What Egypt’s Constitution Must Achieve

Egypt’s military-backed roadmap—criticized by some activists and commentators as undemocratic by virtue of its inception following President Mohammed Morsi’s ouster on July 3—is in a crucial phase. The drafting of a new constitution for Egypt has the potential to put the country on the right course.

Egypt’s military-backed roadmap—criticized by some activists and commentators as undemocratic by virtue of its inception following President Mohammed Morsi’s ouster on July 3—is in a crucial phase. The drafting of a new constitution for Egypt has the potential to put the country on the right course. Ninety years after Saad Zaghloul guided the country to a constitutional monarchy, Egypt once again requires a blueprint for a sustainable democratic system. Following the calamitous errors since the January 25 uprising and the colossal failures of Morsi’s 2012 constitution, what Egypt needs now is a legal framework built on a set of ideals that will continue to resonate years from now.

So far, the debate over Egypt’s constitution has been a disappointment.

The plan announced on July 3 stipulated the creation of a ten-member panel to revise and make changes to the 2012 Constitution. The ensuing draft would then be sent to an assembly of fifty political and legal figures who would submit their amendments to the smaller, more technical panel. A popular referendum would then decide whether or not to accept the final draft. The roadmap might not be perfect, but it is likely to achieve a much more balanced and univocal result than the Muslim Brotherhood’s version, which was infamously compiled during one nineteen-hour session of Morsi’s Constitutional Assembly.

Remarkably, the first of the fifty-member assembly’s sessions descended into farce, as leading figures argued over whether they had been tasked with “writing a new constitution” or “amending the existing constitution.” Of course, there is no difference; either way Egypt will have a new constitution, whether it is drafted as such or amended to the extent that it appears so. For observers of the proceedings this episode exemplified everything that is wrong with Egypt’s modern political elite. Too often meaningful debates become petty arguments and potential opportunities become missed chances.

This moment in Egypt’s history should be seized as a chance to lay down laws that are so fundamental that they define a nation. Rights that have so often been denied to Egyptians must be made sacred and defined as such. These include the right to life, liberty, religious belief, privacy, sexual orientation, due process and a clear prohibition on torture.

Perhaps one advantage to be drawn from having to draft a constitution in 2013 is the vast wealth of resources that can be looked to for guidance: from the United Kingdom’s ‘unwritten’ constitution based on centuries of due process, to the American Bill of Rights, built upon the premise of life, liberty, and the pursuit of happiness. In these times of heightened anti-American sentiment, taking examples from anything Western is often met with accusations and conspiracy theories. But the reality is that democracy is a liberal theory, and to implement it we must be similarly liberal in our mind-set.

Enduring constitutions have been drafted after uprisings. Examples should be taken from France; the post-revolution Declaration on the Rights of Man remains vital to this day. In the United States, the post-American revolution Bill of Rights remains the basis of that country’s system of government today. Add to the mix the Human Rights Act of the United Kingdom, the European Convention on Human Rights, the constitution of South Africa—there are countless examples of constitutions drafted with human freedoms as their priority. Following World War II, the Grundgesetz, or Basic Law, was implemented in Germany. It guaranteed human rights and provided the world with the immortal ideal: “human dignity is inviolable.” Concepts such as these are what Egyptians are crying out for.

Most of all, what this constitution needs to achieve is the building, for the first time in Egypt’s history, of a connection between a government elected by the people and the people to be governed. That relationship is glaringly absent and a major cause of the disillusionment with politics Egyptians still harbor. It is interesting that the ten-member panel that submitted the current draft document removed the prohibition on political participation for former representatives of either Hosni Mubarak’s National Democratic Party or the Muslim Brotherhood’s Freedom and Justice Party. The move makes sense in the long term; such prohibitions would affect too many individuals who cannot credibly be tied to either regime’s corruption. And yet, it smacks of a conservative and cautious approach to building a new Egypt while simultaneously translating into a tacit admission of a fear of a counter-revolution, or of upsetting too many influential figures.
While the proceedings continue in the fifty-member assembly the mainstream debate in Egypt’s media outlets has been vapid. The media, a hotbed of nationalist sentiment following Morsi’s ejection and proud champion of the ‘revolution,’ has contributed precious little to the debate on Egypt’s future. Noticeably missing is any serious discussion of the need for laïcité in Egypt. This is either for fear of alienating viewers or for a distinct lack of any interest in the subject.

Of the several bold decisions suggested by the ten-member panel, including the return to plurality in elections and the proposal of a unicameral parliament, the decision not made is the one that stands out the most. If this past year has made one thing clearer than any, it is that religion and politics do not mix.Laïcité, or more simply, the separation of church and state, must be seen as the answer. The removal of Article 219, which institutionalized a hard-core interpretation of Islamic Sharia and was widely seen as the most egregious of the 2012 Constitution’s stipulations, is a necessary start. But the reluctance to completely ban parties of a religious nature, or at least suggest it, is foolish.  Furthermore, the air of inviolability surrounding Article 2—which famously declares Islam to be Egypt’s official religion—must be shattered. Unfortunately, it is widely thought that suggesting a removal of Article 2 would be political suicide.

As an Egyptian, it is difficult not to feel cheated. The opportunity of the ages has been presented before us. Unlike the 2012 transitional period, a serious technocratic government is in place, and a constitution will be submitted to popular referendum before any elections take place whatsoever. The roadmap is putting Egypt on the path to democracy. It is just a shame that those implementing the roadmap are refusing to accept that a true democracy must guarantee essential, non-violable freedoms, and that the surest safeguard for a democratic future is ensuring a separation of church and state, difficult as that may be.

Seifeldin Fawzy is a political commentator. He is a trainee lawyer at the Ziad Bahaa-Eldin Law Office and Thebes Consultancy, a Cairo-based law firm. He is also a member of the NGO Sheraa – The Independent Association of Legal Support.