Published November 20, 2014
An Egyptian court on Tuesday asked the country's highest tribunal to rule on whether to disband the body tasked with writing a new constitution. The delay in a ruling is a possible blow to liberals, since it could give Islamists time to finish drafting the contested document.
The referral of the case to a higher court is the latest twist in a bitter struggle between Islamists and their secular rivals over Egypt's first constitution since it set out on a path to democracy, following the ouster of longtime President Hosni Mubarak last year.
Islamists, who dominate the constitutional assembly, are racing to put a draft to a public referendum before the judges rule, while leading members of the panel appealed for dialogue to overcome the divisions.
Leftist and liberal parties expressed doubts about such a dialogue.
The work and the composition of the 100-member constitutional assembly have been the subject of fierce debate. The focus is the potential for stricter implementation of Islamic law, or Shariah, and empowerment of religious scholars that liberals fear could signal a turn toward a theocratic state.
Along with the contentious role of religion in the nation's affairs, Islamists and liberals are haggling over other proposed articles relating to women rights, freedom of worship, presidential powers, immunity for the military from civilian oversight and undercutting the powers of the Supreme Constitutional Court.
Supporters of the panel say it was set up by an elected parliament and broadly represents Egypt's political factions. Critics counter that the process is dominated by majority Islamists, such as the Muslim Brotherhood of Egypt's new president, Mohammed Morsi, and more radical groups.
A new constitution would be a key step in establishing a democracy to replace the Mubarak's regime, ousted last year in an uprising led by progressive, secular activists.
But in the nearly 20 months since then, Islamists have emerged as the strongest political force. Morsi was elected president after the Brotherhood and the even more conservative Salafis party swept parliamentary elections, leaving the liberals with minimal representation. The parliament was later disbanded.
Instead of ruling on a petition submitted by liberals challenging the legitimacy of the panel, Judge Nazih Tangho of the High Administrative Court on Tuesday sent the case to Egypt's Supreme Constitutional Court.
The decision sets up a new showdown between the Supreme Constitutional Court, packed with secularist judges, and Egypt's ruling and powerful Brotherhood. The same court dissolved the Brotherhood-led parliament, ruled the election law unconstitutional and turned down Morsi's attempt to restore it upon his election in June.
Last week, the Constitutional Court criticized the panel's move to strip the court's power right to rule on laws passed by parliament. The proposed articles also maintain the president's grip over the court, as he appoints its head and members.
The panel drafting it said it could be ready for public discussion as early as the first half of November. The new constitution then will have to be put to a public referendum within 30 days.
Tangho said he referred to the case to the Constitutional Court to look into a law Morsi passed in July that gave the constitutional panel legal immunity, a clause he said needs vetting because no one should be above legal supervision.
"The law was meant to prevent the High Administrative Court from looking into appeals ... against the panel," he said.
A senior Brotherhood member, Ahmed Abu Baraka, said, "the court here is saying that this is not my business and I am not interfering in the writing of the constitution nor its panel, in respect to the principle of separation between powers."
The Muslim Brotherhood's political arm, Freedom and Justice Party, praised the ruling as ushering "a new meeting point to all spectrum of the Egyptian society." constitution.
Hafez Abou Saada, one of the lawyers challenging the panel, appealed to leaders of the body to stop work until a final ruling is issued.
"If they are really seeking consensus, then a panel whose legitimacy is questionable should not be working," Abou Saada said.
Former President Jimmy Carter said it has become clear that the secular versus religious aspects of the constitution remain the crucial questions, but he said he was "gratified" with the panel's work. Speaking in Cairo Tuesday, Carter said his center will apply to send observers to the constitutional referendum.
The constitution panel was disbanded once before, in April, after the High Administrative Court ruled against inclusion of lawmakers as members.
More than 40 legal challenges have been presented to the top administrative court demanding the dissolution of the panel writing the charter.
"We are going to witness a new phase of confrontation between the Muslim Brotherhood and the Constitutional Court," said Ziad Abdel Tawab, a legal expert with Cairo Institute for Human Rights Studies. "The process will linger, for sure."
Liberal and leftist political parties and groups met late Tuesday and said the draft is unacceptable because it undermines the rights and freedoms of Egyptians. They called for a carefully structured dialogue.
"We reject the call of the president for dialogue because it lacks clear conditions and mechanisms to ensure it is serious," the groups said in a statement.
Associated Press writer Maggie Fick contributed to this report.