- By Nathan J. BrownNathan J. Brown is a professor of political science and international affairs at George Washington University and a nonresident senior associate at the Carnegie Endowment for International Peace.
In the year since Egypt’s Supreme Council of the Armed Forces (SCAF) drafted and issued its "Constitutional Declaration," the Egyptian political process has followed no consistent political logic. But it has largely followed the declaration’s text, which is leading to some results that should have been expected but largely were not. On one critical and controversial issue — the sequence of constitution writing and presidential elections — the document was simply silent. However, on another critical and controversial issue it was definitive: who would write and approve the constitution.
Observers, and even more, some participants, overlooked the significance of the silent and the definitive provisions — sensibly enough, since they made little sense. But these odd features have now combined to bring the SCAF’s control of the process near an end. It is still not clear what political system will emerge (though the players who will make that determination are becoming clearer and beginning to show their hands). But unless the SCAF has the appetite for a second coup, or somehow discovers a way to shoehorn in its puppet as president, the constitutional vehicle that gave the military such political authority will soon turn into a pumpkin.
First, with regard to sequence, most observers have suspected that the SCAF did have a specific order in mind. They thought that if presidential elections could be postponed, the generals could oversee the writing of the constitution If this is what the SCAF planned, however, it is difficult to explain why the Constitutional Declaration contains detailed provisions for presidential elections – which would be unnecessary if the temporary constitution were to be replaced before elections. Much more likely was that the SCAF was following no clear strategy at all and simply wrote a document that allowed for various possibilities.
Others feared that electing a president on the basis of the skeletal Constitutional Declaration would return Egypt to the days of an unaccountable presidency. Their fears were reasonable but probably exaggerated — with the prior election of an assertive parliament and the likely triumph of a non-partisan figure to the presidency, it is unlikely that whoever is elected to that office will be able to rule as did his predecessors.
What was behind this discussion and disagreement regarding sequence was the assumption that there must be logic behind it. But it is now clear that not only was there no logic. In fact, there is also no sequence. The constitutional process and presidential elections are each marching ahead along unrelated timelines. But if there is no logic or sequence driving them, there are some clear effects of having them proceed independently. First, it is difficult to imagine the constitution being completed by May when presidential elections have finally been scheduled. Second, when the president takes office one month later (still with the constitutional drafting likely far from completed), the SCAF loses its position as effective president. It does, of course, retain its position at the head of the armed forces, but even there it loses a measure of its autonomy — the SCAF may return to having the president chair the body, and the Constitutional Declaration has the president also chairing the National Security Council.
And what of those detailed provisions for drafting the constitution that drew insufficient attention a year ago? The parliament has exclusive authority to elect all one hundred members of the drafting body. There were, to be sure, some attempts by outside actors to shape and even dictate the identity of the drafters, but the most ambitious such attempt — led by then deputy prime minister Ali al-Silmi last fall — was politically fatal to him. That effort also led the Muslim Brotherhood (which was eagerly awaiting its parliamentary role) to call its supporters into the street. The Silmi maneuver has not merely been forgotten but even (in the words of one Brotherhood legal figure I spoke with two months ago) "sent to hell."
And the parliament has taken up its task of naming the drafting body with enthusiasm, deciding that half of the members will come from its own ranks, and the other half from various groups in Egyptian society.
Once the drafters begin their work, they are subject to only two constraints. First, they have six months to complete their task. Second, the people must approve their draft in a referendum within fifteen days. No body has been granted the authority to review their work. The parliament, the president, the cabinet, or the SCAF might make suggestions but there is no provision allowing them to impose their advice on the drafters.
With a stronger parliament, generals in retreat, and round after round after round of competitive and meaningful elections, critical aspects of Egyptian authoritarianism are waning. Still more slights to the despotic system are to come — the state of emergency expires this summer (and it is politically inconceivable that the parliament would renew it), and the parliament is drafting laws that could liberalize various areas of Egyptian life.
But this is not to say that democracy has broken out. The constitution is not yet written and meaningful oversight of the security services and the military has not come (and, if it does arrive, will likely do so quite gradually). There is no real prospect of a healthy electoral counterweight to the Muslim Brotherhood, save perhaps the Salafis (who continue to say the darndest things). In the Constitutional Declaration, the restraints on the presidency are vaguely defined if at all (until the permanent constitution is written, the office is more likely to encounter political barriers than legal ones). And there are other gaping holes in the interim constitutional order. How long will the president and parliament serve? Until their terms expire or until a permanent constitution is in place? What happens if the constitutional drafters miss their deadline or have their work rejected? Moreover, who has the authority to answer such questions? Some housekeeping changes have already been necessary in the Constitutional Declaration; who has the authority to make changes after the SCAF’s reversion to its purely military role?
Oddly, most of these gaps were perfectly apparent a year ago for anyone who cared to look. But few did. The process appears almost intentionally badly designed. But there is little method to the constitutional madness. The problem is less hidden hands and secret agendas and more so that there are so many hands working at cross-purposes and agendas that, while perfectly open, push the country in different directions.
Many of 2011’s revolutionaries voice deep frustrations and some even suggest that no revolution has happened. I disagree. The revolution has made Egypt a country where nobody (or everybody) is in charge. That change is quite significant and, if I can be permitted one personal word, good.
But it sure is taking some getting used to.
Nathan J. Brown is a professor of political science and international affairs at George Washington University and nonresident senior associate at the Carnegie Endowment for International Peace.