Some of the political groups, parties and public personalities that raised the banner of democracy and supported the constitutional draft issued by the appointed Committee of 50 worked to encourage participation in the recent referendum, calling on citizens to vote ‘yes.’ As part of this campaign, they employed a hollow and misleading phrase: ‘constitutional pragmatism.’ Today, these groups are engaged in numerous endeavors, from directly participating in the measures that followed the removal of former president Mohamed Morsi on July 3, to indirect alliances with the regime and its center, the military security apparatus—whether out of the conviction that this apparatus will save the nation from its current crisis, or out of fear that there is no alternative. Some groups even claim to speak in the name of the revolution, the popular demand for change, and the defense of human rights and freedoms.

Groups that raise the banner of democracy are unlike the mouthpieces of the military security apparatus, which are not interested in democracy and make justifications for oppressive constitutional articles, laws and practices. Likewise, they are unlike this period’s corrupt ‘birds of darkness’ who distorted people’s consciousness through the tyranny of exclusion, collective punishment, hate speech, and spreading fear. Unlike them, these groups that raise the banner of democracy cannot support the 2013 constitution without, in some way, dealing with its oppressive articles that throw civilians into military courts, destroy safeguards for their rights by removing time limits for detention, and limit their freedom of religious observance. In the past, these groups openly opposed these oppressive measures when they were part of the 2012 constitution. They cannot support the 2013 constitution without explanation for its authoritarian structure that makes the military establishment into a state above the state, weakens the parliament by taking away its powers, and eliminates the independence of the oversight apparatuses by subordinating them to the executive authority. Likewise, this constitution lacks an integrated system of transitional justice to restructure the security apparatuses, achieve accountability for the violations of rights and freedoms that have been taking place since former president Hosni Mubarak assumed power in 1981, and to stop the ongoing evasion of justice by those implicated in them

On another level, many of these groups called on the military to intervene in politics before July 3, and all of them supported the measures that followed. They participated in them and praised the formation of the appointed Committee of 50, encouraging their representatives to participate in this committee. Likewise, all of these groups were silent, for a significant period of time, on the violations of rights and freedoms, the security oppression, and the excessive use of force. Therefore, after the constitutional text emerged from the Committee of 50 and its undemocratic nature became clear, they could not reject it and call on citizens to vote ‘no’ in the referendum or to boycott it entirely. They could not return to the principled position of opposing the military establishment’s intervention in politics and the accompanying overthrow of democratic processes. This would strip the moral and political legitimacy from a constitutional document that lays the foundation for continued oppression and the violation of rights and freedoms, and eliminates actual opportunities for democratic change. These groups cannot object now because they are a party to the current measures and are responsible, before the nation and its collective conscience, for these measures and for promoting them, even if their influence has weakened in comparison to the military security apparatus. They cannot object because many of them are implicated in accusing the few voices that objected after July 3, 2013 (and I’m proud to be one of them) with being in a secret alliance with the Muslim Brotherhood or with crimes of betrayal, treason, and conspiring against the nation and its stability (the same fabricated accusations that the Brotherhood and their allies in the religious right made against us before the referendum on the 2012 constitution). They also accuse those who reject the events of July 3 and what followed of extreme idealism “that does not understand the nature of the situation in Egypt or the complexity of this situation on the levels of state and society.”

To escape this dilemma, these political and party groups and public personalities employ the phrase ‘constitutional pragmatism.’ This is an effort to distinguish themselves from the mouthpieces of the military security apparatus, as well as to salvage something of the credibility of their support for democracy without moving away from open support for the current measures and the constitution coming out of the Committee of 50. For them, this phrase “constitutional pragmatism” has three main components: falsification, cherry picking, and deception.

The first component is justifying the oppressive articles and the authoritarian structure of the 2013 constitution by calling it a representation of the political and social power equations in Egypt. These equations are dominated by the military security apparatus and the network of economic and financial interests allied with it. The liberal, leftist, and nationalist powers occupy only marginal positions in these equations. The currents of the religious right are present either as an excluded enemy, confronted and hunted (the Brotherhood), or as a weak party that accepts giving up everything on which it had insisted and, as a result, partially wasted opportunities for societal agreement on the 2012 constitution (the Salafi Nour Party). Here, constitutional agreement becomes an act of recognizing the power equations and accepting their outcomes by endorsing the military establishment’s position as a state above the state and continuing the practice of trying civilians in military courts, as well as the absence of transitional justice and security apparatus reform. The groups waving the flag of democracy treat these developments like a realistic inevitability that, while not preferred, is impossible to avoid.

The mistake in this first component of constitutional pragmatism is the fact that a revolution started in Egypt in 2011, a revolution that demanded democracy and the changing of the political and social power equations that anchored a state of oppression and a society without justice. The groups that raise the banner of democracy do not have the right to participate in the writing of a constitution that does not express the popular desire to change the power equations and open the doors of the state and society. Nor do they have the right to justify redoing the constitutional process for the foundations of an authoritarian regime that people protested and revolted against. The military security apparatus that has dominated this regime since the 1950’s has not brought progress, stability, prosperity, security, or any of the other words that it used to distort the public consciousness and garner support for approval of the 2013 constitution.

The second component of constitutional pragmatism relates to justifying the oppressive articles and the authoritative structure of the 2013 text with the claim that the process of constitution writing always produces texts or documents that do not satisfy all political, social, and institutional sides and parties, or do not completely satisfy them. Therefore, wisdom and rationality require the powers and parties in Egypt today to accept the 2013 constitutional text with its deficiencies “as the result of adjustments, bargains, and agreements” that cannot be rejected. Otherwise, “the rejecters” should look for remote islands so that they can live on them in homogeneous groups and write completely pure constitutions.

There is an element of cherry picking in this second component of constitutional pragmatism. The process of writing constitutions in countries and societies that have experienced democratic revolutions or popular uprising against tyrannical regimes must seek to draft a new structure for the state and society that ratifies the principles and values of democracy and does not turn against them. At the same time, this structure must be open, realistically, to partial “adjustments, bargains, and agreements” that ensure that all of the political, social, and institutional powers and parties gradually accept this new structure, and that discourage them from conspiring to overthrow the democratic experiment. Therefore, cherry picking comes from failing to distinguish between the macro level – the new structure of the state and society – upon which there can be no bargaining after revolutions and uprisings, and the micro level. This micro level creates spaces and opportunities for discussion and negotiation between the different powers, parties, and institutions on the nature and limits of the temporary privileges and transitional provisions that are, at their heart, undemocratic. These privileges and provisions could include these powers, parties, and institutions, or some of them, in the framework of building a comprehensive agreement that obliges them to accept the principles and values of democracy and competently directs the administration of change in the direction of these principles without major setbacks. With this distinction between the macro and micro levels, democratic change made progress in Latin America and Eastern Europe. As a result, progressive constitutional texts and documents were drafted. Partial and temporary privileges were granted to military institutions, the elite of the old regime, or former presidents, but they never meant the assassination of democracy, the reestablishment of the old regimes, or calling for believers in democracy to move to remote islands.

There is a third component of the constitutional pragmatism proposed by political groups, parties and public personalities that raise the banner of democracy and support the measures taken after July 3, 2013 and the constitution. This component relates to the call for citizens to approve the constitution, and to overlook the oppressive articles and the authoritarian structure within it. These groups worked for the passage of this text by emphasizing that it will not last long and will be changed soon, that some of its articles and contents achieve progress in the field of rights and freedoms, and that its oppressive articles can be changed through the parliamentary mechanism. They say that Egypt will overcome the exceptional situation that it is currently experiencing after the passage of the constitution, and that with this constitution Egypt will achieve stability.

The error in this third component of constitutional pragmatism is the fact that these same political and party groups and public personalities insisted in 2012 that a democratic agreement must be reached, and, at that time, did not accept the prediction about its “short life,” which the religious right used to push the constitution. Likewise, they rejected the idea of dealing with the 2012 constitution as a bargaining process. They believed that a single oppressive constitutional article was enough to delegitimize the whole constitution, and obligated them to fight against its passage. These are the kinds of principled standards that were applied to the 2012 constitution and pushed the democratic powers and parties to reject it. These standards also extended to the rejection of an unbalanced structure for the commission to draft the constitution, and of the absence of transparency and societal dialogue. Today, these groups circumvent these same standards. Moreover, they are engaged in promoting their circumvention as a constitutional pragmatism that will bring stability. Now, the few voices that believe that democracy is more than a banner or words to gain false credibility apply the same standards for rejecting the 2012 constitution to the 2013 constitution, and, as a result, reject this text on the same principles. At the same time, the groups with louder voices and more influence engage in deception. Those of us who reject the 2013 constitution are cast either as evil conspirators or young idealists who do not understand the complicated reality.

Serving only to misdirect, cherry pick evidence, and deceive the nation, the phrase ‘constitutional pragmatism’ is truly bankrupt.

Amr Hamzawy joined the Department of Public Policy and Administration at the American University in Cairo in 2011, where he continues to serve today. He is a former member of parliament, former member of the National Salvation Front, and founder of the Freedom Egypt Party.  

Image: Photo: Bora S. Kamel