Crisis brewing over constitutional principles

A cabinet-backed charter calling for legal provisions guaranteeing a democratic and secular Egyptian government has sparked fierce debate – and careful consideration – in the halls of power and religious institutions and among political parties and civil society in recent weeks.

Islamists reject binding conditions on the writing of Egypt’s new constitution, while secular groups and civil society see it as a chance to safeguard their interests in the event that Islamists dominate upcoming elections.

Deputy Prime Minister Ali al-Selmy made headlines last week after announcing the cabinet had sponsored a document laying out the basic principles of the new constitution, which is supposed to be drafted following parliamentary elections. Selmy also said that the military will issue a constitutional declaration based on the same principles.

Meanwhile, the prime minister has met with Islamist groups to discuss the composition of the assembly that will write a new constitution.

According to the copy of the cabinet-sponsored principles received by Al-Masry Al-Youm, the document stipulates that Egypt is “a civil democratic state” based on citizenship rights, pluralism, freedom, justice and citizenship rights. The political system is democratic republican; it respects the peaceful transition of power between elected governments and the separation between the three branches of government, reads the 21-clause document.

The charter maintains the article of the previous constitution recognizing Islam as the state religion, Arabic as its official language and the principles of Islamic Law as the primary source of legislation. However, it adds a new clause stipulating that non-Muslims should be able to follow their own creeds in their personal status matters and religious affairs, an amendment that many liberal and Coptic forces have been calling for.

In recent weeks, Selmy has been holding meetings with political parties from the far right to the far left, as well civil society organizations to probe their views on the charter.

“We strongly support the charter,” said Emad Gad, leader of the Egyptian Social Democratic Party who represented his party in a meeting with Selmy last Wednesday. His party demanded that the charter be made legally binding on the constituent assembly that the new parliament will elect to draft the constitution.

The liberal Free Egyptian, Awareness, and Democratic Front parties were also present at the meeting.

Making the charter binding lies at the heart of the secular-Islamist divide that has been deepening since the fall of Hosni Mubarak.  Most secular forces have voiced fears that Islamists, who seem best organized and most capable of mobilizing voters, might garner a sweeping majority in the new parliament and hence monopolize the drafting of the constitution. Such control, secularists believe, might enable them to impose a religious state that restricts individual liberties and discriminates against religious minorities and women.

To preempt such a scenario, secular parties have been pushing for a binding document of universal principles and a clear affirmation that Egypt’s new order will be fully democratic. While secular groups celebrate the cabinet’s charter for stating that Egypt is a “civil state,” meaning to them neither military nor religious, Islamists insist the expression should be removed.

“In our perspective, ‘civil’ means secular,” Adel Afify, founder of the Salafi Asala Party told Al-Masry Al-Youm. “Liberals or non-Muslims cannot impose their views on the rest of the people.”

Last week, the Islamist-led Democratic Alliance for Egypt, spearheaded by the Muslim Brotherhood and including a group of Salafi parties, published its own charter that defined Egypt only as a democratic state. The term civil was not mentioned. The liberal Wafd Party acquiesed to the charter in principal, despite internal divisions on whether there should be any collaboration with Islamists. Some Islamists also welcomed a similar charter that Al-Azhar had issued.

Islamists insist that none of these charters should be binding but only serve as guidelines. They argue that imposing any clauses on the constituent assembly is a violation of democracy.

On Monday, Afify’s party along with the Wasat, Adl and Hadara parties met with Prime Minister Essam Sharaf, his deputy and legal experts to discuss the matter. The Salafi Nour Party has categorically refused to meet with the prime minister to discuss the document.

The attendees also discussed a proposal drafted by an independent group of legal experts and political party leaders of eligibility conditions for the constituent assembly that will draft the constitution.

The proposal advocates prohibiting any member of the new parliament from running for the assembly and stipulates that 80 of 100 assembly members should come from labor unions, professional associations, farmers’ groups, human rights organizations, university professors’ unions, Christian and Muslim religious institutions, judicial bodies, officially recognized parties, the armed forces, geographical areas with “special cultures” (namely Sinai, Nubia and the farthest southern spots) and youth and interest groups. The remaining 20 seats should be filled by public figures, constitutional law experts, intellectuals and artists, according to the copy received by Al-Masry Al-Youm.

“This document needs more work and more discussions,” Ahmed Shokry, leader of the Adl party told Al-Masry Al-Youm. He objected to the ban on parliamentarians serving the assembly, arguing that half the constituent assembly can come from the parliament and the other half from outside.

He also opposed a clause giving the ruling Supreme Council of the Armed Forces the right to veto the composition of the assembly if it violates the membership conditions laid out in the document.

According to Mohamed Nour Farahat, a law professor at Zagazig University and one of the architects of the eligibility conditions, this article was added to diffuse fears that Islamists would have free reign in forming the assembly.

In recent months, there has been a debate over whether the military should play any political role in the future.

Driven by the desire to deter elected officials from dismantling a fledgling democracy, some non-Islamist jurists and political forces have demanded that the military be in charge of safeguarding the civil nature of the state.

The constitutional charter up for discussion does not assign the military any political role beyond protecting national sovereignty and security. Politicians who spoke to Al-Masry Al-Youm and met with the government affirmed that there was no mention of the possibility of adding any clause that would entrust the military with defending democracy.

However, last week, the army chief of staff told a group of intellectuals that the “civil nature of the state is a matter of national security.” This statement had raised speculations that the military might push for stretching its political mandate in the new constitution.

“I believe it [an article requiring the military to protect democracy] is necessary but it seems that there is no national consensus on the matter,” said Tahany al-Gebaly, vice president of the Supreme Constitutional Court and a contributor to the constituent assembly eligibility conditions.

Islamists oppose the inclusion of any article for fear that the army might interfere against them as was the case in Algeria in the 1990s. Yet many non-Islamist groups have also opposed making the military the guardian of democracy, arguing that such a clause could open the door for military coups.  

Last week, Selmy also met with representatives of 100 NGOs to discuss the constitutional document.

“Some of us demanded that the charter make reference  to international human rights conventions,” Nasser Amin, director of the Arab Center for the Independence of the Judiciary and legal Prosecution told Al-Masry Al-Youm.

In several clauses, the charter recognizes a plethora of individual rights and liberties.

“Human dignity is a fundamental right for each person. All Egyptians are free and equal in terms of their rights, liberties and general duties before the law. Discrimination on basis of gender, race, language, religion, wealth or social status is prohibited,” reads the text.

The charter also recognizes freedom of expression, access to information and freedom of movement and travel and prohibits the detention or arrest of any citizen with no prior judicial warrant.

But for some rights activists these protections are incomplete.

“There is no clause that stresses social justice in the charter,” said Khaled Ali, director of the Egyptian Center for Economic and Social Rights.  Ali, who also attended the talks, added that some groups also asked for an article requiring the government to set a maximum wage.

“But, overall, the charter is not bad,” added Ali, referring to clauses affirming the right to education, housing, nutrition, healthcare and a minimum wage.  
Ninety percent of the attendees said the document should be made legally binding, Ali said.

Experts have voiced conflicting views on the most appropriate legal mechanism of making the document binding.

Farahat said it should be put to a public referendum, while Gebaly of the constitutional court argues that a military-issued constitutional declaration is enough. The idea of a referendum was discussed ruing

“All we care about is making it binding, whether by having the SCAF issue a constitutional declaration or holding a referendum,” said Gad of the Egyptian Social Democratic Party. 

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