Egypt’s constitutional conundrum

As Egypt’s uprising enters its third week and the crowds in the street have continued to swell, discussion has turned to the possibility of constitutional reform as a way beyond the impasse. The question of the legitimacy of the current constitution has significant practical ramifications for all aspects of negotiations about Egypt’s future.  Beneath the arguments regarding particular articles of the constitution, diverging views about the constitution reflect a much deeper divide about the real meaning and intent of the ongoing protest movement.

For some reformists, the constitution symbolizes rule of law and the prospect for resolving the current crisis within institutions.  For skeptical protesters, the constitution is just another warped artifact of Mubarak’s rule, amended beyond recognition. For a regime that has shown utter disregard for the rule of law and which has used the constitution as a bludgeon, they feel, the notion of a constitutional reform process led by that very same regime lacks credibility. For the constitutional reform process to offer any hope of positive change, these fears must be addressed directly.

The regime’s move to constitutional reform is part of a clear political strategy. It has clung to the technicalities embedded within the constitution in order to mainstream the notion that political reform requires President Hosni Mubarak to serve out the remainder of his term. If Mubarak were to resign or deputize one or more vice presidents to assume his authorities, they argue, amending the constitution would be much more difficult. Supporting constitutional reform then allows the regime to deflect calls for the immediate dissolution of the current parliament — widely seen as illegitimate due to the massive fraud that took place during its elections in November 2010 — since its approval would be necessary for passage of any amendments. Although a popular referendum to approve amendments appears to be constitutionally permissible, the difficulties associated with organizing such a vote in a timely fashion might limit the utility of this possibility and require that parliament remain in place.

For a regime shocked by the rapidity of events and the disintegration of its internal security forces, a managed constitutional reform process offers an avenue by which it could manage the scope of reform, draw out the process, and present itself as committed to substantive change. Such an approach is also advantageous for the regime because it would reestablish the current framework of governance as the baseline from which all future actions would be based. In doing so, the regime is attempting to assert the legitimacy of its authority and its primacy as the sole channel for achieving political change.  

This strategy also represents an appeal to the silent citizenry of Egypt, startled by the current upheaval and eager to see a return to normalcy. A program of orderly transition would give reassurance to some among this large group of citizens that much-needed reforms were being initiated in a legally appropriate fashion. By asking for negotiations over constitutional reform, the regime also hopes to depict itself as a constructive force, in distinction to the unruly and unreasonable mobs in Tahrir Square whose insatiable demands risk the country’s stability. Finally, this approach seeks to fragment the opposition and dilute the protest movement by co-opting certain groups with the prospect of a negotiated outcome and preferential treatment for those that seek a resolution through immediate dialogue.

The focus on amending the current constitution is also a continuation of previous attempts to enshrine the subversion of rule of law in Egypt through ostensibly legal channels. Even at moments when the regime is intent on achieving manifestly undemocratic and repressive ends, it has always sought to provide a veneer of legality to its actions. This can be seen in its numerous renewals of the emergency law, which has been in place since 1981, and its carefully constructed approach to limiting the possible outcomes for presidential succession through a series of constitutional amendments.

A second approach to the question of constitutional amendment is reflected by another bloc that is largely connected to the legal opposition parties and to a self-described group of wise men. This group has at times appeared ready to engage in negotiations on constitutional reform without pre-conditions. Motivations vary within this broad group, with some advocating this route due to practical considerations, and others hoping for a timely resolution of the crisis or preferential treatment.

Yahya al-Gamal, a respected constitutional scholar and a member of the council of wise men, emphasized to me the necessity of this approach as a practical matter. In his eyes, the revolutionary current in the streets had not toppled the state. While the internal security forces had crumbled, the armed forces had preserved the coercive power of the state and ensured that the regime did not collapse. For al-Gamal, the events of January 25^th and the ensuing protest movement had fundamentally changed Egypt and could have revolutionary effect, but could not now be described as a revolution. In his estimation, to reach such fundamental reform of the system, however, the protest movement would have to engage with the regime at an early stage while still maintaining its presence in the streets.

In this reading, a break with the current constitutional framework could only be achieved through the military. For al-Gamal, who had seen guarantees of transition to civilian government following the Free Officers’ Movement and the ouster of King Farouk in 1952, such a move would be fraught with dangers of the re-emergence of a full-blown military state. Even the possibility of a transitional national unity government would not be a sufficient guarantee to assure that the military would not seek to institute military rule in the face of potentially fractious and ineffective civilian governance.

Finally, Tahrir wants nothing to do with this process.  For those in the streets who believe that Egypt is now in a revolutionary phase, the existing constitution, much like the current regime, has forfeited any and all pretense of legitimacy. The constitution, flawed from the start due to a bias toward unchecked executive authority, has been riddled with further amendments that have made the current document a tool for continuation of authoritarian rule. In any event, many among the protest movement doubt the sincerity of the regime since the amendment process itself could be undertaken without negotiations as a sign of good faith and commitment to reform.

For committed protestors, engaging in negotiations on amending the constitution would represent an admission of some degree of legitimacy with respect to the constitution itself and the government that works in allegiance to it. This acceptance would also necessitate three key concessions that are widely unacceptable to the protest movement: eschewing insistence upon Mubarak’s resignation as a condition to any negotiations with the government; dropping demands for the dissolution of parliament; and accepting that the aims of the uprising are limited in scope and will not succeed in a revolutionary change of regime.

The calculations of this group depend on several key assumptions. The first such assumption is that the uprising will gain momentum and create further pressure on the regime. Achieving this goal will require escalating actions, perhaps in terms of growing numbers and expanding sites of protest, including within Cairo. More likely, this will depend on new avenues for creating leverage with the regime, particularly the possibility of widespread labor strikes. Second, the military must maintain its stance of relative neutrality in its approach. However, with stability being a prime driver of its calculations, the armed forces’ patience with an extended presence as the nation’s internal security force as protest escalates might not be unlimited. Lastly, protest leaders must be confident in their ability to maintain solidarity and cohesion among the leaderless opposition while not alienating uncommitted Egyptian citizens.

With these varying calculations at play, the discussion of constitutional reform is a surrogate for a broader debate about the nature of the current uprising and its goals. For the various interested parties and players, attitudes about the prospect or utility of constitutional reform are an important indicator of ultimate intent.

For a different take on the constitutional reform project, see Tamir Moustafa’s "Does Egypt Need a New Constitution?"

Michael Wahid Hanna is a fellow and program officer at The Century Foundation.