Saturday 13 August 2011

UPDATED - Egypt's "Supra-Constitutional Principles" Crisis

The rhetoric is certainty rising. Following Dr. Ali Al Silmi's announcement that a charter of "supra-constitutional principles" is about to be declared in the next few days, after being "in the works" for quite a while, The Muslim Brotherhood responded by threatening "non-placid" protests. The Salafi movement declared as well that they would call for mass demonstrations all over Egypt (similar to the one they recently held with other Islamist groups this late July), if such a document is indeed adopted. Some even threatened to demand, and have eventually made such a call, for what they described as an outright "Islamic Constitution", in direct reprisal.

Al Silmi Giving his speech

The whole concept of this controversial document, whose essential idea is a batch of Entrenched Constitutional Clauses (The proper English legal name, indicating constitutional articles or clauses that cannot be changed, or can be changed but in a much more difficult and unlikely manner than others), came after the post-revolution referendum on amending articles of the 1971 Egyptian Constitution. During the referendum, Liberals and other forces led a extremely strong effort to convince the public to refuse the proposed amendments in favour of a brand new constitution before Parliamentary Elections take place, hoping to use a then-current period of relative entente between rival political factions to create a genuine consensus-based constitution, rather than one drafted by a possibly Islamist-dominated parliament. What happened, of course, was an outright failure of that effort, with a landslide approval for the amendments at more than three quarters of vote. Liberals were shocked at the margin, and cited rival groups using Islamic slogans to convince people that voting YES to the amendments was a religious obligation, lack of voter education and public debate during the short period before the polls, voting irregularities and what they saw as other reasons to annul the vote.  After continuing to call for a brand new constitution for some time, it became clear they were failing in winning over public support, and were actually alienating some people who felt "Elite Liberals looked down" on the overwhelming national choice expressed in the referendum. A period of deliberation ensued, and a compromise proposal quickly began to shape up. A charter including basic freedoms, human rights and an affirmation of the "civil state" as the sole form of government (i.e. as opposed to a theocratic, monarchic, military state, or any other form) would be agreed upon and enshrined as a basic sacred document that would not be violated, and embedded verbatim as a whole in whatever upcoming constitution that eventually does emerge. And many of proposal-documents were indeed presented for public debate by different political groups and formally drafted, with the one getting the highest profile being the short and simple draft by presidential hopeful and Nobel Laureate Mohammed El Baradei, which focused mostly on human & social rights and freedoms. Quite interestingly, the Brotherhood did announce early on it was willing to accept such a "Human Rights & Civil State" charter when the idea first came out.

Now, while supposedly not having still not seen the proposed document, Islamists have united wholly against idea. The reasons differ of course, at least in their public statements. Some disagree on being not properly represented in the preparatory phase of such a document, over the idea itself that certain parts of the constitution would become inviolable (explaining that such a fact would be a challenge to "democracy"), that the next parliament's freedom in drafting the upcoming constitution would be compromised, while some worry it would contain a quasi-permanent role for the army and the Supreme Council Of The Armed Forces (SCAF) as a Turkey-style guardian of the State and it's "civil nature", in light of the fact that the Police and the Army (the latter to a much lesser extent) in Egypt do not entirely have the most amicable relationship with Islamists. Some have argued that the concept is a pure Egyptian fabrication that does not exist elsewhere, but the idea is not actually entirely unheard of.

There are actually a number of constitutions with one or more Entrenched Articles or Clauses. Article 5 of the US Constitution includes two such entrenched clauses, allocating equal voting weights and representation in the US Senate is such an article and requiring unanimity in adjusting the voting weights for any state. The "Eternity Clause" (Article 79, Section 3) in the German constitution, basically enshrining human rights and the Länder (Federal) system is another. Another noteworthy example was the Honduran Constitutional Crisis of 2009, when former President Manuel Zelaya tried to changed an entrenched article that describes the governing system, territory and presidential terms in the country, among others. A Constitutional Court-backed military coup removed Zelaya in response to his insistence, exiling him to The Dominican Republic. The most pertinent for Egypt would be the Bosnian Case, where the entire Second Article of the constitution, one that guarantees universally enshrined human rights and affirms full non-discrimination for all citizens in all matters of state, is one such article that cannot be amended or removed. Such an article, of course, was a direct and logical offspring of the Bosnian War.

While it remains to see how Egypt will manage this bottleneck, if indeed this document is ever adopted, and somewhat regardless of its content, it has to be the result of a true national effort and accord, one where Islamists would not be taken out of the picture, especially as no one wants to see them move closer to the political right. Also, if this charter is ever to be eventually a legally sacred & binding document, one should hope that all the desire for further additions, political wrangling and eventual compromising does not negatively impact the one original and most pressing reason behind this initiative: safeguarding universal human rights in a modern post-revolutionary Egypt.

UPDATE: The document has finally been released, contains nothing revolutionary or was not already existent in the 1971 constitution, retains Article II intact, and shows no sight of SCAF or Army supervision of the State as once feared by some forces. 33 out of the 34 members of the Democratic Alliance of Egyptian Parties approved the draft, with the Al-Adl Party (Justice Party), without explaining why clearly. This means that the Freedom & Development Party, the Muslim Brotherhood's party is on board as well. Interestingly, this leaves the Salafi-oriented parties in the sole rejection spot, with Al Wafd's newspaper website citing a near unanimous refusal, as well as a "Safety and Development Party" spokesperson warning of "a volcano of blood" between the Army and the Islamists, and an Algeria-FIS scenario, if this document is legally adopted. However, it seems he was more (framing?) expressing his "concern" over a possible eruption of uncontrolled violence, rather than directly threatening to lead the violence themselves. Al Wafd's newspaper's credibility and writing, however, has always been a target of criticism, and it may turn out well that he said something significantly different, especially since no other newspaper picked up the story yet.

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