Monday, January 21,  2019


Constitution First

By Aymen Amer

How could we accept anything less than a new constitution that satisfies the ambitions of our revolution and frees us from the shame of the tyranny under which we suffered so long?



Here we are one year after the January 25th, 2011 revolution, and we still find ourselves in an exceptionally complicated transitional period - complications that have come about due to the mismanagement of the country by the Supreme Council of Armed Forces (SCAF). These complications (or these difficulties) have continually increased the fracturing of political forces in the country and intensified the conflict on the streets between the various factions.  


A whole year has passed since we were together in Tahrir at the beginning of January 2011 to demand our rights: our daily bread, our freedom, our dignity. We wanted those things under the aegis of a civil state, imbued with the values of citizenship and just law. In those days, party slogans disappeared. We were united by one goal, which fired our ambitions and dissolved our political and ideological differences - if only for a while - and the rain fell, washing away all of our faults.   


National consensus will exert strong pressure on SCAF to leave the matter of the constitution to the people to decide, and indeed to quickly transfer power to a civilian government

Our demand was the dismantling of the regime so that everyday life itself would change, and so that there may be a chance to build a new and different system which protects the rights of the individual, and provides freedom, justice and democracy for all citizens, without discrimination. In this way we hoped that our potential would be realized, our talents and our creativity would thrive, and that we would be the best we could be.


We asked at the time for a Civilian Presidential Council and for the formation of a constituent assembly to put in place a new constitution for the country - a constitution that would replace the old one that had become corrupted and which had lost all legitimacy with the removal of the former resident and his regime. But we did not persevere long enough to achieve this goal.    The former president ceded power to the Supreme Council of the Armed Forces (SCAF), turning over to them the responsibility for running the country - we said ok. 


When SCAF subsequently declared that they would administer the affairs of the country during a transitional period until such a time as they could hand power over to a civilian government, elected by the people - we said alright. We even took it as a good sign that the military hailed the martyrs of the revolution and declared their support for the legitimate demands of the people. They even declared that they, the military, were not “a viable alternative for political legitimacy.”   The hope was that the army would adopt the vision and spirit of the revolution. We hoped that the army would work to transform the political environment to levels that matched the best of the revolution’s demands and ambitions for a healthy and peaceful democracy.


Sadly, this was not to be the case. We began to notice what looked like confusion in SCAF’s moves, and an unjustifiable tardiness in their actions. We found that with every step they took, more questions were raised. Then we realized that SCAF would not move, or make any of the needed changes, except in response to the pressure of protests and demonstrations. It was at this point that feelings vacillated between anxiety, anger and pessimism. 


Rather than beginning the process of putting in place a new constitution, SCAF chose another path. They formed a committee to propose and enact amendments to a few of the articles of the old constitution. Many voices cried out in rejection of this approach, which was in effect an attempt to merely patch up a constitution which was invalid, in tatters – and was unfixable. It seemed to many that it was far more important and far better to use the time to work towards putting in place an entirely new constitution - particularly since the proposed constitutional amendments had already been put forward by the former president before he was ousted.


So the question was this: how could we accept after a revolution, that which was not good enough for us during the reign of an ousted president and his oppressive regime? How could we accept anything less than a new constitution that satisfies the ambitions of our revolution and frees us from the shame of the tyranny under which we suffered so long?


Despite the voices of protest against the amendments, SCAF promptly proceeded to do what it saw fit. The result: confusion, misunderstanding, ill-will, and the exploitation of the ignorance of the public and of their religious sentiments. An ugly  polarization happened between the “yays” and the “nays.” Some people even presented the referendum as a battle over the national and religious identity of the country.  Voting “yay” was positioned as representing order and stability, and maintaining Article 2 of the existing constitution - and therefore preserving the country’s Islamic identity, while voting “nay,” they implied, stood for the exact opposite of all of this. And so, the referendum took place, and what happened happened, polluting the happiness that had begun to earlier emerge because of the country’s nascent democratic experiment.   In any case, the result of the referendum was “Yes”, and we were all happy about the first referendum after the revolution which was carried out without fraud or corruption. 


SCAF wishes to make itself immune from being taken to account by an independent government, or being submitted to any authority other than itself in the first place. In fact, SCAF wants to make itself the protector of constitutional legitimacy

But then, our joy was again tainted when some people started shouting out religious chants of victory after their return from “the Conquest of the Ballot-Boxes.” A victory reached over the enemy, they said, because people chose “religion” or the “religiously correct option.”   We were then all surprised, when soon after the referendum was completed, SCAF announced that the old constitution was invalid, and instead they put in place, by fiat, a temporary constitution which they called the “Constitutional Declaration,” - comprising more than sixty articles - rendering the entire period, process, and outcome of the referendum and the proposed amendments irrelevant. 


Why did no one tell us before the referendum took place, that the old constitution had become completely invalid, and that the “Constitutional Declaration” was being prepared? And why was this “Constitutional Declaration” not submitted to referendum? And what was the sense in asking us to vote on certain constitutional articles and then unilaterally forcing upon us a temporary constitution composed of 62 articles? 


If we completely put aside for a moment the question of bad intentions, it seems that the SCAF has belatedly discovered that it has made a series of mistake in prioritizing the important tasks during the transitional period – from the strange and flawed referendum which divided the people into factions, and through which the army thought it could gain a measure of legitimacy, to the Constitutional Declaration which followed and invalidated the results of the referendum.  And then SCAF discovered that leaving the constitution in the hands of one force in parliament, which today is a majority, but tomorrow might be a minority, was a grave political and constitutional error, for there is nothing to guarantee that the political factions in the country will approve of this constitution which will dictate the relationship between them later on. SCAF seems to have panicked and didn’t know how to get out of this bind, and the contradictory statements their members keep issuing are causing conflict and unrest, doubts and misgivings about SCAF’s true intentions.


It is well known that a constitution is a contract that regulates the relationship between ruler and ruled, and between the three branches of government: the judiciary, the executive and the legislative. It is therefore neither legal nor rational that the matter of deciding upon the constitution should be left in the hands of just one of these branches (here the legislative). The members of parliament might assign a committee which is in line with their interests, ideology, and thoughts on political policy, which would lead to the beginning of our political life after the revolution being biased towards certain members of parliament in a manner which is quite unacceptable.  It seems obvious then that the constitution should be in place before any type of political work begins. In fact, when the three branches of government convene, they should be given the constitution and told to carry out their work according to it. This is the reason why one of the revolution’s first demands was the establishment of a completely new constitution. Since one of the main functions of a constitution is to protect the rights of minorities - including political minorities - from the power of the majority, the majority should not monopolize the creation of a constitution which is designed in part to limit their power.


We do not want a constitution catering to the needs of the majority, nor one which suits the desires of the ruling power, particularly since both the current parliamentary majority and the ruling power have clear designs to champion only their own interests through the articles of the old constitution. On the one hand, SCAF wishes to make itself immune from being taken to account by an independent government, or being submitted to any authority other than itself in the first place.  In fact, SCAF wants to make itself the protector of constitutional legitimacy.  All this when we’ve seen what SCAF has done with the revolution in the last few months and how they have transformed it from a revolution to cosmetic reforms that don’t begin to make any fundamental changes in the corrupt foundations of the regime and system.    


As for the members of parliament, who are desperate for power, we cannot entrust the constitution to them when they claim to own all legitimacy and right. This is particularly the case since some of their true intentions have become apparent and some of them have already begun talking about an Islamic constitution they have prepared.  They will present “their” constitution to the new parliament - ignoring entirely that they are temporary members of parliament and that the constitution will outlast them all. We do not want their majority to put in place a constitution which suits them, only to be followed by another constitution which will be put in place by the next majority. Or do they think they will be a majority forever? 


So, what now?    We have agreed to the rule of democracy and the ballot-boxes, and we have to accept the results despite the shortcomings and imperfections of democracy, because there is no cure for democracy’s imperfections except through democracy itself.   I know that there are fears that some of those who came to power will burn the ladder they climbed to reach that power and that that they might choose to find another legitimacy, one far different from democracy and elections. I also know that this danger comes particularly from those who declare others disbelievers and who reject all that is ‘Other.’ But at the same time, we do not want to save ourselves from their fire only to put ourselves in the hell of military dictatorship.  


It is for the political forces to realize that the constitution belongs to all citizens, regardless of their sect, or their intellectual, political, or ideological leanings, and regardless of their religion, color or race. As such, the political movements need to get together to discuss and agree on the criteria for choosing the constitutional drafting committee.  They must reach a solution based on national consensus and agreement that lets us avoid strife and conflict between some or all of the different [involved] powers – both among themselves, and with the SCAF.  In fact, this national consensus will exert strong pressure on SCAF to leave the matter of the constitution to the people to decide, and indeed to quickly transfer power to a civilian government. 


Conflict, on the other hand, achieves nothing. It provides SCAF with justification (at least among some) to tighten its grasp on power. Perhaps stoking the fires of such conflict between political forces in the country has placed the country (knowingly or unknowingly) on the cusp of a horrible civil war that will claim us all.   Clearly, then, the “committee of 100” which will write the constitution must be composed entirely—or at least the majority of its members—of individuals who are not members of parliament. It is enough that members of parliament have the right to approve the members of the committee. This committee must be representative of all spectra of society and must involve trade unions, intellectuals, political activists, human rights activists, youth, women and men of religion. In addition, of course, the committee must include legal experts and scholars of constitutional law. 


What we must focus our attention on is the importance of building the institutions of a civil state, building the foundations of democratic political work, and respect for the law. If we can succeed at this, we shall overcome this current crisis, improve our political process and performance and complete (through political processes) the achievements of our “delayed” revolution and transform Egypt in a transformation that is worthy of her and her peoples’ revolution.