Friday,21 September, 2018
Current issue | Issue 1125, 6 - 12 December 2012
Friday,21 September, 2018
Issue 1125, 6 - 12 December 2012

Ahram Weekly

Future imperfect

 Gamal Essam El-Din documents how Egypt’s new constitution was passed and reviews the most controversial articles included in the draft constitution which will be put to a national referendum on 15 December

Al-Ahram Weekly

Fast-tracking the constitution


After an 18-hour marathon of voting, the Islamist-dominated Constituent Assembly tasked with drafting Egypt’s new constitution approved the final draft last week. At 7.30am local time on Friday 1 December as the national anthem played in the background, assembly chair Hossam Al-Ghiriani announced that the final draft of the constitution had been approved by 85 of the 100 members attending the session, an overwhelming majority.
Al-Ghiriani urged assembly members to accompany him to the presidential palace on Saturday to give Islamist President Mohamed Morsi the draft and calling on secularist members who had boycotted the assembly’s final debates to join them.
He said that he would write an introduction to the new constitution and that the printing of the final text would be done by the Ministry of Culture. “The draft will include all the final amendments introduced by members on Thursday and Friday... and people will be able to read it carefully before it is put to a vote in a national referendum,” Al-Ghiriani said.
The Islamist members of the assembly, who make up the majority, rallied behind Al-Ghiriani, staying awake until dawn to ensure that the final draft was approved by an overwhelming majority. This was done even though President Morsi’s 22 November Constitutional declaration had given the assembly an additional two months to reach consensus.
The session was held in the hall of the Shura Council, the upper house of Egypt’s parliament, under heavy security. The buildings of the People’s Assembly, the lower house of parliament, and the Shura Council were temporarily transformed into “a fortress”, witnesses said, and journalists and assembly members were closely inspected as they went into the parliament building.
The final debates passed through various difficulties, with Al-Azhar representative Hassan Al-Shafei threatening to withdraw when some Brotherhood members accused the institution’s grand imam of being a “remnant” of the ousted Mubarak regime and the defunct ruling National Democratic Party (NDP).
Al-Ghiriani implored Al-Shafei not to walk out, arguing that “the grand imam of Al-Azhar, Sheikh Ahmed Al-Tayeb, was one of several high-profile national figures who resigned from Mubarak’s NDP.”
“When he, as president of Al-Azhar University, was appointed by Mubarak to the NDP’s politburo, he went there just once and then decided to resign when he was appointed grand imam of Al-Azhar. This was the honourable step to take,” Al-Ghiriani said.
Al-Shafei also objected to a draft article aimed at stripping former NDP officials of a political role for 10 years. “I’m not in favour of imposing political disenfranchisement on anybody, as long as they are not found guilty of political corruption. It is unfair of the constitution to ostracise a certain segment of society,” Al-Shafei said.
Al-Ghiriani agreed. “We don’t want Egypt’s new democratic constitution to be designed to take revenge on certain politicians,” he said.
Al-Shafei and Al-Ghiriani faced objections from the Muslim Brotherhood and the Salafis, who insisted that the article be included in the new constitution. It was agreed in the end that the amendment, proposed by Hatem Azzam, an independent close to the Brotherhood, should impose a ban on former members of the NDP’s politburo, secretariat-general, policies committee, formerly led by Mubarak’s son Gamal, and anyone who had been members of the party up until 25 January 2011.
This opened the way to exclude the grand imam of Al-Azhar from the ban and persuade Al-Shafei to stay in the assembly. According to Azzam, this constitutional article will cause up to 1,500 former NDP members to be banned from exercising any political activities for 10 years.
The constitutionalisation of this political disenfranchisement was passed in a challenge to the Supreme Constitutional Court (SCC), which had ruled that “stripping certain political segments of exercising political activities without being found guilty of corruption by the courts goes against basic human rights.”
During the same session, Al-Ghiriani directed a blow at journalists by refusing an amendment preventing them from facing jail sentences for publication offences. He refused to discuss the article at the beginning of the debates on Thursday afternoon, but promised Press Syndicate Chair Mamdouh Al-Wali that it would be discussed later.
However, the discussion was postponed until 6am on Friday morning, when Al-Ghiriani denied he had made any promises and that “the final word should be left to the members of the assembly.”
The amendment was rejected by 80 out of 85 members present, with many arguing that giving journalists immunity against prison sentences could not be part of the constitution because it gave them an unjustifiable privilege.
Assembly members also rejected the amendment to Article 215 that stated that a national media authority should be set up to supervise print, satellite television, and digital electronic media. The Press Syndicate believes that this authority would be dominated by the Islamists, who will do their best to impose censorship on the media.
While the assembly’s Islamist majority voted in favour of rejecting immunity from jail sentences for journalists found guilty of publication offences, it welcomed an amendment reserving 50 per cent of the seats in parliament to representatives of workers and farmers.
The amendment, introduced by the Brotherhood’s Minister of Manpower Khaled Al-Azhar, states that the quota will be applied for just one parliamentary session of five years, after which it will be phased out.
The amendment also set out a new definition of workers and farmers. According to the draft constitution, a worker is someone employed by public or private institutions or individuals, while a farmer is someone who has practised agricultural activities for at least 10 years.
The Islamists also rallied behind Article 219 of the draft constitution on the interpretation of the principles of Islamic law. This new article, pressed for by the Salafis, was the major factor leading secularists and representatives of the Coptic Church to withdraw from the assembly.
These had warned that this article could open the door to radical interpretations of Islam and threaten to turn Egypt into an extremist nation. The article states that the principles of Islamic law include its most fundamentalist interpretations.
The debate concluded by directing scorn at the SCC, when the assembly reinstated a mixed electoral system that had been ruled unconstitutional by the SCC.
The article, number 231, states that the next parliamentary elections are to be held under a mixed individual and party-list system. Two thirds of the seats will be reserved to party-based candidates and contested under the party-list system, while the remaining third will be reserved to independents under the individual system.
Amr Darrag, a Brotherhood member, said the organisation agreed with the Salafis that this mixed system be implemented during the upcoming elections. This was in spite of the fact that the system was ruled unconstitutional by the SCC last June, leading to the dissolution of the Islamist-led parliament.
The SCC said in its ruling that the system was an obstacle against achieving equality among candidates, discriminating against independents in particular, and that it led to the creation of parliaments dominated by one political force and lacking diversity.



Chapter One: The State and Society
Religious articles feature heavily in the first chapter, The State and Society.

Article 2 states that Islam is the religion of the state, Arabic is its official language and the principles of Islamic Sharia the major source of legislation.
The origins of this article are to be found in the 1971 constitution drafted under president Anwar Al-Sadat. It originally stated that Islamic Sharia is one of the major sources of legislation. In 1980, in an amendment proposed by Sadat as a sweetener for Islamists following the 1979 peace treaty between Egypt and Israel, the article was amended to state that Islamic Sharia was the major source of legislation in Egypt. The Supreme Constitutional Court (SCC) was entrusted to provide interpretations of Islamic Sharia. Muslim Brotherhood and Salafi members of the Constituent Assembly refused to allow the SCC to continue as arbiter and insisted an explanatory article be inserted defining the sources of Sharia. Article 219 was duly added under the chapter “Transitional Rules”. It states that the principles of Islamic Sharia include its core basics, its fundamentalist and jurisprudent rules, and the majority of highly esteemed sources of Sunni Islam clerics.

Article 219: Civilian forces have repeatedly warned that the explanatory article opens the door to extreme interpretations of Islamic law. The move to scrap the SCC’s role as arbiter, says political analyst Wahid Abdel-Meguid, was forced through because Islamists on the Constituent Assembly — from which Abdel-Meguid withdrew — were unhappy with the moderate tone of the SCC’s rulings from the last three decades. The constituent assembly scrapped the SCC’s moderate interpretations of the principles of Islamic Sharia in favour of radical interpretations provided by old sunni clerics who are favoured by Salafis and the Muslim Brotherhood.
“Radicals will now seize on this article to impose their extreme version of Islam. They will use it to force Saudi-Wahhabi codes of behaviour on Egyptian society,” says Abdel-Meguid.
The SCC’s moderate interpretations of Islamic Sharia had demonstrated that Islamic law can enrich the constitutional life of citizens in a modern state. That legacy, argues Abdel-Meguid, is now under threat.
Not so, says Al-Azhar representative Hassan Al-Shafei. He insists Article 219 closes the door on radical interpretations of Islam. “The article restricts interpretation of principles of Islamic Sharia to highly esteemed Sunni clerics, which guarantees no radical interpretations will be adopted.”
Al-Shafei’s words may appear reassuring but the reality, says Georgette Qillini, a Christian lawyer, is very different. “These highly esteemed Sunni clerics,” she says, “produced their interpretations of the Sharia centuries. How are their interpretations going to sit in a modern society far removed from sixth and seventh century Islam?”

Article 3 states that the personal and religious affairs of Christians and Jews and the choice of their spiritual leaders will be governed by their own religious laws.
The new article was added in an attempt to reassure Egyptian Christians who had expressed fears that their personal affairs would fall under Islamic Sharia, as stated in articles 2 and 219. Local and international human rights organisations complain that the article discriminates against non-Abrahamic religions. New York-based Human Rights Watch (HRW) points out that the article offers no protection to, among others, Egyptian Bahaais, Shia, Ahmedis and Quranists.
The draft constitution approved by the Constituent Assembly, warns Amnesty International, falls well short of protecting human rights. It ignores the rights of women, restricts freedom of expression in the name of protecting religion, allows for the military trial of civilians and restricts freedom of worship to Sunni Muslims, Christians and Jews.
The inclusion of Article 3 failed to convince Egypt’s three official churches — the Coptic Orthodox, Catholic and Anglican — not to withdraw their delegates from the Constituent Assembly. They argued that explanatory Article 219 undermines any guarantees offered to Egyptian Christians. Article 219, argues Edward Ghalib, a Christian judge who withdrew from the assembly, ultimately allows for the propagation of a form of Islam that is inherently intolerant of the rights of religious minorities.

Article 4, another new addition, states that Al-Azhar is an independent Islamic institution whose role includes promoting Islam and the Arabic language in Egypt and the world. More controversially, it states that the opinion of Al-Azhar’s Council of Grand Clerics is to be adopted on all matters relating to Islamic Sharia.
Article 4, say non Islamists, was included solely because it can be used to impose Wahhabi-style Islam. Sooner or later, warns Qillini, Al-Azhar will fall under the control of the Muslim Brotherhood and its Salafi allies, and its grand clerics will be selected from those who espouse an extremist Wahhabi ideology.
Articles 2, 4 and 219, says Abdel-Meguid, were designed to marginalise modern interpretations of Islam and of Sharia. “These religious articles, which will allow extremists a monopoly over interpretations of Islam, ultimately seek to transform Egypt into a radical Islamist state.”
Following the ouster of Hosni Mubarak, Abdel-Meguid continues, the Muslim Brotherhood’s sole focus was to engineer its dominance of the constitution-drafting process so that it could force through articles 2, 4 and 219.
“These articles are the foundation of the Brotherhood’s grand scheme, which is to turn Egypt from a moderate Muslim country into an Islamist emirate.”

Article 6 overturns Hosni Mubarak’s 2007 constitutional amendments which placed a clearcut ban on political parties based on religion. No political party shall be formed that discriminates on the basis of gender, origin or religion.
Abdel-Meguid argues that “in tandem with article 2, 4 and 219, Article 6 opens the door to religious parties or parties mixing religion with politics. This serves the religious agenda of the Muslim Brotherhood and Salafis whose parties were founded on a religio-political mix.”

Chapter Two: Freedoms and Rights

Article 43 states that freedom of worship is guaranteed by the state, as is the right to freely build places of worship.
HRW notes that the article is limited to Sunni Muslims, Christians and Jews and therefore discriminates against the followers of all other religions.

Article 44 prohibits “directing insults to, or mocking, all prophets and messengers of God”.
This article, for which the Salafis pressed hard, can be used to undermine freedom of expression and negate any interpretation of Islamic principles that hardliners refuse on the grounds that such interpretations represent “an insult to prophets”.
“We should remember,” says Abdel-Meguid, “that late Egyptian Nobel laureate Naguib Mahfouz was stabbed in the neck by an Islamist extremist in 1998 after he was accused by Salafis of writing novels that direct insults to prophets and God.”
Article 44 is certain to be used to undermine freedom of expression and spread a climate of fear. Abdel-Meguid cites the case of Farag Fouda, assassinated in 1992 after he was falsely accused of insulting Prophet Mohamed and his companions.
“Fouda tried to introduce a new reading of Islamic history showing that some of Prophet Mohamed’s disciples exploited religion after his death to secure political gains and this resulted in bloody wars,” says Abdel-Meguid.
HRW says Article 31 of the Freedoms and Rights Chapter which states that individuals may not be insulted and Article 44 prohibiting the insulting of prophets violate human rights law and make it all but impossible to reform existing provisions in Egypt’s penal code that criminalise “insult” and defamation and which have been used for decades to persecute critics of the regime. HRW also notes that criminal prosecutions on charges of “insulting the president” and “insulting the judiciary” have increased since Morsi took office.

Article 48 states that freedom of the press, print, publication and other media outlets is guaranteed. Yet it goes on to stipulate that the message of the press and other media outlets is to serve society and respect the private lives of citizens and national security exigencies.
It was the text of Article 48, says Abdel-Meguid, that convinced him to leave the Constituent Assembly.
“The wording of the text appears deliberately vague. It makes press freedom hostage to ambiguous formulations such as serving society and preserving the basic foundations of the state. Such textual ambiguity means the article can be used by the ruling Islamists to halt the publication of anything critical of their ideology.”
“The article will give the Brotherhood and Salafis licence to close down newspapers and television channels that question their version of Islam.”

Chapter Three: General Authorities (System of Governance)

Chapter three contains more articles — 117 — than any other. It regulates the performance of legislative, executive and judicial authorities, local councils, the national defence council, the Armed Forces and military courts.
The Shura Council: Articles 128 to 132
The draft constitution retains the upper consultative house, the Shura Council, formed of 150 elected members and 10 presidential appointees. Articles 128 to 132 establish its mandate — granting it a consultative role in reviewing all legislation with the exception of fiscal laws which will remain the exclusive preserve of the House of Representatives.
“There was never any serious discussion about the Shura Council’s role in political life or how it might contribute to strengthening democracy,” says Abdel-Meguid. Instead, it received a rubber stamp of approval from the Constituent Assembly’s majority Islamists.
“The last Shura Council elections [in February] were boycotted by the vast majority of Egyptians. Only the Islamist parties mobilised for them. They want to retain the council because it can be used to manipulate political and parliamentary life.”
“Since it was elected last February the Shura Council has been utilised by the Muslim Brotherhood and Salafis to praise President Morsi’s sweeping decrees and undemocratic practices,” says Wafd Party member Mohamed Abdel-Alim Dawoud. “They have also exploited the council’s ownership of the national press to manipulate state-owned newspapers in favour of the Muslim Brotherhood’s agenda. In a session held on 25 November the Islamists exploited their majority on the council to launch scathing attack against secularists and liberals simply because they opposed Morsi’s power grab.”
The Brotherhood and Salafis won their command of the Shura Council on a voter turnout of less than 6.5 per cent. The spectacularly low turnout was a reflection of public frustration with an institution derided as a talking shop and that had been systematically used by Mubarak’s NDP to stymie democratisation: having replaced the NDP on the council the Islamists are now determined to preserve it, says Dawoud, and use it in exactly the same way as the Mubarak regime. “It will remain an undemocratic tool that makes zero positive contribution to political life.”
“Morsi did not place the Shura Council beyond any judicial ruling in his 22 November constitutional decree to protect democracy or to defend the legitimacy of elected bodies as he and the Muslim Brotherhood claim,” says Dawoud. “The Shura Council given immunity from judicial review because, dominated as it is by Islamists, it can be used as an undemocratic tool. It is no coincidence that the Shura Council is headed by Morsi’s son-in-law.”
If you want to know how the Shura Council will be used, says Ziad Bahaaeddin, a member of the liberal Free Egyptian Democratic Party, “simply look at its history”.
“It was created by Sadat in 1980 to use as a tool to impose his control over the national press. It has long been discredited in the public’s eyes and will remain.”

The Executive Authority, the President of the Republic: Articles 132 to 154
Islamists on the Constituent Assembly have repeatedly asserted that the draft constitution creates a more balanced system of government by abolishing the  draconian powers granted to the president in the 1971 constitution.
Minister of State for Parliamentary and Legal Affairs Mohamed Mahsoub claims the new constitution strips the presidency of 75 per cent of its powers. Under the mixed parliamentary-presidential system proposed, he argues, the president will share power with the prime minister (Article 140) meaning there is no need for a vice president.

Article 153, Mahsoub stresses, allows “the prime minister to take over if the president dies, resigns or is otherwise prevented from performing his duties”. Under Article 146 the president will need to obtain the approval of the national defence council before declaring war or ordering the Armed Forces into foreign territory. Under Article 139 the president names the prime minister but should the president’s nominee fail to win the confidence of parliament it will be up to the upper house — ie the Shura Council — to name an alternative.
Mahsoub’s arguments that the president is being stripped of prerogatives have failed to convince professor of constitutional law Nour Farahat.
Farahat argues that the opposite is true, and the new constitution exempts the president from any form of accountability.
“Like Mubarak, Morsi will enjoy unchecked power and be free from any parliamentary oversight.”
Article 152 may allow for a charge of “grand treason” to be levelled against the president, but it will require the support of two thirds of parliament, something that is unimaginable, says Farahat.
“The same article about grand treason was a part of the 1971 constitution and not once was it ever whispered that it might be invoked for the simple reason parliaments were dominated by the NDP. Mubarak faced trial only after he was overthrown.”
“Under Mubarak’s constitutional amendments in 2007 it was stated that the president would share power with the prime minister,” points out Farahat. “Of course, it never happened.”
“Under Morsi and his Islamist parliamentary majority the prime minister will be Mr YES. Like his predecessors under Mubarak he will not dare say no to the president.”
“The new constitution keeps the Pharaonic presidential system intact,” says Farahat. Articles 132 to 199 make it clear the president formulates the general polices of the state and ultimately exercises authority over defence, national security and foreign policy. The president has complete authority over appointing and firing civilian and military officials, he appoints all diplomats and has the right, under Article 149, to issue an amnesty for any crime. Under the new constitution the president appoints members of the Supreme Constitutional Court (SCC) and the prosecutor-general (articles 173 and 176).
“The constitution was tailored by Islamist loyalists to give Morsi control of the SCC and prosecution-general,” says Farahat. “The goal is to allow the judicial authority to be manipulated by the Muslim Brotherhood.”
Farahat argues that having manoeuvred to impose its control on the state-owned press and the two houses of parliament, the Brotherhood will move in the wake of the new constitution to subjugate the judiciary and the independent press and media.
“Islamists also rejected calls for provincial governors to be elected,” says Farahat. The result is that governorships remain in the president’s gift.

Articles 199 and 202 allow the president to appoint all senior police officers and the heads of independent watchdog agencies. How they can be described as independent when they are part of the presidential patronage network is something Farahat cannot understand.
Under Article 145 any treaties the president signs must be ratified by the upper and lower houses of parliament. It states: “No international treaty that contradicts the provisions of this constitution shall be signed.”  
HRW had argued that the assembly should include a provision directly incorporating human rights, as defined by international treaties ratified by Egypt, into Egyptian law so as to provide a basis for amending domestic laws that restrict those rights.
Article 145 was included after intense pressure by Islamists, says Farahat, so they would have the option to reject any international treaty that does not fit in with their interpretation of Sharia.
“This article was worded under the Islamists’ direction to allow them to refute international treaties, not least those which promote gender equality or which seek to ban the marriage of girls under 18 years of age.”

Article 150 allows the president to call referendums on national security issues. The result of the referendum will be binding on all authorities. In cases where several issues are to be decided, a separate referendum will be held for each.
Farahat stresses that the article was copied from the 1971 constitution (Article 152). It was exploited by Sadat to lend a spurious legitimacy to his decisions. In 1979 Sadat called a referendum to decide the fate of the People’s Assembly. The result? A 99 per cent vote in favour of dissolution. Sadat then used the unbelievable results to rid parliament of critics of the Egyptian-Israeli peace treaty. Morsi could do the same, says Farahat, exploiting referendums to get rid of his critics under the banner of protecting national security. Morsi claimed his recent constitutional declaration was necessary to foil a conspiracy against him.

Military trials, Article 198
During the Constituent Assembly’s 29 November midnight debate Islamist members, egged on by the army’s representatives, approved Article 198 which states that “civilians may not be tried before military courts except for crimes that harm the Armed Forces and which will be defined by law.”
HRW charges that the final draft of the constitution backtracks on drafts that were on the table as recently as 11 November. One stated: “No civilian shall be tried before the military justice system.” HRW underlines that assembly members deleted the article after military justice officials filed an objection. By failing to remove civilians from the military justice system Article 198 of the final draft leaves the door open to the same widespread abuses committed by the Mubarak regime and under military rule.

Chapter Four: Independent authorities and watchdog institutions

Articles 215 and 216 regulate the performance of the media. Article 215 states that “a national media council will be set up to regulate audio-visual broadcasts, print, digital media and others
“The council will be tasked with guaranteeing freedom of all forms of media, ensuring diversity... and preserving the public interest”  
The council is also mandated to ensure the media observes professional ethics and does not contravene the values of Egyptian society.
Article 216 establishes a national press and media authority that will take charge of running the affairs of state-owned media and press organisations and maximising returns on their assets.
The Press Syndicate opposed the two articles on the grounds that they placed press organisations under the control of a national council appointed by the president and whose members would all be ruling party loyalists. The syndicate warned that the vaguely worded text could easily be employed to silence critics of Morsi’s regime.
“The article includes ambiguous statements such as observing the ethics of society and its constructive traditions. These will be used by the ruling Islamists to attack newspapers and other media outlets that espouse secular or liberal idea under the allegation that they violate the ethics of Egyptian society,” says Gamal Fahmi, a member of the Press Syndicate board.

Chapter Five: Transitional and Final Rules

Articles 217 and 218 give the president and the House of Representatives the right to amend one or more articles of the constitution.
The two articles, says Farahat, give whoever has a majority in the House of Representatives the upper hand in amending the constitution.
“It is not hard to foresee how an Islamist president and parliament will use this right to tighten their grip on power,” he says.

Article 224 allows for future elections to the House of Representatives and Shura Council to be held under a hybrid individual and party-list system or under either one of the two systems “as defined by the law”.
The article, says former MP Bahaaeddin, is a direct challenge to the SCC’s earlier ruling that elections to the People’s Assembly were unconstitutional because the regulations discriminated against independent candidates.
“I think if a mixed system was adopted, the upcoming parliamentary election would be boycotted by all the secular parties,” says Bahaaeddin.

Article 228 establishes a higher electoral commission to oversee parliamentary elections.
By failing to insist on full judicial supervision of polls, says Bahaaeddin, the article repeats the errors of 2007, when full judicial supervision was cancelled and the subsequent election, in 2010, was blatantly rigged by the ruling party, aided and abetted by the Interior Ministry.

Article 231 states that upcoming parliamentary elections will be held under a mixed individual and party-list system.
While the system, which was ruled unconstitutional by the SCC last June, reserved two thirds of seats for party-based candidates and a third for independent candidates, it actually allowed party affiliated candidates to run as independents.
The SCC ruled against the electoral system on the grounds that it discriminated against independent candidates and prevented a diversity of political forces from gaining parliamentary representation. “The system,” the SCC said last June, “makes it easy for a single force to dominate political life”.

Article 232 strips senior officials of Mubarak’s defunct NDP of exercising political activities and standing in parliamentary and presidential elections for a period of 10 years. The ban will be imposed once the constitution is ratified. It defines NDP senior officials as members of the NDP’s secretariat-general, its policies committee (led by Mubarak’s son Gamal), its politburo, or any NDP representative in either of the two houses of parliament — the People’s Assembly and Shura Council — since 2000.
Revolutionary movements, which repeatedly called for NDP bigwigs to be barred from political activity, now argue that this article is intended solely to allow the Muslim Brotherhood and its allies to dominate political and parliamentary life.
It is, says Mustafa El-Said, a former economy minister and NDP official, motivated by revenge.
“When the NDP dominated political life it never attempted to amend the constitution to disenfranchise the Muslim Brotherhood. The group was allowed to run in the 2000 and 2005 elections and their numbers in parliament increased from 17 to 88.”

add comment

  • follow us on