Adminstrative Court non-decision gives assembly ample time to finish constitution

Ekram Ibrahim , Tuesday 23 Oct 2012

Egypt's Islamist-dominated constitution-writing committee gets breathing space to finish draft after lawsuit against it is referred to High Court; Liberal-Islamist differences unlikely to be resolved any time soon

Referral to court buys more time for Egypt
" We did not die so that the Brotherhood writes the constitution," a protester holds a banner outside constituent assembly meeting in summer of 2012 (Photo:Reuters)

Egypt's Supreme Administrative Court (SAC) decision on Tuesday to refer a lawsuit against Egypt's Islamist-led Constituent Assembly – tasked with drafting a new constitution – to the High Constitutional Court (HCC) has heated up the ongoing debate on the fate of the constitution-drafting body. However, the ruling has also theoritically given assembly members more time to work out their differences over the contents of constitutional articles before the draft charter is put before popular referendum.

Brotherhood lawyer Abdel-Moneim Abdel-Maqsoud, for his part, expressed satisfaction with the SAC's recent decision to refer the case to the HCC, asserting that the move would give the Constituent Assembly "enough time to finish its work."

Ahmed Said, head of the liberal Free Egyptians party, on the other side, accused the Muslim Brotherhood of using the situation "to confuse the political scene in order to earn more time until it can pass a constitution that doesn't represent the Egyptian people."

He went on to warn against any Brotherhood "attempts to pressure the judiciary for the sake of wasting time and exhausting those political forces that oppose the Constituent Assembly. The assembly's dissolution is only a matter of time."

Legal Challenges

The High Constitutional Court will rule on the constitutionality of Article 1 of Law 79 of 2012, which lays down the criteria by which assembly members are chosen and allows sitting MPs to select those members.

Several lawsuits have been filed challenging the Constituent Assembly's constitutional legitimacy and the mechanisms used for selecting its membership.

In mid-June, the HCC declared the People's Assembly (the lower house of Egypt's parliament) null and void after declaring a parliamentary elections law – which regulated last year's legislative polls – unconstitutional.

Because the People's Assembly appointed the 100 members of the constitution-drafting body, the latter's legitimacy has since been thrown into question.

But according to Essam Sultan, former MP and Constituent Assembly member, even if the HCC rules against Law 79, which he expects, this "would not affect" the assembly's constitutional legitimacy.

"The Constituent Assembly was chosen by the people," Sultan declared on his Facebook page on Tuesday, going on to assert that the courts lacked the authority to "override the popular will."

Sultan explained that, according to Egypt's March 2011 military-issued Constitutional Declaration, the people had elected members of parliament's upper and lower houses, and those MPs in turn chose the Constituent Assembly's current members.

Liberal-Islamist divide continues

The HCC will begin examining the case after 45 days. Within this period, Constituent Assembly members say the assembly's draft constitution may be finalised and put before a popular referendum for public approval.

If things go ahead as planned, then assembly members will vote on the draft charter by mid-November, assembly head Hossam El-Gheriany declared last week. A constitutional referendum is then slated to take place one month later, in accordance with last year's Constitutional Declaration.

It is possible that by the time the HCC issues its ruling in the case, the public will have already voted on the draft constitution. In such an event, some legal experts argue, the people's will would represent a higher authority than a constitutional court verdict.

Constituent Assembly spokesman Wahid Abdel-Meguid told Al-Ahram's Arabic-language website on Tuesday that the assembly was passing through a "critical phase," not because of pending legal uncertainties but rather due to ongoing disputes between its members.

Recently, the rift appears to have widened between liberal/leftist and Brotherhood/Salafist forces within the assembly over proposed constitutional articles dealing with issues related to Islamic Law.

Some Salafist assembly members are demanding that Article 2 of the constitution be amended to state that "Islamic Law" – rather than the current "principles of Islamic Law" – represents "the main source" of legislation. More secular-minded assembly members, meanwhile, insist that the 1971 Constitution’s version of Article 2 remain unchanged.

"All Salafist assembly members [who number around 20] agree that draft constitutional articles concerning Islamic Law are not up for negotiation, since this would go against the interests of a country with a majority-Muslim population," Salafist Nour Party member Noureddin Ali told Ahram Online. "And this is a red line for us."

Members of both camps – liberal and Salafist – have threatened to walk out of the assembly if their views are not incorporated into the new national charter.

This week, several Constituent Assembly members launched a scathing attack on the assembly's constitution-formulation committee, led by Mohamed Mahsoub, minister of state for parliamentary affairs. They claimed that changes were being made to suggestions posited by sub-committees during the formulation phase.

A Monday joint statement by former Arab League secretary-general Amr Moussa and political activist Ayman Nour asserted that the constitution-formulation committee had "tried to impose its hegemony" over the rest of the assembly.

"This hegemony is rejected by civil forces who believe that certain committee members want the president of the republic to retain the draconian powers conferred upon him in Egypt's 1971 constitution," the joint statement added.

Like the liberal camp, Salafist members also rejected the presidential powers spelt out in the draft constitution, Nour Party spokesman Nader Bakkar told Ahram Online.

"This draft gives the president exceptional powers," said Bakkar, adding that the charter gave Egypt's executive branch "the upper hand" vis-a-vis parliament.

Aside from this point of agreement on presidential powers, liberals and Islamists continue to disagree on many issues.

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