As a contribution to the ongoing national dialogue on constitutional reform, Beyond presents an excerpt from the late Ibrahim Shihata's book, My Will for My Country Ibrahim Shihata (1937-2001) was a world- renowned legal scholar and international development figure. His last international position was senior vice-president of the World Bank and president of the International Centre for the Settlement of Investment Disputes. James Wolfensohn, former president of the World Bank, described him as "one of the greatest international jurists of the 20th century." Shihata's book, Wasseyety le-beladi (My Will for My Country) provides an in-depth analysis of the major problems facing Egypt and offers bold solutions to solve them. The excerpt published here provides a brief overview of his analysis of the Egyptian constitution and his proposals for constitutional reform. Shihata discusses why, in his view, significant change in the constitution is needed, and presents detailed suggestions for reform based on a comparative study of democratic constitutions. He calls on the government to take the initiative of forming a committee of distinguished legal scholars and other prominent professionals to study the issue and to present its recommendations. Alternatively, Egyptian intellectuals concerned with Egypt's future could take the initiative themselves to form such a committee. The committee's conclusions would then be made public and a broad public discussion among Egyptians from all walks of life and political persuasions would follow. The aim of such discussions would be to reach a national consensus on a modern democratic constitution that would fulfil Egypt's needs and aspirations. The process would culminate in the preparation of a final draft of a new constitution that would be presented for a referendum. While Shihata first published his views on the need for a new constitution almost a decade ago, serious public discussion of constitutional reform began only after President Hosni Mubarak made his historic proposal for a limited constitutional amendment to allow for direct, multi-candidate presidential elections. Today, there are increasing calls for more far reaching constitutional changes that would guarantee meaningful political participation and representation, government accountability and an effective system of checks and balances among the executive, legislative and judiciary powers. Still, Shihata's views remain seminal readings for individuals who seek insight into the dynamics of reform in Egypt. Any attempt at the comprehensive reform of any state will undoubtedly include, as prerequisite, a careful analysis of the way in which power is exercised in that state: How do the rulers attain power? What is the nature of the relationship between the various organs of government and between these organs and citizens? What is the scope of responsibility of each of these organs? How are the affairs of state administered and how are the country's material and human resources allocated and managed? Are all such issues dealt with according to predetermined and enforceable general principles, or do they depend on the will of the ruler and of individuals of influence? What is the role of the people in all this? A country's constitution is the main instrument that provides the answer to these questions, and it is considered the official guide to issues of governance in any state. Consequently, no discussion of reform can take place without a discussion of whether the present constitution provides an appropriate framework for the needed reform and whether or not a change in the constitution is needed for reform to be meaningful and successful. A discussion of the need for constitutional reform becomes all the more important when a country has undergone major economic, social and political change. Such change can result in the emergence of a large chasm between the actual constitutional framework and the social and political realities on the ground. When that happens, the constitution resembles a badly fitting garment that limits its wearer's movement and, as a consequence, fosters social and political instability. In my attempt to analyse the major problems facing Egypt, it was therefore obviously necessary to conduct a detailed comparative study of the Egyptian constitution, and to formulate an opinion on the extent to which it was compatible with the reform path that I have advocated for Egypt. This study led me to the conclusion that the Egyptian reality had, in fact, outgrown the present constitution and that Egypt required a new constitution. The study also convinced me that any new constitution should rise above partisan convictions, which by their very nature undergo change with the passage of time. The constitution should therefore not include ideological principles similar to those in the present constitution, since, as we have seen, these may fall in or out of favour at different times. For the new constitution to fulfil Egypt's present and future needs and to ensure its continued relevance, it is necessary to find a mechanism by which the constitution would guarantee increased political liberalisation, increased popular participation and increased protection of basic civil rights. The constitution must more clearly define the country's political institutions and the relationship between the various organs of the state in order to achieve a balance among them and to avoid the excessive dominance of any of them over the others. At the same time, the same constitution that guarantees the freedom and rights of individuals must also protect society from the abuse of those freedoms for terrorist and destructive purposes, and must provide for the peace and security of all citizens. However, this should be done through the criminalisation of terrorist acts and the strict implementation of the law, and not through the placing of limitations on the freedoms of citizens generally. I have tried in this part of my book to identify and elaborate on what I regard as flaws in the present constitution that should be avoided as we prepare a new one. Such flaws are of two types: some are flaws in the original document while others are provisions that have been overcome by major changes in Egyptian society. Some of these changes have resulted from the political and economic liberalisation measures that have been implemented by President Mubarak. Others are a result of the rising awareness of the public of their rights, and what is happening in other parts of the world. My book also explains how modern constitutions promulgated in recent times by various countries have dealt with the basic issues of governance. I paid particular attention to cases where countries have undergone a transformation from authoritarian to democratic rule. Following a comparison between these constitutions and the present Egyptian constitution, I presented my suggested reforms. I fully realise that my views are those of one person and that others may agree or disagree with me, and that what matters in the final analysis in such a critical matter is the view of the majority of Egyptians. Yet, I am also fully aware that for too long the information and educational organs in Egypt have joined forces with reactionary elements in the propagation of contradictory ideas and slogans that continue to have a strong influence on society today, particularly in view of the widespread illiteracy and lack of meaningful opportunities for political participation. As we can see, the result has been the rise of a number of extremist ideologies. There is, therefore, a need for a strong effort, untainted by personal gain or ideological beliefs, to encourage the emergence of a more enlightened public opinion that is capable of discerning where the greater national interest lies. In my opinion, it would be of great benefit if a limited number of Egyptian thinkers, from the legal and other professions, would undertake a study of the constitution to determine in an objective manner the modifications and improvements that can be made in light of present conditions and future expectations. Their conclusions should then be presented for discussion among Egyptians from all walks of life and political persuasions. Such discussions would enlighten public opinion and would provide a solid basis for the formulation of a new constitution that would gain general public acceptance and would be compatible with modern values, while placing Egypt on the path to stability and progress. It would, of course, be preferable if the initiative for such action were taken by the political leadership, since that would expedite the process and enhance its credibility. However, it is also possible for the initiative to come from a group of Egyptian thinkers concerned with the well being of their country and eager to save the country from the destructive sloganeering of those who are only interested either in gaining power or maintaining power, and who are willing to use religion or the fears and deprivation of the poor to achieve their aims. Either way, it is my hope that my personal thoughts on constitutional reform, fallible as they may be, would assist in some way in the formulation of the principles to be included in a new constitution: a constitution that would provide a more suitable framework for Egypt's progress as it enters a new century. Translated by Shihata's widow, Samia Farid Shihata, former senior advisor to the executive director at the International Monetary Fund. The views reproduced here were published first in 1996, in a booklet entitled Towards a New Constitution for Egypt . In 1999, Shihata incorporated the contents of that publication into his final book on Egyptian reform, My Will for My Country .
