May 26, 2005
– Egypt is in need of a comprehensive societal dialogue to arrive at a new social contract;
– The current Constitution is neither presidential nor parliamentary. It rather consecrates almost a despotic monarchy;
– Polling parties, trade-unions, the judiciary, intellectuals, thinkers and civil society associations on a new human-rights-based draft constitution;
– The new constitution makes of Egypt a democratic parliamentary republic, grants the judiciary total independence and provides for decentralized local governance.
Celebrating the golden jubilee of the 1954 draft constitution, the Cairo Institute for Human Rights Studies (CIHRS) organized a workshop entitled “Toward a New Egyptian Constitution” from May 23-25, 2005, Cairo. The workshop was organized in cooperation with the International Federation of Human Rights (FIDH), the Euro-Mediterranean Human Rights Network (EMHRN) with the support of the European Commission (EC) and the Swedish Agency for International development (SIDA). Participants in the workshop included experts in constitutional law, judges, human rights advocates, representatives of political parties in addition to legal experts and academics from Syria, Bahrain, Morocco, Sudan, Palestine, Iraq and Tunisia. The workshop aimed at exploring main issues relating to the process of constitutional reform, which represents one of the most important elements of transition toward having a democracy in Egypt and other Arab countries. Constitutional reform is the springboard for any comprehensive political reform, and hence it was an essential part of all recent serious reform initiatives by various civil and political actors and forces.
Participants in the workshop agreed that the current Constitution has become an obstacle in the way of fulfilling the aspirations of the Egyptian people with regard to political, economic, social, cultural and spiritual development. Although the current Constitution adopts a presidential republican regime, it has actually contributed to the consecration of an almost despotic monarchy. Participants stressed that writing a constitution is a long-term strategic process requiring arriving at a new social contract and societal accord. The latter can not be achieved except through meaningful and inclusive dialogue and communication between various political currents. It also requires struggling toward changing the prevalent balance of power that does not in fact allow for more than partial distorted adjustments similar to the recent amendment of the current Constitution.
Participants in the workshop preferred having a parliamentary republic as it is a more realistic option. They stressed the need to depart strongly from despotic traditions of the Presidential regime in Egypt, and to replace the current regime, where the President of the State monopolizes most jurisdictions and powers, with a parliamentary system based on a strong legislative authority and independent judiciary, where the executive branch reports to people’s representatives and delegates and independent judiciary. Such a parliamentary system would safeguard the development of partisan plurality. Some participants proposed the establishment of a special platform to call for changing Egypt into a parliamentary republic, and the proposal was agreed upon by a large number of other participants.
Furthermore, the workshop dealt with the problematic relation between religion and the state in the framework of constitutional reform. Some held the opinion that having Islam as the State’s official religion and source of legislation threatens the neutrality that should characterize the constitution in relation to different categories of the society. It does also undermine citizenship and the principle of equality of citizens. Nevertheless, some holders of this opinion agreed that changing article 2 that holds that principles of Islam are the main source of legalization seems unattainable in the short run because of internal pressures on the part of the official religious institution, Muslim brethren groups, a prominent group in the NDP and some members of opposition parties. Hence, those calling for changing article 2 are limited to leftists, liberals, Copts and human rights NGOs. Others held that stipulating that Egypt is a Muslim country and that principles of Islam are the main source of legalization does not conflict with establishing a democratic society and safeguarding individuals’ freedoms and rights. A third opinion attempted to reconcile both opinions by suggesting that the constitution should stipulate that Islam is the religion of the majority of Egyptians while respecting rights of other religious categories in the exercise of their religion, rituals and culture without discrimination.
A large number of participants suggested that constitutional reform include having all courts subject to a higher body to monitor the constitutionality of laws, sound application of laws in all civil, criminal and administrative disputes including deciding challenges to elections.
Advantages of the 1954 draft constitution
The 1954 constitution was drafted by prominent politicians and legal experts upon the demand of the leaders of the 1952 revolution. However, the constitution never saw the light of the day. Participants in the workshop considered this draft constitution a springboard for any comprehensive constitutional reform as it includes a comprehensive vision arrived at by representatives of main contemporary political and intellectual currents. It also includes the minimum criteria for reform that go beyond partial constitutional patching. The draft constitution remedies the majority of problems depicted in later constitutions, including the existing constitution, in particular problems relating to separation of powers and the sweeping authority of the executive branch over the State and society. Furthermore, the 1954 draft constitution safeguards and protects Egyptians’ rights and fundamental freedoms. It is highly accurate in a way that withstands misinterpretation of its provisions.
Within this framework, a draft constitution prepared by well-known political historian and thinker Salah Eissa based on the 1954 draft constitution was proposed for discussion. It met with the approval of participants, who called for conducting a survey of opinion, in a different way, of civil and political groups and trade unions on the new draft constitution, based on the 1954 draft constitution. The following are the main features of the suggested draft constitution:
1- A democratic/parliamentary republic:
The draft Constitution adopts a parliamentary republic regime under which the Head of the State shall not combine the presidency of the State with the presidency of the executive branch. It stipulates that: “The President of the State exercises power through ministers. People are the source of all authorities. Hence, the parliament, freely elected shall consist of a house of representatives and a senate. It shall exercise a legislative function. No law shall be enacted unless approved by the Parliament. The Parliament shall also exercise a financial function, i.e. discussing the budget and final accounting, in addition to exercising a political and monitoring function.
According to the draft proposal, the actual executive authority is transferred to the cabinet that is affiliated and reports to the Parliament. The cabinet shall not undertake its tasks except after winning a vote of confidence from the Parliament first, and shall cease its responsibilities if it loses such confidence.
2- Independence of the Judiciary:
According to the draft constitution, the Supreme Judicial Council is competent to appoint, promote, transfer, assign and discipline judges, and the Prosecutor is immune from any intervention on the part of the executive authority. The Supreme Constitutional Court is granted exclusive jurisdiction over disputes relating to the constitutionality of laws and decrees that have the force of law. It is also competent to decide disputes between various state authorities with regard to application of the Constitution, interpretation of its provisions and legislative provisions relating to courts and the State Council in addition to deciding disputes of concurrent jurisdiction.
The new draft constitution allows individuals and authorities to bring action before the Constitutional Court. The draft Constitution also adds to the jurisdictions of the Constitutional Court highly important functions, namely regulating the relation between authorities, judicial review, trying the head of the state and ministers and deciding disputes relating to political groups and parties in case they deviate from general conditions laid down for their establishment. The Constitutional Court shall also have exclusive jurisdiction over deciding validity of or dropping membership in the parliament. This is meant to prevent misuse of parliamentarian majority to cancel membership of opposition representatives.
3- Rights and Public Freedoms:
The draft Constitution is characterized by complementarity of civil and political rights on the one hand and economic, social and cultural rights on the other. It safeguards equal rights and obligations of Egyptians and prohibits discrimination on grounds of origin or language or religion or creed or political or social beliefs. It also safeguards the right to nationality and prohibits abrogation of citizenship while affirming the right to movement, personal freedom and safety, private life, freedom of religion, suffrage, assembly and association. Everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. It prohibits trying civilians before military courts. According to the draft constitution as well, the accused shall not be subjected to moral or physical harm, and prisoners shall not be subject to any inhuman or degrading treatment or health-threatening practices. Violators of such provision shall be held accountable.
The draft Constitution also provides for freedom of opinion, scientific research and expression through speech, writing or through photography, audio and visual means or any other media. It provides for the freedom of press, printing and publication, prohibits any restriction thereof and safeguards that radio and television and state-owned journalistic institutions be independent of the executive branch and all parties. It also provides for the right of peaceful assembly and participation in public demonstrations and protests. It stipulates that: “Egyptians shall have the right through peaceful means to form, without prior notification or authorization, peaceful associations and parties. ”
The draft constitution provides for further constitutional guarantees to protect public rights and freedoms against excesses of the executive authority during enactment of rights-regulating laws or amendment of the Constitution. It asserts that “where legislators are allowed by the Constitution to restrict any of the public rights therein, this shall not undermine such rights in principle.” It also stipulates that: “It is impermissible to suggest amendment of provisions relating to freedom and equality safeguarded by the Constitution or relating to the parliamentary representative republic form of government.”
Legislators restricted the declaration of emergencies and endowed the Parliament with the power to restrict or cancel all or some of the competences granted to the government to be exercised under judicial review. However, the government shall not at any case be exempted from ensuing responsibility.
At the level of economic and social rights, the State is obliged under legislation to guarantee freedom and equal opportunities for all citizens and provide them an adequate standard of living including food, habitat, health-related, cultural and social services. Employment is a right to be provided by the State to all capable citizens on a basis of equal opportunities according to the law. Legislation also provided for private property on the condition that “free economic activities shall not be detrimental to social welfare nor shall they violate or threaten the security, privacy or dignity of the people.” Law shall monitor the social function of private property. The right to form associations and trade union and the right to strike shall also be safeguarded by the law.
4- Democratic Local governance
The draft Constitution adopts decentralized local governance and calls for expanding the competences of local bodies. It approves the idea of having, in governorates, cities and villages, elected local councils to elect in turn governors, heads of cities, districts and villages. This is contrary to the current situation where governors and heads of cities and districts are part of the executive authority. Such elected local councils shall manage facilities and economic, social, cultural and health-related activities within their districts. They shall also attend to the interests of groups and individuals, safeguards public rights and freedoms and take part in electoral affairs and local security.
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