The Egyptian Constitution: Looking Beyond Seasonal Forecasts

Commentary by Emilie Sickinghe – 5 February 2013

Back in January 2011, the Tunisian and Egyptian revolutions focussed the world’s attention on the Arab world once again: was an unexpected democratic Spring finally dawning on the region? Two years later, euphoria has given way to anxiety and the world seems to be experiencing Arab Spring fatigue. Syria is embroiled in a brutal civil conflict; as was Libya; Yemen is in the middle of a precarious transition; no fundamental changes have occurred in most other Arab countries (yes, back to business for the rulers left standing); and on top of all that comes… Egypt. Many hopes had been raised for the first Arab Spring country to produce a new constitution. By the end of 2012, all eyes were on Egypt again. The media storm blazed at full strength. President Morsy even landed in the top-ten person-of-the-year list of TIME Magazine. But the keyword was not “Spring” anymore. After Morsi’s autocratic manoeuvres, the newly adopted constitution bitterly disappointed those striving for a genuine democratic state.

Described as illegitimate and flawed, the document fails to adequately protect certain fundamental individual rights (namely those of women and minorities) and is decried as unrepresentative of the Egyptian people as a whole. Egypt’s constitution was the New Year’s drink too many. On the morning of January 2013, the Arab Awakening came not so much with the dreamt-of democracy, but rather with a bad headache.

Yet, just because the euphoric phase of the revolutions has lost part of its shine, the world would be mistaken to render its final verdict at this stage. One cannot judge the success of a New Year’s resolution on the first day after the party. Instead, one would do better to take a step back and put things into a wider perspective.

Taking our eyes off Egypt and redirecting them towards another country may help us in this effort. Iraq, a country already consigned to oblivion by most of the world, but which has its own experience in the drafting of a new constitution following the downfall of a dictator. Even though Iraq’s situation is by no means identical to that of Egypt, bringing it into perspective could give us reason to believe that Egypt’s constitutional headache may not be that bad after all.

Undoubtedly, Egypt’s new constitution is far from ideal for those men and women who fought the Mubarak regime and sometimes sacrificed their lives for fundamental freedoms, individual rights and a genuine democratic emancipation of the state.

That being said, the question deserves to be asked: was there a viable alternative to this constitution?

First of all, it could have been worse.  Although the Muslim Brotherhood (who dominated the constituent assembly) blocked many proposals from the liberal and leftist members, it is worth mentioning that they also prevented the other end of the political spectrum – the ultraconservative Salafis– from shaping a constitution that espouses the most fundamentalist interpretations of political Islam.

Second, could it have been better?

At first glance, the answer to this question is yes. Yes, the constitution could have enshrined better the protection of freedom of expression, assembly and religion. Yes, the constitution could have more firmly defended the rights of women and minorities.

At second glance however, the story of my friend Amin (name changed for security reasons) comes to mind. The answer to the question suddenly becomes much less straightforward. Amin, whom I met in Beirut, is a 27 year-old guitarist, vocalist and songwriter. He describes himself as an “emo” – meaning he is an adept of emotional hardcore rock music, and has a liking for black clothes and long hair.

Amin also happens to come from Iraq. An unfortunate combination since last year, which was marked by a new national trend: emo slaughtering. Himself tortured by radical Islamists who broke his fingers and pulled out his fingernails, Amin went into hiding. When a few months later two of his bandmates were found dead, he fled to Lebanon. Amin’s story is just one of the countless personal dramas of Iraqi youngsters who have been the victims of brutal killings in the past year.

Now, here comes the most shocking part: in a statement (later removed from its website) the Ministry of Interior officially endorsed the “elimination” of “emos or Satanist devil-worshippers”. Moreover, no official investigations were conducted into the killings. In other words, Iraq’s government openly supported the practice.

These events stand in sharp contrast to the institutional developments of the country, which has been trying to reconstruct itself. On a now historic October 15^th 2005, Iraq, by referendum, adopted a new democratic constitution. The preamble vows to build a “new Iraq, free from sectarianism, racism, discrimination, and exclusion”. The Constitution goes on to enumerate the rights to equality, security and non-discrimination for every individual.

Violent extremist groups exist in many societies, and should be dealt with through the rule of law. However, when the state itself fails to live up to its own constitution, the rule of law becomes void of any significance.

Like Iraq, Egypt produced a new constitution with the objective to enforce democratic governance after the abrupt ousting of an old dictator. The analogy between the two countries more or less stops there. Nevertheless, a look at the differences between the two countries provides food for some questioning of the widespread lamenting over the Egyptian constitution.

Iraq has an Islamic constitution that fully enshrines the values of a liberal democracy of equality, individual freedoms, and so forth. Egypt on the other hand, has adopted an Islamic constitution whose protection of the rights of women, minorities and of basic freedoms such as that of expression seem to be far from guaranteed.

Noah Feldman^[1] provides an interesting explanation for this difference: the writing of the Iraqi constitution took place in a context of strong influence from external actors. Both the United States and the United Nations, themselves channelling the voices of various groups such as human rights NGOs, had a non-negligible (even if indirect) input in the constitution-making process. As a result, Iraq’s constitution is very “politically correct” and meets classic liberal democratic standards in terms of its protection of individual freedoms and human rights.

In practice, Amin’s story reveals a very different reality. The government’s approval of the crimes and abuses he endured show that Iraq’s new progressive constitution is –at least in part- reduced to a dead letter. The reason for this is that Iraq’s constitution does not correspond to the worldview of important actors of the country’s political elite.

In Egypt, on the contrary, the majority in power (i.e. the Muslim Brotherhood) was able to tailor the constitution to its own liking. This happened to the despair of the Egyptian opposition (and of many actors elsewhere in the world).

Against all appearances, however, this very may well constitute a positive factor for democracy in the long run. The basic point is that the mere existence of an effectively implemented rule of law is more important than the quality of the laws. As imperfect as Egypt’s supreme law may be, what matters is that the authorities in power are the ones who created it. Being the architects of the contract they signed, they will feel compelled to stick to it – if only to secure their credibility. Egypt’s moral obligation to establish a tradition of abidance by its own rule of law is therefore much stronger than in Iraq, where one could still speak of “imposed” constitutionalism.^[2]

Past experiences from Eastern Europe to Burma have shown that a country simply cannot change overnight. Countries are rather like children learning to walk. They stand up, take a few small steps, but repeatedly fall down, before progressively learning to find their balance.

With the January 25 revolution, the child Egypt stood up. It wanted to start walking down the road but realised that to do so, it needed a pair of shoes. The new constitution came, and many were appalled by this choice of rustic, unpolished footwear.

Too easily forgotten is how long, rugged and full of obstacles the road is. It took Europeans and the U.S. more than one hundred years before their shoes were polished enough to grant women the right to vote. To give another example, it was only a few decades ago, in the 1940s, that two-thirds of American churchgoers rejected free expression of views that offended their religion. In the following generation however, two-thirds of churchgoers did tolerate such opinions. In other words, things change, but they take time.

Thus, let us hope it will not take Egypt another century before it fully embraces equal rights and fundamental freedoms. However, let us give it its fair share of time. The reality is that today, a majority of Egyptians feels more comfortable with the conservative Islamist discourse, than with that of the (large) minority of “secular” liberals. The other reality is that this conservative majority got to choose post-revolutionary Egypt’s first pair of shoes.

How scary is that fact? What Arab season does it announce? A dark Arab Winter, or a hot Summer? If any, the answer is both. The constitution is not a verdict at the end of a trial. It is only one step on the long journey that will see many seasons drift by. It is just one step down the long, rugged road.

To walk down this road, Iraq was given a beautiful, blinking pair of shoes. Unfortunately, the pair did not fit and, feeling uncomfortable, Iraq went barefoot. Egypt was able to fabricate its own pair of shoes. The pair revealed itself much less shiny. Egyptians will have to polish them intensively if they are to materialise their dreams of “Bread, Freedom and Social Justice”. The shoe shiners’ job will not be easy. However, at least there are shoes to shine. As long as my Egyptians friends can polish their own country’s shoes, instead of, like Amin, having to escape it barefoot, there will be hope. Hope for a ray of sunshine to break through the clouds – whatever the season.

Emilie Sickinghe, Dutch, is completing a traineeship at the European Parliament where she worked on the strengthening of parliamentary institutions worldwide. She participated in development projects and obtained a diploma International Relations in Latin America before studying International and Constitutional Law at the Université Catholique de Louvain. She was President of the debating society Conférence Olivaint de Belgique, and travelled to publish on democracy and multiculturalism. As a research associate for the NGO Right to Nonviolence in Beirut, Emilie gained knowledge on the legal and philosophical fundaments of the Arab Spring, and was a speaker for TEDx on nonviolence. In March 2013, Emilie will start a traineeship in the Cabinet of the President of the European Council, Herman Van Rompuy.

Follow her on Twitter : @emylae