In Translation: Nader Fergany on the Egyptian draft constitution

These days in Egypt, plans always seem to be overtaken by events. This week’s translated article from the Arabic media — made possibly by the wonderful translations service Industry Arabic — was selected before the current political crisis over President Mohammed Morsi’s decree erupted on Thursday evening. Then, aside from the conflict in Gaza, the biggest issue in Egypt was the withdrawal of secular forces from the Constituent Assembly and the debate over the draft constitution. I chose the article by Nader Fergany out of a torrent of articles on this issue for two reasons: first, Fergany was the lead author of the first Arab Human Development Report, which (for all the criticism it received) I think can be fairly described as one of the intellectual underpinnings of the movement against dictatorship in the last decade. Secondly, Fergany (while he is a secularist, leftist and rather irascible nationalist) eschews the two typical responses you tended to have in the media, where partisans either said the draft constitution is great or it was a disaster.

The draft constitution is better than expected, but…

Nader Fergany, al-Ahram, 18 November 2012

The corruption of political life for an entire people, including the oppression and pauperization of its vast majority, is an abominable crime that I believe needs to be dealt with as a crime against humanity deserving of the most severe punishment. It shall not be allowed to forgotten, nor shall its perpetrators be tried solely within the confines of the country in which they corrupted politics.

The authoritarian regime—against which the great popular revolution rose up at the end of January 2011—sold the Egyptian people the most despicable forms of the corruption of political life for many decades, leaving in its wake a deep heritage of oppression, poverty, and social injustice that accumulated until the people could bear it no longer. They rose up in hopes of securing the noble ends for which the demands of the revolution were drawn up: freedom, equitability, social justice, and human dignity. Unfortunately, the transitional period’s government was intent on acquitting those who were responsible for the corruption of political life before the revolution from having to face the punishments necessary for just retribution, which has contributed to post-revolution corruption in political life. This corruption has resulted in a state of confusion and legislative and political blunders as a result of the path the elections took before the constitution, which is reflected in the controversy and disputes around the Constituent Assembly and the draft of the constitution prepared by the assembly.

This all became too obvious in the uproar within the judiciary and the media, which has been marred by polarization. To be sure, the writer is among those who has consistently criticized the political trajectory followed by the current Constituent Assembly. However, truth be told, the current draft of the constitution seems better than the worst of the civilian forces’ fears of constitutional excesses that might have been produced by extremist political Islamic forces in the Constituent Assembly. It is ever apparent, however, that political forces with divergent intentions are exploiting judiciary and media platforms to promote their positions on the contents of the constitution or to carry out their political battles regarding the constitution, which should have transpired within the assembly. However, they were thwarted by the way in which the Constituent Assembly was formed. They may also have wished to affect the way the assembly realizes its political interests. Many of these media platforms fell prey to this hectic political competition. All of this has occurred regardless of signification of the draft prepared by the Constituent Assembly, but this sort of media squabble is no substitute for the careful study of the draft.

This article looks into the draft of the constitution dated 24–10–2012 available on the Constituent Assembly’s website. A careful look does in fact reveal that the announced draft contains many of the general outlines – I repeat general outlines – of the rights, freedoms, and structures of power that are desirable in a modern civil state.

But this does not mean that the draft is completely successful in realizing the goals of the great popular revolution for sound, democratic rule and guarantees of social justice and human dignity for everyone in Egypt. The draft still falls short of these noble goals in four ways:

• the first is that the repeated reference to the law to regulate rights, freedom, or specifying the form of rule. This is one of the tried-and-tested ways — used in the texts of constitutional articles in authoritarian regimes — to disavow the characteristics of good governance, whereby the regime circumvents the constitution by referring its organization to the law, whereupon the constitution’s despicable tailors pounce to restrict rights under the pretext of its organizing it legally, and it ends up either restricted or overturned. This sort of deviousness does not bode well for what is to come. The draft of the constitution will not be a suitable ally to the revolution except by ensuring that there are no restrictions placed on rights, freedoms, or the characteristics of legitimate democratic rule — even by subsequent laws.
  There is a lesson to be learned here for the Egyptian citizen as well. If the draft of the constitution receives approval, it is understood that the next People’s Assembly will issue laws derived from the constitution. It will perhaps be even more important than the Constituent Assembly in establishing the legal foundation for ruling Egypt after the revolution, and determining if this foundation will be successful in reaching the goals of the revolution. Therefore, citizens are called to take on the grave importance of the next parliamentary elections in concentrating on the interests of the nation and its people, lifting themselves beyond detestable electoral bribing practices.
• The second shortcoming — also extremely dangerous — is the granting of enormous, dictatorial powers to the president, which produces a tyrant no matter how legitimate the intentions are. The president, according to the draft, appoints a vice president, prime minister, governors, prosecutor general, heads of the censorship authorities and members of the Supreme Constitutional Court. He also heads the National Defense Council and enters into international treaties. It is as if the draft is not conscious of the lessons learned regarding the concentration of power in an authoritarian regime like that which the revolution rose up to overthrow. It would have been more appropriate democratically for the elected authorities to share the powers to make appointments to these sensitive positions or for the official to be directly elected, such as in the case of the vice president and the governors.
• The third shortcoming is the prioritization of the armed forces over the will of the people and its representatives, even though its budget is not shown to these representatives. This applies even in special committees from the parliament and secret meetings as is the case in democratic regimes. These should only be looked into by the National Defense Council, half of which is comprised of military figures. The draft is still hesitant to ban the trial of civilians before the military justice system, wasting the right of civilians to be tried by the normal judge. It subjects civilians to a special, non-independent military judiciary and the military administration, a branch of the executive power. It has been circulating in previous days that the military institution refuses to give up on calling civilians to account on tenuous pretexts. If civilians are allowed to be tried militarily, this could open the door to more overreaches like the kind from which the people have suffered during the transition period under the rule of the Supreme Council of the Armed Forces.

The fourth shortcoming, certainly not of lesser importance, but rather the most dangerous in terms of social justice, is the blatant intent to oppress women in Article 68, which stipulates the equality of men and women without prejudice to the provisions of Sharia law. Here there is an overemphasis on being able to prejudice equality – in comparison with Article 2 which stipulates the principles of Sharia law as the main source for legislation. The draft’s severity in using Sharia law as a restriction has reached its cruelest and crudest extent in restricting equality between men and women, whereby such equality is limited by the provisions of Islamic law and not just its principles. These provisions can be broadly interpreted by jurists and pave the way for reactionary and backwards interpretations whose example we can see in other countries that claim to govern by Islamic law. It is as if those who are writing the constitution are overcome by the desire to subjugate women – who are the sisters of men according to the hadith. Any constitutional draft that does not provide for total equity of girls and women after the historical injustice from which they suffered for decades, even centuries, cannot claim to be intent on achieving social justice.