Rooting change in Egypt’s constitution

In recent days, Egyptians have again poured onto the streets, to protest against Mohammad Mursi’s decree of Nov. 22 strengthening his presidential powers. It was almost two years ago that Egyptians congregated in Tahrir Square, to protest and topple President Hosni Mubarak’s 30-year autocratic regime. The Egyptian revolution demonstrated a strength and spirit that captured the imagination of Egyptians and many around the world. Finally, the Arab Spring had arrived.

The recent protests and indeed the cause of the protests – a decree that sought to effectively insulate the president and the constituent assembly from judicial oversight – stemmed from the same discontent among Egyptians against authoritarian practices. The protests themselves were a manifestation of a deeper problem: the inability of the revolutionaries to agree on how to institutionalize the revolution.

Since the initial sense of camaraderie and optimism abated, Egyptians have not been able to agree on how the constitution should be drafted, much less on what principles should be included. The country was stuck in a constitution-making process marred by squabbling among constituent assembly members. The recent struggle between the president and his Islamist allies, on the one hand, and his liberal opponents and judges, on the other, was merely the tip of the iceberg.

The new draft constitution, hastily passed last week, fell short of making permanent such a transformation. The draft still has to be put to a public referendum and has already been criticized both for its drafting process, and its content. Seen from outside, the revolution had been the easy part, while institutionalizing ideals remains an intractable puzzle for a country long divided by separate interests, which it shares partly with many other countries in the Middle East: Muslims versus Christians, secularists versus Islamists, Salafist conservatives versus the rest; and the list continues.

The disagreements focus on issues such as the place of Shariah, gender equality, and the protection of minorities. But all of this obscures the core of the revolution that the constitution should be entrenching: the permanent transformation of the people from sectarian subjects into sovereign citizens.

Seen from the outside, the constituent assembly was merely trying to fix what is broken. As such, it lacks the required imagination to draft a truly revolutionary constitution, and thus failed to inspire. The rows in the constitutional drafting process – members quitting the constituent assembly, the invalidation of the first elected Parliament by decision of the Supreme Constitutional Court, and the court’s Sword of Damocles over members of the constituent assembly, are symptomatic of the sectarianism that continues to divide the polity.

Revolutions show a unity of the “little” people, behaving as equals and acting in concert as a common entity for a common, often noble, purpose. If the pithy Egyptian revolution is to deserve its label, the new constitution must institutionalize a permanent transformation of the relationship between individuals and the state. It must be capable of uniting individuals around a common purpose, regardless of their sectarian identities and interests. This calls for a constitution that entrenches a direct link between individuals and the state, outside the mediating powers of sectarian leaders.

A constitution worth the sacrifices of Egyptians must enshrine the status of the people as sovereign citizens, and a government must be put in its place based on and subject to their consent. Comparative constitutionalism has developed some useful tools for this.

The constitution can introduce, even make permanent, constitutional provisions protecting the basic dignity of the people, their inalienable right to choose their government periodically, and the rule of law. These three principles constitute the minimal (though not sufficient) conditions necessary for a sustainable democratic state.

One way of entrenching the revolution is by designating these core principles as un-amendable constitutional clauses. Alternatively, these core principles can be amended only by a super majority in a popular referendum. This can provide strong safeguards against future executive incursions. Furthermore, to make these safeguards meaningful, the constitution must also preserve the right of individual citizens to petition the courts, eventually reaching the Supreme Constitutional Court, to hear their requests and complaints, including those that question the constitutionality of laws and executive and administrative actions.

One might legitimately ask: If the revolutionaries cannot agree on the many clauses in the current constitutional draft, what hope is there that they will agree to make these three basic principles permanent? The answer lies in the extraordinary strength of the revolution as it hit the world. The revolution responded to many particular grievances but concerns that underlie all of them are addressed by these three principles embodied in the street to bring down the dictator.

The principles may appear abstract, but they are sufficiently imbued with content that it is not irrational to hope that they can be the object of an overlapping, strong consensus. To be sure, the future application of the principles may not always meet the expectations of all citizens. But any disagreement will be constrained to scope and application. Thus, at the very least, perpetuating these three principles can shift the focal point of future disagreements from whether every person possesses inviolable basic dignity to what the content of that basic dignity is, the regular change of government in free elections, and the rule of law as effective and fair response of the courts to the citizen’s constitutional petitioning.

Egypt’s constitution drafting process is an opportunity for higher lawmaking. At this moment, it is treated too much as part of the ordinary post-crisis politics. If Tahrir Square is to be a wellspring of a true revolution, Egypt’s constitution will offer the Egyptian people, and many in the Middle East who continue to be inspired by its immense power, a true beginning of a democratic state.

As philosopher Hannah Arendt reminded us years ago, revolutions are not “mere changes.” They are, and should be, the beginning of something new.

Jaclyn L. Neo is a comparative constitutional scholar whose main research interest is in the cohabitation of constitutionalist democracy with public religion. She teaches at the National University of Singapore and is currently completing her JSD degree at Yale law school. This article is part of the work of Right to Nonviolence, a Beirut-based non-governmental organization, on constitutionalism in the Middle East revolution. She wrote this commentary for THE DAILY STAR.

A version of this article appeared in the print edition of The Daily Star on December 04, 2012, on page 7.




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