A matter of timing

By Fatemah Farag

The Wafd Party has repeatedly lobbied for constitutional amendments that are more in line with its liberal position. Other forces, such as the leftist Tagammu and Nasserist parties, have opposed the move, also for ideological reasons. The official government position is that the time is not ripe yet.

However, the fact remains that the constitution and the government's economic policy are not in tandem. Promulgated in 1971, the constitution calls for the protection of the public sector and includes other provisions that once seemed valid in the by-gone age of socialism. However, there are also provisions, opposition parties charge, which are obstacles in the way of democratic reform.

"It is a fact: the constitution is not in synch with the changes the government itself has introduced. The state deviated from the constitution a long time ago," said Nasser Amin, director of the Arab Centre for the Freedom of the Legal Profession and the Judiciary.

According to Mahmoud Abaza of the Wafd Party, "There are 17 articles in the constitution which are in total disharmony with today's reality. This is why our political reform agenda underlines the necessity of amending the constitution. Not only do we need to delete the articles that are against privatisation and the market economy, but the powers of parliament need to be redefined to include control over the state budget."

Abaza argues that once a new constitution has been drafted, the road will be open to amending laws that, in his view, impede democracy. These, he said, include laws that govern the establishment of political parties, the publication of new newspapers and state ownership of radio and television.

"These are but a few examples of laws that need to be changed," Abaza told Al-Ahram Weekly. "I believe that the government has realised that the economic reforms it has undertaken are in obvious contradiction with the constitution. Someone may file a lawsuit with the Constitutional Court, arguing that privatisation is unconstitutional, and win."

In fact, certain political parties did go to the Constitutional Court with this argument but lost. According to Amin, the "court said that we have to take the spirit of the constitution into consideration, and not simply the text. Hence, it ruled that the state has the right to adjust its economic policy."

However, the same court declared many laws unconstitutional. A recent report by the Centre for Human Rights and Legal Aid said the court found that 53 of the constitution's 211 articles had been violated by several laws. The constitutional principles which were infringed upon by these laws include the principle of equality of citizens -- violated 34 times -- and the principle that the state is subject to the law -- violated eight times. The report said the government was obligated to dissolve two parliaments, a Shura Council and several local councils on grounds of unconstitutionality.

The report also said that the sweeping majority which the National Democratic Party holds in parliament has contributed to increased pressure by the executive on the legislative authority. Moreover, parliament itself has been largely inactive, the report added. As an example, it said the controversial 1992 political parties law was passed with the approval of only 16.5 per cent of parliament's total membership.

And yet, despite its shortcomings, the Wafd Party claims that this same system is capable of launching the complicated process of ushering in a new constitution that would reflect the various interests and aspirations of today's Egyptians.

Others disagree. "The government has repeatedly said that the time is not ripe yet," Amin said. "According to the present constitution, a public referendum must be organised to establish a new constitution. It is a complicated process. And then what will be the new content? Are we going to say that Egypt is capitalist now?"

Hussein Abdel-Razek of the Tagammu Party affirmed that certain laws must be modified before a new constitution can be drafted. "We think that the only way a constitutional modification can take place is via a process which begins with amending certain laws that make fixing elections possible, limit civil freedoms and provide for total government control over the media. When we have been able to do this and to lift the state of emergency, then we will be ready to participate in the formulation of a new constitution," he said.