I wanted to follow up my last post, a translation of the preamble of the proposed Egyptian constitution, with another translation. This time the source text is a response by the Chair of the History Department at the American University in Cairo, Khaled Fahmy, to the proposed constitution on his facebook. Fahmy argues that the constitution, which was drafted by a Muslim Brotherhood and Salafi-dominated body, proposes sweeping changes to Egyptian governance that open up space for abuse and corruption. I think this document provides the most in-depth account of secular/liberal grievances against the constitution that I have yet seen, so I wanted to share it with the English speakers among us.
The constitution comes up for a vote in a popular referendum on this upcoming Saturday, December 15th. Copies of the constitution for reference can be found here: (Arabic) (English). Many Egyptians feel President Muhammad Morsi has not allowed enough time for voters to comprehend the 236 articles before bringing it to a vote. Secular liberals have been demonstrating against the referendum for the last week, including a series of protests at the Presidential Palace which became violent. Here is what the scene outside of the Palace looks like today:
Here is the translation of his post:
After reading the proposed constitution and watching the process whereby it was drafted and the severe polarization this created, I saw many grave mistakes in the document; each one of them grave enough so as to justify rejection of the document as a whole. The proposed text also ignores many of the individual liberties that one would hope to vote in support of, such as rights for women, minorities, and children.
As for the articles to the constitution, there are 32 of them that I fundamentally opposed out of principle:
1) I oppose the 4th article, which states that “Al-Azhar mosque is an independent body and Islamic University, in this respect no other can intrude on its affairs, and it is responsible for spreading the message of Islam (al-da’wa al-Islamiyya) and the science of religion and the Arabic language in Egypt and the world. The opinion of its upper council of clerics will take responsibility in affairs related to Islamic law (sharia’ Islamiyya).”
The reason I oppose this article is that, if we take the 2nd article into account (which states that “Islam is the religion of the state”), it will give the upper council of clerics of al-Azhar the right to constitutional review, and this is in contradiction with the 175th article, which relates to the authority of the Supreme Constitutional Court.
2) I oppose the 10th article, which states that: “the state and society are concerned with commitment to the inherent nature of the Egyptian family, and with its stability, and with consolidation and protection of moral values; and therefore towards the growth of a system of family law.”
The reason I oppose: there is not explanation of “the inherent nature of the Egyptian family” and what constitutes “consolidation and protection of moral valyes”? Do you include female circumcision and domestic abuse?
3) I oppose the 18th article, which states that “all money has no owner, and the state is the owner [of it].”
I just want to say that “all money has no owner and the, people are the owners of it.”
4) I oppose the 35th article, which states:
“Except in cases of flagrante delicto, no person may be arrested, inspected, detained or prevented from free movement except under a court order necessitated by investigations.
Any person arrested or detained must be informed of the reasons in writing within 12 hours, be presented to the investigating authority within 24 hours from the time of arrest, be interrogated only in the presence of a lawyer, and be provided with a lawyer when needed.
The person arrested or detained, and others, have the right of appeal to the courts against the measure of arrest. If a decision is not provided within a week, release becomes imperative.
The law regulates the rules for temporary detention, its duration and its causes, and cases of entitlement to compensation, whether for temporary detention or for a sentence carried out that a court final ruling has revoked.”
And the reason I oppose it is that I favor adding the poor to the phrase “the person arrested or detained, have the right to contact their family during the first 24 hours from their arrest.”
5) I oppose the 42nd article, which states: “freedom of movement and residence and migration are guaranteed. The state may not deport any citizen, or prevent them from returning to residence. Nor will the state prevent any citizen from departing, nor force anyone to reside anywhere without a judicial order, for a definite period.” The reason I oppose it is that the text does not criminalize forced displacement within the country. [Fahmy is referencing the practice of forcibly moving residents of poor areas during the Sadat and Mubarak periods.]
6) I opposed the 43rd article, which states that “freedom of belief is safeguarded. The state guarantees freedom of religious expression and of the establishment of houses of heavenly worship (door al-‘abada lil-adiyan al-samawiyya); which will be regulated by law.”
The reason I oppose it is that it is limited to freedom of religious expression and the establishment of houses of worship for those who follow the “heavenly religions,” which limit the rights of Egyptian Bahai’is in particular. [Bahai’is form a small religious minority in Egypt]
7) I oppose the 47th article, which states:
“Access to information, data, documents and statistics, and the disclosure and circulation thereof, is a right guaranteed by the state, in a manner that does not violate the sanctity of private life or the rights of others, and that does not conflict with national security.
The law regulates the rules for filing and archiving public documents, the means of access to information, the means of complaint when access is refused, and the consequent accountability.”
The reasons I oppose are: 1. the article invokes the principal of “national security” without defining it, and it is an issue which allows for the violation of individual liberties for the sake of obtaining information, and sets a dangerous precedent. 2. the article does not give a time frame, for instance 25 years, after which all information without exception would become accesible. [This would especially help historians like Fahmy, as Egypt has not released any archives since 1952.]
8. I oppose the 48th article, which states that “freedom of the press and the media is guaranteed. The media shall be free and independent to serve the community and to express the different trends in public opinion, and contribute to shaping and directing in accordance with the basic principles of the State and society, and to maintain rights, freedoms and public duties, respecting the sanctity of the private lives of citizens and the requirements of national security. The closure or confiscation of media outlets is prohibited except with a court order.
Control over the media is prohibited, with the exception of specific censorship that may be imposed in times of war or public mobilization.”
The reasons I oppose it: 1. It is not specified in the text to prohibit imprisonment for crimes related to publishing. 2. The reference, once again, is made to “national security” without defining it. 3. There is no definition of the “basic principles…of society” that the media is entrusted to preserve and shape.
9. I oppose the 49th article, which states:
“Freedom to publish and own newspapers of all kinds is a guaranteed subject of notification for every naturalized or legalized Egyptian. The establishing of radio stations, television broadcasting and digital media is regulated by law.”
The reason I oppose it is that it does not specify freedom for radio, television, and other digital media stations.
10. I oppose the 64th article, which states “no one may be compelled to work except by appropriate laws.” The reason I oppose this article is that that wording opens up the possibility of forced labor in Egypt.
11. I oppose the 70th article, which states:
“Every child, from the moment of birth, has the right to a proper name, family care, basic nutrition, shelter, health services, and religious, emotional and cognitive development. The State shall care and protect the child in the case of the loss of family. The State also safeguards the rights of disabled children, and their rehabilitation and integration into society.
Child labor is prohibited before passing the age of compulsory education, in jobs that are not fit for a child’s age, or that prevent the child from continuing education.
A child may only be detained for a specified period, must be provided with legal assistance, and be held in a convenient location, taking into account separation according to gender, ages and type of crime, and be held away from places of adult detention.”
And the reasons I oppose this article are thus: 1. The article does not specify the age of a “child,” despite the fact that an age is clearly specified in the texts of law 12 of 1996 and law 126 of 2008 (Children’s laws) and the former constitution defined a child as anyone less than 18; 2. The article does not ban child labor from until adulthood entirely, but it only band children from working in work that is not appropriate to their age, without specifying what these profession are; 3. The article does not mention at all criminalization of violence against children.
12. I oppose the 74th article, which states:
“the rule of law is the basis of governance in the state, and the independence of the judiciary and immunity of judges are the two necessary foundations for the protection of rights and freedoms.”
The reason I oppose this article is that this it does not include any details on the process for maintaining the independence of the judiciary.
13. I oppose the 81st article, which states:
“Rights and freedoms pertaining to the individual citizen shall not be subject to disruption or detraction. No law that regulates the practice of the rights and freedoms shall include what would constrain their essence. Such rights and freedoms shall be practiced in a manner not conflicting with the principles pertaining to State and society included in Part I of this Constitution [including controversial articles like Art. 2 (“Islam is the religion of the state”)].”
The reason I oppose it is that the final sentence is in opposition to the first two sentences.
14. I oppose the 82nd article, which states:
“The legislative power shall consist of the House of Representatives and the Shura Council. Each shall exercise their respective authorities as set out in the Constitution.”
The reason I oppose it is that I don’t see any reason for a Shura Council, neither in this article nor in any other, explaining its role precisely, and defining how it differs from the House of Representatives.
15. I oppose the 129th article, which states:
“A candidate for the Shura Council must be an Egyptian citizen enjoying civil and political rights, a holder of a certificate of higher education, and, at the time of candidacy, at least 35 years old. Other requirements of candidacy, the provisions for election, the division of constituencies, shall be defined by law.”
The reason I oppose it is that I don’t see the logic behind requiring a member of the Shura Council to have a graduate degree.
16. I oppose the 174th article, which states:
“The state council is under the direction of the independent judiciary; It will adjudicate administrative disputes between judicial bodies and disputes over the execution of their decisions. And it will have responsibility for claims and disciplinary appeals; issue decisions in legal matters; draft and review proposed laws and legal decisions that are referred to it; review contracts that state are a party to.”
The reason I oppose this article is that that necessity of exposing proposed laws and legal decisions to the State council for review is not specified.
17. I oppose the 175th article, which states that:
“The Supreme Constitutional Court is an independent judicial body, seated in Cairo, which exclusively undertakes the judicial control of the constitutionality of the laws and regulations. The law defines other competencies and regulates the procedures to be followed before the court.”
The reason I oppose it is that is not directly specified that the Supreme Court and no other body besides it is able to review and issue judgements of the constitution and its articles.
18. I oppose the 176th article, which states that:
“The Supreme Constitutional Court is made up of a president and ten members. The law determines judicial or other bodies that shall nominate them and regulates the manner of their appointment and requirements to be satisfied by them. Appointments take place by a decree from the President of the Republic.”
The reason I oppose this is that there is no statement for the reason why they are decreasing the number of members of the court (from 21 previously)
19. I oppose the 177th article, which states that:
“The President of the Republic or Parliament shall present draft laws governing presidential, legislative or local elections before the Supreme Constitutional Court, to determine their compliance with the Constitution prior to dissemination. The Court shall reach a decision in this regard within 45 days from the date the matter is presented before it; otherwise, the proposed law shall be considered approved.
If the Court deems one or more parts of the text non-compliant with the provisions of the Constitution, its decision shall be implemented.
The laws referred to in the first paragraph are not subject to the subsequent control stipulated in Article 175 of the Constitution.”
The reason I oppose it is that I do not agree with preventing the Supreme Court from the realization of subsequent control over the laws governing the presidential and legislative elections.
20. I oppose the 182nd article, which states that:
“Officers at the Real Estate Publicity Department, forensic experts and judicial experts shall enjoy technical autonomy in their work.”
The reason I oppose it that it does not include enough professions, nor does it explain what independence means for these experts.
21. I oppose the 186th article, which states:
“The law regulates cooperation between Local Units in matters of mutual benefit and means of cooperation between Local Units and the state apparatus.”
The reason I oppose it is that the language of this important article is lacking any details about the modus operandi of the local unites, especially on how they will cooperate with the executive branch (i.e. the ministers)
22. I oppose article 187, which states that:
“The law regulates the manner of selecting governors and heads of other local administrative units, and defines their jurisdiction.”
The reason I oppose it is that I would rather the constitution expressly lay out the details for the selection of local governors by election
23. I oppose articles 188-192 relating to the local councils, and the reason I oppose it is because none of the article define the relationship between the local councils and the governors.
24. I oppose article 195, which states:
“The Minister of Defense is the Commander in Chief of the Armed Forces, appointed from among its officers.”
The reason I oppose it is because we need a Minister of Defense with a civilian, as opposed to military, background.
25. I oppose article 196, which states that:
“The law regulates public mobilization and defines the conditions of service, promotion and retirement in the Armed Forces.”
The reason I oppose it is that the text of the article should specify that there it is not possible for the armed services to force recruits to do work that is not related to the military.
26. I oppose article 197, which states:
“A National Defense Council shall be created, presided over by the President of the Republic and including in its membership the Speakers of the House of Representatives and the Shura Council, the Prime Minister, the Minister of Defense, the Minister of Foreign Affairs, the Minister of Finance, the Minister of Interior, the Chief of the General Intelligence Service, the Chief of Staff of the Armed Forces, the Commander of the Navy, the Air Forces and Air Defense, the Chief of Operations for the Armed Forces and the Head of Military Intelligence.
The President of the Republic may invite whoever is seen as having relevant expertise to attend the Council’s meetings without having their votes counted.”
The reasons I oppose it are: 1. Most of the members of this important council are military men (8 members, compared to 6 civilians) and this does not allow for civilian oversight over the military. 2. The number of the members of the council is even, and the article does not state what happens if equal numbers of members support or oppose a particular issue; The House of Representatives must be responsible for providing and check and balance against the armed forced until social oversight over the military is obtained. It is certain that this is a delicate and pivotal issue that cannot be extracted from the legislative branch.
27. I oppose article 198, which states:
“Civilians shall not stand trial before military courts except for crimes that harm the Armed Forces. The law shall define such crimes and determine the other competencies of the Military Judiciary.”
The reason I oppose this article is that it contradicts with article 75, which states that “a person can only be tried in front of the natural judge (qadiyyih al-tabi’aa).” [note: I am taking this to be an Islamic reference, art. 75, I could be wrong here]
28. I oppose article 199, which states that:
“The Police force is a statutory civil body with the President of the Republic as its Supreme Chief. It shall perform its duty in the service of the people, its loyalty being to the Constitution and the law, and its responsibilities to preserve order, public security and morality, to implement laws and regulations, and to safeguard the peace, dignity, rights and freedoms of citizens, all as regulated by law and in a manner that enables Police personnel to carry out their duties.”
The reason I oppose it is that it does not make any inclusions for instance when police violate the law, and the text does not subject police stations, prisons, and places of detention to judicial oversight. The text also does not subject the police as an institution to any social oversight.
29. I oppose articles 212-216, relating to the “independent bodies” (i.e. councils for religious endowments, education and scientific research, and media and press affairs), because these articles not only lack any details about who has oversight of the budget for these bodies, but they also fail to specify their modus operandi and the way they will appoint members.
30. I oppose article 218, which states:
“If the amendment request is approved by both Houses, each of them shall discuss the text of the articles to be amended within 60 days from the date of approval; if approved by a two-thirds majority of each House, the amendment shall be put to public referendum within 30 days from the date of approval.
The amendment shall be effective from the date of announcement of the referendum result.”
The reason I oppose the article is that it puts impossible conditions on amending the constitution, and I think that we should lower the number of votes from 2/3rds of members of every council to 1/3rd of the members of either of them.
31. I oppose article 219, which states:
“The principles of Islamic Sharia include general evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community.”
The reasons I oppose it are as follows: 1. this article discriminates against Shi’i Muslims and also violates the rights of Shi’i citizens and increases sectarian divisions. 2. this article, if we combine it with article 2 (which states that “Islam is the religion of the state”) and article 4, it will open up the way for a legal disaster in Egyptian law. 3. The article does not specify which of the four schools of Sunni law is the foundation for Egypt, so judges will be entitled to choose their preferred doctrine in the course of evaluating legislation.
32. I oppose article 231, which states:
“The first legislative elections following the adoption of this Constitution shall be held in the following manner: Two-thirds of the seats are to be won by a list-based electoral system and one-third by individual candidacy, with parties and independent candidates allowed to run in each.”
The reason I oppose it is that I do not see the necessity of defining the system of elections in the constitution.