Debate intensifies over fundamental rights and freedoms in Egypt's new constitution

Gamal Essam El-Din, Saturday 1 Sep 2012

Preliminary debate over the new constitution’s chapter on freedoms and rights has deepened the rift between Islamists and seculars

Constituent Assembly
Constituent assembly session (Photo: Ahram)


The Constituent Assembly, tasked with writing Egypt’s new constitution, made a lot of progress this week. 

The constitution’s chapter on freedoms and rights was completed, and much as 60 per cent of the chapter on the system of government (which regulates the executive, legislative and judicial branches) was also drafted, with the remainder to be concluded next week.

The first reading of the 51-article chapter on freedoms and rights on 27 August, however, caused a clash between Islamist and secular members of the assembly.

Wahid Abdel-Meguid, a liberal-oriented political analyst and the assembly’s official spokesperson, said there would be a great leap forward for press freedoms in the new constitution.

Abdel-Meguid said the chapter of freedoms and rights in the new constitution (chapter 2) was drafted to ensure journalists accused of publication offences would not face jail time.

“This is giant step, not to mention that the draft stipulates that lawsuits against journalists cannot be filed by persons who were not directly affected by the published materials,” said Abdel-Meguid.

The text of Article 12 on freedoms and rights pertaining to journalists, Abdel-Meguid indicated, was drafted to read: “Lawsuits against journalists can be filed only by persons who were directly affected by publication offences and if journalists were convicted, they would not be sent to jail.” Abdel-Meguid said that instead of jail sentences, journalists would be fined handsome sums of money.

Abdel-Meguid also indicated that ordinary citizens will be granted the right to issue newspapers for the first time. “This means that this right will no longer be confined to joint stock companies, public institutions, and political parties,” said Abdel-Meguid.

Abdel-Meguid also boasted that “Article 10 of the same chapter will be drafted to prevent the closing down of newspapers by judicial or administrative order.”

In his words, such orders constitute “collective punishment" and are "no longer viable in an age of freedoms.” He concluded that the new constitution will encourage that all national press and media organisations be made independent of the state.

Islamists, however, begged to differ. Essam El-Erian, a leading official of Muslim Brotherhood’s Freedom and Justice Party (FJP), said: “We are all for press freedoms but we are against the freedom of journalists to slander and insult citizens and public officials.”

El-Erian insisted that “journalists convicted of publication offences (for example, spreading lies) would not be sent to jail, but those found guilty of insulting and direct libel would be subject to the penal codes which imposes jail sentences.”

Joining forces, Younis Makhyoun, a leading member of the ultraconservative Salafist El-Nour Party, argued that “it is essential that journalists accused of libel and slander crimes face jail sentences, while in other offences —such as the crime of disseminating lies — it is enough for journalists and newspapers to face tremendous fines.”

The clash over press freedoms comes against the backdrop of a hostile campaign led by leading figures of the Muslim Brotherhood — the group from which President Mohamed Morsi hails — against what they deem direct insults and libel.

According to chairman of Shura Council and leading FJP official Ahmed Fahmi, “We are in favour of press freedoms but we are againt press hooligans who are fond of insulting public officials without facing harsh punishment."

The above statements and others did not go down well with most members of the board of the Press Syndicate who accuse the Muslim Brotherhood and President Morsi of doing their best to manipulate public and private media.

“They believe that most of the media is controlled by seculars who stand against realising their dream of turning Egypt into a religious state,” Gamal Fahmi, a leftist board member of the Press Syndicate, told Ahram Online.

Human rights or Western values?

Islamists and seculars also clashed over the issue of human rights and how they should be enshrined in the new constitution.

Manal Al-Taibi, a liberal human rights activist, complained that the committee in charge of drafting the constitution’s chapter on freedoms and rights refused to seek the help of experts on civil society and human rights organisations.

As a result, Al-Taibi told the assembly 27 August, “Women were not accorded many of their economic and social rights in the draft chapter, compared to a Muslim country like Morocco whose constitution is very progressive on women’s rights."

Al-Taibi suspended her membership of the assembly’s Freedoms and Rights Committee last week in protest to what she said was “pressure led by Islamists to phase out many of the internationally-recognised codes on basic human rights and freedoms."

According to Al-Taiba, “Most of these Islamist members are unaware of international accords on human rights and civil society activities.”

In response, Islamists lashed out at Al-Taibi, accusing her of trying to impose certain secular Western values on the constitution of a Muslim country. According to Makhyoun, “Some insist that we espouse international accords on human rights and I declare that some of these accords go against Islam."

Makhyoun further argued that “Islam spoke about rights for humans and animals 13 centuries ago and before we knew about such accords whose many principles are based on secular and Western values.”

Salah Abdel-Maaboud, another Salafist, said: “Some of these accords insist that women below 21 years cannot marry. This goes against Islam.”

Mohamed Saad Gawish, also Salafist, stated: “The draft of the chapter stresses the importance of respecting 'cultural diversity.' I have fears that this word is used to help some Western secular values infiltrate our Muslim society in a legal and constitutional way.”

No new presidential elections, say Islamists

Islamists also strongly objected to suggestions that new presidential elections be held after the constitution is approved in a national referendum.

This goes against the calls of some liberal and leftist figures. Presidential candidate Hamdeen Sabbahi said, “Once the constitution is promulgated, it is natural that new presidential elections are held.”

According to El-Erian, “When people elected Morsi as president in June, they put in their mind that he would stay for four years, and so calls for new elections after the constitution is drafted are not logical.”

Mohamed Abdel-Salam, the representative of Al-Azhar institution, said the new constitution would only detail the powers and duties of the president of the republic. "It is not expected that new elections will be held.”

Members of the assembly were also divided over Morsi’s right to declare war.

Islamists led by El-Erian said “the president should have an absolute right in declaring war after consulting with the Supreme Council of the Armed Forces (SCAF) and the National Defence Council (NDC).”

El-Erian argued that “the advice of SCAF and the NDC, however, will be optional and not compulsory for the president.”

Liberal members object to granting the president absolute powers in declaring war, especially if the president is an Islamist and a senior official of a group flirting with jihadist ideology, like the Muslim Brotherhood.

Nour Ali, a liberal member of the Freedoms and Rights Committee, said that “Most of members believe that the president should not be given a free hand in declaring war and he should consult with SCAF, the NDC and seek the approval of the People’s Assembly — Egypt’s lower house of parliament.”

Ali indicated that “Article 85 regulating the declaration of war would be left to the 100-member Constituent Assembly to decide on its final text in a plenary meeting.”

Ali also indicated that disagreements over the drafting of Article 2 that regulates the application of Islamic Sharia law will be also left to the Assembly. He said Salafist members still insist that the text of the article must assert that “Islamic Sharia — rather than the principles of Islamic Sharia — should be the major source of legislation in Egypt.”

Ali indicated that, “The majority of members, including Brotherhood activists, see that the 1971 Constitution’s text on this article must remain in place, affirming that 'principles' of Islamic Sharia must be the major source of legislation in Egypt.”

Regulating the military

Sharp divisions also erupted over how the new constitution would regulate military courts.

Members of SCAF want military and civil courts be regulated under one chapter.

“This is to stress that both kinds of courts are not different in matters of guarantees and fairness,” said SCAF member Mamdouh Shahin. 

Shahin’s argument, however, did not strike a chord with most members, especially law professors.

Ramadan Batikh, a constitutional law professor, said military courts should be restructured first to comply with the guarantees and requirements adopted in civil courts.

Batikh, added: “This tricky issue will be also left to the general meetings of the assembly to decide.”

In the meantime, the independent Judges' Club strongly objected to Minister of Justice Ahmed Mekki’s suggestion that the High Constitutional Court (HCC) not come under an independent chapter in the new constitution.

Mekki said: “The HCC will join other kinds of civil courts and be regulated as one 'unified justice' under one chapter in the new constitution.”

The Judges' Club of the State Council (which includes the administrative courts) announced in a meeting 27 August that they are against Mekki’s “unified justice”.

Chairman of the club Hamdi Yassin said they would join forces with the Judges' Club against “the attacks on the High Constitutional Court.”

Yassin added: “Mekki’s unified justice project represents a large infringement on the independence of courts — especially the HCC and the State Council — because it leads to marginalising their roles in strengthening civil rights and freedoms in Egypt.

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