Al-Ahram Weekly Online   4 - 10 October 2012
Issue No. 1117
Published in Cairo by AL-AHRAM established in 1875

Ayman El-Amir

Constitution in the balance

Something as fundamental as a constitution for the country should be the subject of lively national debate, not the preserve of backroom deals and partisan politics, writes Ayman El-Amir

The drafting of Egypt's new constitution is caught up in a tug-of-war between liberal democrats, national Islamists and some opportunists. They are vying for a draft that would align with their political, religious or business agendas. With internal bickering and covert manoeuvring rampant, the Constituent Assembly is veering away from the inspirational purposes of the 25 January 2011 Revolution and the pressing requirement of drafting a constitution by consensus. Since one-tenth of the 100 members of the assembly have resigned in protest or passed away, it is time for President Mohamed Mursi to reconstitute the assembly or appoint a new one as he promised in his 100-day reform programme.

When the idea of drafting a new constitution was raised it was emphasised that, like all other constitutions, it would be formulated and adopted by consensus. A constitution is the supreme law of the land from which all other laws emanate. The new constitution would be guarded by a Supreme Constitutional Court (SCC) whose definitive role is to rule on the constitutionality of any law promulgated by legislative bodies. It was this court that decided that the electoral law by which elections for the People's Assembly were organised in November 2011 was unconstitutional because they were conducted under a parallel voting system that it deemed discriminatory. The court rescinded the elections and ruled that all laws passed by the resultant People's Assembly were null and void. In a subsequent case, the Supreme Administrative Court concurred with the ruling of the SCC.

The SCC's rulings, like those of the US Supreme Court, are tantamount to a binding legal opinion that cannot be contravened by any legislative or executive body. It has the power of law and is often referred to in any related future cases. The composition of the Constituent Assembly followed the same pattern struck down by the SCC on the grounds of discrimination among voters who enjoyed equal rights under the law. The structure reflects the political balance of power that gives the Muslim Brotherhood's Freedom and Justice Party a larger percentage among all other members of the assembly. This could only result in a lopsided draft constitution that would guarantee that the key interests and political direction of the Brotherhood would dominate. It will not be a constitution by consensus but a negotiated constitution of the most vocal and best-organised minority of the nation, to the exclusion of the diversified majority. This is not how constitutions are written.

The assembly's debate is so secretive that it would be envied by any Masonic congregation. Former presidential candidate Amr Moussa said the assembly should stop working by exchanging favours, in the "I'll scratch your back and you scratch mine" kind of deals. The public learns about the debate, from time to time, through leaks in the media. That is how the public learned of the opposition of a certain group to Al-Azhar's document that outlined the vision of its senior scholars, and other Egyptian intellectuals, of the role of religion, culture, social values, art, literature, inter-religious relations and the right of citizenship in Egypt's future development. It is how we learned of the struggle over Article 2 of the proposed constitution as to whether the principles of Sharia law or Sharia law in its totality should be the principal source of legislation. And that is how the provision on the freedom of the press, which was approved in the first reading, was drastically changed in the second reading with a text that provided for the closure of a publication by court order, in case of libel or defamation.

In addition to violating the fundamental human right that guarantees freedom of expression, it confused the supremacy of constitutional principles with the provisions of a future legislation that has yet to be approved or rejected. It is a reincarnation of Mubarak era tactics of securing the approval of the SCC on a proposed draft law before submitting it to the People's Assembly for a vote. This was designed to pre-empt any attempt by the opposition to challenge its constitutionality before the SCC. It was a manipulation of the SCC, which could only consider the constitutionality of a law already approved by parliament.

Egypt has a rich tradition in drafting constitutions since independence from Britain, the occupying power in 1922. The constitutional committee of 1923 consisted of 30 members, but the main document of the constitution, the declaration of principles, was drafted by a committee of 18 jurists who had no political affiliation. The tug-of-war then was how much power the king should have in a political system that established the supremacy of the nation over all other powers. That was five years before the Muslim Brotherhood came into existence in 1928.

The struggle in the Constituent Assembly now is between powers who believe that Egypt should revive its identity as a pluralistic, democratic and civil state with Islam as the state religion, and those who are more forcefully pushing the decades-long agenda of turning Egypt into a theocracy. This has often been denied by the Freedom and Justice Party, which has reiterated, in vague terms, that the country would be a democracy. But the party had also -- and vehemently -- denied that it would offer any candidates for the presidency. They offered two. And yet the Guidance Bureau fired one of its most prominent members, Abdel-Moneim Abul-Fotouh, because he dared to offer his candidacy without the approval of the bureau. It would mean that the bureau had an agenda of preference for presidential candidates; Abul-Fotouh was too liberal for its taste.

Despite assurances that Egypt would be a democratic and pluralistic state where governance is pursued by civil not religious institutions, the manoeuvres and closed-door deals by Muslim Brotherhood representatives and opportunists strongly indicate that Egypt is moving in the opposite direction. Lack of transparency about the debate, as well as agreements and disagreements in various issue-specific sub-committees of the Constituent Assembly have distorted the purpose and methodology of drafting the constitution. Pro-Brotherhood members, their sympathisers and benefit-seeking opportunists are pursuing the formulation of a draft that would guarantee their group's agenda, not the national interest and collective rights and guarantees of the nation as a whole.

The Muslim Brotherhood has narrowly won the battle for the presidency, lost the battle for the control of the People's Assembly and is single-mindedly trying to shape a draft constitution that would be consistent with its long-term agenda of establishing an Islamist state. That will not be a constitution by consensus but rather by coercion. The million-man Tahrir Square demonstration tactics will come into play if the Brotherhood feels its agenda in the Constituent Assembly is in jeopardy.

The worst-case scenario is that sometime in December Egyptians will be asked to vote in a referendum on a draft that would be full of nuances that could be interpreted in different ways to suit the government in power. Egypt has a 35-40 per cent rate of illiteracy. It is this percentage that the Brotherhood manipulated, in the name of religion, to achieve a majority in the failed parliament that has been ruled unconstitutional. It will be this ill-informed, uneducated and indifferent section of the population that the Muslim Brotherhood will lobby intensively to vote for a draft whose implications they do not have the faintest clue about, whether for their lives or the life of future generations.

The most liberal, pluralistic and democratic era in the modern history of Egypt, between 1923 and 1952, was not based on religious identity but on the provisions of a modern, democratic, secular constitution that carefully balanced the distribution of powers in a civil society. The most rewarding role the media, intellectuals and democratic members of the current Constituent Assembly can play to make a difference is to educate the people in every corner of the country about the significance of the constitution and the implications of its provisions in the years to come. They have to stimulate a national debate that would bring home the meaning and impact the new constitution will have on the future of Egypt.

When all is said and done, the result will depend on the orientation of the regime. If lessons of history have any relevance, it should be recalled that the former Soviet Union and its satellite states under communist regimes in Eastern Europe had constitutions that spoke volumes of human dignity, respect for human rights, fundamental freedoms, inviolability of the individual and freedom of expression. People on the outside looking into the inside knew better and it all unravelled when those regimes collapsed.

The writer is former corespondent of Al-Ahram in Washington DC, and former director of the UN Radio and Television in New York.

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