Heart of the matter
The constitutional status of the military has yet to be decided, reports Gamal Essam El-Din
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Members of the Constituent Assembly have almost completed drafting a new constitution
Monday's Administrative Court decision to delay judgement in cases pending against the Constitutional Assembly to 22 September will allow the assembly to complete its drafting of a new constitution. According to assembly spokesman Wahid Abdel-Meguid, a final draft should be completed within three months.
On 30 July the Systems of Government sub-committee was able to wrap up work on articles detailing the powers of the president. It was agreed that should the presidency become vacant as a result of injury, illness or resignation of the vice president, speaker of the People's Assembly or chairman of the Shura Council would assume the prerogatives of office, in that order.
Whoever assumes the presidency will not be eligible to stand in the presidential elections which must follow within 90 days -- a 30-day extension of the 60-day period stipulated by the 1971 constitution.
The sub-committee also agreed that, in line with the 1971 constitution, the president should head the Supreme Council of the Armed Forces (SCAF) and the National Security Council.
Salah Abdel-Maaboud, a member of the sub-committee and of the Salafist Nour Party, revealed that it was also agreed that the president could only dissolve parliament if the move were approved by public referendum. "If a majority of voters said no then the president would be forced to submit his resignation in respect of the principle of separation of powers," said Abdel-Maaboud.
The president's powers to declare a state of emergency will also be curtailed.
"In the draft we have agreed the president must secure cabinet approval and then submit the motion to the People's Assembly for a vote before a state of emergency can be declared," says Abdel-Maaboud. "Any declaration will then be in force for six months and an extension will have to be put to public referendum."
The National Security sub-committee, meanwhile, has been busy reviewing the powers granted to the military under the 1971 constitution. Abul-Ela Madi, chairman of the moderate Islamist Wasat Party and a member of the National Security sub-committee, says the army will be accorded no political role in the new constitution.
The military budget, Madi revealed, will henceforth be divided into two. The first part, covering civil projects implemented by the army, will be subject to public discussion and review by parliament and the Central Auditing Agency (CAA). The second part, which covers armament procurement and training projects, will be discussed only in closed-door meetings by the People's Assembly National Security Committee and by the National Defence Council.
The sub-committee, says Madi, has agreed that many of the provisions included in the 17 June Constitutional Declaration, issued following the dissolution of the People's Assembly, will remain in place, albeit with minor changes. Any declaration of war by the president currently requires "prior approval" of the Supreme Council of the Armed Forces (SCAF). Under the sub-committee's draft the word approval has been replaced by consultation. "Final approval," says Madi, "will be in the hands of the National Defence Council which will be composed of nine civilians and nine military representatives."
Abdel-Meguid argues that the new constitution will not curtail any of the powers and privileges currently enjoyed by the Armed Forces. "It will give SCAF partial -- rather than absolute -- independence from other branches of government," he says.
Whether such reassurances convince the generals remains a moot point. SCAF has insisted repeatedly that provisions in the 1971 constitution pertaining to the military must be retained.
During a 29 July meeting with members of the Judicial Authority sub-committee SCAF legal advisor Mamdouh Shahin proposed that articles in the new constitution dealing with the role of the military judiciary be included in the judicial rather than military chapter. The request was rejected by the sub-committee, which insisted on retaining the 1971 order.
Shahin had argued that "making military justice a part of the judicial authority will guarantee that citizens will face a fair trial." Such a rationale clearly rang alarm bells among sub-committee members.
Military justice, said sub-committee member Noureddin Ali, must be limited to military personnel and kept independent of the civil justice system. Ali also argued that new legislation was required setting the remit of military courts and preventing the appearance of civilians before them.
The Judicial Authority sub-committee finished its hearings on 29 July after discussing the jurisdiction of the two highest judicial authorities in Egypt, the Supreme Constitutional Court (SCC) and the Court of Cassation. The sub-committee also discussed the powers of the prosecutor-general and the State Cases Authority.
Sub-committee rapporteur Taymour Kamel told parliamentary correspondents on 29 June that there was a consensus among members that judicial authorities must have their independence from executive supervision guaranteed.
"The president must not be allowed to appoint judges to the Supreme Constitutional Court or any other judicial authority," said Kamel. "Nor should he be empowered to appoint or fire the prosecutor-general."
The Supreme Judicial Council, headed by chairman of the Court of Cassation, will select the prosecutor-general, though the nominee, says Kamel, "will require the endorsement of the president".
The head of the SCC should be selected by a general assembly of its judges.
According to Kamel, the sub-committee agreed that the SCC will scrutinise new legislation passed by parliament except for laws regulating presidential and parliamentary elections and exercise of political rights which will be revised by the SCC before they are enacted. "This last provision is essential if we are to avoid the dangers inherent in invalidating elections once the results have been announced," said Kamel.
While some sub-committees have forged ahead with their work, "disagreements remain over the first five articles of the constitution which deal with the Islamic Sharia and the role of Al-Azhar", says Abdel-Meguid. "It will also be necessary to hold more hearings over the relationship between the army and other state authorities."
As a consequence the Constituent Assembly's next full meeting, scheduled to be held last Tuesday, has been delayed to 7 August.