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Court Delay on Egypt's Constitution Prolongs Uncertainty

October 23, 2012

by Elizabeth Arrott

An Egyptian court has referred to higher judges the question of whether to dissolve the group responsible for drafting the nation's new constitution. The move prolongs uncertainty over the nation's future, but possibly opens a window for the current assembly to finish its controversy-plagued task.

Few issues have been as contentious as the legal framework defining post-revolution Egypt, and the court decision means the birth pangs will go on for at least a while longer.

Egypt's high administrative court Tuesday passed on to the nation's supreme constitutional court challenges to the legal basis of the constitutional assembly. There is no immediate statement on when the high court may rule.

Political analyst and publisher Hisham Kassem says this may give current assembly members room to maneuver.

“It will definitely give them a chance, but then again it increases the uncertainty of the future. It is not very clear what the procedure was for the [administrative] court to refer it to the constitutional court and it looks to me like delaying tactics,” Kassem said.

The assembly was appointed by the now-dissolved parliament, opening an argument for those opposed to its heavily Islamist character to question the group's legitimacy. Secularists and others say partial drafts of the new basic law confirm their worries, in particular, proposed articles on the role of Islam, the equality of women and non-Arab Egyptians such as Nubians, and an absence of precise language on banning torture and allowing media freedoms.

Political Activist Wael Khalil notes that President Mohamed Morsi has brought in a range of consultants to address the problem.

“However, the composition still is unsatisfactory for many people .The actual draft of the constitution is much more complex because so many forces at this point of time are addressing it. Currently, what the draft is saying is like a wish list of the various forces that are in the assembly, which is incoherent and it has many contradictions,” Khalil said.

A case in point is the role of women. Egypt's National Council for Women reject the draft, pointing to concerns about gender discrimination, the decriminalization of female genital mutilation and early marriage.

While the group blames the heavily Islamist nature of the assembly, one of the seven women on the 100-member committee says the problem goes deeper than that. Manar el Shorbagy is deputy secretary-general of the assembly.

“It's not about being Islamist. It is actually about being a man and you know it is a position that had to do with men who are not sensitized at all to the issues of women and the concerns of women,” Shorbagy said.

She has proposed articles on women's right to education, to work and to hold political office as well as addressing Egypt's endemic sexual harassment, so far to little avail.

Despite frustrations, el Shorbagy remains optimistic, pointing to the deep divides other nations have faced in putting together basic law.

“I don't think that the differences and the conflicting point of views are something negative, I think it is something healthy and it is actually, you know, the rule not the exception in writing constitutions,” Shorbagy said.

But whether this assembly will have the time to find consensus before the Constitutional Court ruling remains unclear. After a final draft is written, it must be submitted to public referendum within a month. If approved, any rulings on the legitimacy of the assembly will be moot.

The timing of a further court ruling will be under close scrutiny. High court judges last week publicly complained the current draft curbs their independence, injecting a possible conflict of interest into an already very muddy process.

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