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Friday, 22 March 2019

Egypt's 1923 Constitution: The height of liberalism

Gamal Essam El-Din investigates the story of the 1919 Revolution constitution, which many Egyptians consider the most liberal

Gamal Essam El-Din , Thursday 7 Mar 2019
Demonstrations 1919
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When Egypt’s nationalist revolution erupted in March 1919, it raised two major slogans: independence and the constitution. To revolutionaries, led by nationalist leader Saad Zaghloul, independence meant liberation from the British occupation forces and protectorate which had been in Egypt since 1882.

As for the constitution, it meant liberation from the autocratic rule of the kings affiliated with the Mohamed Ali dynasty which had been in rule in Egypt since 1805.

The British government reacted in the fall of 1919 by sending what came to be called the “Lord Milner Commission” to Cairo to issue recommendations for the future relationship between Egypt and England.

After three years of negotiations, the British government, upon the recommendation of the Milner report, issued a unilateral declaration of Egyptian independence in February 1922.

It also recommended the establishment of a constitutional government in Egypt. The Milner report said Egypt needs a Western-style liberal constitution, a bicameral legislature and a monarch who “reigns but does not rule”.

As a result and in March 1922, Sultan Fouad, who took the title of “Fouad I, His Majesty the King of Egypt”, declared the independence of Egypt. A caretaker government led by Abdel-Khalek Pasha Tharwat was formed to run the country’s affairs for a transitional period.

According to Egypt’s landmark historian Abdel-Rahman Al-Rafie in his book The Post-1919 Revolution Events, Fouad told Tharwat in an official statement on 1 March 1922 that the major task of his government was to prepare the country for a constitutional system which could secure the best possible cooperation between the nation and the government.

Tharwat formed a 30-member committee led by Hussein Pasha Roshdi, a former prime minister, and composed — according to Al-Rafie — of some of the country’s best legal brains.

In the words of Al-Rafie, no sooner had the 30-member committee been formed than it began facing sharp attacks from Saad Zaghloul, the leader of the 1919 Revolution and head of the Wafd Party.

“Zaghloul launched a scathing attack against the committee, describing it as ‘the Committee of the Naughty’, insisting that the constitution be drafted by an elected constituent assembly, and not by a government committee or a monarchical gift,” Al-Rafie said.

After seven-month deliberations, however, the committee was able in October 1922 to finish drafting a constitution, mainly based on that of Belgium. Under a new government led by Yehia Pasha Ibrahim, the constitution was at last issued on 19 April 1923.

According to Al-Rafie, who was also a lawyer and a parliamentarian, the final draft of the 1923 constitution was one of the best in Egypt’s history in terms of regulating the performance of public authorities, and outlining the rights and political and personal freedoms.

“It was a liberal constitution which came after long years of national struggle for democracy and independence,” Al-Rafie said.

Many historians and political analysts, however, beg to differ with Al-Rafie. In her book A Short History of Modern Egypt, political analyst Afaf Lotfi Al-Sayed, indicates that “the 30-member committee was to meet with problems early on, as King Fouad, who was an autocrat, did not anticipate a constitution that would limit his authority or would even have strong power of enforcement.

“The members of the committee held the opposite view,” said Al-Sayed, adding that “the document that finally emerged was a compromise between the ideal and the real; it was a defective constitution, but the king refused to sign any other and was backed by the British government.”

The constitution vested legislative power in the king and a bicameral parliament. The king chose and appointed the prime minister and could dismiss the cabinet and postpone, prorogue and even dissolve parliament at any time.

Demonstrations 1919
The phenomenal demonstrations that took Egypt by storm in protest of the great nationalist statesman Saad Zaghloul, which epitomised the overriding discontent with the British occupation and the corruption of the monarchy-led ruling class (Photo courtesy of the AUC Rare Books and Special Collections Library)

Agreeing, Mohamed Nour Farahat, a constitutional law professor and an independent political activist, told Al-Ahram Weekly that “the 1923 constitution, though a liberal and Western-style document, included some explosive articles which finally led to undermining the political life of Egypt under the autocratic rule of King Fouad and his son King Farouk.

“The constitution gave the king too much power, a power which he and his son used to undermine the workings of parliaments between 1923 and 1952 so that not a single house ever fell through a vote of no confidence, but equally no house sat through its allotted period of time. Parliament was inevitably dismissed by kings Fouad and Farouk who preferred to rule through individuals who had no popular standing and represented no political party, rather than through the popularly elected parties, particularly the Wafd. Rule as a result, was more often by decree rather than by parliamentary laws,” Farahat said.

In her landmark study on Egypt’s political systems in the 20th century, Souad Al-Sharkawi, a Cairo University public law professor, explains that “when the final draft of the constitution was first published in April 1923, it was hailed by most legal experts and historians as a document including some of the most modern constitutional principles in history.

“But soon after just one year — in 1924 — when king Fouad led the first coup against the democratically elected government of the Wafd Party, the elites and the intelligentsia regreted that the country would be back to autocratic rule,” Al-Sharkawi said.

Demonstrations 1919

Farahat notes that “the performance of the British and the minority parties also showed that they were highly antithetical to any kind of constitutional rule and that they were keen to put their personal and political interests first and above any constitutional rules.”

According to Al-Sharkawi, the 1923 constitution was composed of seven chapters, including 170 articles. “In this constitution’s preamble, king Fouad states that since he came to office, he had been keen to follow all the policies which can make the nation free and happy.

This can never be true unless there is a modern constitutional system that can reinforce the nation’s national spirit, and help it run its own affairs in the best way,” Al-Sharkawi said.

Article I states that Egypt is a sovereign, free and independent country, and that its government is based on a royal hereditary system in rule and parliamentary in form. The second chapter, including articles from 2 to 22, covers the rights and duties of Egyptians.

This chapter, according to Al-Sharkawi, was one of the best about the 1923 constitution as it guaranteed for the first time freedoms of the press, opinion, assembly, belief, and that primary education is obligatory and free for all Egyptian boys and girls.

“Despite its grave faults, there is no question that the 1923 constitution’s chapter on freedoms, particularly freedom of speech, led to the flourishing of the press during this period,” said Al-Sharkawi, adding that “between 1923 and 1952, Cairo had been the undisputed capital of the Arab press and during this liberal age we saw some of the best newspapers, magazines and journalists in the country and the Arab world’s history.”

Demonstrations 1919

Besides, Al-Sharkawi argues that “the reason many believe the 1923 constitution is the most liberal national charter in Egypt’s history was because it included no articles about the country’s religion or Islamic Sharia.

“This reflected the spirit of the 1919 Revolution which raised the motto ‘Religion is for God and Homeland is for All’, and we all know how leading Muslim and Christian clerics joined this revolution from its earliest days,” said Al-Sharkawi, indicating that “when the late president Anwar Al-Sadat insisted that the constitution in 1971 stated that Islam was the official religion of the state, and that Islamic Sharia was the main source of legislation in Egypt, this opened the door for sectarian strife incidents and the rise of political Islam”.

On the other hand, Al-Sharkawi argues that “the parliamentary system adopted by the 1923 constitution also caused a kind of a competitive political life as each party tried its best to attract supporters and sponsor different cultural activities.”

Alieddin Hilal, a political science professor and former youth minister, agrees that “under the 1923 constitution and what could be called ‘the liberal experiment’ [1923-52], Egypt saw some of the best brains in all fields of life.

In literature, there were great novelists and dramatists like Taha Hussein, Tawfik Al-Hakim and Naguib Mahfouz, and in music there were Um Kolthoum and Abdel-Wahab, and this was largely thanks to the liberal atmosphere which the 1923 constitution helped create, but that the liberties enshrined by this relatively liberal constitution also caused reactionary forces who were antagonistic to the spread of free Western style life, culture and practices in Egypt at that time to mobilise and launch counter attacks.

“This came when the Muslim Brotherhood group was formed in 1928, with its founder Hassan Al-Banna publicly declaring that his group rejects Westernisation, liberal constitutions and competitive politics as all of these, according to him, violate the rules and spirit of Islam,” said Hilal.

Chapter 3, including articles from 23 to 134, covers the powers of the king, the government, and the two houses of parliament. Article 24 states that the king, jointly with the House of Representatives and the Senate, exercises legislative powers.

Article 25 states that laws go into effect only when they are passed by parliament and ratified by the king. Article 32 states that the Egyptian kingdom is based on the hereditary rule of the dynasty of Mohamed Ali.

In this part, indicates Al-Sharkawi, “we have the most explosive articles. Article 38 gives the king the right to dissolve parliament, and Article 39 also allows him to suspend the meetings of parliament, not to mention that this part also gives him the power of issuing all kinds of executive regulations and law-effect decrees,” said Al-Sharkawi, adding that “the king was also granted the power of proposing laws, ratifying laws, appointing public civil servants, particularly the police and the army leaders, declaring the state of emergency, awarding medals and sashes, declaring war, signing foreign agreements and issuing amnesty orders.”

The constitution gave the two houses of parliament complete powers in supervisory and legislative terms. “But it gave the House of Representatives an exclusive right to put the government to a vote of confidence,” said Al-Sharkawi, adding that “while the House was composed of 264 MPs [Article 86], that of the Senate comprised 147 deputies, with a fifth to be appointed by the king.”

Articles from 134 to 170 covered budgetary issues, and the regulation of the performance of the army and police forces.

Although nationalist leader Saad Zaghloul was a major critic of the 30-member committee that drafted the constitution, he changed his mind later and decided that his party, the Wafd, contest the first parliamentary elections under the new constitution in 1924.

Elections were held in January 1924 and their outcome was a foregone conclusion, a landslide for the Wafd which won the majority of seats, leaving only seven to the Liberal Constitutionalists Party.

Zaghloul became prime minister, and his major job was to stand up to a king who had sought to sidestep the constitution and rule as an autocrat whenever he could. “King Fouad, therefore, believed that he need not consult his premier nor even parliament, which he termed a flock of sheep fit only to be led,” said Al-Sayed, adding that “at the same time, Zaghloul was fighting real constitutional battles and had to resort to threats of resignation, or worse, to get the king to rule according to the terms of the constitution.”

Professor Al-Sharkawi said the 1923 constitution faced three coups, all under the rule of king Fouad. The first came on 24 November 1924 when Fouad exploited articles 38 and 39 of the constitution to force Zaghloul to resign.

“Fouad led the first coup when he exercised his powers in articles 38 and 39 to ask Ahmed Ziwar Pasha, a feudalist, to form a new government,” said Al-Sharkawi, indicating that “the first thing Ziwar Pasha had done was to dissolve parliament when it elected Saad Zaghloul as speaker.”

The second constitutional coup came in June 1928 when Fouad decided to dismiss the then newly elected prime minister Mustafa Al-Nahhas, Zaghloul’s successor.

“Although Al-Nahhas was the leader of the majority party, the Wafd, Fouad chose again to exercise his constitutional prerogatives [Article 49] which gave him the authority to expel the prime minister and cabinet ministers,” said Al-Sharkawi, adding that “as a result, Al-Nahhas was forced to resign, and Mohamed Mahmoud, a feudalist autocrat, was appointed prime minister even though his party, the Liberal Constitutionalists, was a minority.”

“And like Ziwar, the first thing the Mohamed Mahmoud cabinet did was to dissolve parliament,” Al-Sharkawi said.

The third coup against the constitution was the most dangerous. In 1930, King Fouad chose not only that Ismail Pasha Sedki, an autocratic and unpopular politician, be appointed the new prime minister, but also that the 1923 constitution be completely revoked and that the two chambers — the House of Representatives and the Senate — be dissolved.

Under a royal decree, Sedki proceeded to draft a new constitution which gave the king tremendous powers, diminished suffrage and aimed to weaken support for the Wafd.

Al-Sharkawi argues that while the 1923 constitution struck some kind of balance between the powers of the king and parliament, the 1930 constitution, issued by Sedki, was intentionally aimed at granting the king absolute powers to rule with an iron fist.

“Under this misguided charter, the constitution was considered a gift from the king, and not a contract between the king and the nation as the 1923 constitution states,” said Al-Sharkawi, adding that “it also gave greater powers to the king in the form of suspending newspapers, naming sheikh of Al-Azhar and other religious clerics, and changing the budget and laws.”

The 1930 constitution had been in effect until 1935, even though the king was under public pressure and repeated street protests to dismiss Sedki in 1933.

In December 1935, said Al-Rafie, a national front including the Wafd, the National Party, and the Liberal Constitutionalists asked in an official request that the 1930 charter be abolished and the 1923 constitution be reinstated.

“As a result and in 12 December 1935, King Fouad issued a royal decree [No 118], stating that the 1923 constitution be re-implemented,” Al-Sharkawi said.

When Farouk, succeeding his father Fouad I, took office in 1936, he pursued the same malicious policy of disbanding parliaments and dismissing majority parliaments.

According to Al-Sharkawi’s statistics, Egypt had seen the formation of 10 parliaments between 1923 and 1952, with none completing their five-year term.

“The same is true about governments as 30 cabinets had been formed and dismissed by the individual will of Fouad and Farouk, and not by any constitutional rules,” said Al-Sharkawi, noting that “king Farouk, exercising the powers granted to him by the 1923 constitution’s 38 and 39 articles, had to change cabinets four times between January and June 1952.

This was the tragic end of the liberal experiment, which the 1923 constitution helped build, and by that time there had been wide-scale public sense that the Egyptian constitutionalism proved illusory as Egyptian independence,” Al-Sharkawi said.

When the army’s Free Officers movement led a revolution against king Farouk on 23 July 1952, one of the first things was to declare the elimination of the 1923 constitution on 10 December 1952.

“It was highly noticeable that the declaration had triggered no public reaction at all as most people by that time had lost trust in the constitution and the multi-party system, and that the entire royal regime had gone bankrupt,” Al-Sharkawi said.

*A version of this article appears in print in the 7 March, 2019 edition of Al-Ahram Weekly under the headline: The height of liberalism

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