Event ReportsPublished on Sep 17, 2012
Recognising the critical nature of the situation in Egypt, and the role that a successful free and fair elections will have as a stabilizing factor in the establishment of a 'new' Egypt, Observer Research Foundation invited Justice Hatem Bagato,
Egyptian judiciary will ensure the constitution protects all

Recognising the critical nature of the situation in Egypt, and the role that a successful free and fair elections will have as a stabilizing factor in the establishment of a ’new’ Egypt, Observer Research Foundation invited Justice Hatem Bagato, Secretary General of the Supreme Presidential Elections Commission, for a discussion on September 17, 2012, with eminent personalities on the elections, and the transition process in Egypt.

The discussion helped throw light on the importance of the judiciary in ensuring that Egypt witnesses a successful transition towards democracy based on the rule of law. The Egyptian judiciary had been shackled under the previous regime, but now the Judiciary can ensure that a strong constitution is drafted that adheres to the principles of democracy, equality and human rights.

Tracing the transition process since the uprising, it was noted that the existing parliament was dissolved, in June 2012, as it was elected constitutionally. Nearly a year before that, on March 30, 2011, a commission each was set up to oversee the parliamentary and the presidential elections.

It is very important to realize that the process of transition will take time. The examples of India and South Africa were cited to illustrate the importance of time and stability to draft a strong and credible constitution. Discussions also revealed the failure of some countries, in the past, to formulate a strong constitution has been due to the fact that they were not able to achieve a semblance of stability before they started the process of writing a constitution.

Having attained some stability, Egypt has now elected a Constitutional Assembly and a new constitution is expected to be ready before the end of the year. The new Parliament will be elected once the constitution is finalized. The discussions with Justice Bagato mentioned the debate over who should comprise the Constitutional Assembly. It was revealed that a decision was made in favour of having the elected representatives choose a group of experts who will be more knowledgeable about the requirements of drafting a constitution. Justice Bagato is one of the eight member team elected for the drafting of a constitution.

Despite certain perceptions of a discord between the President in Egypt and the Supreme Court, those attending the discussion were assured that there is no existing tension between the executive and the judiciary. It was categorically noted that the President respected the Supreme Court decision on the non-renewal of the previous parliament.

Regarding the role of religion in the new constitution, and the dominance of Muslim parties, it was strongly emphasized that the new constitution will not have any space allowing for discrimination based on religion, race or gender. Although past constitutions in Egypt were highly influenced by the Sharia law, it has been clearly enshrined in the Islamic law that the right and freedom of other religions must be respected. Even though the influence of Sharia in the making of the constitution might be a political necessity, it was clarified that the constitution will seek to protect everybody and the judiciary will work to uphold that very same constitution. Furthermore, the judiciary will have the express authority to ban any group or enactment that seeks to use religion as an instrument or strategy of discrimination. Thus far, all political parties have maintained the respect for every religion as well.

Referring to Chapter 4 of the 1971 Constitution, which upholds democratic ideals and the importance of the rule of law, the group was assured that the new constitution will seek to further the objectives enshrined in that chapter. Stressing on the importance of democracy and equality, the discussions highlighted that the protection of human rights, based on international standards, will be an indispensable element of the new constitution. The rights of women will also be an intrinsic part of the constitution, with the judiciary being given the power to punish any proceedings that discriminate on the basis of gender.

The making of the new constitution will be taking its influence from the constitutions of democracies from around the world. It should be noted that there was considerable French influence in the making of the 1971 Constitution. In the case of new constitution, citing as an example of outside influence, it was pointed out that the concept of ’Childhood Rights’ have been borrowed from the constitution of the Republic of South Africa.

Realising the success of the Indian Constitution and the Indian election process, it was explained that the Election Commission in Egypt will work closely with the Election Commission in India to learn from the latter.

In a process of transition, the role of the Army is always a cause for concern; however, the gathering was reassured that the Egyptian Army is a highly professional organization, which does not lend loyalty to any party, only to the state. The Egyptian people have a lot of respect for the institution of the army. The army ruled during the period of transition as it was something that the people accepted. The army as an institution does not have any political agendas, and there will be no special privilege that will be extended to the army in the new constitution. The army’s respect for the institution of the state was reflected in their adherence to the President’s order asking the Army to return to the barracks.

The gathering group was also illuminated on the future prospects of cooperation with India. Apart from the previously mentioned cooperation between the Election Commissions of the two countries, Egypt and India will also be working together in matters of space-faring - Egypt will consider using Indian facilities to launch its satellites. Furthermore, the Egyptian Government will also seek to facilitate cooperation between organizations like the Observer Research Foundation from India and different think-tanks in Egypt.

(This report is prepared by Arvind John, Research Assistant, Observer Research Foundation)

The views expressed above belong to the author(s). ORF research and analyses now available on Telegram! Click here to access our curated content — blogs, longforms and interviews.