The committee drafting the chapter on monitoring and independent bodies in the Constituent Assembly has almost finalized 16 articles. Allocating an entire chapter to discussing the role of monitoring apparatuses is a novelty — there were only scattered allusions to their roles in the 1971 Constitution.
Some of the chapter’s articles tackle the formation of new commissions and authorities that comprise monitoring and media bodies originally affiliated with the executive authority and which observers have long wanted to be independent from the state.
The Central Auditing Authority and the Central Bank of Egypt remain independent from the executive authority.
The draft chapter talks about four new authorities, the first of which is mentioned in Article 7 and called the National Commission for Combating Corruption. The second, mentioned in Article 9, is called the National Commission for Elections.
Two new media authorities were mentioned in Articles 15 and 16: the National Council for Audiovisual Media and the National Authority for the Press and the Media. They are defined as having a legal personality as well as enjoying technical, financial and administrative independence from the state, and hence total freedom in running their affairs.
Article 3 of the same chapter says, “The president appoints the heads of those bodies after receiving the approval of the Senate [now the Shura Council] for a four-year term renewable only once. The appointed heads may not be dismissed.”
While several members of the Islamist-dominated Constituent Assembly defend the elected president and Shura Council’s right to pick the heads of those bodies, some analysts fear such appointments will cause those bodies to submit to one political orientation.
Ashraf El Sherif, political science professor at the American University in Cairo, describes the establishment of independent commissions and authorities as a sound move, and says most countries entrust elected entities to appoint members of monitoring authorities. However, the fact that Islamists control the executive authority, and potentially the legislative, might lead supposed watchdogs to sympathize with those who gave them their jobs.
Khairy Abdel Dayem, committee rapporteur and Constituent Assembly member from the Freedom and Justice Party, defends this article and wonders if there could be a better way to select members of those bodies.
The corruption commission
Egypt has 33 monitoring bodies, all of which are affiliated to the executive authority.
Article 7 of the proposed draft chapter says, “The National Commission for Combating Corruption works to combat corruption and prevent conflict of interests. It spreads the values of integrity and transparency, and determines their criteria, and sets the national strategy for that purpose and follows up on its implementation.”
The proposal to establish an anti-corruption watchdog requires having it encompass all 33 bodies and reconciling laws such that all of those bodies operate in the same way, according to Constituent Assembly members.
“Some of those authorities, for instance, are administrative rather than judicial in nature, and so the laws should be amended for them to be effective and capable of fighting corruption. This is the true essence of establishing a corruption watchdog,” Abdel Dayem adds.
Having all those watchdogs operate under one umbrella would help them have an independent character and share a unified database, which would eventually serve efforts to probe corruption.
Meanwhile, Mohamed Saad, coordinator for Monitors Against Corruption and member of the Central Auditing Authority, commends the committee’s decision not to have the auditing agency come under the authority of the commission, saying the agency’s work complements the work of the commission. Saad, however, expresses reservations over the idea of having all other bodies work under one umbrella.
“From a technical perspective, each of these bodies has specific specializations that have governed its work for years. It would have been better to dissolve all those bodies and establish a commission whose work is based on a set of general principles to fight corruption. That commission would have all employees from the dissolved bodies and have a new law to organize its work,” he adds.
Saad fears that a single entity, the president or a Muslim Brotherhood parliamentary majority, would change the way they operate by introducing legislative amendments that would render the watchdog toothless, much like the dissolved National Democratic Party controlled those bodies.
The elections commission
The presidential and parliamentary elections are still managed by judicial committees. According to a legislative amendment introduced by the Supreme Council of the Armed Forces in December 2011 to Law 174/2005 on presidential elections, the presidential elections are administered by a committee chaired by the head of the Supreme Constitutional Court.
The parliamentary elections are administered by a judicial committee led by the head of the Cairo Court of Appeals, according to Law 108/2011.
Article 9 of the same chapter says, “The National Commission for Elections is alone tasked with managing referendums, presidential, parliamentary and local elections. Its role includes preparing voters lists, giving its opinion on the division of constituencies, determining the regulations for funding and electoral expenditure and announcing them and other procedures through to the announcement of the result of the vote.”
This article means the existing electoral commissions will be abolished and replaced with the new commission, which will also have the right to demarcate constituencies in the parliamentary elections. In the past election, electoral constituencies were expanded, and observers say this change has enabled Islamists to scoop a majority, exploiting the larger population density in the new constituencies.
Article 10 of the chapter says the commission will be run by a council composed of nine members and membership will be equally divided between deputy heads of the Court of Cassation, the Court of Appeal and the State Council, who will be elected by their relevant general assemblies. The commission is headed by the most senior deputy head of the Court of Cassation elected.
However, Abdel Dayem says the identity of the head of the commission is still being examined. Some assembly members want the head to be an elected deputy head of the State Council, who they say would have experience working in the Supreme Administrative Court and the State Council, both of which handle lawsuits concerning the elections.
Tahani al-Gebali, deputy head of the Supreme Constitutional Court, says administering the election is not the only reason the commission was set up.
“Elections commissions exist in several countries of the world, but their chief role is to nurture citizens’ electoral culture, ensure popular monitoring of elections and come up with new mechanisms to be used in elections. Its role is not just to supervise the preparation of voters lists and divide constituencies,” she says.
If those points go ignored, she says, the commission would deviate from its main goal and transform into an elected entity, and the identities of its members would be impacted by the Islamist current in judicial circles.
Media monitoring
With opposition powers calling for separating the editorial policies of the media, articles 15 and 16 of the chapter have set up an assembly to regulate and monitor the media and the press in general, and another to manage the affairs of state-run media.
Article 15 sets up a National Council for Audiovisual Media with powers to grant satellite signals and press permits. The council also monitors the performance of the media and ensures the media is not monopolized by any single entity.
Article 16 proposes the formation of a national authority for the press and media to monitor the management of the eight state-owned press institutions and the bodies affiliated to the Egyptian Radio and Television Union, such as the Maspero state TV building and Media Production City.
Former Information Minister Osama Heikal approves of the formation of authorities to ensure media independence, though he expressed reservations over their mode of work and the lack of guarantees to ensure their neutrality.
Heikal says the National Authority for the Press and the Media might not be fully independent, since a president and parliament who will likely belong to the same political current will choose its members.
“The constitution has not stated who its members will be or their number, or even how they will be chosen,” he says.
Heikal says either the president or the Shura Council should pick the members, and preferably the Shura Council since there will be room for discussing the criteria of choice. He further suggests the Shura Council appoint 11 independent media experts to the authority as in France.
Any entity entrusted with managing the media should be aware the state-owned media and press are LE22 billion in debt, Heikal says.
Having one authority run both the press and the media is difficult and often contradictory from a technical perspective, he adds.
“We do not want to replace the Information Ministry and the boards of press institutions with new assemblies that seem independent when their independence and the visions guiding their media and economic visions are not clear in the constitution,” Heikal asserts.
Translated from the Arabic by Dina Zafer
This piece was originally published in Egypt Independent's weekly print edition.
