Disputes plague the draft constitution
The 100-member constituent assembly has been moving by leaps and bounds to finalise Egypt's draft constitution, reports Gamal Essam El-Din
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Members of the constituent assembly are on the verge of finalising the constitution
Officials from Egypt's constitution-drafting assembly are doing their best to finalise the country's new draft constitution over the period of the next one or two months. They have high hopes that the constitution will be drafted and approved in a referendum before a court order invalidating the assembly can be issued, halting the process.
Farid Ismail, a leading member of the Muslim Brotherhood's Freedom and Justice Party (FJP) and a member of the assembly, said last week that the draft constitution would be finalised by the upcoming Eid Al-Adha holiday in late October or early November. This is in contrast to other officials, who have recently said that the draft constitution would be ready by late September.
However, assembly spokesperson Wahid Abdel-Meguid has said that no statements can be made about the exact date when the draft constitution will be completed because of the disagreements that still plague the drafting committees.
These have been nowhere clearer than in the debates in the two committees in charge of drafting the constitution's chapters on the system of government and freedoms and rights.
The system of government committee, headed by constitutional law professor Gamal Gibril, has said that members have voted in favour of a presidential-parliamentary mixed system for Egypt.
"The US-style presidential system or Indian-style parliamentary system cannot be embraced by Egypt at the moment," Gibril said, adding that "we think it best to embark upon a mixed presidential-parliamentary system." This would mean that "the president of the republic will be forced to entrust the party that gets a majority in parliament with forming the government."
Gibril indicated that the committee wanted the present bicameral system to be kept in place. Under the proposals, the People's Assembly, Egypt's lower house of parliament, would be called the "House of Representatives", while the Shura Council, the upper house, would be called the "Senate".
According to Gibril, the House of Representatives would have complete legislative and supervisory powers. The Senate would have legislative powers and would also endorse senior officials, such as ambassadors, before they were officially appointed by the president of the republic.
"It is also proposed that the Senate supervise local councils," Gibril said.
Sobhi Saleh, a prominent FJP lawyer and member of the assembly, said members were divided over the issue of whether provincial governors should be elected or appointed under the new system.
Saleh said that most members favoured the president appointing governors, while giving elected local councils greater powers. "The governors will be in charge of seeing that local councils do not violate the law and that they implement the state's development plans," Saleh said.
Saleh indicated that most members were in favour of rejecting Minister of Justice Ahmed Mekki's proposal to group all the country's courts into one unified system.
"We think that the judicial authorities must remain independent, especially the Supreme Constitutional Court (SCC), which will remain independent and be regulated under a separate chapter of the constitution," Saleh said.
He added that 33 supervisory agencies would be grouped under a single authority called the "National Council to Combat Corruption". This authority would investigate allegations of corruption and refer officials for questioning by the "administrative prosecution office", which would have sweeping powers.
Sharp divisions have erupted over how the new constitution would regulate military courts. Members of the former ruling Supreme Council of the Armed Forces (SCAF) want military and civil courts to be regulated under a single chapter of the new constitution. "This is to stress that both kinds of courts are the same in terms of guarantees of fairness," said SCAF member Mamdouh Shahin.
However, Shahin's argument did not strike a chord with most members of the assembly, especially the law professors. Ramadan Batikh, a professor of constitutional law, said that the military courts should be restructured to comply with the guarantees and requirements adopted in the civil courts.
Batikh said that "this issue will be left to the general meetings of the assembly to decide."
Meanwhile, Islamist members of the assembly have strongly objected to suggestions that new presidential elections be held after the constitution is approved by referendum, going against the demands of some liberal and leftist figures.
Former presidential-election candidate Hamdeen Sabahi said that "once the constitution has been promulgated, it would be natural for new presidential elections to be held."
According to senior FJP official Essam El-Erian, "when the people elected Mohamed Mursi as president of Egypt in June, they wanted him to stay in office for four years, so calls for new elections after the constitution has been drafted are not allowed."
Members of the assembly were also divided over whether the president should be able to declare war. Islamists led by El-Erian said that "the president should have an absolute right to declare war after consulting with the Supreme Council of the Armed Forces and the National Defence Council [NDC]," adding that the president need not take their advice.
Liberal members of the assembly objected to granting the president absolute power to declare war, presumably especially if he is an Islamist, such as being a member of the Muslim Brotherhood.
Nour Ali, a liberal member of the assembly's Freedoms and Rights Committee, said that "most members believe that the president should not be given a free hand in declaring war and that he should consult with the SCAF and the NDC and seek the approval of the People's Assembly first."
Ali said that "Article 85 of the constitution regulating any declaration of war should be left to the 100-member assembly to decide on its final text in a plenary meeting."
The chapter of the constitution on freedoms and rights also witnessed fierce debates, with there being sharp disagreements over Article 2 that regulates the application of Islamic Sharia law. Salafi members of the assembly want the article to say that "Islamic Sharia [rather than the principles of Islamic Sharia] should be the major source of legislation in Egypt."
However, Ali said that "a majority of assembly members, including Brotherhood activists, want to see the text of this article from the 1971 Constitution remain in place, affirming that 'the principles of Islamic Sharia' should be the major source of legislation in Egypt."
Salah Abdel-Maqsoud, a member of the assembly and of the Salafist Nour Party, said on Tuesday that the issue of Article 2 would be resolved by a vote in the general committee of the assembly. Liberal and civil parties demanded that the article be kept unchanged to maintain the civil nature of the Egyptian state.
According to Abdel-Maqsoud, the vote on the article would offer three options: either that the article stay as it is in the 1971 Constitution, or that the phrase "principles of" be removed, making Islamic law the main source of legislation, or that the 1971 version of the article stay as it is with Al-Azhar being given the right to decide on particular pieces of legislation.
"An article concerning members of other religions was inserted in the freedoms and rights chapter of the constitution," Abdel-Maqsoud said, adding that he wanted to see Al-Azhar being made a "reference" in the chapter of basic principles.
Wahid Abdel-Meguid said there would be a great leap forward for press freedoms in the new constitution, since the chapter on freedoms and rights had been drafted to ensure that journalists accused of publication offences did not face time in jail.
"This is a giant step forward, especially since the draft stipulates that lawsuits against journalists cannot be filed by persons not directly affected by the published materials," Abdel-Meguid said.
The text of Article 12, which deals with the freedoms and rights of journalists, reads in draft that "lawsuits against journalists can only be filed by persons directly affected by publication offences; if journalists are convicted, they will not be sent to jail."
Instead of jail sentences, journalists could be fined large sums of money, he said.
Ordinary people would also be given the right to publish newspapers for the first time, meaning that this right is "no longer confined to companies, public institutions and political parties," he said.
"Article 10 of the same chapter will be drafted to prevent the closing of newspapers by judicial or administrative order," he said, though FJP official El-Erian appeared to disagree when he said that "we are all for press freedoms, but we are against the freedom of journalists to slander citizens and public officials."
El-Erian said that "journalists convicted of publication offences, for example spreading lies, would not be sent to jail, but those found guilty of direct libel would be subject to the penal code, which imposes a jail sentence."
Younis Makhyoun, a member of the Nour Party, said that "it is essential that journalists accused of libel and slander face jail terms, while for other offences, such as disseminating lies, it is enough for them to face tremendous fines."
The clash over press freedoms comes against the backdrop of a hostile campaign led by leading figures of the Muslim Brotherhood against what they deem to be insults directed against the president.
According to chair of the Shura Council and FJP official Ahmed Fahmi, "we are in favour of press freedoms, but we are against press hooligans who are fond of insulting public officials without risking harsh punishment."