Wide Rejection of the Constitutional Draft in Egypt

By Hamdi Hassan

The Constitutional Assembly had a landmark opportunity to lay the groundwork for representing human rights in tomorrow’s Egypt, but its current draft fails to meet that standard because of vague language or limitations that destroy the essence of many rights. The “draft of the new constitution” has also deepened the conflict between the Islamists and the varieties of Liberal and Leftist forces in the country. The political landscape is as polarized as ever: we have the Islamists who are accused of not being able rule a country that needs to pass a difficult and messy transitional phase. We have also the Liberals and Leftist groups who are accused of lacking the ability to organize and therefore the capacity to rule.

At first sight one observes that the text lacks the legal precision and the rigor that entails of a constitution, given the fact that constitutional language is fundamentally different from legal, political or, for that matter, any ordinary language.
The flexibility and agility of the language were severely criticized by legal scholars. Gaber Nassar, a Professor of Constitutional Law, who is also a member of the CA, has criticized Islamist groups of showing “something not finished and does not look like a constitution”. Nassar claims that the draft should be written in a rigorous and precise language that clarifies and guides the structure and content of the “Law of the Land”.

For all focus on religion, the drafted constitution actually curtails religious freedom, extending the right to establish places of warship only to the Abrahamic religions – Islam, Christianity and Judaism – while discriminating against the country’s other religions, such as the Shi’a and Baha’i. It also provides no guarantee that citizens will be protected from gender, income or class discrimination.

Few days ago, a press conference was held by 29 liberal and leftist parties announcing they will demonstrate next Friday under the slogan “Egypt is not a small country farm”, to voice their reject that “one political group monopolizing the process of constitution building”. Prominent opposition leaders announced that they will participate on Friday demonstrations, such as Mohamed ElBaradei and Hamdeen Sabahi, leader of the leftist coalition “Popular Trend”.

Below are some of the issues that were taken up by the critics of the “draft” and the Constitutional Assembly:

1. Human rights activists are appalled by the fact that Egypt’s constitution after the revolution does not mention the word “torture”, but instead refers only to the lesser formulation of “physical harm.” Article 5 fails to clearly prohibit torture, but only prohibits “lesser forms of physical or psychological harms”. Crimes of torture remain rampant in Egypt as the Penal Code does not fully criminalize torture. This makes it difficult to prosecute police for torture that occurred in the Mubarak era. Failing to fully prohibit torture is especially surprising given the fact that anger against police abuse played a central role in the Egyptian Revolution. Such a provision would in particular endanger the Egypt’s Shia Muslims who hold different interpretations than the majority Sunnis regarding to issues essential to how the history of Islam is interpreted , some of which regarding the “rightly guided caliphs.”
2. Surprisingly, the Salafis reject the draft of the constitution for other reason than those of the liberal and leftist groups; they wish to include more enhanced mechanisms for development and application of Sharia. A prominent Salafi preacher, Yasser Borhami, stated that the draft constitution «does not reflect what has been agreed upon in the CA committees, and does not represent the first reading of the draft of the constitution”. He said further that « many of the draft proposals were neglected, which will not make them give up, such as the interpretation of the principles of Sharia, which includes the foundations of jurisprudence that are considered consensual by the Sunnis.
   Some prominent Salafis within the CA argue that such a provision would halt the spread of Shi’ism in Egypt and put an end to attempts to build special worship-houses (called Husseiniyas). The official religious institution Al-Azhar representative to the Assembly said it very clear they will “resist the spread of Shi’ism, which harms God and his Prophet.”
3. Another source of controversy, and perhaps the most significant one in terms of the future of human rights legislation in Egypt, is the proposal many Salafi members of the CA are currently pushing on: i.e., establishing the religious institution Al-Azhar as the sole body authorized to interpret Sharia, which article 2 sets out as the main source of legislation, and granting Al-Azhar a vetting role to certify the consistency of all legislation with Sharia. If article 4 is included in the final draft it will effectively create a legislative scrutinizing role for an unelected, unaccountable body with no recourse to judicial review. Al-Azhar and together with the Salafis has an appalling history of harassing intellectuals and writers, that was so intensive during the 1990s.
4. The articles on education (23, 24 & 27) are indicative of the CA’s efforts to create an authoritarian state, which disciplines and shapes its citizens, in this case, through education. Education in this draft constitution is highly regulated by the state, which directs every aspect of the educational process, dismissing creative bottom-up initiatives. The aim is to create model citizens who abide by a predetermined, exclusionary conception of citizenship. By doing so, the assembly is producing a document that massacres Egypt’s pluralism and creative minds.
5. Article 24 of the draft constitution specifies that “religious education and Arabic language are two basic courses in education curricula of all types and in all stages.” It further adds that “the state should work to ‘Arabize’ sciences and knowledge in preparation for ‘Arabizing’ the process of education in all stages”.
   The attempt to insert a mandatory form of ethical preaching — referred to above as “religious education” — at the university level emanates from a desire to have citizens besieged with certain official values and ethics that are promoted using public money to herd people into a predetermined type of identity, rather than celebrate diversity and encourage creativity.
6. According to Article 184 of the new draft, the Supreme Constitutional Court would only be allowed to scrutinize proposed bills before they are passed by the People's Assembly. Legal experts believe the provision is at odds with the court’s primary role of ruling on the constitutionality of laws. The court was subjected to severe criticism after it ruled in June that the Islamist-led People's Assembly should be dissolved because a law governing its election was unconstitutional. Gaber Nassar, a member of the Constituent Assembly, accuses Islamists within the CA of looking for revenge on the court and they are using the constitution-writing process to settle old scores. Moreover, the head of the court, Maher al-Beheiry, issued a statement depicting the draft document is "a step backwards and a flagrant intervention in the court's affairs." He stated further that the SCC would remain in permanent session until amendments are made to stop provisions that "endanger the court’s independence."
7. The troubled assembly still faces the risk of dissolution by court order on the grounds that it was drawn up by the now dissolved People's Assembly, the lower house of Egypt's Parliament. In October, Egypt's Supreme Administrative Court is set to rule on the assembly's constitutionality, or lack thereof. It is reported that the Court waited to scrutinize how the draft defines its authority and mandate before issuing a decision on the very existence of the CA! Like the SCC, the new draft presented an outline that significantly weakens the Supreme Administrative Court and, therefore, many believe that it is imminent that the court will issue a rule to dissolve the CA, thereby, sending the constitutional process back to square one.

Hamdi Hassan is a Senior Advisor, West Asia and North Africa Programme,

 International Institute for Democracy and Electoral Assistance