24 Feb. - 1 March 2000
Issue No. 470
|Published in Cairo by Al-Ahram established in 1875|
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A Diwan of contemporary life (326)
Egypt's first modern constitution was adopted in 1923 and remained in effect until after the 1952 revolution which overthrew the monarchy. The need for a constitution was strongly felt after Egypt won independence -- albeit nominal -- from Britain under the terms of the notorious 28 February Declaration issued by the London government. A newly formed Egyptian cabinet headed by Abdel-Khaleq Tharwat named a 32-member commission to draft a constitution. The Wafd and other opposition factions denounced the new body as a "rogues commission." They preferred to have a constituent assembly with a much wider base. The commission produced the draft constitution after six months of deliberations. Dr Yunan Labib Rizk* tells the story from the pages of Al-Ahram
Constitutional growing pains
On at least two occasions, jurists and historians have tended to view the letter of acceptance of the politician invited by Abdeen Palace to form a government as that prime minister's agenda for his government. This was true of the appointment of Prime Minister Adli Pasha Yakan on 16 March 1921 and once again, less than a year later, of the appointment of Abdel-Khaleq Tharwat on 1 March 1922. In both instances the prime ministers addressed an issue of particular importance: the drafting of a national constitution for the post-independence era.
When the Yakan government was formed, independence seemed just around the corner. Indeed, Yakan was invited to form a government precisely in order to negotiate with the British over questions related to eventual independence. His "agenda" stated that any agreement reached between the Egyptian and British negotiators would be brought before an "elected assembly." It continues, "As this assembly will also in effect be a constituent assembly, the government shall undertake to draw up and submit to it a draft constitution that conforms with the modern principles of constitutional systems. The elections of representatives to this assembly shall enjoy all guarantees necessary to safeguard the freedom of the electoral process and to ensure the fullest and most accurate representation of the people."
At the time Tharwat formed his government a year later, Egyptian independence was exactly a day old. Just the day before, the British issued the Declaration of 28 February 1922, terminating the British protectorate over Egypt and recognising it as an independent nation. Tharwat's agenda was more vaguely worded than that of his predecessor. It stated that among its tasks was "to draw up a constitution in accordance with modern general principles of law." It further stated that "as the constitution will enshrine the principle of government accountability, the representational body shall have the right to oversee its political activity." What it did not provide for explicitly was an elected assembly whose first function would be to draft the constitution.
When the British exiled Saad Zaghlul in late December 1921 and then issued the Declaration of 28 February 1922, they had expected that the spirit of nationalist resistance -- referred to in British documents as "disturbances" -- would subside. The British were sorely disappointed. The very month in which Tharwat formed his new post-independence cabinet saw two major popular demonstrations. The first took place on 18 March when protesters swept through the streets of Cairo calling for the downfall of King Fouad and the return of Saad Zaghlul from exile. The second took place a week later in protest against the trial by a military tribunal of a group of students and members of the Wafd Party accused of attempting to assassinate the prime minister.
Given these signs of popular discontent, government officials, and above all Tharwat, found the notion of an elected constituent assembly unpalatable. According to contemporary British documents, it was believed that free elections -- rigging the elections was an option that had not been contemplated at the time -- would inevitably produce a majority pro-Zaghlul, or pro-Wafd Party parliament which would spell disaster for both the Palace and the Tharwat cabinet. An alternative had to be found, and it was only a matter of days before the public learned of it.
Towards the end of March rumours began to circulate that the government intended to create a "Constitutional Commission." In response to these rumours, Amin El-Rafie, editor-in-chief of Al-Akhbar commented, "Evidently the current government plans to take a short cut that will prejudice the rights and interests of the nation. It intends to monopolise the formulation of a constitution and to hold immediate elections for a parliament that will have a very limited say in the laws the government drafts for itself."
Al-Ahram, even at this early stage, made clear that it sided with the government, or the self-termed Egyptian "moderates" such as Adli Yakan, Tharwat and Mohamed Mahmoud. As was its custom, the newspaper only declared its own position after opening its pages to several Al-Ahram readers and intellectual figures who, in this case, spoke out in support of the government. Foremost among these writers were Mohamed Hussein Heikal and Taha Hussein.
The first to respond to El-Rafie's article via Al-Ahram was a person who simply signed himself "A reader." Under the headline "On Drafting a Constitution", the writer asks, "If the Tharwat government has decided to create a committee bringing together a collection of national political leaders and scholars of law for the purpose of drafting a constitution to submit to the government, which, in turn will put it before the parliament which shall have the right to amend it, how can one possibly suspect it of monopolising the formulation the constitution? All the more so when we recall that this was the government that, through its concerted efforts alongside the nation, secured the declaration of independence and an end to the protectorate?"
If the preceding opinion reflected that of Al-Ahram's editorial management, it nevertheless attempted to present itself as an impartial forum. Thus, it also featured an "open letter" submitted to it by Mohamed Kamel Hussein, a lawyer, who raised a number of questions about the composition and powers of the constitutional commission. Firstly, he asked whether syndicates, religious denominations and political parties would be represented on the committee and, if so, whether they would have the right to choose their own representatives. He also asked whether the Legislative Assembly, which had been suspended since the declaration of the British protectorate in 1914, would in some way be represented on the committee. With regard to the powers accorded to the commission, he asked whether it was "an advisory body whose opinion the government may or may not accept, or a constitutional body whose decisions regarding the constitutional order will be binding upon the government." In this connection, he wondered what mechanisms could be used to gauge public opinion "in order to ensure that the constitution it draws up meets with public approval." Finally, he asked what guarantees would be provided to ensure that the members of the commission would enjoy the full right to free and open exchange of views in light of the fact that the country was still under martial law.
Al-Ahram editor-in-chief Daoud Barakat approached the issue from an entirely different perspective in an editorial that appeared in the same 1 April 22 issue. Under the headline "The Ephemeral versus the Enduring" he argued that putting the formulation of the constitution in the hands of a national assembly would permit personal ambitions and rivalries to wreak havoc in the nation's fundamental organic laws. This, he claims, is precisely what occurred in some nations that adopted this procedure. In all events, he continued, there was a fundamental distinction between those nations that espoused constituent assemblies and Egypt. Whereas those nations had sought to radically alter the system of government that they had just recently succeeded in overthrowing through a revolution, "Egypt's revolution was not mounted to overthrow a system of government, but rather to oust British rule in order to establish a purely Egyptian rule."
Almost as though this Al-Ahram editorial advocating the constitutional commission had given the go-ahead, the government announced its composition the following day. Although it consisted of 32 members, it became known as the "committee of 30". Perhaps, for convenience's sake, the names of its chairman, Hussein Rushdi Pasha, and its vice chairman, Ahmed Hishmat Pasha, were dropped from the reckoning.
According to the report of the Charge d'Affaires for the British High Commissioner in Cairo at the time, the Constitutional Commission included five former ministers, 10 members from the suspended Legislative Assembly and three individuals who had broken away from the Wafd. It also included a number of prominent religious officials, among whom were Abdel-Hamid Bakri, the head of the descendants of the Prophet, the former Mufti of Egypt Sheikh Mohamed Bakhit, Abba Youanis the Metropolitan of Beheira and Manoufiya and Sheikh Mohamed Radi, the head of the syndicate of lawyers of the religious courts and former Bar Association speaker of the Legislative Assembly. In addition, there were three former chiefs among whom was breakaway Wafd leader Abdel-Aziz Fahmi. Only a day before the commission was scheduled to convene, the Bar Association declared that "by commissioning its own supporters for this task the government is selling out the rights of the nation, its people and its future generations, all in order to placate an official or a minister who might occupy a seat of power today but will be gone tomorrow."
However, the opposition of the lawyers' syndicate to the constitutional commission represented only the tip of the iceberg. Both the Wafd and the National Party, both of which adamantly adhered to the principle of a constituent assembly waged a relentless campaign against the constitutional commission.
Spearheading the campaign in the national press against the commission was Al-Akhbar, owned and operated by Amin El-Rafie, a prominent Nationalist Party leader, and Al-Liwa', the Nationalist Party mouthpiece. Representing the Wafd was Al-Ahali, whose owner and editor-in-chief was Abdel-Qader Hamza. Their joint attack against the government-appointed body was neatly summed up in the epithet "the rogues commission."
Al-Ahram, on the other hand, remained adamant in its defense of the commission. In an editorial in its 5 April edition it maintained that the commission had "both the essential competent expertise and the autonomous representational authority to undertake the drafting of the constitutional bill and electoral law in a manner that will uphold the sovereignty of the people and ensure the optimum harmony of all views." The same article added that "in forming this commission the government has taken upon itself the formidable task of ensuring that its very composition would ensure the inclusion of the broadest possible representation of national interests in the constitution. It is thus a government commission only insofar as the government created it. In every other respect it is a national commission as the government itself has recognised. Moreover, even if the government had called for elections to form a national assembly for the purpose of drawing up a constitution, that assembly could not help but elect a committee to draft a constitution."
Apparently the newspaper felt that its defence was still not strong enough, for two days later it published another letter form one of its readers, "Hassan Wahbi, who suggested that as long as the government had acted on this matter without recourse to the people, it should make some form of redress. Therefore, he advised that the proceedings of the commission should be conducted publicly. "In all events," he added, "intellectuals and those with particular concerns and interest should submit their requests to the commission in writing within a period no later than thirty days before it is due to convene." Not surprisingly, neither the government nor the commission heeded his advice.
Worse yet for the commission was the scandal exposed by an opposition newspaper even before the members got down to business. Saleh Lamloum Pasha, an appointee on the commission, had formerly been a Legislative Assembly member representing the Bedouins of Minia. Early on in his legislative career it was discovered that he was illiterate and his membership in the assembly was revoked. "How can the commission that is charged with drawing up the nation's constitution possibly include a member who does not know how to read or write?" asked the astounded correspondent.
The commission was quick to respond. In its selection process for the commission, stated one of its members, "the government was keen to ensure that all religious denominations and demographic segments of the population were represented. There is no cause whatsoever to dispute the rationale behind the appointment of this member of one of the most prominent Bedouin families in Minia, a man who is thoroughly cognizant of his constituency's customs and circumstances. Certainly no harm can come to the country as a result of his rudimentary knowledge of reading and writing. More to the point is that the commission stands to benefit greatly from his expertise and familiarity with his environment." Lamloum's defender goes on to argue that "history is replete with famous men who were illiterate, and yet were paragons of wisdom, moral rectitude and intellectual acumen. Indeed, the world has known national leaders who lifted their countries to greatness in spite of the fact that they could not read or write."
Regardless of its support for the commission, Al-Ahram was unconvinced by the commission member's argument, at least if we are to judge by the substance of the response of another one of its readers. Riad El-Gamal, a lawyer, pointed out the biggest flaw in the argument of Lamloum's defender. Lamloum's appointment, he wrote, violated the provisions of the Prime Minister's memorandum on formation of the commission, in accordance with which its members had to meet at least the minimum qualifications for representation on the Legislative Assembly. Moreover, he added as a concluding argument, while there have been intelligent people who have been illiterate, "it does not follow that illiteracy is a necessary indication of intelligence."
In addition, the commission still had to contend with the Wafd and the National Party newspapers' persistence in refusing to accept the government's fait accompli and in attacking the government for reneging on Adli Yakan's promise to form a national constituent assembly. Prime Minister Tharwat addressed this accusation directly in his speech before the opening session of the commission on 11 April 1922. Those who leveled that charge against the government, he said, "appear to have forgotten that the task of the national assembly, as stipulated in the Yakan government's agenda, was not to draw up a constitution but rather to review the agreement over which the Yakan cabinet was formed to negotiate and then to draw up a constitution based on the provisions of that agreement." Since the drafting of a constitution was no longer contingent upon such an agreement, the pledge of the Yakan government was no longer valid, he argued.
On 19 April 1922 an 18-member subcommittee was formed to draw up the general principles of the constitution. It submitted its report to the government on 21 October of that year. But, throughout the intervening months, the commission was pursued by such an intensity of criticism that its members were kept constantly on the defensive.
It helped little that the commission came under attack in some British newspapers. One British newspaper described the members of the commission "tractable," an accusation which prompted Al-Ahram's London correspondent to respond that the London newspaper was clearly unaware that the members of the commission were "influential, respectable, independent-minded individuals."
To counter the assault in the press, the commission chairman, Hussein Rushdi Pasha, held a number of interviews with the press, one of which was conducted by Al-Ahram's Daoud Barakat on 22 April. The interview seemed jointly scripted to portray the commission in a positive light. For example, Al-Ahram's editor-in-chief asked, "Your commission has been charged with having been formed to rubber-stamp a constitutional bill presented to you by the government. Is this the case?" Rushdi answered, "I deny that charge categorically. No such government-drafted bill exists. The commission is entirely autonomous and enjoys the fullest freedom in its activities. The very composition of the commission should be sufficient to belie any suspicion that its activities are somehow controlled or unduly influenced."
Another member of the commission sought to refute charges that it lacked popular legitimacy. In a letter to Al-Ahram, Ahmed El-Sheikh argued that the articles of the draft constitution would "not be carved in stone" and that the parliament would have "the right to amend anything it found lacking." This right, moreover, was guaranteed in the prime minister's pledge to the king that "the law will establish the most up-to-date parliamentary system and, therefore, will confer upon the parliament the right to amend the law."
In order to drive home the commission's lack of a popular base, the opposition circulated a protest petition which it then submitted to the king. Somewhat gleefully Al-Ahram observed that the petition had only acquired 150 signatures -- "a drop in the ocean compared to the 14 million who stand unanimous behind the constitutional commission. We can take comfort in the fact that the constitution that is in the process of being formulated will conform to the will of the nation."
Al-Ahram's ardent assurances aside, the climate of criticism was bound to affect the commission's work. Tensions among its members surfaced on numerous occasions. Perhaps the moment that seemed to most imperil its very existence occurred in the early summer when a several members threatened to resign if the commission did not adopt the proposal to suspend its activities for a six-week summer break. Al-Ahram was alarmed at the strong reaction this provoked "simply because the vast majority of the members had voted to continue work to the end without stop." It continued, "As long as the majority wishes to selflessly proceed in that endeavour which will benefit the nation with no desire for personal recognition or acclaim, they should not be expected to cave in to blackmail over the question of a month and a half suspension of their work."
When the commission ultimately completed its work, Al-Ahram felt that its support had been vindicated. "The commission put deed above words, reality above illusion, and proved to the nation incontrovertibly that those upon whose shoulders was cast the onus of responsibility had, to a man, persevered to the end with unflagging dedication and integrity."
Al-Ahram's assessment proved correct. The constitutional bill that was formulated by the commission was eventually promulgated as the Constitution of 1923. That this constitution would come to form a fundamental base for the nationalist movement put paid, in retrospect, to the opposition's condemnation of the commission as "the rogues commission."
* The author is a professor of history
and head of Al-Ahram History Studies Centre.