Egypt's liberal forces take aim at draft constitutional articles

Gamal Essam El-Din, Tuesday 16 Oct 2012

The recent appearance of two different constitutional drafts draws fire from Egypt's liberal forces, who say the move has killed any hope for viable consensus

Row over the draft constitution
A general view of the two chambers of parliament meeting to elect the 100 members of the constituent assembly in Cairo June 12, 2012 (Photo: Reuters)

Egypt's liberal and leftist  forces have criticised two different drafts of Egypt’s long-awaited constitution, both of which were unveiled within the last week.

At a Tuesday meeting of the Constituent Assembly – the body tasked with drawing up a new national charter – Ayman Nour, chairman of the liberal Ghad Al-Thawra Party, said: "It was by no means a good time to unveil the drafts because political forces are still negotiating their differences over a number of key articles." Nour added that the move would "make it quite difficult for Islamist and secular forces to reach a consensus."

Fouad Badrawi, member of the liberal Wafd party, for his part, said that the unveiling of two constitutional drafts in one week was a clear sign that "certain forces inside the Constituent Assembly want to hijack the constitution-drafting process for their own interests; they want to impose on the nation their version of the charter." He went on to describe the move as "a hasty decision," adding that "there should be a degree of national consensus before the announcement of any drafts." 

Badrawi also noted the differences between the two drafts, pointing out that last week's draft made no mention of Egypt's Al-Azhar, the most authoritative religious institution in the Sunni-Muslim world. "But we were surprised that this week's draft included a new article [Article 4] regulating the role of Al-Azhar," he said. "This article states that Al-Azhar is an 'independent institution' and that 'the selection of its grand Imam will be regulated by law'."

This week's draft, Badrawi added, also states that "once approved via public referendum, the constitution can be amended only five years after it is first put into effect."

The two drafts also prompted angry reactions from Egypt's Supreme Constitutional Court (SCC). In a Tuesday statement, the SCC claimed that the draft constitution stripped the court of its independence and put it at the mercy of the presidency. The SCC went on to state that its powers should be defined in a separate chapter of the constitution, not under that devoted to the judiciary as a whole. "This is necessary to guarantee that the court isn't part of any authority; that it remains completely independent and that its rulings are binding on all state authorities," the SCC stated.

The Egyptian National Movement (ENM), led by prominent constitutional law professor Ibrahim Darwish, also condemned the drafts, arguing that "they maintain most of the draconian powers granted to the president by the 1971 constitution." In a statement, the ENM added: "The draft strips women of their rights on grounds that these rights should not violate the rules of Islamic Law."

The movement went on to state that the draft "also challenges media freedoms and represents an assault against judicial independence." The ENM added that Egypt did not require two houses of parliament, "because this represents a waste of money and effort," going on to assert that political parties for workers and farmers should be established "before their representatives relinquish the right to occupy 50 per cent of the seats in parliament."

Some Salafist forces, meanwhile, also launched scathing attacks against the draft constitution. The Assala Party and the Salafist Front both declared that they would "strongly object to any constitution that fails to clearly state that the rules of Islamic Law should represent the major source of legislation in Egypt."

In response, Constituent Assembly Chairman Hossam El-Ghiryani insisted that the drafts "are not final; they will be left to national dialogue." He added: "It was necessary to unveil them now because the public has a right to know about them rather than being kept in the dark or merely learning about them from the media."

Atef El-Banna, prominent constitutional law professor and deputy Constituent Assembly chairman, told Al-Ahram Online that "there are no major differences between the two drafts; besides, the entire matter will be left to amendments approved by the public and constitutional law experts." He added: "The drafts are not final. The argument that it is 'too early' to unveil them is nonsense, because the public will learn the facts from the drafts themselves rather than be left victims of distorted press reports about the assembly's activities."

The unveiling of the two drafts came after secular and Islamist factions within the assembly were able to hash out some of their ideological differences during four closed-door meetings.

Wafd Party Chairman El-Sayed El-Badawi, for his part, revealed on 12 October that most factions had agreed that Article 2 of Egypt's 1971 Constitution – which states that "the principles of Islamic Law are the main source of legislation in Egypt" – should be maintained as is. However, he added, an article will be added stating that, in cases of personal litigation, Christians and Jews will be subject to their own laws, rituals and religious leaders.

El-Badawi also indicated that the Salafists had decided to moderate their position on a particularly thorny issue: the crime of blasphemy.

According to one informed source, it had been decided that blasphemy crimes should be regulated by law, "but [the Salafists] insisted on the addition of an article criminalising any kind of insult directed at the prophets, especially the Prophet Mohamed."  Human rights organisations, meanwhile, insist that this article aims to prevent Shiite Muslims from expressing views critical of Mohamed's wives and disciples.

Salafist assembly member Younis Makhyoun said the ultraconservative Nour Party had shown flexibility on Article 2. He said the party had moderated its calls to include an article giving Al-Azhar a "role" – rather than the final word – in deciding Islamic Law issues, while toning down its demand that Article 3 state that "ultimate sovereignty belongs to God rather than to the people alone."

In exchange for these concessions, he added, the Salafists had proposed a separate article (Article 4) stating that "the opinion of Al-Azhar on Islamic Law issues should be explored and Al-Azhar and its grand imam should remain independent of all state supervision."

Maged Shibita, a member of the Constituent Assembly's system of governance committee, also indicated that the Salafist position had softened regarding a proposed article establishing a state institution for alms-giving. "Secularists had said this article should not be part of the constitution, but should instead be regulated by law," Shibita said.

Articles pertaining to religion have not been the only issue delaying completion of the national charter. El-Badawi says that settling differences over the chapter devoted to freedoms and rights, "especially articles dealing with women, children and press freedoms," had also taken considerable effort and time.

El-Badawi indicated that the two factions had not been able to find common ground on Article 36, which aims to ensure equality between men and women. Salafists reject the article outright, asserting that it contradicts the rulings of Islamic Law. They say that the article stating that "equality between women and men in all respects of life should be preserved, but without violating Islamic Law."

Salafists and the Muslim Brotherhood also object to any articles that criminalise the trafficking of women and children. They assert that international agreements banning the practice reflect Western values.  Salafists also want a complete ban on non-Abrahamic religions – especially Bahaism – in terms of the construction of houses of worship.

Meanwhile, a new war of words has broken out between Constituent Assembly chairman El-Ghiryani and members of the States Cases Authority (SCA). A 14 October meeting aimed at settling differences failed.

Ahmed Khalifa, judge and Constituent Assembly member, said that El-Ghiryani was refusing to give members of the two authorities any judicial powers. "This reflects a negative view of the two authorities that want to play greater roles in cracking down on corruption," said Khalifa.

On Tuesday, nine public figures were elected members of the Constituent Assembly. They will replace nine figures who had earlier opted to withdraw from the constitution-drafting body. The newly-elected members are:  Hatem Azzam, Wagih El-Shimi, Abdel-Moneim El-Tunisi, Omar Abdel-Hadi, Mibid Al-Garhi, Ramadan Batikh, Suzi Nashed, Ahmed El-Biali, George Misiha and Rifaat Laqousha.

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