Last Updated: Tue Oct 23, 2012 13:12 pm (KSA) 10:12 am (GMT)

Egypt’s constitutional assembly case referred to Supreme Court

An Egyptian protester raises his chained hands during a demonstration in Cairo's Tahrir Square as several thousand people rallied on Friday against Islamist influence over an assembly preparing Egypt's new constitution. (AFP)
An Egyptian protester raises his chained hands during a demonstration in Cairo's Tahrir Square as several thousand people rallied on Friday against Islamist influence over an assembly preparing Egypt's new constitution. (AFP)

An Egyptian administrative court referred to the Supreme Constitutional Court a case that sought the dissolution of the assembly charged with drafting the country’s new constitution.

The decision was announced in court on Tuesday by Administrative Court Judge Nazih Tanagho.

Accordingly, the Supreme Administrative Court will decide on the constitutionality of the controversial 100-member Constituent Assembly in charge of writing the constitution, amid a power struggle between the judiciary and Islamist President Mohammed Mursi.

The Assembly is being challenged for the mechanism with which its members were chosen.

It is the second Constituent Assembly to be formed after the uprising that toppled president Hosni Mubarak last year, after the first Islamist-dominated panel was dissolved in April for failing to represent all segments of society.

“A constitution is made to last,” former Chief Justice Ahmed Medhat al-Maraghy recently told AFP. It “should have been made up of legal experts, but this did not happen.”

“It has been dominated by the Islamists, but the constitution has to be a matter of national consensus.”

The panel released a draft constitution earlier this month that was slammed by human rights groups as failing to secure key freedoms.

Some articles, including those defining the powers of the judiciary and the role of the army, have not been made available to the public.

Other contentious topics include the role of religion, the status of women and the scope of freedom of expression and faith.

Article 2 of the draft constitution states that “Islam is the religion of the State, Arabic is its official language and the principles of Islamic Shariah form the main source of legislation.”

Ultraconservative Islamists had asked to replace “the principles of Shariah” by “the rulings of Shariah” or even just “Shariah.”

The article has been at the center of debates because it opens many avenues for the interpretation of Sharia.

Mona Makram Obeid, a veteran politician who pulled out of the first assembly, said the text “fails to protect the rights of women and the character of a civil state.”

“What is unbelievable is that all the mistakes of the first assembly are present in the second one.”

Last week, Egypt’s highest court criticized the panel, saying some of its proposals put the court back under the authority of the president.

“The proposed text gives the president the right to appoint the chairman and members of the court,” said court chairman Maher al-Beheiry, adding that this allows the president to interfere in its work.

“Last year we finally got an amendment that does not allow the president to name the chairman and members of the court without the approval of its general assembly.”

The criticism came amid tension between Mursi and the judiciary, after he failed last week to remove public prosecutor Abdul Maguid Mahmoud.

Mahmoud refused to step down last week after Mursi ordered his removal to allay public anger over acquittals of officials from Mubarak’s ousted regime.

Mursi had issued a presidential decree appointing Mahmoud as Egypt’s envoy to the Vatican.

The new constitution is to replace a 1971 charter suspended by the military, which took power when Mubarak was ousted in February last year.

Separately, activists worried about the rights of women and children met in Cairo on Monday to express opposition to the assembly and the draft it has written. Such protests have become a regular occurrence.

“In Iraq, right from the start, the constitution’s legitimacy was challenged, and to this day it is like a set of traffic lights that you respect only when you think it is appropriate,” said al-Ali, who works in Cairo with International IDEA (Institute for Democracy and Electoral Assistance) -- an international organization headquartered in Stockholm.

“The message in that for Egypt is that the more you can get people to agree that the text is a good one, or is good enough for the time being, the greater likelihood you'll have of a well-functioning state,” he told Reuters in an interview.

Al-Ali worked with a U.N. mission set up to provide advice to the Iraqis on the constitution that was drafted in 2005. There are no foreign advisors to the Egyptian constitutional assembly. International IDEA, like other foreign organizations, meets informally with the stakeholders, Al-Ali said.

Al-Ali said flaws and ambiguities in a draft circulated this month by the constitutional assembly partly reflect the haste with which it was written.

There are also hangovers from the previous constitution that are more akin to a traditional Arab autocracy than democracy.

Mervat al-Tallawy, head of the National Council for Women, told attendees at the Cairo meeting that the term “rulings of Islamic Shariah” tagged to clauses on women creates wiggle room for some Islamist jurists to permit crimes against women and children.

“They can create a distorted image of sharia law, placing it in a position of enmity against women,” Tallawy said. “Shariah is innocent of these charges.”

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