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A Constitution That Divides?

[Sign in Tahrir Square that reads [Sign in Tahrir Square that reads "No [constitutional] declaration; no constitution. Now Morsi it's your turn." 30 November 2012. Image by Zeinab Mohamed]

The current events unfolding in Egypt test the limits of healthy transition to democracy. The process of drafting the new constitution has come out as the outcome of dire political struggle, rather than the outcome of national consensus that would propel the country through transitioning to rule of law and economic and social development.

On 22 November 2012, President Mohamed Morsi issued a self-described “Constitutional Declaration” giving the president very broad and unchecked powers. Among other things, the decree provides that all the president’s decisions, since day one, shall be immune from judicial review. The decision steered instant outrage of legal minds and laymen alike across the country, caused one of the largest protests in Tahrir since 11 February 2011 and triggered, for the first time in Egypt’s history, a near-nation-wide “strike” of the judges and members of the public prosecution in response to the use of such openly reprehensible techniques in the “new” Egypt. The obvious purpose of that move was to cast immunity on the committee drafting the future constitution, and exclude judicial scrutiny of whether it was or continues to be validly composed—an increasingly open question also in light of the exodus of many members from the committee. Needless to say, that move is legally problematic. The presidency’s legal advisors may, of course, name these decisions whatever they wish to name them; but the truth remains that the “Constitutional Declaration” is at best an invalid presidential decree.       

Matters were then escalated further. The Muslim Brotherhood reacted to the national crisis stirred by the president’s decree by pressing fast-forward on the process of drafting and voting on the draft new constitution, though the constitutional committee is challenged in terms of its composition before the courts and though about twenty-two of its members (essentially all civil parties and the representatives of the Church) had deserted, objecting to the hasty manner in which the constitution was being drafted and to the non-representative nature of the document. Accordingly, the text of the constitution was finalized and put to final vote, literally in a race with justice: About eighty members of the constitutional committee voted on 234 articles in less than twenty-four hours in an enigmatic marathon involving no discussions of the final text.  

Reading the final text of the draft constitution, many articles are problematic, some are very problematic, and many are poorly drafted, as a matter of legal technique, and contain an excessive level of detail, which is most unusual in modern constitutions. For example, the constitution contains articles dealing with fishing activity, while leaving out baseline principles such as the broad rules governing taxation and its relation to income.

This is no place to comment on the draft article-by-article. But the general impression that comes to the surface is one of a constitution drafted by the legislature (or legislature appointed body) for the legislature; and not one whose purpose, as that of all constitutions, is to fix the outer limits of legislative activity and impose clear limits on what parliament can and cannot do. The draft constitution places under the discretion of the Parliament the regulation of some of the most fundamental principles of social and personal rights. For example, the Parliament is entitled to regulate forced labor (because the draft constitution, somehow fantastically, does not prohibit it as an unqualified rule). The parliament under the new constitution is also entitled to regulate child labor, without much restriction.

Other concerns relate to limitations on the freedom of the media (article 48), and the failure to grant automatic voting rights to Egyptians abroad (article 56). Article 33 also sets out the fundamental principle of equality of citizens in abridged form, and removed the explicit and much-needed reference (which was d’usage in all previous Egyptian constitutions) to the prohibition of unequal measures based on sex, religion, or race.

The draft text also contains unnecessary relics from the old regime, such as the power of the president of the republic to oppose the enactment of bills voted on by the parliament. The contours of this prerogative are far broader than their counterpart given for example by the constitution of the United States to the president. The draft constitution also leaves it to the law to regulate the appointment of the judges of the Supreme Constitutional Court (article 176), leaving the Court unprotected and the mechanism for its appointment at the hand of the very legislature that it is intended to control.

Additionally, according to some legal experts, article 76 of the draft constitution grants ordinary judges the authority to apply directly constitutional texts to individual cases, which, if intended, would open the door for very broad judicial discretion quite apart from the rigor and sufficient detail of legislative texts.

Unsurprisingly, various strata and factions of society and even branches of government openly displayed their firm opposition to the draft, including, among others, the Supreme Constitutional Court, a broad range of the judiciary, labor unions, the bar association, and nearly all civil parties and youth and revolutionary movements.

Though the validity of the composition of the constitutional committee has come under scrutiny, which may make questionable all its legislative activity, the true problem lies elsewhere; and is one of baseline consensus about the road towards reforming the country politically, legally and otherwise.

The natural hope and aspiration of the people of Egypt, after sixty years of oppression and autocratic rule, was to have a constitution that unifies Egyptians around a new leadership which would lead the country’s economic, social and democratic take-off and compensate for the generations of lost development.

Reality, however, is different: The process of drafting the constitution came out as the expression of political struggle. The President has just decided to put the draft constitution to public referendum, which is scheduled to take place on Saturday 15 December 2012. On facing side, the Supreme Constitutional Court is scheduled to rule today on the validity of the composition of the constitutional committee, a ruling that could have sweeping consequences on the legitimacy and legality of the draft text. Yet again, the President’s Constitutional Declaration may be held as having cast immunity on the constitutional committee, and hence on the process of producing the new Constitution. The fate of the future constitution, along with that of the entire country, lie in the balance.

Considering the current national crisis, the division of the country, and the imminent escalation between the judiciary and the presidency, the single most unfortunate thing that should not have happened after a revolution of the greatness and unanimity of the January 25 Revolution, was to have a constitution that divides, and not one that unites. Much of the blame goes to the original sin, namely that the new constitution did not come first as the key and initial step of the political transition after the Revolution, before elections and partisan politics kicked in.

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