Last update: 2022-04-22 09:24:40
The parties and movements opposed to President Morsi consider that the new constitution establishes a new dictatorship. From a juridical point of view, is this fear justified?
The draft constitution maintains the general lines of the 1971 constitution and in particular the institutional framework established by the latter. The executive continues to be two-headed and the President must share his prerogatives with the Prime Minister. There is no longer a vice- President; in the case of temporary vacancy of the power it is the Prime Minister that takes over the
interim. The draft constitution takes away some powers from the President, of which Mubarak had abused and which had been an instrument of the authoritarian drift of his power. First of all, the number of mandates is now reduced to two and the length of the mandate is four years instead of six.
We know that thanks to the constitutional reform introduced by Sadat in 1980, which had suppressed the limitation of the number of mandates established by the 1971 constitution, Mubarak stayed in power for more than thirty years, and it was not excluded that he could stand for a sixth mandate when he was thrown out. Another instrument of the strengthening of Mubarak’s authoritarianism was the extension of the state of emergency for the whole duration of his presidency.
The draft constitution foresees that the state of emergency can be declared provided that the government be consulted and with the backing of the two chambers of the parliament, for a maximum period of six months, which can be extended only by referendum. The draft also limits the freedom of choice of the Prime Minister by the President. It in fact foresees that the President can appoint a Prime Minster only if the latter obtains the vote of confidence by the parliament. If his candidate is rejected he must propose a member of the majority party. If he is in turn rejected by the Assembly, the latter chooses a Prime Minister who forms his government. If his cabinet does not obtain parliament’s confidence, the latter is dissolved.
The Presidency exercises its power by means of the Prime Minister and the Government, except in matters of defence, national security and foreign policy, which are prerogatives reserved to him. He must put any decision to dissolve the chamber of deputies to a referendum and, should the people not vote in favour, he must resign. In order to stand for the presidential elections, each candidate must have the backing of at least twenty Members or 20,000 citizens. There are no longer any particular conditions for the candidates of the political parties. The draft foresees that President Morsi ends his ongoing mandate. As far as the Parliament is concerned, it remains bicameral and the powers of the high chamber are strengthened.
It is nonetheless true that the President maintains very important powers, both executive (for example the supreme command of the armed forces, regolamentary power, the definition of general state policy, the right to dissolve the Parliament, the calling of a referendum, the declaration of war, the appointment of civil and military officers, the promulgation of laws, the presidency of the national defence council, the appointment of ten members of the advisory council, convocation to parliamentary session, etc.), and legislative (initiative of legislation and constitutional amendments, right of veto, adoption of decree laws, etc.) and judiciary (he continues to appoint the procurator general, but on the basis of a list established by the Superior Council of the Magistrature).
The President is granted the power to nominate the presidents of the bodies of control and supervision set up for various contexts by the draft constitution, while the opposition considers that the statues of such organs should guarantee them total independence with respect to the executive power. Lastly, he is always politically irresponsible even if at a criminal level he answers to the charges of high treason before a court made up of magistrates and chaired by the president of the High Constitutional Court.
And what position is the army recognised?
As far as the army is concerned, another source of concern before the risks of an authoritarian drift, the constitution continues to take away its budget from the control of the parliament, but sets up a national defence council, in which civil and military sit at the same time and which will have the task of examining such budget. Unlike the drafts prepared by the army at the time when it exercised the power, no reference is foreseen to the likelihood of the army carrying out the role of guarantor of constitutional legitimacy. Nevertheless, the military have managed to get a provision introduced at the last minute authorising military justice to arraign civilians in cases of crimes aimed at harming the armed forces.
The article on the role of sharî‘a in the Egyptian legislation, which has remained unchanged, is more specified in the draft constitution by a successive article. What could these provisions entail from a legislative point of view?
The decision to keep article 2 of the 1971 constitution, according to which the principles of Islamic sharî‘a are the main source of the legislation and Islam is the religion of the state, is the result of a general consensus, even if the Salafis have on more then one occasion, but to no avail, attempted to change it to make ‘norms’ (
ahkâm) of
sharî‘a, and not of its principles (
mabâdi), or of the same Islamic
sharî‘a, the source of legislation. They would even have liked to proclaim that Egypt is an Islamic state (article 1) and that the sovereignty belongs to God (article 3), but they were not followed by the other members of the Constituent. Nevertheless they managed to include a new provision, article 219, aimed at defining the concept of ‘principles of Islamic
sharî‘a.
This article sets out very technical notions of theology and traditional Islamic law, the exact meaning of which can be understood only by a small number of initiates. It defines the principles of Islamic
sharî‘a as the scriptural sources
sharî‘a (
adillatuha al-kulliyya), that is the Koran and the sunna, the principles of
usûl and
fiqh (
al-qawâ‘id al-usûliyya wa al-fiqhiyya), that is the great principles to be drawn from the works of the specialists of the science of the sources of
fiqh (jurisprudence, Editor’s note) and by the answers of the jurisconsults, just as the sources recognised by the ‘people of the tradition and the community’ (
al-masâdir al-mu‛tabara fi madhâ’ib ahl al-sunna wa al-jamâ‛a).
While the exact reach of such provision is difficult to assess, it is clear that it aims at countering the modernist interpretation of article 2 adopted by the Constitutional Court. The latter had considered that only the absolute principles of
sharî‘a (
al-mabâdî al-qat ‘iyya al-thubût wa-l-dalâla), that is those having a well defined source and which are the subject of a consensus in relation to their meaning, are imposed on the legislator.
The other principles, relative ones, can evolve in time and space and the legislator enjoys wide power of interpretation to adapt them to contemporary Egyptian society. Article 219 obliges the interpreter to bear in mind all the opinions issued by the jurisconsults of the past, while the Constitutional Court did not consider itself tied to the previous interpretations and proceeded to its own
ijtihâd. It remains to be seen if the legislator and the Constitutional Court feel tied to this article. The fact that this adopts such a wide definition of the concept of ‘principles of
sharî‘a’ could in the end preserve the freedom of the interpreter, who will be able to make a choice between the principles and rules in force within the various schools, which are often very different or even contradictory.
There is also talk of having to consult al-Azhar on the questions concerning Islamic law…
As far as al-Azhar is concerned, the Council of the great
‘ulamâ’ must now be consulted on every question relative to article 2. But it gives a simple opinion, which the institutions involved (essentially the Parliament and the Constitutional Court) are free to follow or not. The Salafis would have liked to take away the contentious jurisdiction of article 2 from the High Constitutional Court to entrust it to al-Azhar, but this proposal was not adopted and the shaykh of al-Azhar himself was opposed to such an extension of his competences and an excessive politicisation of his university.
And how is article 44 to be interpreted, when it makes explicit reference to blasphemy?
In fact every insult or attack against the prophets and God’s messengers is now prohibited (just as any insult against a human being) and it will be the legislator’s job to define the concept and determine the punishment. This article prohibiting blasphemy is clearly in contradiction with the guarantee of the freedom of expression. In the same way, freedom of conscience is inviolable, but the right to practise one’s own religion and to build places of worship is reserved only to the religions of the Book (Muslims, Christians, Jews). The other religions are thus deprived of the right to practise their rites in public. This is what is already happening but until now such limitation did not come from an explicit juridical text.
Click here to read the full text of the interview (in French)
