The Supreme Administrative Court has decided to refer the case seeking to dissolve the Constituent Assembly to the Constitutional Court.
This measure grants the Constituent Assembly more time to complete its mission to finalize Egypt’s new constitution; however, this does not mean that it will be successful in doing so.
The assembly is making its way with difficulty on its mission to issue a constitution for a new Egypt. This seems to be a nearly impossible task, especially amid strong rejection by a number of political and social forces to the newly-released draft constitution.
The judicial authority believes that the draft constitution does not include articles that guarantee its autonomy and independence. Civil and revolutionary movements voiced their rejection of the draft constitution by surrounding the headquarters of the Constituent Assembly, situated in the Egyptian Shura Council, during the “Egypt is for all Egyptians, not only one group” Friday [Oct. 19] demonstration. The movements believe that the current draft constitution does not represent all segments of society and its various sects.
Furthermore, the Salafist forces also announced their rejection of the draft constitution, for, in their opinion, the document does not ensure the application of Islamic Shariah law.
On a related note, the Egyptian Writers Union issued a statement criticizing the draft constitution for not including any article on the role of the Egyptian intellectuals.
What is noteworthy is the fact that Husam al-Ghiryani, head of the Constituent Assembly tasked with drafting the constitution, confronted the overwhelming wave of rejection by deciding to put the draft to a public referendum in the second week of November.
Right before the issuance of Ghiryani’s decision, the stance of the presidency pertaining to the Constituent Assembly was leaning toward two options: The first was keeping the assembly in its current form, in accordance with Law No. 79 of 2012, issued by President Mohammed Morsi in July. This law includes a set of rules for electing members of the Constituent Assembly and grants the assembly immunity from prosecution by the administrative judiciary, in anticipation of a decision to dissolve it.
The second option is including slight changes to the assembly, a matter that was confirmed in a press statement made by a well-informed source in the president's office.
The source said: “If the administrative court does not dissolve the assembly, President Morsi will introduce slight changes to the lineup of the Constituent Assembly. This is in accordance with the Constitutional Declaration issued following the dismissal of Field Marshal Hussein Tantawi and Lieut. Gen. Sami Annan, transferring legislative power to the president.”
This basically means that referring the law on the selection of the assembly’s members from the Supreme Administrative Court to the Constitutional Court will not put an end to the controversy surrounding the Constituent Assembly for three reasons:
First, the presidency and Ghiryani were keen to perpetuate the political situation which led to the festering atmosphere by ignoring the forces that rejected the current lineup of the assembly and the draft constitution that was released to the public.
Second, disregarding the possibility that the draft constitution could be rejected in the public referendum, this will grant the Constitutional Court the chance to issue its verdict on the constitutionality of the law on the selection of assembly members. The presidency will be in a very critical position if the court rules that this law is unconstitutional, for this would be the third time the president has violated the law, after the decisions to restore the parliament and to dismiss the public prosecutor.
The third reason is that the public will may clash with the decision of the judiciary authority if the Constituent Assembly does not complete the draft constitution and refer it to a public referendum. Then the Constitutional Court will rule that the law on the assembly’s formation is invalid, which is the same scenario that took place when they dissolved the parliament.
For the constitution to come to fruition, the government should correct the mistakes that were committed following the toppling of Mubarak’s regime, namely their decision to build institutions with questionable constitutional and legal status, which are not in line with Egypt’s political elite.