The Egyptian uprising of 2011 was about many things, but one rallying cry that united almost all Egyptians was the need for a new constitutional order -- one that would promote democracy and ensure that the government serves the interests of the entire society. Dissatisfied with the outcome, large numbers of Egyptians renewed that protest on June 30. Once again, popular demonstrations culminated in the military intervening, this time to reverse the results of the earlier revolution. Again, the generals deposed the president and suspended the constitution. But this time, the victims were Mohamed Morsi and the constitution that had been approved in a referendum just half a year ago. Now Egyptians will to try, once more, to realize a democratic and stable future. Unfortunately, they may not achieve their original goal any time soon.
That is not because Egyptians have no constitutional tradition. They do; it dates back further than that of many European countries. Nor is it because the Egyptian constitutional tradition lacks sophistication, richness, or poplar resonance. It has all these things.What Egypt lacks, however, is a sound tradition of constitution writing. Mundane procedural problems were the Achilles heel of the 2011 transition, and now the body that made all those mistakes, the Egyptian military high command, has delivered a new road map. Not only is this new plan riddled with some of the same flaws as the old one, it will be put in place in an atmosphere that is anything but conducive to success.
In 2011, there was reason to be hopeful. There was a broad consensus in Egypt that a new constitution should be democratic, protect human rights, and whittle away the power of the presidency, which under deposed leader Hosni Mubarak, were virtually unlimited. Disagreements about the proper constitutional role of religion were sometimes profound, but the drafters were able to come to some reasonable compromises.
The document that the drafters produced did accomplish some of the revolutionaries’ goals. And the content was far less problematic than some critics alleged. But the process left a very bitter taste in many mouths. The drafters had followed the procedures laid out immediately after the 2011 uprising. But those procedures relied on the willpower of a rough majority, not on inclusive deliberation.
The result was that Egyptians had a constitution but no widely accepted rules of the political game and no easy way to settle differences between the vying factions. Some of the blame can be laid at the feet of the Muslim Brotherhood, which used its electoral weight to dominate the process. Some of the blame can be laid at the feet of the opposition, whose main strategy could be summed up as a petulant “No” to any Muslim Brotherhood suggestion.
In truth, however, the seeds of Egypt’s difficulties were planted much earlier, when the military decided to favor haste and majoritarianism during the 2011 transition. Not only that, they also set a dangerous precedent. Claiming “revolutionary legitimacy,” the army said that, until the new constitution was written, the rules of the game were whatever the army said they were -- even if the army changed its mind. When Morsi was elected before the constitution was written, he claimed the same power. Then, when he shoved through his own constitutional declaration in November 2012 in order to rush the process ahead, he was only following in the generals’ footsteps.
The result was fatal. Morsi and the Muslim Brotherhood might have gotten what they wanted in the short term, but their new constitution hastened their demise. And now, Egypt faces yet another constitutional process, again forced through by generals.
That process also appears rushed and badly designed. Justice Adli Mansour, the president of the Supreme Constitutional Court, a genial but unknown figure, is set to serve as president, apparently with the unilateral authority to design the interim constitutional order however he sees fit. Critical questions of sequence are simply omitted. The military has promised to consult everyone but has laid out only the vaguest mechanisms for doing so. The generals have promised to appoint a committee to offer amendments to the 2012 constitution (that is likely a way to forestall any attempt to reopen debate about the military’s favorite clauses in that document) but provided little guidance on what to amend or how to do so.
The roadmap also tells weary Egyptian voters that they are to be summoned back to the polls over and over again to reelect the two houses of parliament, a new president, and (presumably) to approve the constitutional amendments. The legal framework that will guide some of these elections might need to be modified, but how to do so is anyone’s guess. (The upper house of the parliament, which is dominated by the Muslim Brotherhood, submitted an election law for the Supreme Constitutional Court’s review last week. The court has yet to approve that law, nor is it clear who would make changes to the law if the court said that revisions were needed.)
To fill these gaping holes, the army returns to promises that everything will be done by consensus. With a society that is deeply divided, though, that is the biggest problem of all. This time, there is no warm afterglow of a popular uprising. Instead, there is a victorious but disparate majority and an embittered Islamist minority. There is a set of political actors who, in the last year, have raced each other to demonstrate as much bad faith with regard to democracy as possible. And there are traditions of political dialogue that make barroom brawls seem genteel.
In one way, Egyptian political practice resembles that of the United States -- both societies like to do things their own way. Just as few American political leaders would have a good word for the metric system or international law, Egyptian political leaders love to talk about foreign hands and eschew international expertise. So Egypt will insist on finding its own way out of its predicament. It can perhaps do that in a productive manner, but only if it does so gradually, and only if the political parties learn to talk through some of their differences. Then, consensus will become less a weapon and more a tool for slowly and carefully crafting real constitutional rules. If that happens -- and it probably will not any time soon -- it will be in spite of the generals, not because of them.