Egypt’s Constitutional Racers Stagger Toward the Final Lap

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Op-Ed Foreign Policy
Summary
For all the procedural flaws, the document that is emerging as Egypt's potential constitution offers prospects for a working democracy.
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While amateur video productions, presidential trips, and embassy walls have occupied the international headlines for Egyptian affairs, the country's troubled constitutional drafting process -- tasked with writing a document that will establish permanent rules and structures for Egypt's politics -- has rushed ahead in keeping with its mandated rapid schedule. Indeed, those involved have sometimes spoken of finishing their task in October, though it would be no surprise if they had to use up until their December deadline. Is the process credible enough to produce a document suitable for a society that aspires for a democratic transition? The short answer is that for all the procedural flaws, the document that is emerging nonetheless offers prospects for a working democracy. There are some critical areas that still have to be ironed out, but the real hurdles for a viable outcome may lie less in the text of the constitution itself than outside of it: in the short term, the search for consensus may prove elusive; in the long term the problems may lie much more in the act of giving general constitutional provisions precise institutional and legal meaning.

The Constituent Assembly elected by the country's now disbanded parliament has divided up into committees to draft various sections as well as a committee to oversee and coordinate those sections. Those committees are now finishing their work and drafts of sections are circulating almost too quickly for observers to track.

The general outlines of the documents have clearly emerged, and much of the drafting work has been done; the majority of clauses will spark little controversy. But debate on some clauses is increasingly spilling out from the assembly to broader public argument. With contentious issues remaining unresolved, drafts continuously being tweaked, and frequently misleading media reports, it is not often easy to tell where the text stands. Some deputies - chiefly, but not exclusively, Salafis -- keep trying to slip in clauses that tilt the document firmly in their direction, while others within the assembly scream loudly when they see clauses popping up that they find objectionable.

It is not only the content of the document that is difficult to monitor. The identity of the authors seems to shift as well, with the assembly's entrance a seeming revolving door for boycotters who return, members who threaten resignation (and occasionally carry it through), and alternate members kept waiting in suspense because of the hope that boycotters can be coaxed back. In all the to-and-fro of details and delegates, only the Freedom and Justice Party (FJP) seems to show a steady hand -- largely because its members seem to have grasped that any accepted outcome is likely to produce a political system in which they will play a very leading role.

Thus, with conciliation efforts racing against escalating rhetoric, it is not certain where the debate will head.

It is at least possible to sketch out some battle lines. The constitution's religious provisions will look very similar to the now abrogated 1971 constitution, but there may be some changes regarding religious freedom and religious institutions. My own sense since the beginning has been that the debate will be heated but departures from the 1971 text will be very limited.

Two other sets of controversies involve the rights provisions and those connected with structures of government. On the first, support for more robust political freedoms is widespread, but non-Islamists are increasingly suspicious of attempts to qualify or limit expression, with issues such as blasphemy, sanctions on the press, and cultural freedoms dividing the drafters. On the second, the controversies sometimes seem technical (such as where to place various provisions on the judiciary or when to begin a new presidential term after the constitution's adoption) but the issues are quite significant: how much should the document be majoritarian and how much should it encourage consensus; how much autonomy should various state structures enjoy and how should it be guaranteed; and what should be the relationship among the various branches of the state?

However these battles turn out, Egypt's 2012 constitution will likely be more liberal in large parts of its content and more participatory and public in its drafting than any of the country's previous documents. And if the process works right, the document will represent not simply the will of the majority but also an acceptable document for most leading political forces. The assembly's rules and operations are designed for consensual drafting, with voting of the members only a last resort for resolving contentious issues.

Yet there is simply no disguising that Islamists dominate the current assembly. And that is where the process is beginning to run into difficulties. Drafts may be fairly liberal in many of their provisions, but in a few key matters, there are issues that have caused non-Islamists serious concerns. Sometimes their fears seem exaggerated but, in recent weeks, Salafis seem to have become more assertive in the assembly's work.

And that is where the drama and melodrama have begun. Non-Islamists in the body have only one major weapon in their arsenal if they are unhappy with a provision: they can boycott or resign from the assembly. However, as Tarek Radwan has pointed out, to do so might be self-defeating in critical ways. Indeed, past decisions to refuse to participate have left them out of the cabinet; a boycott in this case would deprive them of a constitutional voice and likely fail to garner enough support to defeat the constitution in a referendum. And if they somehow manage to stop the process or defeat the draft, President Mohamed Morsi is now empowered to name a new assembly all on his own.

Non-Islamists thus have little incentive to quit but every reason to threaten to quit -- and that is what they have been doing. Whatever incentives might seem to exist, past behavior suggests they might actually fail to blink in a game of constitutional chicken, especially because those within the assembly seem to be under constant criticism from many of their ideological soul mates for remaining in the body.

Also noteworthy is that there are other actors involved in the negotiations as well -- important state actors, such as the judiciary, military, and al-Azhar that have staked out some strong positions in constitutional debates. The Egyptian state -- or rather important parts of it -- seems to be engaging in an act of self-definition, albeit not in a terribly coherent way. There are likely few countries where so much of the state (and not merely the regime) has played such a powerful role in constitutional design.

Islamists who dominate the body do have a strong incentive to keep the non-Islamists and the state actors sufficiently supportive of the process and the product so that the finished draft can be presented as a consensus product. Some of the tools that are being forged in the constitutional texts are ones they will soon be allowed to use. But for all their interest in consensus, they are quite capable of playing chicken as well -- and, like the liberals, refusing to blink at critical moments (as they showed in the failed bargaining over the original composition of the assembly earlier this year).

A constitution that is not a consensus document will create political problems. The document itself would likely pass a referendum and might even have a long life. Egypt's two longest-lived constitutions (written in 1923 and 1971) were hardly consensus products (the earlier document was produced by a committee boycotted by the Wafd, then the largest political party by far, but the Wafd came to defend the document later on; the latter document was tailored to the circumstances of the early years of Anwar Sadat's presidency, but turned out to be well tailored for the Hosni Mubarak presidency). The French Third Republic was formed on a set of partial documents because the consensus necessary to write a full constitution did not exist; it survived for seven decades and was felled only by Nazi occupation. In Germany, the Nazi's successors quickly improvised a provisional basic law to govern the political system when the country was partitioned; their work continues to govern Germany today and has outlasted the partition by over two decades.

So the Egyptian constitution of 2012 might easily survive a cantankerous process in a legal sense. (Bookish readers interested in the question of constitutional longevity would do well to consult a comprehensive examination of the subject by Zachary Elkins, Tom Ginsburg, and James Melton.)

But to shove a constitution through over the protestations of a vocal minority would set the new political system forward on the wrong foot, with the resulting atmosphere likely marred by bitter division and extreme suspicion, hardly one conducive to filling in the details of a new political system.

And that brings us to a longer-term obstacle to a healthy constitutional order: the Egyptian legal framework was built to serve an authoritarian order; the chains of command in the Egyptian state are hardwired to serve the presidency. The constitution may give a more liberal and democratic base to the political system, but it cannot remake it overnight.  And the effort to redesign it is not only large -- it will be contentious. Even attempts by Egypt's new leaders to write a new emergency law -- to replace the one in such deserved disrepute among those who lived under it for so long -- sparked howls of protest and strong suspicions. (What discussions on the subject often miss is that the state of emergency has lapsed -- for the first time in over three decades -- but the underlying legal framework should a new emergency be declared is still untouched.) How are Egyptians supposed to write detailed laws when they continue to differ on the basic rules of political life?

And these two problems -- the lack of consensus and the troubled legal legacy -- may come together sooner rather than later when it comes time to arrange for parliamentary elections under the new constitution. The Supreme Constitutional Court (SCC) struck down parts of Egypt's current electoral law earlier this year. A new law is needed. Before a parliament is seated, who can write such a law? In strictly legal terms, all that is necessary is that the president writes it up and sends it off to the Official Gazette for publication. Of course, for a law to be accepted and to serve as the basis for inclusive elections, it will have to be negotiated by political forces before the president writes it into the rule books. And Morsi has been admirably restrained thus far in using his nearly limitless interim authority. So Egypt's fissiparous politicians will have to agree on a law -- after having bared their teeth at each other in the constitutional process. Additionally, if the constitution proceeds as anticipated, it will probably have to be reviewed by the SCC as well (the forces that were tossed out of the parliament dissolved earlier this year are pushing for prior review of electoral laws by the court since they are not anxious to repeat the experience of discovering after taking their seats that they were elected on the basis of an invalid law).

In presentations over the past year, I have sometimes begun with an acerbic description of Egypt's transition process, claiming that there will be no better way to provoke terrified reactions in other countries than to have a visitor arrive announcing "I'm from Egypt and I'm here to help you design your transition to democracy."

I have meant to convey the problematic set of decisions made by all Egypt's political actors that have led to the current predicament. But in saying this, I have also been quite unfair at Egypt's expense: the fact is that transitions are never designed, but emerge through difficult and contentious political processes. However, when they work, they should produce systems in which differences can be managed through peaceful and democratic competition. The current constitutional effort will provide the best indication if Egypt is heading in that direction.

This article originally appeared in Foreign Policy.

End of document

About the Middle East Program

The Carnegie Middle East Program combines in-depth local knowledge with incisive comparative analysis to examine economic, sociopolitical, and strategic interests in the Arab world. Through detailed country studies and the exploration of key crosscutting themes, the Carnegie Middle East Program, in coordination with the Carnegie Middle East Center in Beirut, provides analysis and recommendations in both English and Arabic that are deeply informed by knowledge and views from the region. The program has special expertise in political reform and Islamist participation in pluralistic politics.

 

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