Is it time to send in the lawyers?

Last week, an Al Jazeera journalist interviewed a demonstrator in Tahrir Square. When asked to explain his basic demand, I expected the highly agitated man to bark "Bread!" or "Freedom!" Instead he shouted, "All the authorities are concentrated in the hands of the president! We need a new constitution!" At a time when Egyptians have ...

AFP/Getty Images*
AFP/Getty Images*
AFP/Getty Images*

Last week, an Al Jazeera journalist interviewed a demonstrator in Tahrir Square. When asked to explain his basic demand, I expected the highly agitated man to bark "Bread!" or "Freedom!" Instead he shouted, "All the authorities are concentrated in the hands of the president! We need a new constitution!" At a time when Egyptians have captured the attention of the world, why do all the youthful demonstrators, sagacious independents, labor organizers, and hard-nosed security figures keep casting their strategies in terms of dry documents?

While there are many strands to the dramatic story in Egypt -- youth, corruption, activism, and new and old media -- at its heart the Egyptian struggle is deeply constitutional in nature. The man in Tahrir was absolutely correct: Egypt's political system is one in which all chains of command can be traced back to -- and overridden if need be by -- the president. It is difficult to imagine any path forward for the country that does not involve far-reaching constitutional reform. Many Egyptian analysts and activists have realized this for the past decade, and their realization has now penetrated through large pockets of Egyptian society. And it has suddenly seized the halls of power in world capitals as well.

Last week, an Al Jazeera journalist interviewed a demonstrator in Tahrir Square. When asked to explain his basic demand, I expected the highly agitated man to bark "Bread!" or "Freedom!" Instead he shouted, "All the authorities are concentrated in the hands of the president! We need a new constitution!" At a time when Egyptians have captured the attention of the world, why do all the youthful demonstrators, sagacious independents, labor organizers, and hard-nosed security figures keep casting their strategies in terms of dry documents?

While there are many strands to the dramatic story in Egypt — youth, corruption, activism, and new and old media — at its heart the Egyptian struggle is deeply constitutional in nature. The man in Tahrir was absolutely correct: Egypt’s political system is one in which all chains of command can be traced back to — and overridden if need be by — the president. It is difficult to imagine any path forward for the country that does not involve far-reaching constitutional reform. Many Egyptian analysts and activists have realized this for the past decade, and their realization has now penetrated through large pockets of Egyptian society. And it has suddenly seized the halls of power in world capitals as well.

Egyptians are on the brink of a real transition. But they may very well still be turned back by a regime that has many tricks left up its sleeve. The possibility that Egypt’s democratic uprising will be deflected, delayed, and even defeated is very real.

The drama being played out in Tahrir Square and in cities throughout the country does hearken back to 1989 in Eastern Europe. But there is one critical difference: The Egyptian regime has hardly given up hope; it is not struggling to save what it can as it crumbles. Instead, it has recovered its balance, steadied its nerves, and started to work to hem in the demonstrators, pick apart the opposition, offer a few carrots, and keep its sticks farther from the cameras. For Egypt’s battered regime, the topic of any negotiations with demonstrators is not transition; it is mild reform. And that is why no good-faith negotiations have begun.

This is a severe problem for the opposition and explains the refusal to negotiate. When Vice President Omar Suleiman held a series of meetings this weekend, most of the leading opposition elements stayed away. The Muslim Brotherhood did dutifully send two members of its Guidance Office (one of whom released himself in Egypt’s massive prison break a week ago). But this was no Mandela-de Klerk rerun. The Brotherhood leaders seemed embarrassed and defensive for having met with the vice president — understandably so. After his round of meetings, Suleiman released a statement describing a reform process that was strong on sweet talk but offered only enough specifics to persuade a gullible and careless reader.

But the demand the opposition has therefore put forward — that Mubarak resign before constitutional negotiations begin — is hardly a solution. As I explained last week, and as some activists have recognized, such a move would not solve any of the constitutional questions, but only set off some new ones. In a very critical sense, Mubarak is no longer the issue. He is a critical political symbol, and the demand that he resign is a vital thread of unity for a remarkably diverse and decentralized opposition. But for those who are attempting to move Egypt in a democratic direction, Mubarak’s presidency is yesterday’s news. Today’s problem is how to force the regime to negotiate the terms of transition in good faith.

Rather that is one of today’s problems. There is a second, related problem as well: how to write up the terms of the transition. How does one design a new system when the current political rules do not work? This is a very thorny question, and more academically inclined readers should consult Andrew Arato’s Civil Society, Constitution, and Legitimacy. But that book is not for the intellectually faint of heart, so let me provide a cheat sheet. In such a transition there are two approaches. One is to go forward largely by the book, using the procedural and institutional tools offered by the current order to produce a new one. The other is to scrap the current system, sit all interested parties down at a very big table, and hash out a new order.

Egypt’s opposition seems inclined to reject the first path — and the reason is not difficult to figure out. The 1971 constitution was described by NGO leader Nasser Amin a decade ago when some of its latent liberal provisions started coming to life as "a joke that turned serious." But in 2007, the joke was revived with a series of amendments that closed almost all of the liberal loopholes that had been pushed open. Egypt’s current constitution has been written and rewritten by committees, but from the perspective of February 2011, it appears that there was one single clever but devilish mind guiding their hands. The document has been booby-trapped, or, to switch to a metaphor introduced by University of Washington law professor Clark Lombardi, "There is an ingenious device that one finds in the Egyptian constitution — one analogous to some of the "poison pills" that corporations occasionally adopt to prevent hostile takeover." (Lombardi’s analysis, since it is written by a real lawyer, should be consulted directly on this point — especially so since he has also been quite busily blogging on the dilemma of whether to use the current constitution or start from scratch.) 

That is why nobody born before yesterday has been persuaded by Suleiman’s promises of reform using the constitution. We can thus understand Mohamed ElBaradei’s call to scrap the constitution, essentially telling the president to leave now and take his deeply flawed document with him. But some very knowledgeable people, including a group of wise men and women and a Harvard professor, have tried to find a constitutional solution. There are real advantages to the legal path — it provides a clear language for negotiation, a clear set of procedures for adopting changes, and hammers home the principle that the law must be followed even when it is inconvenient. 

What about the second path — sitting everyone down at the table, hammering out an agreement, and then have the lawyers write it up without bothering to niggle over the current text? That route makes perfect sense if there is the possibility of consensus. And for most political actors, there is a very similar blueprint for a new constitutional order — weakening the presidency, strengthening the parliament, reining in the security establishment, providing more robust guarantees of political freedoms, and fostering pluralism. But while many would agree to this agenda, one party would veto any substantial move in such directions — Egypt’s current leaders. Thus we are right back at the regime’s failure to negotiate in good faith — it would have no trouble agreeing to endless talks, but has no intention of delivering more than soothing words and very mild reforms. The path laid out by Suleiman is likely to deliver only quarter-measures, delays, and manageable procedures. It might return Egypt to the system as it existed in 2005 or so. 

So the opposition is pressing for concessions up front that will force the regime into real negotiations. There is no way to move forward without some serious and irrevocable steps. The wise men and women have suggested some — end to the state of emergency, appointment of an independent committee to draft constitutional reforms. But that is probably not enough, and the opposition is pressing for something that would push much further — such as a presidential council in which the regime has simply one seat at the table. In effect, these opposition elements wish to scrap the constitution, operate under a provisional constitutional structure, and move slowly and deliberately toward designing a new democratic and pluralistic system.

There have been some clever proposals designed to solve all these problems at once: preserve legality, still push fundamental constitutional reform, and lay down a clear benchmark and mechanism for immediately testing the regime’s sincerity and good faith. Harvard’s Tarek Masoud’s proposal, alluded to above, is one prominent example. Another, floated by one of Cairo’s best bloggers, takes some ideas that have been percolating in various discussions and turns them into an ingenious and simple mechanism. Article 139 of the Egyptian constitution allows the president to appoint multiple vice presidents and delegate authorities to them. If Mubarak were to appoint a series of vice presidents to join Suleiman, select a collection of independent and opposition figures, and accord them real and specified authority over critical areas that allowed them to share in governance and oversee the reform process, then the constitution would be preserved, the rough equivalent of a presidential council could be formed, and the regime would find itself forced to negotiate seriously. 

Would the regime agree to this? Perhaps only if faced by an opposition able to preserve its unity and numbers. And that is a tall order. What I have been describing as "the opposition" may be about as misleading as referring to a herd of cats. Egypt’s "revolution" (as many have begun to call it) has progressed so far precisely because it is so diffuse and decentralized. The regime can neither decapitate nor co-opt it. But that strength can also be a real weakness when it comes time to strategize and coordinate in the face of a canny and cagey regime. 

Egypt’s revolutionaries have provoked amazement and admiration among millions outside the country. But they are now going toe to toe against a regime that seeks to win by demonstrating to Egyptians that freedom is messy.

Nathan J. Brown is professor of political science and international affairs at George Washington University and a nonresident senior associate for the Carnegie Endowment for International Peace.

Nathan 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.

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