The time left for the completion of Egypt’s constitution might not be enough to resolve disputes which threaten its legitimacy, according to a legal expert who says failure to forge a consensus could lead to instability in government.
The new constitution is a crucial element in Egypt’s transition from decades of army-backed autocracy and should bring with it historic changes including guards against the kind of one-man rule seen throughout the Arab world for decades.
The 100-strong assembly writing the constitution has been given six months to ready it for a referendum, which means the drafters have until early December to finish.
The process has been deeply divisive, pitting Islamists who have a strong sway over the process against their more secular-minded opponents on questions such as the role of Islam in the state and human rights. Some of the Islamists’ critics have called for a complete boycott of the process.
“I don’t think two months are enough, not because the cleavage is great but the lack of trust will take longer to overcome,” said Zaid Al-Ali, who advised the Iraqis who wrote their constitution and is now following the process in Egypt.
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 organisation 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 organisations, meets informally with the stakeholders, Al-Ali said.
The dispute has been fought out in the courts, where earlier this year a ruling led to the dissolution of the first assembly. The second assembly also faces the risk of dissolution on Tuesday, when a court is due to rule on the legality of its make-up.
Were the body deemed illegal, it would fall to President Mohamed Mursi to pick a new one, presenting the Islamist leader with a headache over whether to meet non-Islamists’ demands for a bigger say.
In Al-Ali’s assessment, the differences are surmountable. “In Egypt you would think that the positions are so far apart that things were about to collapse altogether, when in fact there is a huge amount of overlap,” he said. “They can definitely do it, but they need to trust each other.”
MANY UNCLEAR ARTICLES
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.
For example, freedoms such as the right to form a trade union will be regulated – according to the draft – by unspecified laws, leaving room for legislators to curb them.
“A lot of the articles just aren’t clear,” Al-Ali said.
Articles pertaining to the role of Islamic law, or the sharia, are also among those that beg questions.
The current draft has preserved the previous constitution’s wording on the role of Islamic law: the “principles of sharia” will be the main source of legislation. Yet a new article explaining the principles of sharia is unclear, as is an article that gives an ill-defined role to Al-Azhar, an Islamic institution, as an advisor on matters pertaining to sharia.
“Different people are already interpreting this in different ways,” said Al-Ali. “The current wording will certainly lead to lots of legal problems in the future and many disappointed people, to put it lightly.”
Civil rights activists are worried that hardline Islamists will use the language on Islamic law – including an article that ties women’s rights to sharia – to curb their freedom and justify violations such as underage marriage and female circumcision.
Mervat Tallawy, head of the National Council for Women, told attendees at the Cairo meeting that the term “rulings of Islamic sharia” 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. “Sharia law is innocent of these charges.”