A civil constitution: Experts say verdict is out

Dina Ezzat, Monday 23 Sep 2013

Some liberal experts have raised concerns about whether the draft text of the constitution really supports the principle of a civil state

The 50-member committee
The 50-member committee (Photo: Al-Ahram)

In less than two months Egyptians will vote in their second constitutional referendum in less than 24 months.

The constitution that they will vote on is currently being drafted by a committee composed of 50 national figures, amid speculation about what the end result will be.

“The 2013 constitution would surely be better than that which was voted in under [ousted Muslim Brotherhood president Mohamed] Morsi last year, but for sure it will not be the dream constitution of the 25 January revolution,” said political sociologist Said Sadek.

Sadek was speaking on Monday afternoon at a seminar hosted by the American University in Cairo to examine the prospects of the upcoming constitution.

The text that the committee is working on is not being written from scratch, although this was called for by some. Instead, the committee of fifty is working from the text of the 2012 constitution.

A set of amendments was initially proposed several weeks ago by a 10-member committee composed entirely of judicial and legal experts.

The amendments provided by the expert committee prompted considerable concern from panelists attending the seminar - political science professor Moustafa Kamel El-Sayed, law professor Amr Shalkany, and professor of public policy and administration Amr Hamzawy.

A key concern shared by the four speakers was related to what they described as bias demonstrated in the text in favour of appointed bodies and the bureaucracy, at the expense of the democratic prerogatives of elected bodies.

The key point of reference in this concern was the balance of power between the president, who will be elected, and the supreme council of armed forces, which is appointed. Most speakers expressed concern about a text that goes too far in strengthening the military by making it an almost independent entity that decides its own affairs, from its rules to its budget, and that even decides its own leader, away from the prerogative of the head of state.

The speakers also noted the fact that the military has the right to use its judiciary for trials of civilians who happen to face allegations of attacking military interests with no clear guarantees of independence.

Along with the military, the judiciary is granted excessive independence which Shalkany suggested amounts to immunity, and the police are worryingly free from necessary restrictions.

“The constitution of 2012 failed to honour the call for subjecting the police to overdue reforms, to make its engagement with citizens compatible with the basic rights; today we are faced with a text that would be worse than that of Morsi in this respect – if the committee of the 50 adopted the amendments proposed by the committee of 10,” Shalkany noted.

According to Shalkany, the text also “reveals considerably less commitment on the side of the state” to provide for healthcare and education to citizens. “And, yes in fact if the amendments of the committee of the ten are adopted as they are then we are up to a constitution that would be worse than the previous one,” he added.

And while El-Sayed and Sadek were hopeful that the new constitution would end the call of political Islam for a text that would undermine the concept of citizenship in favour of Islamist affiliation, they were also apprehensive about the lack of clear vision on what really constitutes a civil state.

A civil state, they argued, is not just a state where the mixing of religion and politics is only tolerated under clear parameters of democracy which strictly prohibit discrimination; it is also a state in which the executive is denied unlimited power and where the military is perceived as part of the executive and not as a higher power.

Hamzawy also argued that it is hard to talk about a text that paves the way for a civil state when this constitution goes too far in confusing religion and legislation, religion and politics and religion and bureaucratic influence, with many parts of the 2012 constitution dealing with these issues so far left unrevised.

For El-Sayed the fact that it is only the ulama, Islamic legal scholars, who are entrusted with the text of Islamic jurisprudence as opposed to the judges who are well-versed on the matter by virtue of their academic style adds another question mark.

However, El-Sayed argued that the drafting process is still in its early stages and that the committee of fifty has some solid members who will not allow “a fascist constitution to be adopted.”

To avoid such a state, Hamzawy argued, rights and freedoms in the text of the new constitution should be made compatible with international declarations on human rights.

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