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The Middle East Channel
Mrs. Lincoln’s Egyptian Constitution
Upon first reading the short news item in the highbrow daily al-Shuruq that the judicial committee drafting amendments to Egypt’s 2012 constitution is completing its work, a reader would likely have felt satisfied that it answered the Egyptian equivalent of the American question, "And apart from that, Mrs. Lincoln, how did you enjoy the play?" ...
Upon first reading the short news item in the highbrow daily al-Shuruq that the judicial committee drafting amendments to Egypt’s 2012 constitution is completing its work, a reader would likely have felt satisfied that it answered the Egyptian equivalent of the American question, "And apart from that, Mrs. Lincoln, how did you enjoy the play?" With the number of killed entering four digits and a political atmosphere in which Islamists and security forces appear locked in a deadly battle; with an overheated public atmosphere in which adversaries appear caught in a spiral of outlandish conspiracy theories and dehumanization; with foreign journalists subject to verbal abuse and harassment and Christians subject to much worse — with all this, what is the point of talking about constitutional reform? The contours of Egypt’s political future seem starkly clear: an abusive security state, operating (at least for the short term) in an atmosphere of panicked public approval; an Islamist opposition increasingly alienated from the political process and willing to use thuggish force; and ongoing civil strife. What does the constitutional process have to do with this? Can it even continue under such circumstances? Can a constitution written in 2012 largely by people now decried as terrorists really be amended to serve Egypt in 2013? Isn’t the new regime’s "road map" to restore constitutional rule and elections superseded by recent events?
No it is not. The process is likely to continue and the political logic behind the road map remains quite robust. The reason is that it offers a way to concretize and institutionalize the current political arrangements. Worrisome as they might be, those arrangements remain ones that the dominant military, security, and civilian actors have every interest in entrenching. Egypt will have a constitution again, to be sure — but it is one that will be a codification of the will of the current regime, like all of Egypt’s past constitutions. And Egypt’s international partners are therefore likely to be confronted soon with a regime that looks very much like the present one but can present a formal democratic face.
When I was last in Egypt in late June, I described a country that was poised for dueling mass protests, expecting violence, and openly discussing military intervention. I left with a strong sense of foreboding, not simply because of the expected clash but because of the shockingly hard attitudes that had settled in — the country was rhetorically already in a state of civil war. Those fears were unfortunately vindicated by the political and human wreckage in the weeks since. Actual civil war is likely to be avoided but a prolonged period of civil strife, violent repression, and sectarian attacks has already commenced.
The road map announced by Defense Minister General Abdel Fattah al-Sisi when he deposed President Mohamed Morsi on July 3 — and elaborated by acting President Adly Mansour on July 8 — purports to provide a way to heal Egypt’s political wounds. It almost certainly will not do that, but it is likely to go forward nonetheless. The victorious state institutions (military, security apparatus, and judiciary) and political forces (most non-Islamist parties) have every incentive to push it along. For the former it offers the opportunity to entrench their interests, avoid responsibility for the more difficult aspects of governance (such as service provision and economics) and put a civilian face on the regime. For the latter, it offers a way in from the cold of electoral defeat and political opposition that they suffered at Islamist hands.
Only two things loom as complicating factors. First, Salafi leaders are uneasily standing aloof, having acquiesced in the coup in an effort to rescue their favorite constitutional clauses. But it is not clear if any deal is possible that will satisfy them and the non-Islamist political actors at the same time. It is difficult to imagine non-Islamists agreeing to maintain the Islamic innovations in the 2012 constitution, but it was precisely those innovations that allowed Salafi leaders to endorse the document. Second, a presidential run by Sisi — the subject of much speculation but little concrete indication — would make it more difficult to present the regime as a civilian one (except in the technical sense that it would likely be preceded by Sisi’s formal departure from military service). Yet even such a candidacy would likely occur through the current road map for a political transition rather than by upending it.
The first step of the July road map — revision of the 2012 constitution — is already underway. But it is a tightly controlled process that seems designed to make the new order permanent rather than renegotiate it. The first phase — due to be completed today — is to have a legal/judicial committee of experts draft a series of amendments. The committee has kept its work secret, it says, to avoid agitating the public that is to be governed by the document.
Those amendments will then be submitted to a political committee of 50 officials and political leaders appointed by the president. The committee has not been named, but its seats have been apportioned. Actual political party leaders will number only six, and they will be distributed in a manner that will not reflect any past electoral outcomes (with Islamists only getting two seats). The various groups that are awarded a seat seem to have been promised a voice in choosing who represents them. However, the large number of officials (at least 11 will come from state bodies and many more will likely be state employees or come from officially-chartered syndicates and unions) — and that the legal/judicial committee will remain in existence and seems to feel that it will have final say on the wording of the amendments — suggest that this is a process in which, even more than in 2012, the Egyptian state will be reconstituting itself more than it will be constituted by the society.
The entire process seems based on the assumption that constitution drafting is primarily a technical and only secondarily a political process. Such an idea is an odd one in general, but it likely seems preposterous to anybody who followed the drafting in Egypt in 2012.
The process is likely to produce amendments that reflect the interests of those currently dominant. The military is likely to have its favorite provisions protected. Any constitutional mechanism for meaningful oversight of the security sector is likely to have to wait for Egypt’s next constitution rather than this one. The judiciary is likely to have more robust protections — ones that provide for stronger exemption from the political process (which may be healthy) but also render it even closer to self-perpetuating (which can be problematic over the long term).
When the drafting is done, Egyptians will be called to the polls three times. First, they will be asked to approve the amendments, and they will probably say yes (if precedent is any indication, they will vote on the entire group of amendments with a single yes or no ballot). Second, they will elect a parliament (likely a unicameral one, though that matter is subject to the amendment process). Third, they will elect a president.
At this point, Egypt has election laws that can govern the referendum and the presidential election; if those are deemed to need amending, changes can be made by decree. But there is no valid parliamentary election law, and here we come to a bizarre irony in the road map. Egypt’s last parliamentary election law was struck down in 2012 by the country’s Supreme Constitutional Court (SCC). The Islamist-dominated upper house of the parliament had been busily working on a new one and had submitted a third draft to the SCC (which, under the 2012 constitution had to review such laws) right before the body was disbanded. That draft looked much like the law on which the disbanded parliament was based, with a mixed party list and individual system, but districts were redrawn and other concessions to the SCC’s strictures were made. On July 3, Sisi (in a statement later published in the country’s Official Gazette and therefore implicitly a governing, quasi-constitutional document of some unspecified kind) called on the court to hurry its review of the draft. That review has not been completed, but if the law provides the basis for the upcoming parliamentary elections, the odd result will be that a law drafted by a body deemed unconstitutionally elected, populated by politicians from an Islamist movement now being hunted down, and denounced by Egypt’s non-Islamist parties would be the basis for elections that bury the brief experiment with Islamist rule.
It is unclear what the results of those elections will be. The strongest electoral performer likely to be competing in those elections — from the Salafi camp — has no obvious challenger at present, though a few non-Islamist parties have at least a skeletal organization and the various pieces of the pre-2011 National Democratic Party could reemerge in various guises and coalitions. A very scattered parliament is likely to be the result.
As for the presidency, its tools might be whittled down constitutionally a bit in the amendments. Even in early 2013, courts had begun to interpret its authority a bit restrictively and, for all the charges of "Brotherhoodization" of the state, Morsi hardly seemed to be able to exert much control over the military and security services. His successor — unless he comes from those parts of the state — is likely to fare no better. There will be large segments of the state (such as education and health) in which civilian politics can operate more fully, with the breakdown of presidential, cabinet, and parliamentary roles likely to emerge more clearly in practice. But significant areas will remain informally (and, with the military, more formally) beyond the reach of political oversight.
What is clear now is that Egypt’s constitutional moment is over. The hope born in the 2011 uprising was that diverse political forces would come to an agreement on the rules of politics — ones that would protect human rights, provide for a popular voice in governance, and devise mechanisms of accountability, and do such things in ways that were broadly accepted. That hope is not just dead; it was murdered by the country’s feuding leaders. The question is no longer whether the current course is the wisest one for Egypt — it almost certainly is not. But this is the choice that Egyptian leaders have made for each other.
The result, while it is based on a destruction of the hopes of 2011, is one that will have recognizably democratic elements (elections, a multiparty system, civilian leaders). It will likely establish itself as operational even if it does not provide full stability or social and political peace. Its actual working will enable rather than avoid repression. Egypt’s international interlocutors in the West may have advised against this path, but they will have to decide soon whether or not to accept it. The current regime’s insistence that this is a sovereign decision will make Western governments uncomfortable for now but they will likely ultimately accept it. They will still face the question of whether to treat it as a distasteful autocracy or a flawed but aspiring democracy — or whether to bother to make the distinction.
Nathan J. Brown is professor of political science and international affairs at the George Washington University, non-resident senior associate at the Carnegie Endowment for International Peace, and author of When Victory is Not an Option: Islamist Movements in Arab Politics (Cornell University Press, 2012).