The identity-focused controversy on the role of Sharia as a source of legislation has confounded expectations, occupying the main stage at the expense of an in-depth discussion of the second chapter of the constitution, which tackles rights, freedoms and duties.
Constitutional debates have also got tangled up in tiny details, with most political powers, writers and even constitutional experts analyzing articles to propose alternative phrasings, instead of addressing the philosophy governing the new constitution as one consistent document, particularly with regard to economic and social rights.
In an attempt to break this vicious circle, let me share four general observations on the second chapter of the draft to open a discussion that centers on the philosophy governing the new constitution, and the relationship between the state and society in general, and the state and individual citizens in particular.
My first remark concerns the absence of political will on the part of the Constituent Assembly to adopt a clear rights perspective when tackling general rights, freedoms and duties, and its allegiance to an Egyptian constitutional legacy that belongs to the past century.
In so doing, the assembly has adopted a conservative mindset, and ignored more serious constitutional approaches used in the preparation of most constitutions typical of emerging democracies. This drawback has been reflected in the wording of Articles 28 to 79, in which all rights, freedoms and duties are fleetingly dealt with as one bloc, instead of being discussed in adequate detail in conformance with more informed constitutional traditions.
That said, the chapter lacks any reference to the differences between political and civil rights — which were established as the first generation of rights in constitutions — and economic, social and cultural rights, which are described as the second generation of social rights. It has failed to make any reference to the appearance of a third generation of basic social rights that emphasize the centrality of the concept of economic, social, cultural, union and organizational rights when establishing the principle of citizenship.
My second observation is that members of the Constituent Assembly have a tendency to be defectively brief, failing to evoke important details on axial concepts such as decent work and proper mechanisms for workplace dismissal. They also failed to tackle issues such as social protection, or obligation mechanisms that uphold the right to education and ensure the elimination of illiteracy, or even the state’s responsibility regarding the right to housing and food. The chapter also fails to disentangle the relationship between the future constitution and the pre-existing arsenal of laws, which may be incompatible, to guarantee upholding the rights approach.
Revoking Nasser’s legacy
My third observation is a corollary of the previous two: The insistence on presenting this chapter in the form of responsibilities that the state has toward citizens in an extension of the tradition of the welfare state established since independence rather than as a set of obligations that demonstrate that human rights are a core reference in and of themselves when writing a constitution.
This has led to the absence of any mention of financing mechanisms and implementation processes of public services and commodities.
This logic is dangerous because of the scarcity of the state's financial resources. Lack of resources might represent an alibi for the state to shunt responsibility for any future increases in social expenditure on health, education, work, housing and food.
Also, there is a need to determine sources of funding for social expenditure, be it from new taxation policies or other state budget items, to facilitate the transformation from former President Gamal Abdel Nasser’s welfare state — which was unable to fulfill its pledges and traded political and civil rights for social and economic ones — to a social democratic state that satisfies its political and social obligations as the basis for its legitimacy.
Constitution and revolution
My last observation concerns the lack of a proper understanding of the revolutionary situation as a general context governing the constitution-writing process. When millions of people rose for the defense of their destroyed dignities under authoritarian Arab regimes, the legal codification of this concept in the new constitution was supposed to gain a more central place.
In fact, this issue was central to the drafting of Brazil and South Africa’s constitutions. It remains of prime focus in constitutional discussions that followed the revolution in Tunisia.
The essence of this is to deal with socially marginalized groups as having a specific set of rights, and to provide guarantees to eliminate the long, painful experience of social and economic alienation through specific policies and measures that the executive authority, as well as entrepreneurs in the private sector and in the informal economic sector, should adopt in the coming period.
As Egypt writes its constitution, the real challenge for average Egyptians does not only concern how Sharia should be incorporated in the constitution, but also how to create the opportunity for a decent life in which dignity and rights become more important than elitist debates and factional political struggles.
Dina el-Khawaga is a professor in the Cairo University Faculty of Economics and Political Science, and programs director at the Arab Reform Initiative in Paris.
This piece was originally published in Egypt Independent’s weekly print edition.