Towards a New and Democratic Constitution for the Egyptian people

August 28th, 2012 by Editor

As participants in EOHR’s Conference “Towards a New and Democratic Constitution,” members of Parliament, professors of political science and constitutional law, and representatives of various political parties collectively called for the re-election of Constitutional Assembly members in such a fashion that all aspects of Egyptian society be represented.  As it stands, the Constitutional Assembly was found inadequate in its representation of the various ideological, political, cultural, and socio-economic interests of the Egyptian people. 

          Participants of the Conference also urged that the identity of the Egyptian State be recognized as a democratic, civilian state – built upon the modern principles of citizenship and nationhood.   Conference attendees also concluded that the most appropriate political system for the Egyptian State is that of a mixed presidential-parliamentary system.  These conclusions were drawn by participants of the Conference on August 28th, the first day of EOHR’s two-day Conference held at the Pyramisa Hotel in Dokki.

          Mr. Hafez Abo Seada, President of EOHR, reiterated on his behalf the importance of this post-revolutionary phase and stresses the vital nature of instating constitutional mechanisms for the insurance of democracy, sound state institutions, and the rule of law.  Mr. Seada calls for an inclusive and comprehensive effort in creating a modern constitution by the people, and for the people.

          Moreover, Mr. Seada calls for the creation of a constitution that will incorporate a comprehensive body of rights and freedoms unlimited by the encroachment of restrictions.  Mr. Seada also emphasizes the importance of insuring the implementation of those rights, as well as a guarantee of judicial autonomy, both officially and in practice.

          Furthermore, Dr. Mohamed Faeq, Chairman of the National Committee for Human Rights and former Minister of Media, explained that the Constitution is an integral contract upon which the relationship between the individual and the state is built.  That relationship, he continues to explain, should not be one of exclusive sovereignty, but a relationship characterized by individual inclusion and social cohesion.

 Dr. Faeq also emphasized the notion that the Constitution should guarantee all of the basic and essential rights of the individual, including but not limited to the individual’s various socio-economic rights.  Dr. Faeq urges that these rights not be ignored as they are the very basis of a democratic society.  For democracy, he continues, is a system of inclusion and cooperation, and not merely a system ruled by the majority.  Dr. Faeq expressed his concern, and urges the Constitutional Assembly to enshrine the principles of international human rights as well as those upheld by the nation’s recent revolution.

          Dr. Yahya El-Gamal, Professor of constitutional law at the University of Cairo and former Vice President of the Cabinet of Ministers, stated that the creation of the Constitutional Assembly stood in legal defect as it remains dominated by a particular political current.   Dr. El-Gamal further emphasizes that constitutions should be created with the long term well being of the state in mind, and not short-sighted by current and narrow political interests.  He states that we must keep this in mind because once written, constitutions are only changed by being dissolved, often via revolutions.  In this regard, Dr. El-Gamal also reiterated the urgency of maintaining the secularity of the state whereas religion and faith are general and open while political systems should be fluctuating and responsive to the changing standards and ideals of society. 

          The constitutional scholar also emphasized the notion that the constitution should remain all inclusive, representing and protecting all members of society.  Furthermore, he requests that the members of the Constitutional Assembly discuss in adequate measures the tenants of the new Constitution before it is subject to referendum.

          During the first session, titled “The New Constitution: Hopes and Aspirations,” Dr. Fouad Abdel Moniem Riyad,  Professor of International Law at Cairo University, requested that the Constitution be representative of Egypt’s citizens and not be misused by any single group or political current.  Dr. Riyad also urged for the texts of the constitution to not be ineffectively vague, and requested that essential principles, like the right of equality and non-discrimination, as well as the various human rights enshrined by the numerous international conventions.  Dr. Riyad also called for the issuance of a system of checks-and-balances between the branches of government established in such a way that no single branch have excessive power over another.  Dr. Riyad also suggested that arbitration over the distribution of powers, as enshrined by the Constitution, be left to the Judicial branch.   Furthermore, Dr. Riyad supported the electoral quota as regards the Parliamentary representation of farmers and industrial workers.

          Dr. Magdy Qarqar, former member of the People’s Assembly and the Secretary General of the New Labor Party, urged that the Constitution be written with foresight and with long-term stability in mind.  Dr. Qarar also noted that the Constitution also ensure the social, political, and economic rights of the individual, establish mechanisms for its effective realization,  and take into consideration the interests of the youth and Egypt’s farmers and industrial workers.  The Constitution, he continues to explain, goes back to the people and is not the exclusive right of the Constitutional Assembly. 

Furthermore, Mr. Farouk El Ashry, writer and political analyst, requested that the Constitution embody necessary specifications and mechanisms towards the guarantee of a modern civilian state, built upon the principles of nationhood and citizenship.  Mr. El Ashry also requested that the Constitution include the specifications for a more suitable economic system for Egypt that will hopefully address Egypt’s socio-economic disparities.

Dr. El Ashry also emphasized the importance of incorporating specifications and regulations on the nature of declaring a State of Emergency and thereby subjecting that declaration to a public referendum.  Dr. El Ashry also advocated that the role of the Prime Minister exceed a mere secretarial role to the President.  He also advocated for the separation of powers and supported a more specific description of who qualifies as a farmer and industrial worker as regards the Constitution’s 50 percent quota.  

Dr. Gaber Nassar, professor of constitutional law at Cairo University, explained that the executive branch still maintains excessive control over the judicial branch as is demonstrated by the current intent to abolish of the Constitutional Supreme Court which Dr. Nassar strongly condemned.  The Constitutional Supreme Court, Dr. Nassar continues, is a necessary safeguard for the monitoring of the Constitution.  Dr. Nassar also called for the complete autonomy of the judicial branch with specified guarantees for the rights and freedoms of the individual as well as the inclusion of a comprehensive vision for the Constitution.  Moreover, Dr. Nassar denounced the legislative reference to the Azhar Institute as a violation of judicial autonomy, and sternly warned against the vagueness of executive rule in fear of a return back to dictatorial practices.

          On his behalf, Dr. Gamal Gibril, Head of the Constitutional Law Department of Helwan University, stated that the Administrative Court has actively transgressed its boundaries and politicized the Constitutional Assembly, thereby eradicating the legal objectivity of the Constitutional Supreme Court and resulting in the unrestricted jurisdiction of the military courts.  Furthermore, Dr. Gibril emphasized the importance of the right to potable water as a necessary text within the Egyptian Constitution as it has been previously neglected. 

          The second session, titled “Establishing the Identity of the State,” included the speech of Mr. Abdullah Khalil, Cassation Attorney. Mr. Khalil expressed his view that Egypt, as a unified nation, must be safeguarded against social sectarian partition.  As such, he continues, Egypt is a democratic State governed by the rule of law with its Constitution as the supreme law of the land.  Furthermore, Mr. Khalil demands that the Constitution be written in such a manner that all state bodies be subjected to its sovereignty and that it enshrine the fundamental freedoms and rights of Egypt’s citizens, preserve the dignity of Egypt’s citizens, and promote the social and economic rights of Egypt’s citizens. Mr. Khalil also urges the promotion and protection of cultural and intellectual pluralism as well as a Constitution that will embrace ethnic and linguistic diversity thereby upholding the tenants of a pluralistic and democratic society.

As session commentator, Mr. George Eshak, Member of the National Council of Human Rights, affirmed that President Mohamed Morsi has a clear responsibility to reform the National Constitutional Assembly as promised.  This responsibility, Mr. Eshak said, resides alongside the Assembly’s obligation towards the incorporation of international human rights standards into the nation’s new Constitution. In this regard Mr. Eshak adequately referenced the Constitution of Dr. Mohamed Helmy and the Constitutional Draft of 1954 as essential sources from which the new Egyptian Constitution may draw upon.

On his behalf, Dr. Emad Gad, AL-Ahram Centre for Political and Strategic Studies Scholar, asserted that the identity of the state, in the least, consists of a number social classes and faction and that these varying parties must be considered in the drafting of the nation’s Constitution. 

The third session, entitled “Form of State Governance” was headed by Dr. Hassan Nafaa, Professor of Political Science at Cairo University, who sternly warned against any constitutional text that might enable the recurrence of the dictatorial practices of the previous regime. Specifically, Dr. Nafaa explained that an essential problem with constitutional texts is not the type of governmental system that they describe, be the system presidential or parliamentarian, but that the problem area often lies within the implementation of that text. 

Furthermore, Mr. Ahmed Abdel-Hafeez, Vice President of the Egyptian organization for Human Rights, urged for the inclusion of a clear system of checks-and-balance within the text of the new Constitution.  Mr. Hafeez also suggested that specifications be put in place for the process and conditions of amending articles of the Constitution, and that those rules should be of such a manner that no specific branch be given excessive powers during the process of amendment, and that the people should themselves be an active participant in any such action, be it through referendum or other form. Moreover, Mr. Hafeez also stated that, based on a historical survey of Egypt’s constitutional experiments, a semi-presidential system may be the most suitable system of governance that can be adopted by the new Constitution.

Finally, Dr. Gamal Zahran, former Member of the People’s Assembly and Professor of Political Science at the Suez Canal University, called for the judicial oversight of all electoral affairs and requested that an electoral system be put in place that would adequately represent all factions of Egyptian society.  Gravely, Dr. Zahran also expressed his concern towards the lack of transparency with which the Constitutional Assembly is currently conducting its affairs and calls for increased transparency and public accountability as regards the drafting of the nation’s Constitution.   

 

called for giving all the legal issues related to election to courts, in addition to drafting an electoral system for all the Egyptian groups. The activities of the National constitutional assembly should not be hidden. Even the highly cultured people do not know what is going on during the constitutional drafting sessions.

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