As the Constituent Assembly tasked with drafting the country’s constitution remains threatened with dissolution and at the center of political battles, observers disagree on whether the assembly is likely to produce a strong charter or destined to remain a tool in the power struggle between the military council and the Muslim Brotherhood.
On Tuesday, an administrative court postponed the lawsuit against the assembly's formation after the defendants challenged the presiding judges. They are challenging the court on the grounds that it cannot be fully objective because it has already ruled against the previous assembly.
The court is expected to reconvene Thursday.
The outcome of the case will likely be emblematic of the most recent juncture in the nation's ongoing power struggle.
Legal confusion
A court ruled in April to dissolve the first Constituent Assembly on the basis that it was not diverse enough to represent the people and included members of Parliament in violation of the interim Constitutional Declaration, which stipulated that MPs are responsible for electing assembly members and thus, cannot appoint themselves.
Muslim Brotherhood lawyer Abdel Moneim Abdel Maqsoud, who is part of the defense team in the ongoing case, says that there are no legal flaws in the second Constituent Assembly, which was formed in June.
The basis for the dismantling of the previous Constituent Assembly is no longer valid, Abdel Maqsoud claims, since the former MPs that constitute one third of the current assembly lost their positions as legislators when the lower house of Parliament was dissolved last month by a court order that deemed its election unconstitutional.
The Shura Council members in the Constituent Assembly resigned Sunday and were replaced by four of the 50 back-up members to ensure that the assembly is free of any sitting lawmakers.
In what was seen as an attempt to protect the assembly from the judiciary, President Mohamed Morsy ratified a law regulating the assembly's formation two days before the verdict was scheduled to be announced Tuesday.
The defense argues the recently approved law puts the case outside the administrative court's jurisdiction and it should now be reviewed by the Supreme Constitutional Court, according to Abdel Maqsoud.
However judge Zaghloul al-Balshy, vice president of the Court of Cassation, says that since the trial began before Morsy ratified the law, it remains in the jurisdiction of the administrative court. In his legal opinion, the assembly remains flawed because the MPs were serving in Parliament when they were appointed to the body.
Balshy claims judicial decisions are being manipulated and disrespected in the battle between the Brotherhood and the military council.
Power struggle or road to reconciliation?
The Constituent Assembly in recent weeks has speeded up discussion of the most controversial constitutional issues, announcing some of its decisions in a press conference on Monday. In a plea for the court to maintain the body on the eve of the anticipated verdict, assembly members announced they were close to achieving a constitution that could unify the nation.
Debate regarding the military's role — expected to be the point of contention between the Brotherhood and the Supreme Council of the Armed Forces — remains limited to the small National Security Committee within the assembly. Committee members have only said their discussions with the SCAF were going well.
Committee member and Ghad al-Thawra Party President Ayman Nour said during a Tuesday interview with Al Jazeera that fellow members, including SCAF Major General Mamdouh Shahin, Freedom and Justice Party Vice Chairman Essam al-Erian and other political figures, agree on the main issues concerning the military.
Nour said the new constitution would grant the same powers to the military as the 1971 Constitution, in addition to tasking a council of nine civilians, nine military officers and the president with national security issues.
The assembly committee has decided the SCAF should be consulted regarding legislation concerning the military, but is still discussing whether the president will have the sole power to declare war or will have to get the military council's approval, Nour said, supporting the latter.
Although these assurances may ease some of the military's main concerns regarding the constitution, the committee suggests an oversight over military financial affairs which the generals have long resisted.
Nour said that the armed forces’ non-military economic activity — military factory production of food, for example — would be subject to oversight by Parliament and government auditing bodies. He added that the military expenses, including salaries and weapons, would be discussed in smaller committees and presented to Parliament as one figure.
“The military doesn’t have any interest in allowing this Constituent Assembly to fail. Until now the discussions are going very well, we are 80 percent on the way to reaching an agreement that satisfies all parties,” said Nour.
Mohamed Naeem, a member of the Egyptian Social Democratic Party, which has withdrawn from the Constituent Assembly in objection over its formation along with other liberal parties and independent MPs, expects the Brotherhood to accommodate the military’s demands in the new constitution.
“In my opinion, there is no life-or-death disagreement between the military and the Brotherhood regarding the constitution,” he says.
Naeem says that an administrative court ruling keeping the Constituent Assembly intact would confirm that the SCAF and the Brotherhood have reached an agreement.
However, recent confrontational actions by both sides, such as the SCAF’s dissolution of Parliament and Morsy’s ratification of the Constituent Assembly law days before the scheduled verdict, suggest that neither side has given up the fight.
Assembly Secretary General Amr Darrag, a Muslim Brotherhood leader, told Egypt Independent that, officially, the SCAF has representation in the assembly and is supporting it, but he has reservations regarding the military council's intentions.
“There are suspicions as a result of certain actions, such as the supplement to the Constitutional Declaration, which gave the impression that the SCAF wants to take over legislative authority and the constitution, and the dismantling of the Parliament. We hope that the same doesn’t happen to the Constituent Assembly,” says Darrag.
On the final day of presidential elections, SCAF issued a supplement to the Constitutional Declaration approved by referendum in March 2011. The addendum gave the council additional powers, including the responsibility to form a new Constituent Assembly if the current body fails to complete its task for any reason. Shortly after, SCAF dissolution of Parliament also put legislative powers back in its hands.
A flawed process
While he believes the constitution will be drafted in collaboration between the Brotherhood and the military, Egyptian Social Democratic Party member Naeem says that the result will be unsatisfactory for society as a whole and could lead to a flawed constitution.
“The SCAF’s conditions concern the military’s position in the new constitution, they don’t care about freedoms or the ruling system,” says Naeem.
“The country is not only the Muslim Brotherhood and the military,” he adds, contending that the constitution being drafted may not hold up when powers shift in future elections.
He anticipates the new constitution will be similar to the 1971 Constitution, with added protection for the military.
“The constitution is being drafted under the pressure of a political struggle; instead of being the most important thing, it’s being treated lightly as one of many cards in this struggle."
