The draft constitution of November 2012 clearly reflects determination to move closer to an Iranian-style political regime and to restrict basic human rights and fundamental freedoms by religious interpretations of Sharia. This would be detrimental in particular to women's rights, freedom of religion, freedom of opinion and the press and the rights of the child, particularly the female child. Article 75 adopted our proposed guarantee language that such rights and freedoms are human rights that may not be prejudiced or impaired, but added a proviso that the exercise of such rights and freedoms must be consistent with the provisions of Section I on the State and Society. Such conditionality defeats the whole purpose of the constitution and makes it an exercise in futility. This is particularly alarming as in Section I consulting the senior ulama of Al-Azhar on all matters related to Sharia has become mandatory. This applies to the legislative, the executive and the judiciary, giving the religious institution a very powerful position, as its opinion will be observed in practice, even if it not legally binding. Three reasons make this dangerous: The first is that Al-Azhar has been playing a significant role as an educational and enlightenment institution for over 1,000 years without any mention in the constitution. This new change will place it at the centre of political conflict which will be a great loss and detrimental for any democratisation process. The second is that the consensual Article 2, stating that the principles of Sharia are the primary source of legislation, has been manipulatively changed. In Article 219, they have introduced an unprecedented definition of such principles providing that these include, among others, fundamental rules of fiqh and prominent Sunni sources. This makes the provisions of Sharia, which are subject to debate, change and multiple interpretations, the primary source of legislation, as opposed to the principles of Sharia reflecting the imperative and constant rules, the red lines, which may not be derogated. This enlarges the scope of influence of the religious institution and represents a serious threat to legal and social stability. Thirdly, this change will allow interference by the ulama with the Supreme Constitutional Court which has for over 30 years been exclusively ruling on the application of Article 2 in a manner that protected human rights and freedoms, respected the public policy of Sharia and admitted Ijtihad by the ruler so long as it realised the best interests of the Egyptian citizens. The foregoing represents a serious threat to the rule of law and independence of the judiciary and to the essence of democracy and human rights. As a result, women's rights, particularly the right to equality before the law, will be at risk and must now be even more forcefully defended, since such rights will be subject to the various interpretations of Sharia. This will also adversely impact the rights of the girl child, as attempts have already been initiated in the Shura Council and by members of the Constituent Assembly to discuss cancellation of the provisions of the child protection law prohibiting female genital mutilation and reduction of the minimum age of marriage for girls based on unjustified and improper interpretations. Moreover, the draft includes provisions allowing child labour in violation of the law and the convention on the rights of the child ratified by Egypt without reservation. Other controversial issues relate to imbalances between the powers of the executive and the legislative, giving excessive powers to the president and allowing parliament to vote by majority of its members on crucial issues, such as declaration of war, state of emergency and rights of sovereignty. This clearly allows any majority party to control such critical decisions that should normally be only permitted by special majority of at least two-thirds of the members. The independence of the judiciary represents together with the rule of law crucial guarantees of justice protected by all Egyptian constitutions. Nevertheless, the relevant provisions of the draft constitution have been subject to continuous debate and conflict between the Constituent Assembly and the judiciary. Attempts have been made to curtail the competence of the Supreme Constitutional Court and Administrative Court and infringe upon the right of the judiciary to nominate presidents and members, including the prosecutor-general or the members of the Supreme Constitutional Court, for formal appointment by presidential decree. This conflict has become a national crisis as a result of the recent unlawful and unprecedented constitutional declaration in which the president vested himself with absolute powers, making all his past and future presidential acts, laws and decrees immune against any challenges before the courts, and explicitly prohibited the Administrative Court and the Supreme Constitutional Court from handling any cases or issuing any judgements dissolving the Shura Council and the Constituent Assembly, which are majority-controlled by the political Islamist parties. The target was to ensure that the draft constitution of the Constituent Assembly will be imposed and offered in a referendum, notwithstanding the serious challenges against the validity of the assembly and the serious flaws and objections made against the provisions of the draft. Although these powers are temporary until the constitution is approved and parliament is elected, this can neither justify issuing an unlawful declaration of dictatorship nor allowing the president absolute powers over the legislative, the executive and the judiciary, and depriving citizens from their basic right to access to justice. Moreover, the declaration effectively permits the president to take any exceptional measures normally allowed in a state of emergency, without declaring such state and without a public referendum or judicial review. The only way out of the present crisis is to reissue the 1971 constitution amended by the 2011 referendum as a temporary constitution for three years. This would automatically cancel the unlawful declaration, and would allow immediate parliamentary elections. The Constituent Assembly could then be reconstituted to work on a new constitution subject to broad consultations for two years. The president could also issue a law compensating victims of the revolution and another on transitional justice. This would diffuse tension, restore national unity and allow a fast track for progress in institutional building, particularly building bridges of trust. The writer is a lawyer and vice chair of the UN Human Rights Council Committee.
