The road to a constitution
Abdel Moneim Said, Saturday 2 Jul 2011
Instead of debating whether elections should or not come first, political forces need to get down to the work of mapping the content of Egypt’s new constitution

If parliamentary elections are held before the end of September and the elected parliament is to choose the 100-member committee charged with drafting a new constitution that will be put to public referendum, then it seems pretty clear that political, intellectual and legal minds in Egypt had better set aside the debate over which should come first —a new parliament or a new constitution —and actually start thinking about the substance of the constitution.

In my opinion, they should engage in a comprehensive dialogue so that when the constitutional committee starts to work it will have a large storehouse of public opinions and trends to draw on.

The task ahead is quite a bit more challenging than some people think, contrary to the opinion voiced by a certain intellectual luminary on a television talk show. In his view, drawing up a new constitution for Egypt would be a breeze. Already a couple of models have been designed, one by some people in a university law school and another by a civil society association.

Then we always have the 1954 Constitution, which we tossed in the rubbish although it should have underpinned the post-1952 revolutionary order. In short, he couldn’t see a problem. We could produce a constitution in two days, he said.

Obviously, the matter is not so simple. If it were, it wouldn’t have taken months and sometimes years for other countries to produce their constitutions. Nor is there any guarantee that the constitutions mentioned by the learned speaker above are consistent with themselves or with each other, or that they could be set down on stone as easily as a writer pens a work of fiction.

The saying that a constitution is the father of a country’s laws only begins to touch on its great purpose and function. Essentially, a constitution is the blueprint for the political engineering of an entire society. It lays the rules for how a society is to manage its life, take decisions and build its future. So not only does the concept stand for established traditions in the world, it also stands for a particular phase of political development at a certain moment in the history of a society and the direction that society wants to go from there.

As I have mentioned in many previous articles, before the 25 January Revolution and afterwards, there is a general Egyptian consensus over the need for democracy, free and fair elections, the peaceful rotation of authority and term limits for high office.

However, beyond this, there is not considerable agreement on some very important issues that the public needs to think about carefully and sort out.

For example, there are certainly many differences of opinion on such questions as the relationship between religion and the state, the relationship between the state and society, the centralised versus the non-centralised state, and the relationship between the state and the outside world, whether for economic purposes or to safeguard national security.

We need to bear in mind that we are not talking here about “policies,” which can change with time and changing circumstances, but about binding legal rules, institutions that embody them, and lasting material and moral commitments borne by the individual and society.

As many examples from around the world suggest, constitutions are structured to form an integral whole.

They consist of an introductory preamble laying out the general principles of the state, then three sections concerning the executive, legislative, and judicial branches of government. They then turn to the particular needs of society in order to lay the framework for its economic, social and political relations, as well as the framework of the relationship between central government and local government.

I believe that, in recent weeks, away from glib television interviews, the Egyptian intelligentsia has devoted considerable efforts to affirming certain irrevocable “super constitutional” principles from essential human rights to citizenship rights needed to ensure that the state is truly founded on a social contract that embraces all of its people.

But there remains the one dilemma that has tainted public discussion on the primary principles of the state and that has drawn increasing focus in recent years. I refer, here, of course to Article 2 of the 1971 Constitution as amended in 1980, which states, “Islam is the religion of the state. The principles of Sharia (Islamic law) are the primary source of legislation.”

There are juristic and political aspects to this question and they are not necessarily on the same side.

On the one hand, according to the concept of the modern state, the state does not subscribe to a particular religion; it embodies a relationship between free human beings who may differ in their faiths or religious convictions, and whose beliefs and ideas may change with changing circumstances.

In modern states with histories of governments that incorporated aspects of theocratic rule, either those aspects were overturned by revolution, frozen and transformed into a part of historical heritage, or disabled by means of a secularist constitutional provision explicitly separating religion from the state, as is the case with the Turkish constitution. Even after coming to power and setting into motion a drive to alter the constitution, the Turkish Justice and Development Party was not interested in stripping the Turkish constitution of its secular character but in transforming the state from a parliamentary to a presidential democracy.

In all events, the modern constitutions of all the states that obtained their political freedoms in the third wave of democracy avoided the subject entirely, consigning the question of faith to the realm of personal freedoms and the relationship between the individual and his creator.

However, the issue at hand here is not so much the need to catch up and keep pace with the rest of the world, as important as that may be, but, more importantly, the extent to which Egyptian public opinion will approve a certain political step. Although the substance of Article 2 never appeared in any previous constitutions and despite the general agreement that the 1971 Constitution, as a whole, is unsalvageable, that one article —and this is my personal conviction —could trigger a deep political division that would be detrimental to consensus in other areas.

Therefore, in the interests of warding off perhaps irreparable harm, retaining that article as stated is a political exigency.

This article, in essence, does not inevitably give the constitution a religious imprint. In fact, its first part was approved by the commission that drew up the 1923 Constitution, on the grounds that it expressed the identity and culture of the state.

The problem, however, resides in the potential abuse of the second part, which provides that the “principles” of Islamic law form the primary source of legislation.

The abuse would aim to effectively, if not literally, cross out the word, “principles,” and proceed directly to Sharia, which would turn the legislative process into a form of fatwapromulgation as opposed to a collective cognitive effort to promote the welfare of the whole.

This dilemma could be overcome by means of another provision explicitly stating that the “principles” of Islamic law are no different in essence to the universal humanitarian principles enshrined in international conventions and charters.

This has always been a major source of pride for moderate Islamists who cite the Quranic verse, “Let there be no compulsion in religion,” and other such principles that uphold the values of freedom, dignity, justice, equality among all human beings and their right to manage the affairs of their world.

Then, so as not to leave the matter to coincidence, the constitution should include another article explicitly guaranteeing the freedom of religion and belief to minorities of other faiths and sects.

This would make the constitution more balanced and it would set to rest the minds of those who fear potential abuse of Article 2 on the part those inclined to arrogance and tyranny.

Solving this problem in both its juristic and political aspects will alleviate the climate of alarm and suspicion and clear the way for the discussion of issues that are less sensitive but of no less importance, because they lie at the heart of the political process.

Of chief concern is the separation of powers, the autonomy of the three branches of government and a finely calibrated system to ensure balances between them, as well as effective oversight, transparency and accountability.

These principles offer a conceptual platform for treating each of these authorities in their respective constitutional chapters, drawing on the merits of previous constitutions in this regard.

However, before addressing the three branches of government, there has to be a consensus over the need to shed all the anomalies in the constitutions of the 1952 revolutionary order which not only conferred upon the president imperial powers but contained provisions unparalleled in any other constitution in the world.

Among the most salient oddities are the provision requiring a minimum 50 per cent representation of farmers and workers in elected assemblies and the provision subordinating the press, which should be the “fourth authority,” to the effective control of the legislature and executive authority by means of the Supreme Press Council.

With all due respect to the views hailing from the left advocating that we keep the worker and peasant ratio, as well as a quota for women’s representation in parliament, not only does this deviate from the prevalent norms in democratic nations, it has always been among the factors that complicated the political process and paved the way for fraud or other types of hell.

The irony is that the left and those segments of civil society that are so keen to protect the rights of workers, farmers and women, are not only doing an injustice to the nation by throwing a spanner into its transition to democracy but are also doing an injustice to those very groups they seek to defend by offering unjustifiable privileges that only become an avenue to subvert the political process.

As I have said many times, the essence of the process of change in Egypt is to transform it into a normal state.

Shedding unwarranted principles is only part of the way. Normalcy will not be complete the state clears out of the realm of the press, which had long been an arm of the authoritarian state and integral to its ability to mobilise masses and rally supporters and sycophants.

The reality that I have experienced in my many years with the national press and national television is one of constant pressure.

One minute you hear surprise that criticism could come from a national newspaper or television programme, the next minute the surprise turns to reproach that this type of criticism or analysis is suited only to the opposition press, after which the pressure is notched up to assorted intimations and threats.

To be fair, the story of the “national” press is not restricted to any particular president’s rule. It is part of the larger story of all eras of the 1952 revolutionary order, and if there is one lesson to be learned from that story it is that the state must butt out of the press.