Egyptians from all walks of life and all corners of the nation rose up in the January 25, 2011, revolution to reclaim their freedom and the civil, political, economic, social, and cultural rights stolen from them for 30 years under Mubarak’s 1981 emergency law. Despite the wealth of the legislative system, Mubarak’s regime failed to combat systematic torture, and citizens suffered from abuse in detention centers, poor conditions in prisons, and even lost their lives, as occurred in the infamous case of young Khaled Saeed.
Amid deteriorating human rights and the regime’s efforts to obscure and prevent all avenues to peaceful change, the revolution emerged. It was founded on the principles of rights and freedom, so that Egypt could write a new constitution, the “constitution of the revolution.”
Upon the formation of the Constituent Assembly, social groups and political parties unanimously agreed on its dissolution due to its illegitimate formation. Furthermore, many feel that the composition of the assembly is imbalanced, as the percentage of Freedom and Justice Party and Nour Party members exceeds 50 percent. The Administrative Judicial Court ruled in April 2012 that members of parliament could not serve on the constitutional panel, suspending approximately 100 of its members. The ruling excluded any provision authorizing members of the Shura Council to participate in the assembly as well as the 22 members of the council who were appointed by the president, referring this matter to the Supreme Administrative Court, which in turn referred the case to the Supreme Constitutional Court.
“The constitution should be a social contract that values the basic components of a law-abiding state, respects human rights and freedoms, and reflects this vision in the formation of modern, democratic state institutions, for the benefit of all Egyptians.” – Hafez Aby Saeda, EOHR
Despite these objections, the council continued to draft a constitution and presented it for public discussion. Upon reading this draft, one finds that it fails to provide even the dimmest hope for the realization of Egyptian society’s aspirations. Specifically, there are six main issues with the draft, demonstrating its failure to meet the demands of the Egyptian people:
1. Under the expansive power granted to the president, this draft could in fact contribute to the creation of a new Egyptian pharaoh, allowing the president to appoint the prime minister and dissolve the parliament should he disapprove of government programs. In addition, the new constitution grants the president powers such as appointing members of the Supreme Constitutional Court, implementing a general state policy, and speaking before the parliament without accountability. These powers essentially reduce the government bodies to a “secretary” role for the president. Furthermore, the president has the right to choose the heads of the Egyptian intelligence, in addition to civil servants and military and political representatives.
2. The insistence on maintaining the Shura Council is another serious concern. The draft grants the council legislative power alongside the parliament, despite the fact that the president appointed a quarter of its members.
3. The draft does not draw from international charters of human rights and democratic constitutions on issues of general rights and freedom. Normally, transitioning democratic countries aim to respect human rights in a manner consistent with international charters and treaties, as was the case with Morocco’s new 2011 constitution, and Sudan’s transitional 2005 constitution. Both constitutions were written to guarantee the rights and freedoms contained in international human rights charters and treaties, and include them within the bill of rights and freedoms, giving these charters a constitutional value.
4. In the draft, rights and freedoms are deferred to the law, as was the case in the 1971 constitution. Therefore, laws can undermine these rights and freedoms, causing them to lose their constitutional value. The phrases “within the confines of the law” and “according to the law” are a direct infringement of the legislative power entrenched in constitutional law and are equivalent to shackles on the constitution and the individual. The draft does not recognize torture as a crime, nor does it mention its criminalization according to international human rights charters and conventions opposing torture. In addition, the draft detracts from women’s rights in a way that violates Egypt’s pledges to uphold international commitments regarding these issues.
5. The draft is an infringement on the Supreme Constitutional Court (SCC) and the law-abiding state because it gives the president the power to appoint the court’s head and its members, abandoning the principle of an independent judiciary. This imposition of power by the executive branch over another state power slights everything that the SCC fought for after the January 25th Revolution, including the right of the general assembly to appoint the head and members of the court.
6.The draft limits the court’s role in monitoring election law, demonstrating the partisan bias of the assembly toward the Freedom and Justice Party, who was the only party to approve it. Over 22 parties, among them the Constitution Party, the Popular Current, Egyptian democratic parties, the Free Egyptians party, independent unions, and rights associations announced their opposition to the draft and their intention to void it through popular disapproval.
“As we stood together to change the regime, we must remain united in order to produce a constitution that builds a law-abiding state.” – Hafez Aby Saeda, EOHR
The constitution should be a social contract that values the basic components of a law-abiding state, respects human rights and freedoms, and reflects this vision in the formation of modern, democratic state institutions, for the benefit of all Egyptians. With a shared desire to write a democratic Egyptian constitution that enjoys national support, human rights activists, representatives of political and social groups, professors of law and political science, and other figures have united in order to inaugurate the Egyptian Constitutional Front. This group is the equivalent of a popular constituent assembly, with a mandate to draft a democratic constitution for post-revolution Egypt which responds to the hopes of everyone, and represents a “constitution for all Egyptians.” The Egyptian Organization for Human Rights currently houses the headquarters of the Constitutional Front and the first gains were made when the Front put forth a list of rights and freedoms to be guaranteed in the new constitution. In accordance with the International Declaration of Human Rights that Egypt has ratified, the list is composed of two parts: the first concerning civil and political rights, and the second concerning economic, social, and cultural rights.
Drafting a constitution that meets the aspirations of the people requires a struggle on multiple fronts: judicial appeals; organizing those who demand a democratic constitution that meets the demands of the people to achieve goals in human rights and dignity; applying pressure on the president to restore balance in the Constituent Assembly; re-drafting a constitution that is agreed upon by all political groups and incorporates the principles agreed upon during the revolution, the most important being the balance of power by limiting the powers of the president; making all state institutions accountable; strengthening the independence of the courts; and respecting human rights and women’s rights.
As we stood together to change the regime, we must remain united in order to produce a constitution that builds a law-abiding state.
This post was originally published on FikraForum.org
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Hafez Abu Saeda is the head of the Egyptian Organization for Human Rights.