The myth of Egypt’s liberal constitution

In the years leading up to January 2011, Egypt’s past often appeared as an admonishment to the present. While their invocations of history assumed many forms, critics of the Mubarak regime became particularly enthralled with the so-called “liberal era” that followed the revolution of 1919. Secularist liberals saw the interwar decades as a golden age of political freedom, religious tolerance and cultural efflorescence. Political conservatives reinvented the Egyptian monarchy as a model of strong leadership not marred by the moral decrepitude and corruption of Mubarak’s presidency. And even some Islamist groups recognized these years as their own moment of emergence before Nasser’s brutal crackdown. It is thanks in no small part to these rosy depictions that various political actors have in recent weeks pointed to the 1923 Constitution as a possible source of guidance for the current drafting process.

Conventional academic accounts offer a somewhat more sober take on this foundational document of the interwar era. Often, they portray the 1923 Constitution as a combination of elements from two distinct political trends: one popular and democratic, the other conservative and monarchical. According to this interpretation, the constitution ushered in an era of genuine popular sovereignty — signified in the sweeping electoral victories of the Wafd Party — that was interrupted by the periodic meddling of the palace and its British imperial patrons. From this perspective, subsequent revisions of the constitution in 1954 and 1971 involved a process of separation or pruning between monarchical components that would be discarded and purely democratic components that would be preserved.

Curious to learn more about comparisons between the present constitutional debate and this earlier moment, I have spent the past few weeks in the Egyptian National Archives reading through the minutes of the committee that drafted the 1923 Constitution. The story that unfolds in the pages of these documents could hardly be bleaker: An undemocratic drafting process yielded an undemocratic text that even its authors ultimately regarded as a sham.

Saad Zaghloul’s massively popular Wafd Party, insisting that only a democratically elected assembly could express the will of the people, would play no direct role in the drafting process. In its absence, the committee selected by royal decree and headed by Prime Minister Hussein Rushdi consisted largely of former ministers, political elites and landed notables. Though hardly representative of the population at large, the committee members were not a monolithic bloc. The lengthy transcripts of their meetings contain fascinating debates about topics including freedom of the press, legal protections for minorities, the role of foreign capital in Egyptian politics, and the difference between natural and political rights. But despite these and other meaningful differences of opinion, most of the committee members shared a fundamental anxiety about Egypt’s readiness for representative democracy.

For over four decades, Egypt’s British overlords had justified their protracted occupation of the country in a language of colonial tutelage. Foreign powers, they argued, would act as custodians of a government that the local population could not be trusted to manage themselves. While the committee members may have been genuine in their commitment to national sovereignty, they were no more sanguine than their colonial predecessors about the implications of mass politics. The document they produced, then, aimed as much to protect the government from the alleged ignorance and backwardness of the Egyptian people as it did to usher in a new era of genuinely democratic rule. This attitude is exemplified in two key features of the political order they worked to produce.

First, and most obvious, was the decision to adopt a two-stage electoral system for the People’s Assembly. Advocates of the two-stage system — whereby voters would choose electors who would then go on to select the parliamentary representatives — defended this measure partly on the basis of precedent; elections for the Legislative Assembly that existed prior to World War I had also taken place in two phases. In a moving speech, committee member Ali Maher Pasha deplored this reliance on old laws. Invoking the country’s new spirit of political engagement, he insisted that “it is wrong to plead against current developments with the past. Instead, I think the time has come for us to proceed towards this new state of affairs.” But Maher’s progressive vision failed to hold sway. In statement after statement, his colleagues warned that the country was not yet ready to handle the responsibility of direct elections. And so the elections law they produced alongside the new constitution preserved the colonial-era system.

The elections law would remain the topic of heated debate and undergo several revisions in the years that followed. But a second feature of the 1923 Constitution’s supposedly liberal elements would have a more lasting influence. Rather than define a collection of rights that would be protected against any legislative encroachments, the committee’s draft listed political freedoms that future laws would serve to restrict and delimit. As is well-known, the constitution retained provisions for the declaration of Emergency Law, under which these rights would be suspended. Yet the articles enumerating political rights also imposed qualifications on the freedoms Egyptian citizens would enjoy during ordinary times. It was in the inclusion of these subtle exceptions that the story of the 1923 Constitution took its most sinister turn.

At the beginning of November 1922, a “Consultative Committee for Legislation” convened to review the drafting committee’s final version. Though headed by the Egyptian justice minister, Mustapha Fathi Pasha, this body’s members were mostly British officials, among them the “Judicial Advisor” Sheldon Amos. Officially, the consultative committee was empowered to review the draft “from the point of view of legal form but without introducing any amendments that touch political principles.” In fact, the committee took considerable liberties with its editorial task. In the cases of articles 15 and 20 — dealing with freedom of the press and public assembly, respectively — it added an open provision for restrictions in “the case where they prove necessary for the maintenance of the social order.”

An explanatory note glossed this dramatic change as a crucial measure in “the fight against … subversive propaganda” from Bolshevists and other undesirable political movements. If this paranoia over communism was relatively new, the underlying logic of the measure was not. For decades, colonial officials had conjured the specters of fanatical extremism to justify a raft of restrictive measures against nationalists and other dissidents. Unencumbered by the framing principles of a constitution, the colonial state had resorted to aggressive censorship of the press, violent crackdowns on public demonstrations and clandestine surveillance of its political adversaries, all in the name of “public security.” The consultative committee’s subtle adjustments, then, smuggled the repressive techniques of colonial rule into the very document that was supposed to guarantee their end.

The original drafting committee was given no say in these and other alterations to the text they had produced. Some only learned of the amendments when they read about them in the newspapers. In response, 16 of the 30 committee members forwarded a petition to the prime minister demanding that the amendments be repealed. Acknowledging that many sectors of the population already questioned the committee’s popular legitimacy, the petitioners warned that the amended version would “provoke the outrage of the entire nation.”

In the event, this prediction proved overblown. The country’s various political forces, the Wafd chief among them, ultimately chose to work within the framework of this flawed document whose authors Zaghloul had once denounced as “scoundrels.” Relative to the years of Britain’s “veiled protectorate,” the interwar era did usher in a more vibrant form of politics in which growing numbers of Egyptians found room to participate. But in the decades that followed, the constitution for which generations of nationalists had struggled proved as much a menace to these new freedoms as a guarantee of them. And if the language of that document’s colonial editors retains an eerie resonance today, one reason may be that their handiwork has cast a very long shadow. As the country prepares to frame a new constitution, it might be time to look forward and not back. Let us hope that the days of pleading before the present with this unhappy past are numbered.

Aaron Jakes is a PhD candidate in the departments of History and Middle Eastern and Islamic Studies at New York University. He is currently working on a dissertation about the agrarian policies of the Egyptian government under the British occupation.

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