Decree nor draft, both are tyrannical

Ibrahim El-Houdaiby , Saturday 8 Dec 2012

Accepting either the constitutional declaration or the draft constitution would be a setback for the revolution and obstacle to democracy

To avoid the president withdrawing his 22 November constitutional declaration, the Constituent Assembly (CA) quickly finished the draft constitution.

This put the people in front of two choices: an incomplete constitution that embeds tyranny — military and civilian — and restrains democracy; or a constitutional declaration that entrenches tyranny by gathering all powers in the hands of the president. Accepting either is a setback for the revolution.

The constitutional declaration was issued suddenly and unilaterally by the president, not to deal with the security apparatus that revolutionaries believe is a most pressing issue (especially after the Mohamed Mahmoud Street clashes), but to confront the crisis in the justice sector. He not only sacked the prosecutor general (Article 3 of the constitutional declaration) — which was a genuine demand by revolutionaries — but also suspended judicial review of presidential decisions (Article 2).

It gave the president excessive powers of intervention beyond his original mandate and without clear checks (Article 6). This means — when added to the two powers the president already holds, legislative and executive — he has absolute power.

Absolute power corrupts absolutely. Thus, the constitutional declaration is the foundation of absolute corruption and no one can counter that it is only a temporary condition. Holding all this power allows circumstances to change beyond recovery, and diminishes confidence in the president. Hanging the future of the homeland on the hope of an exception to the rule is fantasy.

The president spoke on television about “necessities” that required the constitutional declaration. But he omitted to tell us what these necessities are, which raises suspicion about their existence and seriousness, especially since he said that he only has “information that is not quite evidence.”

The rule is that certainty is not erased with doubt. What is certain is that the constitutional declaration corrupts absolutely and the existence of necessity is doubtful.

In all cases, necessity is measured by degrees and could not have reached a level that allows free dealing in what is forbidden without restraint in the manner the president granted these powers to himself.

The constitutional declaration divided society with million-man demonstrations supporting and opposing, while the political leadership decided to move forward and avoid revising the declaration by ending it through speeding up the referendum on the new draft constitution.

The CA ended its work before deadline although the declaration itself had extended its timeline by another two months (Article 4), and produced a constitution that embeds tyranny and restrains the sovereignty of the people.

The articles pertaining to the Armed Forces remove it from civilian sovereignty by making the defence minister an army officer (Article 195), which exempts the military from direct civilian review.

It also limits the right to debate the Armed Forces budget (including non-military commerce, services and industrial activities) to the National Defence Council, which comprises only three elected members along with seven from the military and the chief of intelligence (Article 197). This clearly restrains popular sovereignty.

There are also articles that limit democracy by preventing popular power over elected bodies, which means there is no way to intervene and object or propose amendments to their decisions if they contradict the people’s demands.

The Italian constitution allows parliament to discuss draft laws that are petitioned by 50,000 citizens (Article 71); the Swiss constitution issued in 1874 gives citizens the right to demand constitutional amendments by submitting a petition signed by 100,000 citizens and puts their demands to referendum (Article 120).

Meanwhile, in a constitution that came after a revolution where Egyptians directly exercised their political power, our institutions are immune to the people during their tenure; the electorate cannot depose their representatives, but institutions can (Article 112).

As part of curbing the power of the people over elected institutions, the constitution is limiting the requisite to consult them when there is a dispute. The constitution proposes detailed mechanisms to resolve any legislative disputes between members of the lower and upper houses of parliament (Article 103), or between them and the president (Article 104), without consulting the people.

It would only consult the people if no government is formed within three months (Article 139), which means continuing to deal with the people as if they “delegated” institutions with a “carte blanche” and no long have the right to intervene.

The Danish constitution, for example, gives one third of parliament the right to reject draft legislation and resort to referendum on them (Article 42). Germany’s constitution issued in 1949 gives the Federal Council (the legislative body representing all provinces at the federal level) the right to reject laws issued by the legislative council (articles 78 and 84). There are many other examples.

The draft constitution leaves the door wide open for repression and tyranny because in some ambiguous instances it permits civilians to be tried in front of military courts (Article 198), and expands the concept of “national security” without defining it in order to curb rights and freedoms, and impose repressive measures.

The constitution did not address existing economic injustices. In fact, clauses pertaining to economic and social rights (articles 58 through 73) seem more like slogans and do not mention mechanisms on how to meet these rights, which more serious constitutions contain to address social injustices (such as articles 6 through 11 in Brazil’s constitution; Article 7 alone lists 34 social rights and how to achieve them).

Although, overall, it is better than those in the 1971 Constitution, the draft constitution’s economic bias is revealed by allowing the creation of political parties and civil groups by giving notice (Article 51), but bans diversity of labour unions and places firmer restrictions on creating syndicates (Article 53).

While some of these articles reveal constitutional biases that contradict the course of the revolution, others show that the draft is not yet ready. Not because there was not enough time but because of distractions with other superficial issues that are not a priority. These include neglecting to define the criteria for citizenship and deferring that to law — ie to the temporary political majority — (Article 32). But nationality is a cornerstone of citizenship that constitutions make the focus of all rights and duties, not just political ones.

The voting session on the draft constitution indicated two things: incompletion because of haste and deliberate undermining of civil sovereignty. The discussion of Article 139 — which enough people opposed to require further discussions two days later — included a warning by the chairman of the session that objections cause delay. Several opponents withdrew their objections so that the draft constitution could be finalised that very same day.

Meanwhile, discussions of Article 197 witnessed an argument where the military representative rejected increasing the number of civilians on the National Defence Council, and said: “If you add another one, we will add another one.”

These few scenes and others are evidence of the hasty nature and authoritarian atmosphere that dominated the writing of a constitution that is supposed to be an expression of revolutionary Egypt.

Expediting the referendum under these circumstances is forcing the people to choose between a constitution that blends tyranny with incompletion, or reject it and return to a despotic constitutional declaration. This blocks the road to democracy, the people’s sovereignty and social justice through ballot boxes, and repeats the mistakes of the former regime by losing political legitimacy, which is not only measured by the size of those rallied to protest.

Short link: