Monday,23 October, 2017
Current issue | Issue 1122, 15 - 21 November 2012
Monday,23 October, 2017
Issue 1122, 15 - 21 November 2012

Ahram Weekly

A flawed constitution?

Egypt’s Islamist-dominated draft constitution restricts freedoms, concentrates power and eschews equality, writes Azmi Ashour

Al-Ahram Weekly

We’ve had nearly two years since the Egyptian revolution to take stock of what happened and assess not only the transitional period but also a few months of Mohamed Morsi’s presidency.
A major issue that comes to mind is that of the constitution, which turned out to be a controversial one since the debate began over whether we should write it first or have elections first.
As it turned out, the controversy was destined to persist, first with the way in which the Constituent Assembly was formed, and second with the wording of the successive drafts of the constitution.
Our problems began with the formation of the assembly, the 100-member committee in charge of writing the constitution. Although Article 60 of the Constitutional Declaration stipulated that members of the People’s Assembly and the Shura Council were to elect the 100 members of the assembly, something in the wording of this article suggested justice was a broader concept than anything mere constitutions and laws can encapsulate. The outcome of the parliamentary elections, which brought the Islamist majority into power, corroborated this point.
The situation in Egypt after the revolution was an unusual one. The one party that dominated the scene for decades was no more, and the religious organisations that stepped into the political vacuum turned out to be just as domineering as that party used to be, albeit with religion thrown into the equation.
Since the parliamentary elections were held, and even before the Supreme Constitutional Court disbanded the People’s Assembly, the Islamists were clearly acting to promote their interests, with little regard for the ideals of justice.
So when the Constituent Assembly’s formation was challenged in court, another Constituent Assembly replaced it that was not different at all, except that the first assembly was made up exclusively of parliamentarians and the second wasn’t. No wonder political parties and a major section of public opinion were sceptical about the assembly.
The scepticism was not motivated by any anti-Islamist bias, but by the fact that the assembly was selected not to reflect the views of the entire nation, not to promote the interests of justice, but to satisfy the political taste of the Muslim Brotherhood.
As it turned out, the Constituent Assembly was not only flawed in its composition, but proceeded to write a constitution that is controversial on more than one level.
Take, for example, the fact that the constitution abandons the general tone that is suitable to constitutions, the overall support of basic rights that it must offer, to engage in matters that are normally left to legislators and courts to sort out.
In some cases, the Constituent Assembly authors stated general principles that would have been acceptable, but then added phrases that would rob them of substance. Such as the recurrent caveats of “unless it conflicts with Sharia” or “unless it conflicts with social peace”. These caveats abrogate the general principles of the constitution and belittle the basic values commonly enshrined in constitutions, such as the values of equality, justice and tolerance.
The assembly authors seem too eager to ignore the general principles of rights and justice to focus instead on side issues that are normally the domain of the legislature and the judiciary.
Furthermore, the assembly authors seem to be intent on granting the president absolute powers, instead of recognising the fact that the time has come for checks and balances. This tendency to concentrate power is alarmingly reminiscent of the actions of the ousted regime, and do not augur well for the nation.
Consider the manner in which the Constituent Assembly deals with the judiciary. The assembly seems to be intent on diminishing the powers of the judiciary in more than one way. It wants, for example, to give the president the right to nominate the public prosecutor and determined the duration of his term. So instead of protecting this post, which is pivotal in the country’s checks and balances, it is undermining its authority by making it subservient to the presidency.
Egypt’s judiciary has a long and honourable history of independence and reliability. We all trust that our judiciary, just as it is capable of selecting and promoting judges, can select the person to serve in the capacity of public prosecutor. Presidential custodianship over the post is not only unneeded; it is undesirable.
The assembly also seems eager to diminish the power of the Supreme Constitutional Court, something to which the members of the latter strongly objected. Again, weakening the country’s most venerable court is not something that serves the cause of justice in this country. It doesn’t promote the interests of the nation. And it undermines the checks and balances we wish to see in place.
It makes no sense to have a revolution then turn around and rob the powers of the judiciary to give it to the presidency. We need more, not less, checks and balances in this country — regardless of who is in power.
A president who is elected by the people is supposed to rule through institutions, not through absolute power. Constitutions are supposed to strengthen checks and balances, not remove or obscure them.
Everything the Constituent Assembly has done so far suggests that the constitution it will write will be lopsided and incoherent — devoid of the ideals of freedom and justice, and has no use for tolerance and equality.

The writer is managing editor of the quarterly journal Al-Demoqrateya published by Al-Ahram.

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