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The People Want the Fall of the Constitution
(Al-Sha‘b Yurid Isqat Al-Dustur)
[From Gurnal, Volume 1, Page 4]
Cairo: Despite the fact that the committee which the Supreme Council of the Armed Forces tasked with amending the current constitution has almost finished its work, it still faces widespread criticism, both on the political level and regarding rights themselves.
Many interested specialists in the legal field and constitutional matters have criticized the idea of amendments. These condemnations are directed at a number of issues. Among these criticisms are the sufficiency of modifying 5 articles, repealing only one, and not creating a new constitution, especially since the revolution overthrew the ruling regime and the existing constitution. Also, experts with ideological political leanings have joined the committee, and there are no women on it. Additionally, the current formation does not represent the political diversity of the country, and lawmakers from the old regime are even present on the committee itself. In accordance with the decision of the Supreme Council of the Armed Forces, the committee is made up of seven experts, headed by the consultant Tariq al-Bashari, the First Deputy to the former Chair of the Council of State. Also, there are Dr. ‘Atif al-Banna, Professor of Constitutional Law at Cairo University, Hatim Bigatu, Chief of Commissioners at the Constitutional Court and aide to the former Minister of Justice, Hassanayn ‘Abd al-‘Al, aide on legal matters to the Speaker of the People’s Assembly , the consultant Muhammad al-Shanawi, former Chief of the Court, Subhi Salih, former representative from the Muslim Brotherhood in the People’s Assembly, and Hussein Badarawi, aide to the Minister of Justice for Legislative Administration.
Following what is happening now in the constitution drafting committee from the sidelines, it is difficult for us to see through the haze and lack of clarity. [This is the case] because the committee itself is made up of members of the previous regime and their aides and has no female perspective on the issue of the constitution or rights. There are also no independent constitutional scholars from this society that do not belong to any political or non-political current, for example: Dr. Ahmad Kamal Abu al-Magd, the esteemed lawyer Isam al-Islambuli, Dr. Yahya al-Gamal, Dr. Muhammad Badran, and the consultant Tahani al-Gabali. It seems like the committee’s formation resembles the political spread of the representatives from the old regime with symbolic representation from the Muslim Brotherhood while other important national movements remain absent.
When discussing the creation of a new constitution, its formulation must agree with the current situation. Social necessity in relation to technological developments such as the emergence of Facebook and modern communications by mobile phone and e-mail, etc., demands this agreement. All of these things were not found in old constitutions, resulting in the underdevelopment from which many countries, among them Egypt, suffered. Now communication through technological means has become a fait accompli. It has no substitute; it is a human right which cannot be ignored. This is in addition to creative rights, which are the harbinger of the rise of peoples and spread of their cultures. Has the committee taken this problem into account or do the rights of communication, intellectual property, and creative rights remain outside of human necessity?
The history of revolution assures us of an important fact: revolution is the knowledge of change (not of replacement or rebuilding). The change for which we are calling is a total transformation of institutions and political structures within the country in order to establish a new order conforming with the spirit of the revolution. By changing or amending some of the articles in the constitution while preserving other parts of the text, one actually maintains the goals of the former regime which contradict the goals of the revolution. This creates a barrier in fulfilling the ambitions and aspirations of the general public.
As for the committee not having any women on it, it is completely unacceptable for half of society. It casts doubt on the future of democratic change in Egypt after the revolution and brings up questions regarding future participation, whereas the revolution aimed for freedom for all of society and not just limited sections. That does not mean to say that skepticism as regards the efficiency and integrity of the committee is a problem since it is headed by Tariq al-Bashari. This man’s history as far as professionalism, morality, and thoughtful contribution make him acceptable for everyone.
As for the amendments which will be made to the constitution, they are the same amendments upon which President Mubarak agreed before he left. They consist of five articles having to do with presidential term-limits, qualifications for candidacy, judicial monitoring of elections, the repeal of the article which permitted the president to declare a state of emergency, and referring citizens to military courts. The amendments are of little value and will not possibly lead to a democratic system, especially since the 25th of January Revolution overthrew and overrode the constitution. From there, it called for the proclamation of a new constitution. The amending of the constitution does not call for a voiding of the [the current constitution]. Amendments are what would happen under normal circumstances. However, following the success of the revolution, it is now necessary to completely repeal the constitution and create a new one in line with the demands of the next stage.
The biggest flaw in the constitution is that it gives the president broad authority and allows him to exercise hegemony over all other authorities. It is within his rights to dissolve parliament and head up the Supreme Councils for Judges and the Armed Forces and the police and appoint their leaders. He also appoints one-third of the Shura Council and ten members of the People’s Assembly.
The constitution does not distinguish between executive and legislative powers and affects the independence of judges. Amending the constitution is not enough. It does not fulfill the aspirations of the Egyptian people who rose in a revolution praised by the world’s leaders who even called for teaching lessons about the revolution in their schools. Therefore, it is only right to work toward a new constitution founding a democratic state.
We call for the implementing of a parliamentary constitution because that is closer to the spirit of the Egyptian people. We would then have a president with limited powers, a president of an elected government, and a strong parliament which monitors itself—along with power to hold votes of no-confidence when it makes mistakes or fails in its commitments and duties to the people.
Khalid Tal‘at
Appeals and Supreme Constitutional Attorney
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Acquired 8 March 2011.
Translated by Thomas Levi Thompson.
Translation reviewed by Elias Saba.
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