17 - 23 October 2002
Issue No. 608
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Al-Ahram: A Diwanof contemporary life (464)
Constitutional reflectionsIn 1930 Prime Minister Ismail Sidqi suspended the constitution drafted in 1923. This prompted a series of articles in Al-Ahram recalling the history of Egyptian constitutions since their beginnings in the early 19th century. Professor Yunan Labib Rizk* reads through
From 1908 the Egyptian monarch was pursued wherever he went by bands of youth shouting, "The constitution, Your Majesty!" The chant reflected a movement that had picked up considerable momentum since the British occupation of the country in 1882. Naturally, British High Commissioner Eldon Gorst and his successor Lord Kitchner found the appeal for a constitution so disturbing that they felt compelled to research its history in Egypt. Both reached the conclusion that it was little more than the hotheaded agitation of a small class of educated youth, a conviction that gave them only temporary solace.
Click to view caption
Clockwise: Said Pasha; King Fouad I and Khedive Ismail
Time proved them wrong. This became apparent in the interval between the Mohamed Mahmoud's suspension of the 1923 Constitution on 3 October 1929 and Ismail Sidqi's suspension of it again on 19 June the following year, after which he drafted a new constitution tailor made to his interests and those of King Fouad I.
During those eight months numerous intellectuals and politicians campaigned for the idea of the constitution, believing that Mohamed Mahmoud's suspension was merely a futile attempt to obstruct the inevitable flow of history. Galaleddin Hassan, a staff writer at Al-Ahram was among them, rising to the task assigned to him magnificently.
Galaleddin Hassan compiled a lengthy study on the rise of the constitution in Egypt. Featured in seven instalments, appearing between 13 to 27 January 1930, the study presented not merely a historical account but also a historical outlook that merits closer inspection.
In his first instalment, the journalist-scholar refutes the commonly held notion that Khedive Ismail was the first Egyptian ruler to introduce a constitutional order with the establishment of the Chamber of Deputies in 1866. Such assemblies, he held, did not emerge out of the blue, and casting his sights back in time he found the precursor he was looking for. On 13 May 1805, the Egyptian ulama, or religious authorities, met in Beit Al-Qadi to deliberate over the question Mohamed Ali had put to them -- whom did they want as wali, or viceroy? Their answer was as follows: "We only accept you as our wali, on our terms, in view of the justice and good we anticipate from you." In Hassan's opinion, "This simple action was highly significant because it took place in the 19th century, the century of liberty and the era of popular movements, and it marked the beginning of the Egyptian people's awareness of their rights."
The author then proceeds to examine the Mushawwara, the consultative council Mohammed Ali founded in 1828. Composed of provincial directorate chiefs, village mayors and eminent ulama, Hassan asserts that this council was the first representative body in the history of modern Egypt. As evidence, he cites its organic law, which stated, "The Mushawwara Council shall meet every day, during which session its members shall air what is on their minds and declare their intent without fanaticism or obstinacy. Thus, in their exposition they shall adhere to what is right and fair so that it will further the benevolent cause and obtain his sublime satisfaction."
Although the council was abolished under Abbas I, as part of his attempt to abolish the governing institutions established by Mohamed Ali, a similar consultative body was reinstituted under Said Pasha after his coming to power in 1854. According to Hassan, the functions of Said's Shura Council were to draft administrative laws and regulations and to examine resolutions and decrees before submitting them to the Pasha. He added, "This council was free to state its opinion and it frequently refused to approve decisions taken by the wali."
In his second instalment Hassan discussed the constitution in the age of Ismail Pasha. In April 1866, three years after assuming the throne, Ismail issued a decree establishing the Chamber of Deputies. In his speech inaugurating this body on 19 November the famous Khedive said, "When my grandfather assumed control over the affairs of Egypt, he found it devoid of the manifestations of prosperity and development. He thus dedicated himself to providing for the security of the people and the construction of the country until God decreed that the reins of the government of Egypt pass to my hands. Since that time, I frequently considered founding a representative consultative council, for there arise many issues with regard to which there are incontrovertible advantages and benefits to be gained from rendering such matters the subject of consultation between the ruler and his subjects, as is the practice in most countries. Therefore, I deemed it appropriate to inaugurate this council in Egypt so that it may deliberate and declare its opinions on matters conducive to domestic interests. Its members shall be elected from the people and it shall convene in Cairo every year for a period of two months."
In fact, Hassan informs his readers, the Council of Deputies consisted of 75 members, "selected by mayors in the provinces and of which three represented Cairo and two Alexandria". He adds that most of the members were elected from among the rich, "without regard to their knowledge or abilities", as a result of which the council became, in effect, no more than a tool to be manipulated by Ismail.
The Council of Deputies continued in this fashion for just over ten years. Then, in April 1877, in a speech to an assembly of notables in Tanta, Ismail announced that he wanted to "rule with his people", and would therefore create a parliamentary instead of a consultative council. This declaration, according to the historians that Hassan consulted, stemmed from the khedive's need to counter foreign pressures to repay Egypt's enormous debts. European creditor nations had just formed an international commission to examine the question of repayments.
On 17 May, following the resignation of the Nubar cabinet and the formation of a new cabinet under Sherif Pasha, the new council began to draw up its articles of formation, which it submitted to the khedive three weeks later. The country seemed on the threshold of a truly constitutional system. However, apprehensive of these developments, the European powers pressured the sultan in Istanbul to issue an edict, on 26 June 1879, deposing Ismail, thus aborting the incipient legislative body. "Ismail created for us a modern constitutional system and hastened its fruition, which ultimately led to revolution," Galaleddin concluded.
The constitution under the Khedive Tawfiq, Ismail's son and successor, was the subject of Hassan's third episode. The new khedive, however, was not the man to ensure solid foundations for a constitutional order. Hassan writes, "Weak-willed, hesitant and irresolute, no sooner had Tawfiq proposed a constitutional order than he declared sole rule resistant to deliberation and consultation at a time when educated people had pinned their hopes on a modern constitutional system."
One of the causes that Hassan cites for Tawfiq's vacillation was the outbreak of the revolution. Shortly after coming to power he told his newly appointed prime minister, "The government must be consultative and its ministers must bear responsibility. I will not deviate from this principle upon which my government shall rest and we must therefore support and expand the authority of the Council of Deputies."
However, shortly afterwards he revealed his true nature. He rejected the amendments Prime Minister Sherif introduced into the constitution, compelling Sherif to resign. Then, on the pretext of the need to hasten reform, the khedive himself formed a cabinet, one greeted with widespread resentment for its contravention of the most fundamental principles of constitutional rule. Popular sentiments were even further incensed that the khedive reserved to himself the right to preside over the sessions of the government, particularly in view of growing foreign intervention in domestic affairs. Eventually, "the spirit of revolution began to burn in the hearts of the people and unity increased between members of the army and leaders of the constitutionalist movement," a process that culminated in the demonstration of 9 September, which marked a turning point in the history of the Egyptian constitution.
In deference to the popular will, on 26 December 1881, Tawfiq called a meeting of the council of deputies. In his address to this assembly, the khedive said, "I express my gratitude to the honourable deputies for assembling so that they may represent the people on matters of benefit to them. As all are aware, since I assumed the reins of government it was my sincere resolve to inaugurate the Council of Deputies. However, this has had to be delayed until the present due to the problems that had beset the government." His Highness was not being entirely honest, as his previous record might have suggested and as subsequent events bore out.
Differences between Tawfiq and the deputies over the organic law came to a head of article 22 pertaining to the budget. The council declared that it was their right to approve the budget while the prime minister maintained that this should remain the preserve of the government, especially given the presence of the two British and French delegates who were looking over their shoulders with regard to income and expenditures and who also opposed the council's demand.
Against the backdrop of rising revolutionary tensions, the council promulgated the constitution of 7 February 1882. Modelled on the latest constitutional systems of the age, article 25 stated, "Bills of law shall be drawn up by the government and presented by the ministers to the Council of Deputies for review, deliberation and the necessary ratification." The following article stated, "In the event of a dispute between the Council of Deputies and the cabinet whereby both bodies remain adamant on their opinions and the cabinet does not resign, the Khedive shall order the dismissal of the Council of Deputies and set elections for a new council to be held within no more than three months." The council continued to meet regularly until 26 March when its term ended.
These developments confirmed to Galaleddin Hassan that the Egyptian constitutional movement had matured under Tawfiq. Revolution and the subsequent British occupation, however, would set the movement back by decades.
Titled "The constitution in the age of the occupation," the study's fourth episode treated the attrition to constitutional development from 1882 onwards. On 1 May of that year, as advised by Lord Dufferin, Britain's ambassador to Istanbul, Tawfiq issued an edict promulgating a new organic law creating a number of consultative bodies. The provincial councils, consisting of between three and eight members depending upon the size of the province, had "very limited powers, restricted to road works, navigation, irrigation, agricultural improvement and drainage". Council members were elected for six-year terms by public ballot and sessions were chaired by the provincial directorate chiefs.
The Majlis Shura Al-Qawanin, or Legislative Council, consisted of 30 members, 14 of whom were appointed by the khedive while the remaining 16 were selected by each of the 14 provinces plus Cairo and Alexandria. Under the organic law, this body had the right to examine all bills of law, but the government was not bound to accept its advice and the council had no veto power.
Lastly, the organic law established Al-Jam'iyya Al-'Umumiyya, or the General Assembly. The largest of the consultative bodies, it consisted of 82 members, comprised of the six cabinet ministers, the 30 members of the Legislative Council and 46 notables elected from the governorates and provinces. The assembly was empowered to approve direct taxes, public loans and public works. However, again, the government was not bound by the opinion of the assembly, although it was entitled to an explanation when the government rejected its advice.
Hassan maintained, correctly, that the 1882 organic law was a large step backwards for the constitutional system in Egypt. Under the new system, "the government came to have full power and no one had the right to call it to account." Gradually popular pressures for effective checks on executive power built up to such a degree that Abdin Palace, the seat of nominal power, and Dubara Palace, the residence of the British High Commissioner and the seat of actual power, were compelled to amend the organic law.
Thus, 1913, a year before the outbreak of World War I, the Legislative Council and the General Assembly were merged into a single body. The Legislative Assembly "had greater powers, had more elected representatives entrusted with sharing legislative authority and greater scope for defining the methods of drafting legislation". The assembly consisted of 66 members and 17 appointed members, from whom the speaker and one of the two deputy speakers were chosen. The second deputy speaker was chosen from the elected members. Members served for six year terms, with one-third of the members being replaced every two years. The assembly went into session on 1 November and adjourned at the end of the following May. The electoral process was two-tiered, with every 50 eligible voters choosing an electoral delegate who remained in this capacity for six years. The electoral delegates, in turn, voted in the members of the Legislative Assembly, candidates for which had to be at least 35 and literate.
In Hassan's opinion the amendments though marking a significant improvement, were not sufficient. Firstly, he took exception with the notion of indirect ballot: "We are all aware of the ills of this method through which it is easy to influence the voters." Secondly, he objected to the requirement that candidates pay a candidacy fee. Thirdly, Article 1 of the organic law stipulated that the legislative body was "not entitled to issue any law that had not first been submitted to the assembly for its opinion". To Hassan, this provision meant that the body's function was purely advisory, for although the assembly had the right to propose laws, "it cannot examine them until after they were submitted to the cabinet. Thus, the power of this assembly was limited since the ministers had the final say, as the presentation of legislation to the assembly was contingent upon their volition."
Furthermore, although the assembly had the right to question ministers on matters concerning the public welfare, "the speaker of the house could refuse to relay any question to the cabinet and ministers had the right to refuse to respond to any question that they deemed detrimental to the public welfare to answer." Nevertheless, at the end of this article, the author confessed that the Legislative Assembly was an improvement over its predecessors approximating European parliamentary systems. It had the right to propose legislation and it met for longer periods and more systematically. But, it was not destined to live long. With the onset of war, the declaration of martial law and the British protectorate over Egypt the assembly never formally reconvened.
The catalyst in the evolution of the constitutional system was the 1919 Revolution. One of Egyptians' foremost demands during their campaign for independence was for the return to a constitutional order, evidence of which Hassan cites from contemporary documents. Communications between Egyptian and British negotiators during the revolution made frequent references to this demand. The first article of Saad Zaghlul's proposal to Lord Milner called for "the end of the protectorate Great Britain declared over Egypt and to the British military occupation, thereby restoring to Egypt full sovereignty in its domestic and foreign affairs and creating a constitutional government."
Alfred Milner had been sent to Egypt at the head of a commission to assess the causes of the revolution. In his report following this mission which was boycotted by Egyptian nationalists, Milner found himself compelled to recommend "a treaty between Egypt and Great Britain in accordance with which Great Britain recognises Egypt's independence as a constitutional monarchy with parliamentary bodies". In addition, he recommended creating a constitutional committee to devise "a new organic law in accordance to the provisions of which the government of Egypt shall proceed in the future. This law should contain provisions to ensure that ministers are responsible before the legislative body."
In the summer of 1921, Prime Minister Adli entered into negotiations with Lord Curzon on Egyptian independence. In his proposal to the British foreign minister Adli stated, "In adopting and ratifying this treaty the Government of His Majesty the King of Great Britain shall lift the protectorate that had been declared over Egypt on 18 December 1914 and recognise Egypt thereafter as a state endowed with the rights of sovereignty under the government of a constitutional monarchy."
The breakdown of Anglo-Egyptian negotiations led to the Declaration of 28 February 1922 by which London unilaterally recognised Egyptian independence. On this occasion, the British cast the constitutional ball into the Egyptian court. The letter containing the declaration was addressed to King Fouad and called for "the creation of a parliament endowed with the right to supervise and monitor a responsible government in the constitutional manner, which matter shall be deferred to Your Majesty and the Egyptian people."
The following year, the 1923 Constitution was promulgated. Given that this was the constitution suspended at the time Hassan's study appeared in Al-Ahram, his following observation have a certain poignancy: "A most modern constitutional system is not out of Egypt's reach, nor does it require a great leap towards perfection. We have been progressing towards this end from 1866 until today and it should not be impossible to establish governance under the latest of constitutional systems after all this time. The people have pinned their aspirations upon such a system and will never deviate from this aim or accept an alternative."
Hassan called his last instalment "The modern parliament". It begins with a brief overview of the system established under the 1923 Constitution: a Chamber of Deputies and a Senate. Although he confesses that bicameral system was more cumbersome than a unicameral system, he nevertheless believed that "it is preferable to have a higher body to review the decisions of the lower body, especially as the Senate contains many individuals with the experience and expertise to enable them to delve into the deeper intricacies and scrutinise them more thoroughly."
Parliament was still elected by indirect ballot, which led Hassan to remark that the authors of the 1923 Constitution had "ignored the psychological state of the nation and the fact that constitutional principles have been fermenting in the minds of the people since their revolution". Again, he stressed that indirect balloting made it too easy to influence the outcome of the vote due to the small numbers of electoral delegates who, moreover, were taken from a very narrow segment of society. In view of this opinion, it is not surprising that Hassan lauded the Wafd Party's advocacy of direct elections, which was approved by the 1924 parliament. It was precisely because this balloting system was guaranteed to assure the large populist party an overwhelming majority in parliament that the governments of Ziwar (1924-1926) and Mohamed Mahmoud (1928-1929) insisted on sustaining the indirect ballot.
The Al-Ahram writer also extolled the broader powers accorded to parliament under the 1923 Constitution. For example, it provided that if the king refused to ratify a bill of law passed through parliament he must refer the bill back to the house within a month and his failure to do so by that time would constitute ratification. The constitution also provided that the king must invite the leader of the party that won the majority in parliamentary elections to form a government answerable to parliament.
Hassan then arrives to the conclusion he had been building up to; almost an admonition to those in the opposition parties or the palace who had designs to undermine the constitution. The constitution protected the people's choice of parliament. If it gave the king the right to dismiss the government formed by the head of the majority party, this right should not be exercised, he maintained, "while the government continues to enjoy the confidence of parliamentary deputies, since the government is directly responsible to parliament not to the king".
More significantly, he cited Article 117, which stated, "No armed force may enter the parliament building or be deployed in the vicinity of its entrances unless at the request of the speaker." It appears that Galaleddin Hassan had an uncanny sense of premonition. Only a few months later, the king's prime ministerial appointee, Ismail Sidqi, ordered an armed force to surround parliament in order to prevent deputies from entering the building. Although the deputies eventually succeeded in entering, Kind Fouad suspended parliament shortly thereafter.
* The author is a professor of history and head of Al-Ahram History Studies Centre.
Letter from the Editor
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