Islamists hail the refusal of the Administrative Court to rule on the legality of the Constituent Assembly as a victory, reports Gamal Essam El-Din Secular forces -- including liberals and leftists -- were shocked when the Administrative Court bowed out of giving a judgement on the fate of the 100-member Constituent Assembly and referred the case to the Supreme Constitutional Court. They have long charged that the assembly is packed with Islamists and had hoped the body tasked with drafting Egypt's first post-25 January Revolution would be invalidated this week and replaced by one more representative of wider public opinion. The Administrative Court surprised all on Tuesday by kicking the case upstairs to the Supreme Constitutional Court to give a final word on the constitutionality of the law establishing the assembly. Cairo University political science professor Hassan Nafaa says Tuesday's decision by the Administrative Court "gives the Islamist-dominated assembly a new lifeline to complete drafting the long-awaited constitution and place it before the public in a referendum". He urged secular forces to change their strategy and expend their energies not on trying to have the assembly disbanded but on exposing the worst articles and mobilising the street against them. Al-Ahram Centre for Political and Strategic Studies' (ACPSS) analyst Emad Gad, a former MP, argues that "the Administrative Court's decision must be viewed in light of ongoing exchange of blows between the Muslim Brotherhood and the judiciary." "After four months of judicial deliberations it was a surprise to find we must wait even longer to know whether the assembly is legal or not," he said. "Liberal forces should now stand up to radical Islamists who want to write a religious constitution, undermine gender equality, retain the president's Pharaonic powers and impose their coercive rule under the guise of implementing Islamic Sharia." "We know that the Islamists are in a hurry to impose their mediaeval constitution and our battle is to prevent them from doing this." Though it shied away from issuing a ruling the Administrative Court did accuse the Islamist-dominated -- and now dissolved -- People's Assembly of "exercising legislative power in a bad way, granting the Constituent Assembly immunity against dissolution and stripping administrative courts of their role in revising the legality of administrative orders." "Lawmakers drafted Article 1 of the assembly's law (Law 79/2012] in such a manner that the Administrative Court has been left helpless in judging 43 lawsuits." "The text of the article states that the formation of the Constituent Assembly is a legislative and parliamentary decision beyond the scrutiny and review of administrative courts. It is a reflection of the arbitrary use of power by lawmakers." The court noted that the controversial article violated Article 48 of the Constitutional Declaration issued on 30 March 2011 and Article 21 of the same declaration that "gives citizens the right to file lawsuits and states that all legislation fall under the supervision and review of administrative courts". As a result the court concluded it had "no option but to refer the assembly's law to the Supreme Constitutional Court for a final say on its constitutionality". Professor of constitutional law Nour Farahat argues that "the Islamist-dominated People's Assembly drafted the law with the goal of tightening its grip on Egypt's new constitution even if this violated existing constitutional rules." "It is significant that when this law was issued for the first time the then ruling military generals refused to ratify it. When President [Mohamed] Morsi came to power he showed no hesitation in ratifying it even though it clearly violated last year's Constitutional Declaration." Farahat believes the SCC is now in a very delicate situation: once again it is expected to rule in a hugely controversial case. Having effectively disbanded the People's Assembly it is now in the position of having to judge on the legality of the Constituent Assembly. If it finds the body unconstitutional it will find itself in a direct showdown with Islamist political forces. "I think SCC will take its time and will not be in a hurry to issue a verdict," says Farahat. "In the end, though, it will have little choice but to rule the Constituent Assembly illegal and its law unconstitutional." He warns against the draft constitution being put to public referendum before the SCC gives a verdict on the legality of the assembly since "this could lead to a situation in which the referendum itself is ruled unconstitutional because people would have been asked to vote on a constitution drafted by an unconstitutional assembly." Farahat believes the legal battle over the draft constitution has become a battle over the identity of Egypt. "It is a conflict between those who want a modern and democratic state like Turkey and those who want a state that mixes politics with religion in the manner of Pakistan or Iran." He went on to call on secular forces "to take their struggle for a modern constitution from the corridors of courts to the streets." Islamists hailed the Administrative Court's decision as a victory. "Referring the matter to the SCC makes no difference. It will be too late by the time it issues a ruling. The constitution will have been passed by public referendum," said Mahmoud Ghozlan, an Islamist member of the Constituent Assembly. "The constitution will be passed in a public referendum before 12 December and I think that secularists should recognise that they have lost their battle," said the Muslim Brotherhood's Mohamed Al-Beltagui. Abul-Ela Madi, chairman of the moderate Islamist Wasat Party, urged secular forces to take a more objective view of the draft constitution "and not view it as grounds for settling scores with Islamists in the courts". The draft constitution may seem extreme to non-Islamists, but for some Islamists on the Constituent Assembly it is not extreme enough. The Salafist Nour Party has demanded that Article 2 on Sharia (Islamic law) be amended to state that "the rules of Islamic Sharia are the main source of legislation in Egypt." They also reject any articles referring to gender equality. Liberal members accuse Islamists of using their majority to help Islamist President Morsi keep the draconian powers his predecessor enjoyed courtesy of the 1971 constitution. These include giving the president a final say in appointing judges to the SCC and appointing a quarter (rather than just 10) members of the Shura Council. They also complain that the president of the republic is not subject to any kind of accountability before parliament, and that he has unlimited powers over the army and police. They threatened that they would withdraw from the assembly unless the draft is changed, warning of the possibility the Constituent Assembly could collapse. The Constituent Assembly is due to vote on the full draft constitution in the second week of November, after which a public referendum will be held to ratify -- or refuse -- the text. (see p.3)
