Egyptian President Abdel-Fattah El-Sisi recently dismissed the country's constitution as founded on unrealistic "good intentions" (this same constitution was celebrated, when it was approved in January 2014, as basically the best in the world). In the latest installment of our In Translation series, brought to you as always by the translation professionals of Industry Arabic, Shereef Azer imagines what might have led the president -- now that a parliament that will share some of the powers he has monopolized for the last two years is finally on the horizon -- to change his evaluation. 

Shereef Azer writes: I’ll Show You “Tinkering with the Constitution”!

Online magazine 18+, Wednesday, September 16, 2015

Long ago, we were told that “constitution” is a Persian word that means “father of the law.” Yet it appears as though its current meaning in the corridors of the Egyptian government is “to hell with the law.” The regime’s approach is obvious, as it manipulates the law and the legislative process as it pleases, in the absence of a working parliament. Even so, to now hint at amending the constitution is both extremely provocative and unacceptable.

In his speech at the opening ceremony of University Youth Week, President Abdel Fattah al-Sisi stated that “the constitution granted broad powers to parliament, and with good intentions, but the country cannot run on good intentions alone.” Of course, these words represent a great insult to the Committee of Fifty that drafted the constitution. They presume that this committee had no idea what it was doing and that its members merely wrote, with good intentions, what was in their hearts. This is not something that a proper president of the republic should be saying.

The problem is that when you get to thinking about this statement, you necessarily arrive at the conclusion that the president fears something in this constitution and that he wishes he could change it in order to serve some goal. It becomes clear that the president wants to run the country according to his whims and without anything standing in his way. Well then, let’s see what in the constitution might be angering our president and getting his knickers in a twist.

First off, it’s clear that the president has gotten into a jam with all this parliament nonsense – even though he had tried to avoid it for quite some time – and he has finally been forced to take a look at the constitution and its meaning. If there’s going to be a parliament one way or another, he figured, then at least he should see what it’s all about. He opened the constitution and (Oh God, please let it be good!)…there right in front of his face was an absolute disaster. This upcoming parliament has the power to remove the president. Now, I’m not claiming to be a mind-reader, but I’m certain that the president reacted to this particular article of the constitution with a certain four-letter word. Surely, certain thoughts began to cross his mind, but thank goodness he said “good intentions” instead – otherwise, he would already have had the Committee of Fifty arrested and tried on charges of planning to overthrow the government.

Of course, a military ruler who has no interest in democracy, in legislative branches, in the rule of law or in any such talk cannot quite swallow this. “After all, we’re doing fine without a parliament. The people are happy. This measly little constitution would only cause me a headache, or possibly even put me out on the curb – when we are only just getting started!”

Then the president took another look at the constitution and found another stab in the back. What sort of constitution is this? It allows the parliament to be involved in the formation of the government alongside the president of the republic, and even allows it to review the president’s selection for prime minister and to withdraw its confidence from the prime minister as well. You mean to say that after the president has worked tirelessly to find ministers that he can actually put up with, the parliament can simply come along and send them packing? I’m afraid not!

The third thing that the president had no desire to hear is that the constitution states that the parliament must review all laws issued by the president of the republic, even those which were issued when there was no working parliament. What’s more, they must approve these laws or else they become null and void retroactively. Meaning that after all the effort of issuing these lovely laws, like the anti-protest law, the counter-terrorism law and the terrorist entities law, some amateurs can come along and amend them! It’s positively scandalous.

Since one way or another we’ll end up amending the constitution in order to extend the presidential term or to make it open-ended altogether, then why not fine-tune it from the get-go? This way we won’t have to keep making small amendments and we can just put out a whole new package at once.

Unfortunately, no one seems to learn from history. The more the president plays with the constitution, the faster his time will come to an end. In this regard, Sadat’s “extensions” and Mubarak’s amendments of 2007 offer a lesson: In matters such as these, tinkering with things leads to disaster. So I ask, please, that no one mess around with the constitution. Whoever does tamper with it is bound to get seriously screwed.

The Struggle for Iraq's Future: How Corruption, Incompetence and Sectarianism Have Undermined Democracy

$22.83

By Zaid Al-Ali

Buy on Amazon

In April, Iraqi lawyer Zaid Al-Ali wrote a remarkably prophetic article arguing that Nouri al-Maliki, who had convinced many Iraqi voters in the just-concluded elections that he was a strong man, was actually presiding over a rapidly weakening state. The armed forces were a "paper tiger," he argued, sapped by corruption and politicization and unwilling to fight. Six weeks later the Islamic State struck and proved Al-Ali right, as Maliki's forces in the north melted away.

The full details of just how badly Maliki governed Iraq can be found in Al-Ali's book, The Struggle for Iraq's Future, an account of misrule in the country since 2003. One particularly cutting anecdote, in which Maliki kept in use a demonstrably fraudulent bomb detector, apparently to save face, at the cost of hundreds of lives, is excerpted on The Arabist here. Read in light of the fall of Mosul, the accounts dramatize how the same instincts that propel a political leader to extend control over all the institutions of state leave those very institutions fragile, led by opportunists and functionaries. That a ruthless leader does not make for a strong state is a lesson that the Arab world should have had ample opportunity to learn, yet many here still keep falling into the same trap.

Pressure is building on Maliki to go, with some even within his own party saying a new leader is needed. This will obviously not in itself roll back the Islamic State and its allies from its newly won conquests, but is probably a minimal prerequisite for building a more professional army and, more importantly, a signal to Sunnis that the new government won't repeat Maliki's vindictive policies against them.

But if Maliki is removed, the question of who will replace him, and whether they can forge a more effective army and a more effective state, will remain. For Al-Ali, Maliki is just part of a much larger problem - the political class, mostly exiles, that came to power in 2003-2005. Al-Ali goes looking for the original sin of Iraq's fragility in the hurried push to get an Iraqi government in place. When the Coalition first selected a governing council, he says, they opted primarily for exiles who imagined that Iraqis' sense of political identity was one-dimensional, determined entirely by their sect, and thus chose people who they imagined would be considered sectarian advocates: "The more extreme their position, the more likely that they would be seated at the head of the table." A second error was the rush to get a constitution approved by all the existing sectarian blocs, leaving it rife with loopholes that Maliki later exploited to stack ministries with loyalists, subordinate the military for his personal control, and, like other politicians, to buy votes with the expenditures of public funds. The occupation chose opportunists who cast themselves in sectarian terms, he argues, and the constitution neglected to take away the tricks they would need to maintain their hold on power.

Very few general historical overviews have been written on the Iraq war, and particularly not from an Iraqi perspective. Al-Ali was involved in the transition, and it's extremely valuable to have his insider view of what went wrong. Most of Al-Ali's observations ring true, and all of the reforms he recommends would probably be a step forward. But indicting opportunism, clientalist politics and the advantages of incumbency does not suggest a solution; what is really indicted is politics - dysfunctional and disheartening, but not uniquely to Iraq. Contemporary India, to take one example, has equally dismal horror stories of corruption, opportunism, playing with sectarian fire, and other forms of political misbehavior, yet still has held together as a democratic state. He's right that the 2005 constitution was a rush job: but Iraq in 2005 was already on the verge of a civil war, plagued with bombs and death squads, and given the mutual suspicion, it is remarkable that all the major factions agreed on any document at all.

By focusing on political dysfunction, Al-Ali seems eager to rescue Iraq from the charge of being haunted by eternal sectarian divisions. Much of what has been written about those divisions is a caricature, but Al-Ali sometimes takes his argument too far. Take for example that opening anecdote of Maliki and the fake bomb detectors: “a perfect illustration of how Iraqis' problems were caused not by religion or race, but by misgovernment." The failure to prevent bombs was deadly incompetence, but the bombs themselves were what killed people. They did not plant themselves, and it is hard to attribute them to misgovernment – the radicals who would later be the Islamic State started to plant them only four months into the occupation, when an Iraqi government even began, and almost immediately began hitting Shiite religious targets, not the occupiers. Car bombs are not unique to Iraq, but as far as I am aware, a decade-long offensive involving scores of bombs are year trying to kill as many civilians as possible is unprecedented in history, and it is the foundation of Iraq’s subsequent civil war. And it is difficult to maintain that this has nothing to do with “religion,” or at least with religious identity. Although most people in Sunni communities did not support the bombs, they were willing to turn enough of a blind eye to them to welcome the radicals as potential allies against the Americans and later, against the Shia-led government.

Al-Ali is right to point out that Iraq’s record of sectarian bloodletting is comparatively recent, that most people react with horror to the idea of dividing the country along sectarian lines, and that there are plenty of instances of cross-sectarian solidarity. But the country he describes – a population wanting to rise above the sectarian identity imposed on them by their leaders – is not the country I recognize from my years in Iraq. My young Shia friends, mostly secularists with many Sunni friends, were eager for "our chance" to rule the country, even if that meant voting for reactionary clerics. Sunnis, although they were friends with Shia, often found Shiite clergy and religious rituals to be horrifying and alien, almost a form of penetration by archenemy Iran. A country cannot emerge from decades of dictatorship without deep polarization, particularly not when you’re emerging into the uncertainty of the power vacuum brought by foreign invasion. The Iran-Iraq war in particular left deep wounds - many Shia had experienced persecution on account of religious or family ties with Iran, whereas many Sunnis still considered Iran an existential foe. Both Sunni and Shia may have in theory felt a sense of kinship with ordinary citizens from the other sect, but they felt threatened by leaders they considered to be “Iranians” vs “Baathists” or “Wahhabis.” Yet often enough they turned to their equally sectarian leaders, largely because they felt they would be the most likely to defend their interests.

Al-Ali has written in the Washington Post that the current crisis requires a “new idea” that must “break out of the ethno-sectarian paradigm.” He suggests appointing ministers outside the “current crop of corrupt political elites who have been running the country into the ground since 2005.” It is unquestionable the Islamic State is rolled back, Iraq cannot return to the status quo before the fall of Mosul, reinserting Baghdad's incompetent and brutal security forces back into the communities from which they were routed. A new political arrangement, either informal or formalized through an amended constitution, will need to be agreed upon.

But we cannot simply cannot wish into place a leadership that is infused with civic spirit. Iraq has a parliament, elected only two months ago. These politicians – many of whom are from the old sectarian elites – cannot be simply told to go home. They are currently scrambling to form a government that may or may not include Maliki, perhaps as early as Tuesday. While it may be an improvement on past Cabinets, it is difficult to imagine that they will put aside the instincts of a lifetime and stock it with competent technocrats.

It may be that the Islamic State's onslaught is the shock that transforms Iraq's political culture. But, just as much as new blood in government, what is needed are safeguards that prevent these politicians from considering each other to be threats, to prevent whichever bloc holds power in Baghdad from using the security forces and judiciary to target other groups. Such safeguards may well involve extending federalism to Sunni areas. This need not be seen as a reinforcement of the principal that Iraq's sectarian groups were destined to live apart, rather an acknowledgement that sometimes history causes rifts that, once they've emerged, take on lives of their own.

A balanced and well-informed BBC interview of historian Khaled Fahmy.

Courtesy of the International Institute for Democracy and Electoral Assistance (IDEA), a handy chart of Egypt's recent experiments with constitutions, including a partial draft of the current work-in-progress. Thanks to Zaid al-Ali for compiling.

	English	Arabic	Commentary
Draft Constitution by the 50 member committee (C50)  10 November 2013	Link	Link Link
The 50 member committee (C50)'s rules of procedure   12 September 2013	Link	Link
The presidential decree establishing a 50 member committee (C50) to prepare a final version of the draft constitution   1 September 2013	Link	Link
The proposed changes to the 2012 Constitution by the 10 member expert committee (C10)   20 August 2013	Link	Link	Link
The Constitutional Declaration suspending the 2012 constitution and establishing a new road map for the country   8 July 2013	Link	Link	Link
The 2012 Constitution   25 December 2012	Link	Link	Link
The March 2011 Constitutional Declaration   30 March 2011	Link	Link	Link

In my latest column for the New York Times' Latitude blog I look at the writing of Egypt's new new constitution -- a process that despite offering some promise of improvement, is rather dispiritingly familiar.   

The last assembly was drawn overwhelmingly from Islamist parties that had just performed well at the polls. Non-Islamists didn’t have the numbers to exercise veto power and complained about their marginalization; eventually almost all of them withdrew. The new drafting committee looks like a photo negative of the old one: It contains a single delegate from an Islamist party, and he has already walked out in protest over being ignored.

The Islamist assembly pointedly excluded prominent feminist, activist and secularist voices. It’s unclear to whom the current committee — appointed by an interim president, backed by the army, packed with the heads of official institutions — is accountable to beside the state itself. Organizations such as the Journalists’ Syndicate have already complained that their recommendations on press law and freedoms of speech have been overlooked.