The ongoing process of constitution writing in Egypt has generated a wide-ranging set of critiques pertaining to the composition of the committee, the transparency and inclusiveness of the drafting process, and the perceived failure of the body to respond to the aspirations of Egyptians for a democratic, just political order. The Egypt Parallel Constitution initiative (EPC) stands out as one important voice in these emergent debates. Founded by a diverse group of concerned Egyptian citizens, EPC is a grassroots initiative that seeks to present an alternative constitutional vision that speaks for popular demands for freedom, equality, justice, and the rule of law. (The EPC-prepared draft constitution can be accessed by clicking here). The following interview with EPC co-founder Sawsan Gad examines the EPC initiative, its history, objectives, and how its members situate their own work vis-à-vis the official constitution drafting process.
Hesham Sallam (HS): How did the Egypt Parallel Constitution (EPC) initiative begin and what were the objectives and motivations behind it?
Sawsan Gad (SG): A small group of us initiated calls for an EPC Volunteer Taskforce through social media earlier in August 2013. We set a start date on 1 September and a deadline to complete a draft constitution five weeks later.
Our objective is a constitution that is informed by the norms of good governance and is responsive to the challenges of the future. We were particularly concerned about the ongoing efforts of dominant political players in Egypt to hijack the process of constitution writing in such a way that prioritizes their backroom compromises and political jockeying to the marginalization of the principles of proper statehood, sovereignty, and good governance. We were also eager to enhance decentralization and provincial-level governance in order to attract human resources and direct investment in regions outside of Cairo and the few other dominant urban centers. This would help achieve a better redistribution of resources, while preserving national security through citizen empowerment, all of which we hope would ultimately lead to a healthy and resilient state.
In terms of motivations, two considerations loom large. First, we deem the current body tasked with drafting a new constitution, the so-called “Committee of Fifty,” illegitimate based on how it was formed. Specifically, the body includes representatives of political parties, which raises a red flag due to the conflict of interest that these representatives bring to the table. Including partisan representatives in effect converts the process from a legislative to a political battle. Similar concerns arise when we assess the presence of what we deem as sectarian representatives, such as the affiliates of Al-Azhar and the Church. This comes at a time when Egypt has experienced an unprecedented level of sectarian violence. The dominant discourse in state and mainstream media alleges that the coming political experiment will put all Egyptians of all backgrounds on equal footing, promising to reverse the painful experiences that jeopardized social and national cohesion during Mohamed Morsi’s rule. On the other hand, we do not see how this could be achieved when Egyptians are being represented on the basis of religion in the constitution drafting process. It is one thing to have religious figures participate in this process through hearings; it is an entirely different thing to actually grant them the power to sit and bargain in the drafting process as members of the Committee of Fifty. Some argue that religious representation should be respected on grounds of cultural relativism, which is of course ironic because if religion should be a basis for representation on the Committee one would think that those who do not profess religious beliefs would be represented as a group. The Committee, however, disenfranchises Egyptians who choose not to adhere to any religion, which is a grave violation of human rights on part of the Egyptian government. This also deems the Committee of Fifty flagrantly unconstitutional, since it discriminates against citizens according to a criterion that it unilaterally applies.
The second motivation is that we did not want to express dismay with the document currently being drafted without providing a clear alternative. When it comes to constitutions, Egyptians have not seen a good alternative to aspire to. All they see are angry activists. So through this initiative we are trying to give the public an alternative constitutional vision through which, we hope, they could understand why the current constitution drafting process warrants criticism. The idea here is to motivate the public to demand improvement, and eventually translate these demands into action that could yield a constitution that could secure Egypt a more hopeful future.
HS: Could you please describe the process through which the articles of the EPC were drafted? Who participated and how was everyone’s input incorporated?
SG: Our EPC Taskforce comprises about twenty-three specialists in various areas, including public policy, international and local development, media, hard and applied sciences, and civil society. We all bring some experience in dealing with legal text, so we put our voices forward as citizens, the ultimate stakeholders in this constitutional debate.
Besides being the constituents of our nation’s constitution, we are also a grassroots voice. We understand “grassroots” correctly as agents on the micro level of local community, not as “poor,” as is the case with definitions that politicians and activists often use comfortably. That is, we are a group of citizens with no formal representation.
We divided the Taskforce into various committees, each covering a particular chapter of the Constitution, and all of us convened for discussion on the overarching Bill of Rights. The general coordinator distributed a volunteer toolkit that included more than ten selected constitutions of similar context or demonstrated quality. Each committee was tasked with formulating their chapter, while adhering to our “nine guiding principles,” which are based on the lessons learned from the best constitutional practices we examined. We adapted the lessons from these constitutional experiences to the Egyptian context. The diverse members of the Taskforce were all joined together by an uncompromising commitment to citizen rights and liberties. We were all receptive to the possibility of disagreeing on a variety of issues such as the appropriate balance of power between the branches of government, but on fundamental questions concerning citizen rights there was no room for compromise. So we agreed in advance of our work that if disagreement among us should arise we would give precedence to the option that maximizes these rights.
While each committee developed their chapter drafts, the general coordinator and other task force members reviewed these drafts for quality control and to make sure they fit within the overall constitutional design, such that no article in one chapter contradicts another in a different one.
There were many debates and disagreement among us, which was expected because participants held a diverse set of political and ideological views. I consider this one of the richest intellectual experiences of my life. We all started from very different positions, and in many cases forced ourselves to reach agreement over constitutional articles with real mandates and that are practically enforceable. I can proudly call our constitutional draft consensual, but not tainted by partisan political compromises.
HS: What do you intend to do with this draft and what is your assessment of the impact of the initiative thus far?
We have more than one plan in mind, and they all revolve around the ultimate constituent: the Egyptian citizen. Plan A is to raise citizens’ expectations and support public pressure on the Committee of Fifty in order to encourage its members to rectify the shortcomings of the official working draft. We would be happy to see the Committee produce a document that speaks to the aspirations of Egyptians, but we highly doubt it. If the Committee`s current draft actually passes with its deficiencies, it is likely that we will witness yet more failures in the political system in the coming years. Thus, we are now continuously working on building grassroots ownership of the Parallel Constitution in order to enhance public deliberation over what kind constitutional vision could best serve Egypt.
HS: Were there particular constitutions that were influential in the drafting process?
SG: We consulted more than ten constitutions: All previous constitutions of Egypt since 1923, along with the current constitutions of the United States, France, Germany, Ghana, Kenya, Rwanda, South Africa, Malaysia, and Indonesia. Each of these documents was selected either based on similarities between the social context in which it was drafted to that of the current Egyptian experience, some demonstrated record in improving governance, and/ or similarity in cultural context.
HS: What is your assessment of the current constitution drafting process in Egypt?
SG: The constitution drafting process started with what seemed like a commendable commitment to transparency and citizen interaction. Many of the members are very competent in their areas of expertise, which was reassuring.
But as I mentioned earlier, the problem is in the partisan and sectarian bases on which the membership of the Committee of Fifty was formed. The Committee also violated its self-set standards of transparency by running secret sessions in October 2013 with unannounced agenda or topics. This in addition to incorporating politically pacifying clauses like “sovereignty is of the people.” This principle could be rendered obsolete by the contradictory clause “Sharia principles as the source of legislation” knowing that the first overarching principle of Sharia is that “sovereignty is of God” not of the people.
Those in power in Egypt are very much aware of such technical differences. This suggests that the rule of law will always fall hostage to the personal preferences of those in power who will use the constitution’s contradictions to enhance its own influence.
The failure of the Committee of Fifty to openly challenge these fundamental contradictions reflects the dominance of sectarian and military players in the constitutional writing process. It also highlights how the problematic basis on which this body was formed will undermine the quality and sustainability of the prospective constitution in the long run.
HS: What are the most significant differences between the Egypt Parallel Constitution and the current drafts being deliberated by the fifty-member constitutional committee?
SG: We are yet to see the final product from the Committee before answering conclusively, but based on what has been reported in the media, there are some important differences. First, EPC does not define for Egyptians what is an acceptable belief system, code of morality, or national identity. Under EPC, we are first and foremost people united by the rule of law and unity of land. Our diversity and differences enrich us; there is no "right" way of thinking, and there is no "identity" we can impose on Egyptians except their Egyptian-ness and they are the ones who decide what it means and are free to continuously update their choices.
Second, EPC document was drafted based on a commitment to full-fledged decentralization: legislative, fiscal, and executive. This is in sharp contrast to what decentralization has traditionally meant to the Egyptian government, namely delegation of limited executive powers to governorates and local authorities. The Committee of Fifty, on the other hand, has done very little to enhance decentralization. Its current draft states that the law will stipulate how provincial governments (governorates) should provide public services and that taxation is part of governorates’ revenue. There is no mention of who initiates such taxation on their behalf. The language is very vague. It could mean that governorates could raise their own funds and taxes. But given the central government’s long-standing efforts to resist decentralization and the lack of binding language in the constitution, governorates will most probably not enjoy a right to fiscal autonomy. There is also absolutely no mention of governorates’ right to legislate.
Third, EPC abolished the “Shura Council” but replaced it with a new elected chamber, namely the Higher Council for Governorate Representatives, with two members representing each governorate, and each member will have one vote. In other words, Cairo’s representation and voice in that chamber will be equal to that of smaller governorates, such as El-Wadi El-Gedid. This measure will enhance the democratic quality of decision-making on strategic and sovereign matters.
Both EPC and the Committee of Fifty abolish the Shura Council. The Shura Council has been known to be a financially cumbersome chamber and a tool for executive power to control legislative agendas. The president has historically appointed a considerable part of its membership, despite the legislative mandate the chamber enjoys. The difference, however, is that EPC replaces the Shura Council with a new chamber that would help support meaningful decentralization of government power. The working draft of the Committee of Fifty simply eliminates the chamber and does not deal in any substantive way with decentralization. Thus it does not address some of the most important structural sources of corruption and the fragility of the Egyptian state.
Fourth, EPC seeks to put an end to the flagrant gender discrimination that exists in public and private life. In fact, one article states that all male pronouns therein do not refer to a specific sex or gender. Traditionally, women have been dissuaded/chased away from taking up judiciary and high-level executive positions to avoid confrontation with proponents of Sharia who often use the "male pronoun" as a justification for not extending certain rights to women. Further, the majority of past reforms that sought to enhance the rights of women only pertain to public life, whereas women`s rights in private life are limited by family laws, which constrain her marital rights, inheritance, etc. EPC puts an end to that trend.
The official draft that the Committee of Fifty prepared is a step backward in the fight for women’s empowerment. It has limited the particular domains where women should be equated with men, namely public political, social, cultural and economic, and tied the issue to Sharia. In the past, Sharia’s influence over women’s lives had been limited (at least by law) to private life, which afforded them some maneuvering in public domains.
Fifth, in the general provisions, EPC defines "public order" not in terms of stability, but in terms of human growth and welfare, which would eventually bring stability. Egyptian state institutions have historically avoided undertaking necessary changes in their governance practices—as they relate for example to media censorship, publication confiscation, and hindrance to non-Muslim religious practice—out of fear that this would disturb public order. For example, Egyptian authorities until today do not allow Baha’i Egyptians to disclose their religion on national identification cards based on the argument that this would incite sectarian tensions and jeopardize public order. Thus redefining the meaning of “public order” in the constitution to incorporate human welfare is a necessary step that could orient state institutions toward continuous self-criticism, as well as updating, and improvement in the way it delivers to its citizens.
HS: How seriously do you take the critique that EPC was mostly a document produced by Egyptians abroad and has failed to garner grassroots depth in Egypt?
SG: The only difference between Egyptians in-land and abroad is in voting logistics, which Egyptians abroad have fought for in order to practice a right to which they were already entitled. Other common depictions or profiling of "Egyptians abroad" are often xenophobic. We are committed to fighting every attempt to disenfranchise us or put us on the defensive based on where we live. I should also mention that our initiatives includes individuals in Egypt, as well as the US and Europe. So we are by no means the voice of “Egyptians abroad.”
We also enjoy very enthusiastic buy-in from other grassroots initiatives and civil society in Egypt. We communicate and interact using technology, so the major challenge we face is not logistical but rather the issue of time resources. Since this is an all-volunteer and self-funded initiative, our limited bandwidth caused us to miss a lot of opportunities and interest. We are trying to overcome this to the best we can. We view this initiative as a long-term effort and we have been quite happy with the slow and steady gains we have managed to make.