During the symposium "The Egyptian Constitution and the Transitional Phase Toward Democracy," held on November 24 at Doha's Ritz Carlton, prominent Egyptian scholars, including specialists in constitutional law, academics, and members of the Constituent Assembly, were brought together to discuss the drafting of Egypt's new constitution. Some of the speakers were of the opinion that the present debate in Egypt around the new constitution and the work of the Constituent Assembly-the body tasked with drafting the new Egyptian Constitution-is more political than legal in nature. Others held that the debates surrounding the constitution are a result of a deep political polarization among various political forces and blocs that are aligning along political fault lines, but that the disagreements have nothing to do with the document itself. To some of the participants, the debate underway in Egypt is seen as "healthy," provided that it remains constructive. The majority, however, agreed on the need to build upon previous Egyptian experiences of drafting a constitution, including the constitutions drafted in 1923 (during King Farouk's reign), 1954 (following the Free Officers' Coup), and the 1971 Constitution.
Participants claimed that the political polarization that has hindered the work of the Constituent Assembly is a result of its composition and the inherent imbalance of powers between Islamist and "liberal" forces. Equally, the fact that the former regime-a product of the July (1952) Revolution-maintains a representation within the Constituent Assembly, and seeks to preserve its gains in the text of the new constitution, was an important point of discussion in the symposium.
Though the meeting had been scheduled prior to the latest presidential decree by President Mohammed Morsi of Egypt, granting himself wide-reaching powers, none of those present could ignore the impasse and confrontation that resulted from this decision. A number of constitutional law scholars opined that Morsi's decisions, while being legally unfounded, were politically justified. While many of the speakers claimed that these decisions were a foreboding of negative repercussions in the future, others suggested that the most glaring problem with Morsi's latest constitutional declaration was that it was not framed legally; had it been so, much of the criticism would not have occurred. These legal arguments notwithstanding the protests and demonstrations currently underway in Egypt are based primarily on the wide-scale political polarization that has affected the people behind the revolution following the resignation of former President Mubarak, which deepened in the aftermath of the revolution.
A Lack of a Leadership to Control Change: The Revolution Pays the Price
The first session was chaired by ACRPS Researcher Dr. Huda Hawa, who opened the session by stressing the importance of the present debate surrounding Egypt's constitution. Her comments addressed the significance of constitutional foundation building, and the importance of recognizing that it is, and should be, a long and complex process. Dr. Hawa added that the worst scenario would be for people to lose patience during this process, noting the foreseeable risk that these discussions and debates could have the tendency to turn into clashes carried out "in the streets".
The first speaker, Professor of Constitutional Law at Cairo University Dr. Ahmad Kamal Abu al-Majd, delivered his presentation, entitled "Features Required in a New Egyptian Constitution," in which he emphasized the delicate situation and gravity of present times. Dr. Abu al-Majd began his intervention with the aphorism "It is nations which command the texts of constitutions, and not the text of constitutions which command nations." He also discussed examples of constitutional agreements in modern history (e.g., the US Constitution) and in the past, such as the Fudool alliance that brought together members of the Quraish tribal coalition in Mecca before Islam and formed a chapter in the Prophet's life.
Abu al-Majd further stressed that "Our relationship with [history] is unbalanced: we always long for the past while we ought to always be looking ahead when drafting texts which lay the foundations for the future." He further pointed out two weaknesses in Egypt's revolution: the lack of a clear agenda and the lack of a centralized leadership. He also emphasized that while Islamists have come to dominate the revolution, the youth who carried it out have found themselves pushed aside. Dr. Abu al-Majd also stated that President Morsi's popularity, and that of the Muslim Brotherhood, is declining since their promises far exceeded their actual achievements. On the present dilemma, he posited that the solution lies in convincing the president of the erroneousness of his decisions; in addition, Morsi should review the tactical dimensions of his decisions without ignoring their strategic aspects. In his closing statement, he spoke of the importance of prioritizing the Arab-wide agenda, stating that "the health of Egypt is the health of the Arab world, and the reverse is true".
The second to present during the first session was Dr. Gamal Gibril, a professor of Constitutional Law and Head of the Department of General Law in Egypt's Hilwan University. He spoke on "The New Constitution and the Controversy of the Transitional Period in Egypt," during which he presented his evaluation of the evolution and path of the debate surrounding the constitution in Egypt since President Mubarak was deposed. He described the beginning of this process as being flawed.
Dr. Gibril described the withdrawal of some political forces from the Constituent Assembly as "political," as opposed to being motivated by legal considerations. All of the parties concerned, he said, agreed on the articles of the constitution, but chose to withdraw from the Assembly when they concluded that their aims had not been achieved. His conclusion was that this fierce political polarization had nothing to do with the text of the draft constitution.
He also spoke of the judiciary's mistakes, pointing out that resorting to legal proceedings to investigate the steps in the process of change was a mistake, as was the court's decision to disband the National Democratic Party, Local Councils, the Parliament, and constituent assemblies. While some of these may have been the right decision, the rulings did not abide by the letter of the law, said Gibril.
Addressing the crisis-ridden situation plaguing Morsi and his opponents, Gibril added: "I believe that the reason behind what is happening now has to do with the Article that gives the president the right to rule for four years. [Morsi's] opponents wanted his term to end after the approval of the Constitution, and that is why they marched to Tahrir Square. As for President Morsi's declarations, they lacked a legal framing, and were late in the coming."
Dr. Ramadan Bateekh, a constitutional law scholar and a member of the Constituent Assembly, followed Gibri's presentation. Dr. Bateekh covered the "Methods of Drafting a Constitution: Applications to the Egyptian Constitution," and began by stating that the present problem could have been avoided if the Constituent Assembly had been elected directly through a referendum instead of being appointed according to political quotas. He added: "They divided us into seculars and Islamists, where in fact the only distinction to be made was between the military and the rest. The rest were ‘secular civilians,' ‘Islamist civilians,' and ‘Christian civilians'." Making a comparison with the past, Dr. Bateekh described the present situation as one that resembles that which surrounded the 1923 Constitution, when the body tasked with drafting the constitution faced the same problems the Constituent Assembly faces today. He also pointed out that the debate is healthy as long as it remains "constructive".
Further, he stated that President Morsi's decree came about once he anticipated the possibility of the Constituent Assembly's collapse, thus creating the controversy. While the president's decree appeared to be a transgression against the judiciary, and therefore illegal, it was a valid move politically: the universal principle, Bateekh claimed, was that the preservation and security of the state were above the law.
Learning from the Past to Avoid Pitfalls
ACRPS Researcher Dr. Elnour Hamad chaired the second session of the symposium, noting in his opening remarks that the seminal significance of Egypt's democratic transition would pave the way for all Arab countries. Based on this, Egypt's experience would have to be pioneering and inspirational in order for those Arab countries that have witnessed revolutions and movements of change-or who are currently undergoing these changes-to replicate the process.
The first speaker during the second session, Deputy Chair of Egypt's Constitutional Court Ali Awadh, discussed some of Egypt's previous experiences in formulating a constitution in his presentation "The Rise of a Citizenship-based Democratic System: Text and Reality". Awadh began by referencing Article One of Egypt's 1971 Constitution, which defines citizenship, as well as the amendment to this Article in the 2007 Constitution, in which the word "citizenship" (muwatana) appears for the first time, replacing the earlier "the alliance of the people's powers". Awadh spoke of the need to include guarantees that would preserve the principle of citizenship, particularly constitutional guarantees that would prevent legislators from transgressing against the rights of citizens enshrined in the concept of citizenship. He also discussed some of the most important incidents that related to citizenship in Egypt, beginning with Article One of the 1971 Constitution, as well as articles in the constitution that address gender equality and the law that stripped members of the previous regime from their political rights, which was ruled unconstitutional by the Constitutional Court.
Dr. Thanaa Abdullah, Professor of International Relations and Social Sciences, presented on "The Period of Democratic Transition in Egypt," explaining how Egypt was presently going through a pivotal, revolutionary moment, and how the present disputes and conflicts between various political forces have obscured this reality. However, she claimed that Egypt could make use of its past experiences to peacefully overcome this present period; the present "constitutional moment" resembles previous experiences that date back to Egypt's first modern constitutions at the beginning of the nineteenth century (when a constitution was drafted during the rule of Khedive Tawfik, before being repealed by British occupation forces).
Dr. Abdullah explained how the current conflict would prove to be lengthy and complex, with many factors coming into play. These factors, claimed Abdullah, need to be closely examined, especially since they concern the tragic living conditions of the Egyptian people, their civil rights and freedoms, and the role of businessmen's vested interests and Egypt's "identity complex". She also spoke of how the changes have come about at this juncture: while Egyptians had, in the past, avoided becoming involved in politics, they were now thinking very seriously about ways of challenging the ruler and the extent of his power. Dr. Abdullah believes that the protests, strikes, and disturbances have now become a custom for the Egyptian people, who see it as a way to strive for the achievement of their aims.
Dr. Abdullah also expressed the belief that the prevailing, post-revolutionary form of government has not differed in philosophy or mechanisms from the previous regime because the Muslim Brotherhood did not change their mentality during their transition from opposition to authority. Closing her presentation, she stated that Egypt could only be prevented from becoming a theocracy by breaking the "barrier of fear" that typically restrains people.
Also speaking during the second session was Dr. Hanna Greis, Deputy Head of Egypt's Social Democratic Party, who presented on "Citizenship and Cultural Rights in the Draft of the New Constitution". Dr. Greis explained how the experiences accompanying the present constitution, and the resultant problems and difficulties, can only be understood if people become aware of the problems that faced the creation of previous constitutions in Egypt. She elaborated on how the 1923 Constitution was an attempt to create a modern, liberal state in the traditional sense, with some considerations regarding the specificities of Egyptian society. This constitution reigned supreme throughout the 1930s until it was repealed and replaced by the 1952 Constitutional Declaration following the Free Officers' rise to power in the July 1952 revolution.
In Greis's opinion, the "identity dilemma" began with the constitution of 1954, which was accompanied by conflicts between the Arabist/Arab nationalist camp and the Islamists regarding the identity of the state. Additionally, she referenced how the leadership of the July 1952 Revolution rejected the 1954 Constitution in favor of the previous, 1952 Constitutional Declaration, before moving on to announce a new constitution in 1956, which reflected the leadership's vision by bringing about "state paternalism" instead of one based on liberties and rights. During the creation of the 1971 Constitution, the same dilemma repeated itself with the addition of Article Two, which stipulated that the principles of Islamic Sharia were a source of legislation. This stipulation opened the door to discrimination against non-Muslim Egyptians, though according to Dr. Greis the difference was that in the 1971 case the state went from being paternalist to custodial.
She proceeded by illustrating how the present discussions within the Constituent Assembly are a replication of the formulation of the 1971 constitution with no provisions being made for the new reality of a popular revolution motivated by the desire for freedom and social justice. Furthermore, she stated that there were four major camps fighting over the Constituent Assembly. Two of these, the Islamists and members of the former regime, are represented within the Constituent Assembly and are locked into a conflict over the preservation of the former regime's gains compared to the Islamists, who seek to make their own advancements. This conflict, however, is limited to this predicament, and has nothing to do with the nature of the constitution and its relationship to the revolution. The revolutionary youth and the liberals are the two camps not represented in the Constituent Assembly. Greis holds that the youth were not concerned with the drafting of the constitution because of their belief that freedom and rights would be guaranteed by supra-constitutional and supra-political struggles; the liberals refused to take part in the Constituent Assembly because of the political forces that wield influence within it.
The final speaker during the second session was Dr. Amro Shalqani, Assistant Professor of Law at the American University of Cairo, whose presentation was titled "The Constitution and Change: Text and Reality". According to Dr. Shalqani, the application of the constitution, not the text, is most important. Referencing the constitution of South Africa, which was adopted 20 years ago, Shalqani noted that the principles and text of South Africa's Constitution has made it one of the best constitutions to be written. However, he admitted, it has not changed the reality on the ground, referring to the disturbances and protests affecting South Africa to date.
Shalqani focused, in general, on constitutional discussions and the relationship between power elites and legal elites, both of which have overshadowed the various constitutional experiments in Egypt since the July 1952 Revolution. The speaker shared the view that the same regime has been in place since1952, and cannot be removed by merely replacing some of its figureheads, as happened in the cases of Field Marshall Tantawi and Major-General Sami Anan. He holds that the same regime maintains the same amount of authority and flexibility that would allow it to carry out mini-coups against itself as a way of accommodating changes underway and current developments.
His conclusion was that the Muslim Brotherhood was in fact "part and parcel" of the same regime that was the product of the July 1952 Revolution and that the Brotherhood rules using the same tools: in essence, they are adopting the same mechanisms that were put in place in 1952 with the difference of a few amendments and revisions. As a result, said Shalqani, any changes remain limited, regardless of the actual text of the constitution.