also rejected the charter on the grounds of its opposition to Article 9. The party highlighted as well Article 2 in the second section, which stipulates that if the SCAF does not approve of a particular section in the constitution, it can file a complaint to the High Constitutional Court. According to the Wasat Party, the constitutional court only has the authority to discuss the constitutionality of laws, not of the constitution itself.

The Muslim Brotherhood also released a statement on their official website, Ikhwanonline, saying that they reject the way the future make up of a constituent assembly is being determined.

According to the MB's statement, Article 60 of SCAF's own March constitutional decree, which was approved by the majority of Egyptians who voted en masse in a popular referendum, stipulates that the constituent assembly is to be made up of 100 members and to be formed by elected members of parliament.

“So what Ali El-Selmy did is an abuse of the will of the people to choose his own constituent assembly and to have a constitution he wants,” the statement read.

“This is also a waste of democracy which gives the people the right to rule, a waste of popular will which was represented in the March referendum, a reversal of the concept of a democratic nation because Article 9 gives the Army the right to protect the civil state and the constitution, which means that they will inject the Army in politics, making it above the constitution.

The Brotherhood's statement also described the communiqué as a means by the army to create divisions between the people during a time when Egypt faces many types of instability because of the upcoming parliamentary elections such as the crisis between judges and lawyers, non-commissioned police officers and the interior ministry, and others.
“Because of this we call for the removal of (deputy prime minister) El-Selmy and, if the government continues on this path, then we want the whole government dissolved,” the statement continued.

“What they are doing will be dangerous to Egypt’s national interest… and we would like to ask everyone to remember what happened to the (former) tyrannical corrupt regime which acted as if it was above the will of the people.”

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