Egypt Deserves a Better Constitution [Al Arabiya]

November 25, 2013

“Certain political factions and civil society have to understand that this is a constitution which would attempt to stabilize a country which has been destabilized for the past three years… debatable articles may be amended in the future by the people through the parliament.” - Spokesman of the Egyptian Constitutional Assembly

And, yet again, Egypt has the unenviable pleasure/torture of suffering from a political elite that fundamentally fails to appreciate what sort of country Egyptians have been fighting for. That elite failed them under Field Marshal Tantawi’s SCAF governorship of Egypt; it failed them under then-President Mursi’s government; and it fails them, yet again, with a constitution that fails to live up to their sacrifices. It is not too late to change course – but, alas, it seems dubious that those in power might realize that is precisely what they need to do.

The impetus behind this constitutional draft has not been to build a society that is informed by the best of what Egypt has to offer the 21st century, as exemplified in the mini-society built in Tahrir Square in the 18 days of 2011. Its motivation hasn’t been to restructure the state and its institutions in order to reflect a revolution’s aims. Rather, the momentum has been to reduce and contain as much as possible any fundamental changes to Egypt. The aforementioned constitutional assembly spokesman said it well: the mood is to “stabilize” a country that has been “unstable” for three years.

That misses the entire point of what any constitution drawn up after January 2011 ought to achieve. This constitution ought not to be some sort of public relations exercise for a political party, looking to assuage nervous citizens that instability is at an end – because it is not at an end. This constitution ought to be a message to all Egyptians that the instability they have suffered already, and any unrest they are likely to have to live through in the future, will not stop Egyptians from beginning on a path to build a better country.

Because, let us be honest, they’ve not started that path yet. Tantawi’s “road-map” in March 2011 was ill thought out and had deleterious effects – effects that were never meant to capitalize on the Egyptian revolution’s goals. Tantawi lost his chance to be considered in Egyptian history as the man that empowered a chance for a better future and so did the elected president that came after him, Mohammad Mursi. Mursi’s own record in power merely enabled the suspension of the ballot box process; it neither deepened a democratic culture, nor did it institute a change for Egyptians along any sort of revolutionary path. Now, it seems, Egypt is on the brink of missing yet another chance. No surprises there; but it bears saying.

Constitution building

The constitution building process has been problematic from day one. Egypt could have had the opportunity to build a constitution worthy of its legal tradition and history, which would have meant more than a few weeks. Instead, the road map has rushed the process, and as a result, there are undoubtedly sectors of society that did not have a voice in its construction. Egypt has been wounded throughout the last three years, by a repeated assault on, and misuse of, the revolutionary ideals that brought people to the Square of Liberation in 2011. Any constitution that is formed ought to be a healer for Egypt, and be part of a broader transitional justice course. This constitution, on the other hand, is neither. It is also dubious that it will serve as a tool for building consensus in society – very dubious indeed.

The road-map insists that this constitutional draft be completed and put to referendum in an absurdly short amount of time. It does not insist, however, that the draft be something that so utterly uninspiring as this

Egypt deserves a constitution that, at most, pays testament to the ideal of that revolution – and at the very least, serves as a tool to heal the country after a deeply polarizing period. So far, it is getting neither. Indeed, it is getting far worse than that. As it stands, it is getting a constitution that, for some incredulous reason, fails to understand that the military should never, ever, have the right to haul civilians in front of a military judge. The argument that this article can later be amended fails; that is true for any and all articles, presumably. The question is: What is it doing in a post Jan. 25 constitution in the first place, particularly as one can see how much such permission has been abused, and continues to be abused, in the past three years?

Yes, it is legally far better written than the constitution that came out of the Mursi government last year. One would hope so, considering the numbers of legal minds that contributed to its writing. Going through each and every article of this constitution does not expose a terribly awful constitution. It reveals one that is more or less (with some exceptions) better than the 2012 version – and indeed, perhaps surprisingly, one that enhances the version suggested by the previous committee of 10 legal experts. Was that the point? Is that the accomplishment that the constitutional assembly seeks to be remembered for – to provide a constitution that was marginally better than the previous one?

The road-map insists that this constitutional draft be completed and put to referendum in an absurdly short amount of time. It does not insist, however, that the draft be something that so utterly uninspiring as this. For the past three years, the Egyptian political elite, across the board, has wholly failed to inspire Egyptian citizens. A constitution borne out of this process will not be able to bear testimony to the sacrifices of the Egyptian people in the past three years – all of their sacrifices from across the political arena. But, it can surely do better than this.

Source: Al Arabiya

Photo: Amir Makar

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Dr. H.A. Hellyer, non-resident fellow at the Brookings Institution, the Royal United Services Institute, and ISPU, previously held senior posts at Gallup and Warwick University. Follow him on Twitter at @hahellyer.