Egyptian independence leader Saad Zaghloul, circa early 1920s. AFP/Getty Images
September 04, 2012
A TV
show recently invited me to talk about the history of Egyptian constitutions,
and the lessons we can draw from this history in our efforts to draft a new
constitution. I was immediately struck by how little I knew. We were taught
nothing about our constitutional rights in civics classes in school, and our
history classes stressed the victories of our nation rather than our rights as
citizens.
So, I
have been struggling to catch up. I learned from a colleague, for example, that
the so-called liberal constitution of 1923 had many non-liberal features. It
was written in the wake of the popular 1919 revolution, which had been ignited
by the British arrest and exiling of independence leader Saad Zaghloul. Many of
Egypt’s best legal minds served on its drafting committee, and Zaghloul would
become the first prime minister under this constitution. Yet it was also
written under the tutelage of an oppressive colonial occupation. The
constituent assembly that drafted the constitution discovered that a
Consultative Committee for Legislation staffed by British administrators and
mandated to “revise” the draft ostensibly on technical grounds only, actually
exceeded its mandate. It had tampered both with the text and spirit of the
draft, and inserted many clauses that curtailed basic freedoms and rights, most
importantly those of free speech and free assembly.
I also
learned that the constituent assembly that drafted the 1971 Constitution was
stunned to see that the text they had presented to President Anwar Sadat after
months of careful preparation had little connection to the one that was
eventually presented to the people to vote on in a national referendum. Sadat,
victorious from his power struggle against Nasser’s men, had managed to alter
the draft, and the final text reflected the expansive presidential powers that
he’d won from his enemies—powers he wanted enshrined in the constitution.
Considering
these precedents, I fully appreciate this current truly historic moment. Never
before have we, the Egyptian people, been given the opportunity to write a
constitution following a popular revolution. We have no British occupying power
to dictate to us how we should manage our country, nor a tyrant who wants to
twist the constitution to protect his privileges.
Our
revolution deserves a revolutionary constitution, one that reflects the
positive, self-confident mood of the millions who made it happen. We expect our
new constituent assembly to enshrine in our constitution the principles that
inspired our revolution: liberty, justice, and human dignity. Rights such as
free speech, free belief, public assembly, and gender equality, among many
others, should be expressly stated in the constitution in a clear, categorical
way that is not open for subsequent curtailment by executive fiat or
legislative act.
Like
all revolutions, ours is a messy one, and we are realizing how much more
difficult it is to build a new system than it is to bring down an old one.
Moreover, our revolution has not yielded a clear winner. The political scene is
suffering from a division among three main camps: the remnants of the old
regime, the feloul, who, together with the army and the institutions of the ‘deep
state,’ did badly in the parliamentary election, and whose candidate, Ahmed
Shafik, lost the presidential election; the Islamists, who won a huge majority
in the parliamentary election and whose largest faction, the Muslim
Brotherhood, succeeded in winning the presidency for its candidate, Mohammed
Morsi; and finally, the revolutionary forces who triggered Egypt’s revolt but
whose lack of organizational structure resulted in their losing both the
parliamentary and presidential elections.
Each of
these three forces has different expectations of the constitution. The remnants
of the former regime, most notably the army, managed just a few days before
handing over power to the elected president, to insert into the constitution
such language as to protect its significant privileges and effectively
establish the army above the law and the constitution. The Islamists, for their
part, believe deeply that their victory in the parliamentary election gives
them a mandate to implement Islamic law. Finally, the revolutionary forces are
determined that the coming constitution should defend the ‘civilian’ nature of
the state, insisting that the Arabic word for civilian, madaniyya, is symbolically
both non-military and non-religious.
Interestingly,
the protracted struggle surrounding the formation of the constituent assembly
did not reflect this tripartite division—it was merely a bipartite one. The key
issue was whether or not the constituent assembly should include elected
members of parliament. Given that Islamists had won some 70 percent of
parliamentary seats, non-Islamists were anxious that allowing MPs to elect
themselves to the constituent assembly would result in an Islamist domination
of the constitution-drafting body. There was also the question as to whether or
not the Islamists were correct in their argument that winning the parliamentary
elections actually gave them a mandate to write the constitution. After the
Supreme Constitutional Court dissolved parliament on a legal technicality and
the Administrative Court also dissolved the first constituent assembly,
Egyptians are currently preoccupied in debating the ideal ratio of Islamists
versus non-Islamists in the assembly.
There
is no doubt that public concern about the religious leaning of the constituent
assembly is an important one. But a more important question surrounds the very
nature of the constitution. Should it be a document that merely reflects
society as it is? Or should it strive to draw a picture of society as it should
be? Should our constitution refer to the values, common beliefs, history, and
past struggles of the Egyptian people? Or should it, rather, aspire to a
society that we still do not have, to dreams we cherish, to values that we need
to inculcate, and to hopes we want to achieve?
Any
constitution should strike a balance between the shared values of a people as
they are, and their common image of themselves as they wish to be. Accordingly,
the question should not be “What is the religious persuasion of the members of
the constituent assembly?” but, rather, “Are they simply drafters who translate
the shared values of the Egyptian people into constitutional texts, or are they
visionaries who can transcend the lowest common denominator and aspire to
loftier goals agreed upon by few but dreamed of by many?”
Our revolutionary moment
requires us to abandon the “Islamists versus non-Islamists” criterion when
thinking of how to form our new constitutional assembly. We should ask whether
our new constitution should be written by drafters or by dreamers.
Khaled Fahmy is a professor of history and the
chair of the History department at the American University in Cairo. He is the
author of several books, most recently Mehmed Ali: From Ottoman Governor to Ruler of Egypt. He has written for
the New
York Times, Wall Street Journal,
and Washington Post, and
contributes regularly to the Egypt
Independent.