On March 19, Egypt will hold a constitutional referendum that will offer Egyptians the first meaningful electoral choice of their lives. In a visit to Egypt a week before its constitutional referendum, I found a spirited, sophisticated, and wide-ranging public debate. But I also found a very confusing situation. A large array of actors–often uncertain of their own strengths and capabilities–are staking out their positions, closely examining the stances of potential partners and adversaries, and quickly calculating how to match short-term tactics to long-term goals. And they are acting while a transition process rushes forward.
That process—designed ironically in part by the disgraced outgoing leaders—has been based on a series of ad-hoc decisions and follows an opaque logic that engenders much speculation but scant certainty. Each day brings new rumors, statements, and actions; opportunities open and close with dizzying rapidity. In a short trip, I managed to speak with a variety of actors involved in the transition process—members of the constitutional drafting committee, youth leaders, several leaders of the Muslim Brotherhood, and knowledgeable observers.
Atmosphere
Public life in Egypt is full of uncertainties but it also can be exhilarating. I had not expected the strength of a celebratory wave of national pride; an intensely patriotic reading of recent events has quickly emerged. I found Egyptians happy to tell stories about what occurred “during the revolution,” referring nostalgically at times to events that occurred mere weeks ago. Cars sport mock license plates with the series of letters and numbers spelling “January 25.” Christians demonstrating at the state broadcasting headquarters against media silence on sectarian attacks are surrounded by street vendors hawking Egyptian flags and revolutionary souvenirs. Self-appointed groups still police public areas. I saw such groups directing traffic in Tahrir Square and guarding university campus entrances, proudly wearing sashes indicating their role, but armed only with a sense of public spirit and revolutionary enthusiasm—and provoking popular respect, pride, and compliance to their directions.
Advertising campaigns that play on calls to national rebirth and reconstruction have already sprung up. One Internet service provider has mounted billboards simply showing a cursor pointed to the “reset” button. Flags and national banners are everywhere, and talk shows are filled with analyses of Egypt’s revolution. In addition, enthusiastic revolutionary vocabulary unheard since the Nasserist period (and occasionally some of that era’s songs) has returned—though without any acknowledgement that it was Nasser’s revolution that ultimately metamorphosed into the very regime that the more genuinely grassroots January 25 revolution is now bringing down.
Egypt’s former president, Hosni Mubarak, is quickly receding into memory; in a single month, the man who dominated the political scene for three decades has ceased to be a political player. Even dark rumors of a “counter-revolution” focus more on the remnants of his regime rather than the former president himself. Most of those around him are now reviled and discredited—even as some bizarrely cling to office. I heard only one individual say anything kind about Mubarak or his legacy—and that person did so while complaining that such sentiments simply could no longer be comfortably voiced in public. More generally, there is a widespread sense that Egypt has finally returned to its natural position of making global (and certainly regional) history, a role it has not played in over a generation. Egyptians are very proud of what they have done.
But what, precisely, have they done? Nobody seems to know, least of all those who would seem to be in charge. A very striking feature of Egyptian public life is its unsettled and constantly shifting nature. It is as if a group of sports fans were arguing not about which is the better team but about what the teams are and which game they are playing—and as if the answers offered to such questions were constantly changing. The knowledge that the Egypt of tomorrow morning may be a different place from the Egypt of tonight is exciting for many used to the stagnation and staid stability of the past few decades.
Constitutional Reconstruction
Even if the situation in Egypt remains unresolved, the course of political reconstruction continues to follow the basic script laid out in the old regime’s final hours. Shortly before stepping down, Mubarak offered to amend several articles in the constitution as a last-ditch effort to save his regime. And as the currently ruling military junta (the Supreme Council of the Armed Forces) was dragged into the spotlight with Mubarak’s departure, it offered a sequence for rapid transition in which a committee would draft changes to those constitutional articles. This would be followed by parliamentary and then presidential elections. Despite widespread calls for different sequences and timetable—as well as all sorts of hints and rumors—no changes have been made to the plan.
Why is a country where nothing can be taken for granted, the constitution has been suspended, and a ruling junta has asserted (and found acceptance of) the principle that it can unilaterally make the laws, still running like a Swiss watch regarding a transition process whose timetable was written hastily for a set of circumstances that no longer exist?
There is only one persuasive explanation for the junta’s decision to cling to this sequence and timetable: it offers the quickest route back to the barracks. Those outside pundits who proclaimed Egypt’s to be a military regime or who said the military was the only force that mattered in Egypt were describing a country that few Egyptian citizens (or even generals) would recognize. Egyptians living under Mubarak talked of living in a dawla bulisiyya (police state), a mukhabbarat (intelligence) state, or even a state of thugs (baltagiyya), but not one of generals. It is true that the old regime was led by a former air force commander and would often turn to generals to fill some top positions, but it usually did so as a reward for a loyal and productive career rather than as a product of any institutional reliance on the military.
Indeed, as an institution, the military has been carefully kept out of most internal affairs for decades. Walled off from Egyptian politics–with a host of clubs, hotels, and perks that allowed most officers to live at some remove from the general population–the junta does not represent the real power behind an unoccupied throne. Instead, it is simply one of the few institutions left that can pretend to be politically neutral. Of course it is not neutral, but its agenda is largely reactive in nature.
Clearly fearful of disorder, nervous about the possibility of chaos, and slightly at a loss in a political world now populated with youth leaders, party blocs, intellectuals, and labor activists, members of the junta show signs of sincerity in their commitment to return to civilian rule as quickly as possible. They have given in to the pressure of the street when necessary, finally offering a cabinet not dominated by old regime figures.
But most of all, they have shown discomfort in their role and uncertainty as to how to behave. Sometimes they act roughly, using force at times and trying civilians in military courts. Other times they are far more circumspect, such as telling Egyptian cell phone users through plaintive text messages that they have waited thirty years for change and should remain patient or pleading with them to return any documents taken when the State Security headquarters was stormed.
In such an environment, the generals must feel like airline pilots called upon to fix overflowing toilets, administer first aid, and patch up flat tires. A prolonged period of governing might lead to a different attitude; so might an effort by political groups to subject the military to the same scrutiny now given to other state institutions. While not seeking to rule for long, the military council is anxious to preserve its considerable autonomy and privileges in whatever system emerges. Thus, General Mohamed al-Tantawi is neither another dictator for life nor an Egyptian Cincinnatus; he and his colleagues seem to want to protect and return to their very comfortable (and extensive) enclave within the state apparatus.
And so the rushed constitutional amendments—limited in number and in scope and presented as a single package to Egyptian voters just three weeks after their release—have been the military’s main tool to quickly reinstate a civilian political system. The Egyptian people are welcome to write an entirely new constitution, but not on the generals’ time.
To draft the modest amendments, the junta turned to a committee, selected its members according to criteria only it knows, and asked them to make whatever adjustments to the articles are needed to proceed with fair elections. The junta also allowed the committee members to suggest a small number of other legal and constitutional changes they consider necessary to complement the requested amendments.
Committee members report that once they began their work, they had no contact with the generals, save for an attempt midway through to see if the junta would agree to more extensive changes. And when the junta said no, they decided instead to insert a process that would eventually allow for (and, according to one reading, require) the fundamentally new document that is now so widely demanded.
The changes the committee suggested have attracted widespread comment. But they attack only two of Egypt’s numerous constitutional diseases: a nearly permanent state of emergency and an electoral system designed to allow those at the top to select the winners. Committee members also drafted a small number of legislative changes required to bring Egypt’s legal framework in line with the amendments. The content of those changes has been described (for instance, an end to state financing of presidential campaigns), but the wording has not been made public. Only if the constitutional amendments pass will the proposed changes be transformed from a confidential report into a public law.
With such a restricted view of their task, the speed with which the committee members worked is hardly surprising. A wide consensus existed about what sort of changes were needed in those few articles, including a more open nomination process for presidential candidates and a return to judicial supervision of elections. Seeing their work as technical rather than broadly political, the committee members report that they consulted only with each other. Even the member who had served as a leader of the Muslim Brotherhood’s parliamentary bloc insists he had no contact with the Brotherhood leadership during the process, a claim corroborated by Brotherhood leaders with whom I spoke.
The committee members also reported that they worked well together, only once resorting to a vote (on the length of a presidential term). The committee member from the Brotherhood even reported a light-hearted mood at times. When mention was made of Article 5–amended in 2007 to bar religious parties–he said other members turned to him to tease, “That was put there for your sake.” He also claimed that since the committee agreed to leave any ideological element of the constitution untouched for now, he did not suggest amending this article.
After their suggested changes were submitted to the public, the committee members deputized a member to collect public reaction and then considered revisions. They settled on only one significant change: moving the authority to issue final rulings on parliamentary electoral disputes from the Supreme Constitutional Court (as they had originally proposed) to the Court of Cassation, the supreme court of appeals for most cases. That change came partly after pressure from the judiciary itself. (There was a second apparent change. A version of the amendments widely circulated had seemed to restrict the presidency to males by referring at one point to the president’s “wife” rather than “spouse.” But two committee members I spoke with insisted their text had always been gender neutral and that no change had been necessary.) Having completed their work, members consider their committee to be dissolved. While there are reports that legal changes are being contemplated (especially concerning political parties), it is unclear just who is drafting them.
Political Forces Line Up
In the two weeks since the release of the committee’s suggested amendments, opposition to the changes has grown. Although there are some complaints about the content of the amendments, most of the opposition focuses on process. Not only were the amendments written in an opaque manner, but a growing number of people object to the very idea of tinkering with the 1971 constitution and moving so quickly to parliamentary and presidential elections before a fundamental constitutional revision has taken place. The arguments range from the blatantly self-interested—Amr Moussa, for instance, coupled his opposition with a call to elect a president to oversee the process—to the abstract, as legal experts complain Egypt’s revolutionary state has rendered the 1971 constitution completely void and incapable of being resuscitated.
The arguments animating the bulk of the country’s political forces mix principle with politics. Most leading parties, movements, and intellectuals want to write an entirely new constitution and worry that proceeding even on an interim basis with the deeply flawed 1971 constitution is a mistake. They wish to move as quickly as possible from a presidential to a parliamentary or semipresidential system. (Under the latter system, a popularly elected president would coexist with an elected parliament, and a prime minister appointed by the president would serve only with the confidence of the parliament.) And they worry that the existing political forces in the country are simply unprepared for elections.
A widespread view in Egypt holds that parliamentary elections this May or June (when the junta has suggested they will be held) will result in a victory by the Brotherhood and the remnants of the discredited National Democratic Party (NDP). The former is famous for its discipline and is now experienced in running campaigns under far more trying circumstances. The latter may have seen its buildings torched and trashed and many of its former leaders hauled off to prison, but its local leaders learned long ago that bribing voters and attacking opponents’ supporters are sometimes the most reliable routes to victory.
The widespread suspicion that the Brotherhood stands nearly alone in endorsing the amendments in order to immediately press its electoral advantage misses the mark. It is true that the Brotherhood’s leaders are confident about their electoral chances and would like an opportunity to demonstrate their popular presence. But it is also true that they have ruled out seeking a parliamentary majority, clinging to the strategy of “participation not domination” that they used under the old authoritarian regimes to persuade rulers they would not try to take their places. And they have offered to form joint lists, coalitions, and even divvy up districts with other political forces. As a result, it is not immediate power they seek. While they want to flex their electoral muscles, they are doing so vigorously to support the referendum rather than to seek a parliamentary majority.
Brotherhood leaders explain their endorsement of the amendments in terms of the need for stability and the desire to take up the military’s offer to return to the barracks as quickly as possible. The latter argument has some resonance for the historically minded Brotherhood because of the way that the military leaders of Egypt’s 1952 coup ultimately broke a similar pledge to restore civilian rule.
But the underlying reason the Brotherhood has endorsed the amendments has to do more with inertia and caution than with any desire to govern immediately. For the first time in some sixty years, the Brotherhood has the possibility to regain legal status. Although the movement decided to form a political party a quarter century ago, it could not carry out this decision until now because of Egypt’s legal and political environment. (Brotherhood leaders do not consider the language in Article 5 banning religious parties a barrier to their existence because they claim to be forming a civil party open to Egyptians of any religion.)
With the junta treating the Brotherhood as a legitimate political force, appointing one of its members (albeit not an individual with a strong leadership role within the movement) to the committee drafting amendments, and choosing an independent intellectual respected in Brotherhood circles to lead the committee, the Brotherhood’s leadership is now investing itself in the political process. The movement is anxious to enter a political game that has tantalized it for a generation. So on the referendum, the movement’s youthful activists and senior leaders seem to agree. The Brotherhood is clearly throwing not only its voice but also its organizational weight behind securing approval for the amendments in the referendum.
But the Brotherhood stands nearly alone. Over the past week, the voices opposed to the referendum have clearly gained the upper hand in public debates. Had they done so earlier–or were the campaign on the referendum to last longer–the referendum would likely be defeated. But the opposition has only worked out a coherent approach within the past few days. It has finally coalesced around a call for a “no” vote. Egyptians fearful that rejection of the amendments would lead to a power vacuum are finally being offered a consistent and coherent alternative. This includes a more comprehensive “constitutional declaration” that is explicitly provisional; a presidential council; and an elected constituent assembly. This would allow for a more deliberate and consensual process and would ease the military’s grip on power. A revolutionary coalition that showed an impressive ability to pick its targets in a very focused and strategic manner has rediscovered that technique, but may be a week or two too late to prevent the amendments’ passage.
In the meantime, Egypt has turned into a country of constant political debate, with the press and broadcast media filled with analysis and argument; hotel ballrooms and university lecture halls have been packed with a constant stream of conferences and seminars. I attended one such session at al-Azhar University, in which a judge who had worked with the demonstrators in Tahrir Square explained the amendments and presented the arguments on both sides to a lecture hall of students who listened intently and then peppered him with questions, keeping him long past the scheduled conclusion in order to understand their choices. Outside, a group of salafi students passed out leaflets in support of the constitutional amendments. And if salafis—with their famous fidelity to the study of Islamic texts and discovery of correct religious practice—have turned into analysts of man-made constitutional provisions, then Egypt has become a remarkably different place.
Just as notable as the debate’s participants is its tone. Egypt has not become a country of comrades—distinctions of gender, class, religion, and power still matter—but a democratic ethos sometimes seems to infuse debates. In the al-Azhar session I attended, the dean saluted “the revolution of the youth,” thanked the impromptu student committees that formed to defend the university, and then received an ovation by stating that university leaders were proposing that the law governing al-Azhar be amended to allow its top officials, including deans, to be elected rather than appointed.
Next Steps if the Amendments Pass…
While one of the main arguments in favor of the amendments is their ability to restore a sense of stability, it is unclear whether passing them will do so. There is even an abstract constitutional debate: would approval of the amendments mean that the 1971 constitution (as amended) is once again in effect? Such an argument has been made, but it would be difficult to follow faithfully because the presidency is vacant.
But does that mean that only the approved amendments would be in force as a sort of mini-constitution? If so, which other provisions of Egypt’s constitution could be ignored and which ones should be followed? Such abstract questions could likely be answered if the junta declares if and how much the 1971 constitution should be restored. But such a declaration might not be forthcoming until after the referendum.
Besides such abstract legal questions, five very practical and critical questions will arise for Egypt and its leaders if the referendum passes.
First, will the original sequence and timetable suggested by the junta be followed? There have been calls that presidential elections should precede parliamentary elections—something the wording of the amendments, which gives parliamentary parties some role in nominating presidential candidates, would make difficult. There are also those who suggest stretching out the process—currently slated to end before the fall—over a considerably longer period. While members of the junta have listened carefully to such arguments, it is unknown how they will come down on these issues. Indeed, Egypt’s ruling generals have discovered an ability to listen with seeming sympathy to a wide variety of actors without tipping their hands.
Second, when does the junta dissolve itself? Or, to be more technical, when does the Supreme Council of the Armed Forces revert to its role as simply the supreme council of the armed forces rather than the country’s dictator? A logical time would be the swearing-in of the president (perhaps in September), but an adjustment in this timing is possible.
Third, how will elections be conducted? This question has two dimensions: first, what legal changes will be made beyond those required by the amendments themselves? The quicker the elections, the less time exists for a comprehensive change to the electoral system. That could pose a problem for those who want a well-managed and comprehensive transition.
The real question is whether the election will be dominated by individuals or by parties. The junta is widely expected to issue amendments to the law governing political parties in order to grant Egyptians more freedom on this issue. Such a step would allow a move to party lists and proportional representation in parliamentary elections. That might give Egypt’s inchoate political scene the opportunity to coalesce around clear electoral organizations if given additional time.
This approach could be one way to cancel out the NDP’s remaining electoral strength. It might also counteract the greatest danger to early parliamentary elections held according to the old system—the likelihood that the election would produce a collection of independent deputies who would have difficulty coalescing around any coherent agenda. In the 2010 elections, the NDP dominated the parliament not by defeating such individuals but by persuading them to join. With a weak party system and the NDP discredited, use of the old electoral system might lead to a parliament of fat cats—and with a variety of deputies who, even if less well-off, showed cat-like herding instincts. To expect such a parliament to be the germ of a different kind of political system might be unrealistic.
But there is also a second dimension to this question: how will elections be conducted on the ground? Past campaigns have featured much vote buying and violence, but few real voters. Can a system in which the stakes are much higher cope with these problems? Can an electoral machinery built on understandable public apathy handle the flood of new voters who may enter polling places for the first time? Egypt’s new election system will be put to a very demanding test from its very first days—and it will be overseen by judges selected more for their integrity than their administrative abilities.
Fourth, who will the parliament name to the body to draft a new constitution? Will it turn to technical experts? Its own members? Representatives of various political forces (and, if so, according to what formula)? What about civil society and Egypt’s various religious communities? This will be the most publicly drafted constitution in Egypt’s history; it is also a document in which citizens have been led to place enormous hopes. The legitimacy of the process will depend in part of the manner in which it is written.
Finally, what kind of constitution will be written? Three things are clear: politically aware Egyptians want a document that is less presidential, more protective of rights and freedoms, and carefully drafted to close loopholes rather than open them. Drafters will be expected to write a document that takes very serious steps in all three directions. But the devil will be in the details.
There are indications that consensus will not prevail in all areas. Already, divisive ideological debates are being opened, particularly concerning provisions about religion and Islamic law. Article 2, which proclaims “the principles of the Islamic shari`a” as “the main source of legislation” in the suspended constitution, is considered essential by most Islamists and amendable by many others. So far, public debate on the subject has not even progressed to the point where both sides can agree to disagree.
…And if they fail?
A shorter but in some ways more imposing list of questions will arise if the amendments fail. Rejection will mean that the junta’s plan—and, arguably, Mubarak’s last gift to his people—will no longer be viable. But what will happen next? The failure of Egypt’s junta to offer its own answer to this question is actually one of the strongest arguments that amendment supporters can cite. The idea that rejection would lead to a leadership vacuum is powerful for those who wish to see a smooth transition. How would the junta react? Would it petulantly proclaim that the rejection of its plan means the 1971 constitution is again the law of the land? Would it instead become a more protracted presence than anybody now wants?
The most viable alternative plan is the one offered by the revolutionary leaders who call for a constitutional declaration, a presidential council, and a fully inclusive effort to draft a new constitution. There is now a powerful domestic coalition behind this alternative plan. And the logic is not just domestic—this alternative is the path that most other countries have used in undergoing transitions.
It would probably be the case that the junta members would find the alternative of an interim constitutional declaration—and perhaps even a transitional presidential council—as the best way to extract themselves from the political process without leaving a void. But the experience of other countries also suggests another lesson that Egyptians are learning: countries generally make their fundamental constitutional choices with an eye toward their own recent history. Broad international lessons and models offered by other countries do matter, but the fundamental political questions are generally answered largely in a domestic context. And in Egypt’s case, that context offers only the barest of clues about the path it should follow if voters reject the amendments.
Conclusion: What Egyptians Have Accomplished
As an observer, I have no role in Egypt’s transition beyond analyzing it. But I cannot resist making two personal comments.
First, Egyptians have an opportunity for the first time in their history to write the constitution they want rather than live with the one offered to them by deeply entrenched incumbents. Passage of the referendum would be a step back from that opportunity, as it would mean that a president and parliament would be in place to initiate (and perhaps influence) the process of drafting a permanent constitution. If presidential elections precede parliamentary ones, as some have suggested, that danger will grow because a new president would likely entrench himself fairly deeply using tools from the 1971 constitution. Rejection of the amendments might be a leap in the dark, but my own hope is that on March 19, Egyptians exercise their newly discovered (and wholly unexpected) willingness to take risks.
Second, the sense of pride I referred to at the beginning of this commentary is a bit contagious. Egyptians are not blind to the tremendous problems they face: the short-term economic implications of the revolution are negative and there are no hints of a long-term solution to Egypt’s deep economic problems. The explosion of sectarian issues is deeply disturbing. Even those Egyptians who hold the former regime responsible for aggravating the problem cannot deny the tense state of Muslim-Christian relations and the fears of some Egyptian Christians.
But if none of these problems can be ignored, neither can they obscure how well most Egyptians have adjusted to the new atmosphere. There is remarkably little violence and a widespread acceptance that democracy is the preferable outcome, not merely as a system of government but also as a new way of dealing with each other.
On my just-concluded trip, I took some time out to have dinner with a friend I have known for close to three decades, along with his family. Or rather I thought I was taking time out, but even discussion at this dinner revolved around recent events. My friend’s two teenage daughters beamed with pride about their own participation as well as their father’s—he attended the demonstrations on the first day. They also showed me a video clip of their mother on television speaking as a “sawragiyya,” a neologism (as far as I know) for revolutionary.
The January 25 revolution may not yet have produced a new political order, but I still came away with the feeling that the pride Egyptians take in the event is deeply justified.
