Courtesy Reuters

Egypt's Constitutional Ghosts

Deciding the Terms of Cairo’s Democratic Transition

Egyptians seeking to build a new future after the rule of Hosni Mubarak hope to draw on, as well as correct, the flaws in the country's longstanding constitutional tradition. In the days since a military council took power from Mubarak, the country's political opposition has been quick to articulate its demands in the language of dry legal texts and procedures.

The current constitution was first enacted in 1971 and amended several times in the years afterward, but its precursors date back to a century before. Egypt's first constitutional effort came in 1882, when an assembly approved a basic law to govern its relationship with the cabinet. In 1923, when the country gained its independence from the British Empire, a second and more comprehensive document was written to combine, however uneasily, a parliamentary system with a monarchy.

When the 1923 constitution was scrapped in the wake of a 1952 military coup, Egypt's legal scholars set to work designing a republican constitution based on liberal and democratic values. Their work was shelved in 1954, however, by the country's new military rulers, who issued instead a series of documents to serve their own ideological and institutional needs. These new rules delivered the Egyptian polity into the hands of a one-party system in which all power rested with Gamal Abdel Nasser, Egypt's president until his death in 1970.

In 1971, Egypt received a new constitution, which would prove to be a more complicated and long-lived document. When Anwar al-Sadat succeeded Nasser, he found himself with rivals in various institutions, such as in the sole political party and the security apparatus. At the same time, he looked to recalibrate the regime's ideology, moving gently away from socialism and toward religion. Both problems, he realized, could be addressed with a new constitution. Sadat convened a large and remarkably diverse committee: feminists, Islamic legal scholars, liberals, socialists, nationalists, and representatives of the Christian church were all represented. On the whole, the group moved in the direction Sadat wanted: weakening the party, nominally strengthening legal institutions, and promising Egyptians a move away from the harshest aspects of Nasserist authoritarianism.

The result was a document that promised a little bit to everybody -- but everything to the president. The constitution contained guarantees for individual freedoms, democratic procedures, and judicial independence. It made nods toward socialism and Islam. But for every commitment, there was also a trap door; for every liberty, there was a loophole that ultimately did little to rein in the power of the president or the country's determined security apparatus.

Over the next four decades, Egypt's presidents tinkered with the text. Sadat took further steps against socialism and made greater concessions to Islam; he dismantled the single-party system and replaced it with a nominally pluralistic political order in which the party of the president -- today's collapsing National Democratic Party -- enjoyed a dominant role. For every step forward, there was a step back: after the single party that had controlled the press was disbanded, authority was handed, in 1980, to a new state press council. 

Mubarak left the constitution alone for most of his presidency, arguing that Egypt needed stability rather than further ideological and institutional gyrations. But Egypt did change in some gradual ways, sometimes toward liberalism. Mubarak widened the limited party pluralism allowed by Sadat; he permitted an opposition press to grow in the 1980s and an independent press to flourish in the 2000s.

Yet the country's political movement was far from linear. In the 1980s, the state's reliance on harsh authoritarian tools gradually abated; yet in the 1990s, these repressive tools were resurrected and used not just against radical Islamists but also the far tamer Muslim Brotherhood.

But on the whole, beginning in the 1980s, some of constitution's liberal elements began to come to life, largely led by Egypt's judiciary. A new judicial law in 1984 gave Egypt's civil and criminal judiciary more autonomy, and the State Council -- a set of courts that have jurisdiction over cases in which a state body is a party -- proved surprisingly friendly to ordinary citizens.

Most striking was the Supreme Constitutional Court, a structure originally designed to keep the rest of the judiciary in check. But as it gained an autonomous voice during the 1980s and 1990s, it actually began to enforce some of the rights and freedoms embedded in the Egyptian constitution. A set of court decisions on electoral laws, for example, forced a more open balloting process. By 2005, parliament had one-fifth of its seats controlled by the Muslim Brotherhood. Most of the other deputies were allied with the regime, but a looser party system made them more difficult to control.

In 2007, the Mubarak regime introduced a series of constitutional amendments that slammed shut most of the liberal openings in the 1971 constitution. The changes took elections away from full judicial supervision and placed them under the control of regime-dominated commissions; allowed multicandidate presidential elections on paper but sharply restricted viable candidacies in practice; constitutionally barred the Brotherhood from forming a political party; and took steps to insert formerly extraordinary emergency measures (such as the president's ability to refer cases to military courts for swift and reliable convictions) into the constitutional text.

It should be no surprise, therefore, that the protest movement that brought down Mubarak no longer looked to the constitution for guidance. For years, opposition activists and reform figures focused their efforts on a few constitutional provisions in the hope that fixing those could bring the liberal and democratic elements of the 1971 constitution back to life. But the 2007 amendments had carefully placed booby traps throughout the document. Tinkering was no longer enough. When Egypt's opposition leaders began talking of "revolution," they wanted not only to end the Mubarak presidency but also to sweep aside the 1971 constitution.

Thus, the crowds in Tahrir Square were elated by the abandonment of constitutional procedures on February 11 and the suspension of the constitution on February 13. If the country is to be governed by a military junta, then fundamental restructuring would seem to be on the table. This is an extremely risky strategy for the opposition, however, since it depends on the regime's willingness to negotiate with the opposition and agree to a truly inclusive process of political reconstruction.

It might seem that the past century would make Egyptians cynical about the power of paper to build a proper political order. But just the opposite seems to be the case: it has taught them that they need to pay far more attention to the fine print. Today there is a remarkably wide consensus on the elements of a new constitutional order. Almost all political forces outside of the regime -- from the Muslim Brotherhood to labor-oriented activists -- would agree on a general package of reform.

The opposition would like to see a whittling down of the powers of the presidency; firm institutional guarantees of judicial independence, largely in the form of a more autonomous and powerful judicial council; judicial monitoring of elections; an end to exceptional courts and Egypt's state of emergency (in nearly continuous effect since 1939); more robust instruments for protecting rights and freedoms; and a truly pluralist party system.

Taken together, the proposed changes would have three effects. First, they would greatly increase accountability of existing institutions to the people. Second, they would give real protection to individual freedoms and provide guarantees for a pluralist political system. Third, they would activate mechanisms of horizontal accountability, so that Egypt's various constitutional institutions could patrol one another.

In this third element, Egyptians show a sophisticated understanding of their constitutional past. Egypt is a state of institutions -- but those institutions have all been accountable to the presidency. By giving these institutions true autonomy, the vague promises of a constitutional text can take on real meaning. This does not necessarily suggest a U.S.-style system of "checks and balances," however -- Egyptian constitutional architects are more likely to speak of "separation of powers," in which institutions are contained within well-defined boundaries. 

Is this a quixotic task? There are two reasons for hope. First, Egypt has a strong set of constitutional institutions with deep roots and professional standards. Second, there is a remarkable degree of consensus on what needs to be done. Of course, any constitutional process will spark symbolic debates about identity and Islam, but even on these potentially contentious issues, some version of the formulas in the country's current constitution are acceptable to most political camps.

The real obstacles to Egypt's constitutional revolution lie elsewhere. For starters, there is no real procedure in place for writing a new constitution. If Egypt starts from scratch, how is it to proceed? Past constitutions have been drafted by committees working in private. The country has no tradition to draw on for more protracted and inclusive practices, such as an elected constituent assembly. The only way to design such procedures is to bring all parties to the negotiating table and agree on the process. Yet this will be difficult because as much as they might agree on matters of substance, the diffuse nature of the opposition makes agreement on tactics and procedures slow and arduous.

Such consensus will become even more difficult if the military rulers push for a less radical solution. And this is the most significant obstacle by far: the Egyptian state is currently controlled by a committee of military leaders who have made very polite general sounds but suggested very limited intentions.  Indeed, they have given strong signs that they wish simply to amend the current draft, and they have shown little inclination toward either a democratic or an inclusive process. Such a procedure looks suspiciously like the ones used to change the constitution or elect the president in the past -- the people are invited to vote only after their leaders have made their choices for them. To be fair, the apparent appointment of Tariq al-Bishri, a leading public intellectual with a reputation for integrity and independence, as chair of the new constitutional committee is a very hopeful sign.

At this point, much depends on the intent of the Egyptian military leaders. They still have the chance to correct a mistake that some of their predecessors made. In 1952, the group of officers that overthrew the regime was headed by General Mohammed Naguib, who promised a return to civilian rule. Most of the work on the draft liberal constitution was performed under Naguib's presidency.

But Nasser deposed Naguib in 1954 and set to work building the system that the Egyptian revolutionaries have just brought to its knees. If the Egyptian revolution is to succeed in building a new system, Naguib's ghost will have to work its magic on the generals who now control the country.

 

For further expert analysis of the uprisings across the Arab world, please check out Foreign Affairs/CFR new ebook, The New Arab Revolt: What Happened, What It Means, and What Comes Next. It is  available for purchase in multiple formats including PDF, Kindle, and Nook.

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