Unlike our prior issues, we have dedicated this entire special issue of Midan Masr bit.ly/readereng to the constitution. As has often been repeated, the constitution – the compact agreed between the governing and the governed – is the fundamental building block of society, without which we will once again be subject to the whims and arbitrariness of individuals. The constitution is not simply our insurance that our lives are equitably governed by processes not the discretionary choices of the governing, but it is also a reflection of the aspirations, values, and future we want for this great nation.
The success of a constitution derives not only from the wisdom and the fairness of the text/document, but most importantly from the widespread involvement, informed participation, and buy-in by all of the people of Egypt into the constitution making process. The discussion that is currently taking place regarding the constitution has largely occurred in a vacuum. To be able to adequately understand and make informed choices on issues such as what type of drafting process is best, how the military will be treated in the constitution, whether we want a parliamentary or presidential system, what types of rights and protections should be enshrined in the constitution, how we will treat religion in the constitution, and many other topics, we must know the history of these issues, we must learn from both the mistakes and successes of other countries that have been through similar processes, we must capitalize on the experiences and expertise – taking the best and discarding the worst – of others, and most importantly we must assess everything that is being proposed through a critical and informed lens.
To this end we have attempted to provide a high-level comprehensive informational overview of many of the critical topics that are currently being discussed and to provide a select group of opinions from subject matter experts such as Dr. Ahmed El-Kosheri discussing the Supreme Constitutional Court and Bartłomiej Nowotarski - one of the authors of the Polish Constitution – discussing the lessons learned from the post-Communist Polish constitutional experience. If we as citizens have a holistic and contextual background, we will be able to participate on an informed basis in the constitutional discussion, we will be able to assess all of the proposals on a “relative merits” basis, and ultimately, we will ensure that the constitution is a reflection of the best of what we as citizens aspire to.
The sections we have covered are: What is a Constitution? Fundamental and Optional Components of Constitutions, Overview of the Constitution-Making Process, History of Egypt’s Constitution, Religion and the Constitution, Rights and Protections, Supra-Constitutional Principles, The Supreme Constitutional Court, The Military and the Constitution, and Transitional Justice.
We have also included detailed case studies on various countries’ constitutional experiences – including Indonesia, Argentina, Lebanon, France, South Africa, Pakistan, Turkey, Germany, the US, and even a profile of a Pharaonic revolution - similar to the January 25th revolution – that happened here in Egypt over 4000 years ago - so no, we are not the first; Egyptians have done it before!
While what we have presented is by no means comprehensive, we hope that it will contribute to informing the discussion and to increasing the participation in the crafting of this most important foundational document – our Egyptian constitution.
But even a great constitution is not enough. Without one, we have very little chance of building the rights-based equitable society we aspire to; but even a great one, as some of the world’s most despotic regimes show, is no automatic guarantee whatsoever of a just, fair, successful society.
The only guarantee of that is that each and every one of us makes the constitution more then a museum-piece manuscript, we make it a living part of our daily lives. The obligations, rights, and responsibilities outlined in it become not only our primary reference point in managing our relationship with the government; but our knowledge of and familiarity with the constitution, and our absolute insistence that every clause be uniformly applied will become our source of strength and our guarantee that we will never again be subject to frequent and gross violations of our rights. Only then will the constitution become what it should be, a reaffirmation of the sovereignty of the people – and only we the people can do this.
So each of us is responsible to make the effort to learn more, participate, and make the constitution a frame of mind, not simply an elegant and well-written document that is referred to on anniversaries yet plays no concrete role in improving our lives. As Judge Learned Hands expressed so wisely, “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes … Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, nor court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”