Constitutional law guru Dr. Kamal Aboul Magd weighs up the pros and cons of the 2013 draft against the charters of 1971 and 2012.
By Omneya Makhlouf
Charters of a Revolution
The constitution should never be looked at as a piece of paper or as a document with theories. It has to represent a factual situation in the land that it covers. You cannot say this is good or bad until you know the political and socioeconomic context. The constitution should reflect the necessities and needs of a particular people at a particular time in a particular place. …
If we take the Egyptian case, we will notice the following, which complicates the picture very much: We have had a revolution, a revolution by definition is a collective violation of the existing norms. Usually there is a chapter [in the constitution that documents] the revolutionary situation: wWhen did the revolution start, what are the principles that were brought into the picture by this revolution, and how to translate them into provisions. We engaged in a revolutionary activity, the old constitution collapsed, and we started trying to create a new constitution. That was handled poorly.
In a very short period of time, we’ve had three constitutions and up until this moment we are not yet settled. People are talking about some violations in the procedures of elaborating this new constitution, so they’re going to open the door again for a revision before we start. This is a sign that’s really worrying me because it means that we are engaged in a continued rebellious attitude towards any constitution. It’s endless by definition. In particular, people are not experienced; our experience in constitutional and democratic procedures is very limited.
If we focus a bit on the characteristics of the Egyptian situation; we are just coming out of a revolution —regardless if it’s a coup d’etat or a revolution —as long as the government is representing the people and respecting the liberties of the individual, then that’s what matters. [In the current draft] we have [this] partly, because it was not tested yet. People met in the 50-person Council and drafted a good constitution … [though] the powers of the President are a little bit too much. We should have done the opposite because we’re just coming out of despotism. It is deeply engraved in our political philosophy that the role of the [President] is half-God. We obey him without arguing or discussion, this is against the very basic concept of a democratic system: that everybody has a share and should respect the provisions of the constitution.
On Rights and Social Justice
The chapters on rights and liberties in the 2013 constitution are good. They give the public some rights [but they] take away many others, which is a drawback. But all in all, this constitution puts enough guarantees — which is better than any constitution before that — concerning freedom of religion, freedom of speech, the rights of the accused, which is very important. If I’m accused of something and I’m taken straight from court to prison, without having any genuinely effective means of protection, then the whole thing is a mockery: it’s twisting the arm of the provisions to create a despotic system with a democratic banner.
But I’m very sensitive to the different aspects of the situation. We are going through a bottleneck. Firstly, many unfettered powers are given to the President. … Secondly, there is vagueness in many provisions of the constitution. Thirdly, nothing is said about how to create a system of balance of powers. This is the key or the beginning of the road towards democracy.
I would say they’re [the 1971, 2012 and 2013 documents] almost equal [when it comes to democracy]. … The 1971 Constitution, it was good. At the time and in the context, as I mentioned is very important, it was good. But it had a lot of weaknesses. When it comes to human rights, any provision should be absolutely clear. When it’s unclear, it opens the door for injustice, corruption, and concentration of power. …
Certain aspects were handled and remedied in the 2013 Constitution, but there are points that [seem vague] to me. One thing that complicated the picture is the differences of approaches within the constitutional convention. The different representatives had different frameworks and come from different worlds like the Salafis versus the liberals. The liberals have a long history of constitutional making or with exercising democracy. It’s a confused situation and, although outsiders are not engaged in the process, we can notice that there are strict limitations.
I don’t like the [clauses on military trials] because I believe we can have regular trials. When you focus on the procedures under martial law, exceptional circumstances will depart from the basic necessities of the rule of law, human rights, and giving people participation in their communal life.
One basic criticism that can be addressed towards this constitution is that this provision was a little bit too easy to violate human rights and to assume that whatever the government does is good. This is not true. Of course there is always a need and a possibility to use collective power, to stand up and say ‘no, we accepted this on one condition and you’re not fulfilling this condition.’ … I wouldn’t say that [because of the political instability it was necessary to include this provision]. They should be following the straightforward mission of implementing our slogans, to put them into action. If you don’t do that, then you’re making an unnecessary compromise that might backfire at a later stage. We don’t have a heritage of democracy.
On Military Powers
I think it’s a bit of an overdose. We’re coming out of a system where power corrupts, which is dangerous. We should have been more careful to stand in the way of putting too much power in one hand. I think our experience should have told us this, which we did not do. …
The real guarantee to stop this is that people should be honest and courageous to put a limit to the absolute power to the rulers … [so while the] extended powers of the executive and military should have been more controlled, I hope that there will be more awareness of this. People should be more daring and criticize whatever runs against human rights, the rule of law, and democracy and all its dimensions.
We need effective participation and we have to be alert. … [At the end of the day], final word should not be the word of those 50 people; it’s how people react. If we reject it, it will be rejected it. If we are too submissive, we will have achieved nothing. So we have to continue to be alert, to speak our minds, to support each other in the road to real democracy. There are those who believe in omnipotent power and those will hinder the ability for Egypt to become democratic.
On Religious Freedoms
I think [the removal of a lot of religious connotations in the 2013 constitution] was a healthy change, but on the other hand it created a wedge of a conflict between two main groups within the same society, namely the intellectuals of a religious background and the other groups who are liberal in essence….[The 2012 charter] was too focused on certain religious aspects. Islam is not like that; this is a misreading of Islam, particularly if we talk about changes. Some changes are much more important than others.
Now we are all facing a crossroads situation: either we handle the situation efficiently or in a genuine way, or we’ll lose everything. Now we will govern our future. We should not allow a loosely drafted constitution to rule our country for the next two or three decades. We’re all aware of the dangers of bad constitutions, and we hope for the best. But, we can’t act in the abstract. We have to compare options. One option is to postpone the drafting of the constitution, but this is very dangerous because there’s no silence. There are groups and organizations that will want to take us to the opposite direction. If we don’t keep in mind that we are limited on time, we will tolerate things that we should not tolerate and accept things that we should have never accepted.
I think we are doing our best. My method of handling this [encouraging people to go to referendum or not] is not to be rigid. We do not invent or create; we make a choice between options that present themselves within a certain context. Applying this method, I still say that the constitution that has been agreed upon by these 50 people is still good compared to other constitutions and we don’t have to spoil the whole image by postponing everything else and asking for a new constitution. We have to get to a better situation by accepting this and trying to make changes later….
I’m not sure [if the constitution will be amended if certain articles come under fire]. … All in all, I am comfortably in favor of adopting this constitution and you have the rest of the world’s time to introduce obligations on each branches of the government, be it the executive or legislative. But it’s better than stagnation, stopping, and looking right and left for a meaningful solution. No, you have to be part of the solution to do certain things or adopt other things. This is the time for decisions. et