Egypt’s new constitutional declaration: Back to square one?

–Zaid Al-Ali, International IDEA(cross-posted from www.foreignpolicy.com)

On July 8, Adli Mansour, Egypt’s new interim president who until recently was a member of the country’s Supreme Constitutional Court, issued yet another “constitutional declaration.”  This comes after a year of failed leadership by former President Mohamed Morsi, the historic June 30 demonstrations, the intervention by the military, the ultimate dethroning of the President and the ensuring violence, much of which have left Egypt deeply polarized.  The question today is whether this new declaration will contribute to lessening tension in the country, or whether it will become a new point of contention much like all the preceding chapters in Egypt’s troubled transition to democracy.

All segments of society should proceed carefully to avoid a further deterioration. That will require a recalibration of objectives, interests, and methods as well as a good understanding of what has happened over the past few years and what, in particular, has gone wrong. Amongst other things, those parties and individuals who are driving this new transition process needs to make a serious effort to understand the flaws of the 2012 constitutional drafting process so as not to repeat those same mistakes. In particular, they should consider the following:

1) The entire framework for the constitutional drafting process was not the product of a negotiated or a common understanding between political forces of what direction the country should be heading in or even what the new state should look like. It was imposed by the Supreme Council of the Armed Forces (SCAF) in March 2011, and was not amended by Morsi when he had the chance in June 2012. The result was a vision for the country that was heavily anchored in existing Egyptian constitutional and legal traditions, an outcome that was highly inappropriate in the context of a social and political revolution. As a legal document, it was also poorly drafted, which led to a number of unnecessary complications. As a result, Egypt’s transition process was exemplary in its lack of vision and its illiberalism.

2) The process that the Egyptians did follow was deeply flawed. The six-month timeframe was not sufficient to reach a negotiated solution. Also, the interim constitution itself was so lacking in detail on how the Constituent Assembly should be composed that this ended up being a major point of contention and caused the process to stutter in its early days. Finally, the Constituent Assembly’s own internal rules of procedure (which ultimately were highly majoritarian) created an environment in which small political and social groups felt that their views did not matter.

3) The final decision by the Muslim Brotherhood’s Freedom and Justice Party (FJP) to finalize the draft constitution in November 2012 despite the fact that all non-Islamists had withdrawn from the process was a fatal blow to the constitution’s and to the party’s own credibility. Although the details of what happened require a longer treatment elsewhere, some of the FJP’s negotiation tactics achieved the opposite of trust building; its counterparts were so surprised by the party’s actions that they shunned all future offers to negotiate a solution. The FJP was not the only culprit of course, but having been the ruling party at the time, it has responsibility for what transpired.

Interim President Adli’s new constitutional declaration purports to be an interim constitution, setting the rules for the function of the state over the next few months. It also explains in part how the new constitution will be drafted and when future elections should take place. With the new text, what, if anything, have the country’s new authorities appeared to have learned from the mistakes of the past? The answer is: not much. Rather than a negotiated and consensual document, this constitutional document was once again drafted in secret by anonymous and unaccountable figures who were motivated by a desire to protect narrow interests rather than design a credible plan to achieve a democratic future for the country. Already, several political parties and the activists behind the Tamarod campaign have complained that they were not consulted during the drafting process and say that they were surprised by the declaration’s contents.

As expected, the text is in keeping with Egyptian constitutional tradition. That should not come as a surprise as it was written by some of the more traditional and conservative elements from within the Egyptian state, including its most senior judges. As with Egypt’s previous constitutions, the declaration is not very good on fundamental and political rights. In particular, it contains a number of classic “clawback clauses” (i.e. old fashioned provisions that purport to grant rights, but in fact achieve the opposite). In particular, article 7 supposedly guarantees freedom of expression, but only in so far as the law allows citizens to express themselves freely (very worrisome given that the interim president has granted himself the authority to pass legislation entirely on his own; see below). Article 10 supposedly guarantees freedom of assembly, but says that certain conditions have to be satisfied, without specifying what conditions. Although this type of vague formulation might have been acceptable in the 1950s (and even that is debatable), today it simply does not pass the minimum threshold of credibility for a modern constitution. What this means is that anyone who was hoping that some of the wisdom developed in Latin America, Africa, Europe, etc. will make its way to Egypt’s new constitutional text over the coming period will be disappointed.

In addition, the declaration grants the interim president many of the powers that both the SCAF and Morsi had sought to grant themselves, and which caused so much controversy at the time. Amongst other things, the interim president now has virtually unlimited executive and legislative power and can appoint and dismiss ministers virtually at will. In practice, his authority will necessarily be limited through political pressure from a number of directions, but the declaration allows very wide discretion that would not usually be considered appropriate and that is certainly open to abuse. In addition, the declaration is very brief on states of emergency. It does not indicate the reasons for which an emergency can be declared, what the process is for making such a declaration, and what powers are granted after a declaration is made. Finally, and rather surprisingly, despite the fact that the declaration imposes very short and strict timeframes for the constitutional referendum and the parliamentary elections, no timeframe is imposed at all for future presidential elections (article 30).

Naturally, given the coalition of forces that supported the military’s intervention against Morsi, there are also a number of other winners in the declaration. These are:

1) The Salafi Nour Party, which managed to protect the wording that it fought to include in the 2012 constitution on Sharia (article 1).

2) The military, which also maintains all of the guarantees and institutional independence that it had been granted by the 2012 constitution.

3) Judges, who will play a critical role in proposing changes to the constitution, to a far greater extent than would otherwise have been normal or acceptable.

Most importantly perhaps, the constitutional declaration’s provisions on how the transition process should be managed and how the constitution should be amended are also flawed. In particular, it is impossibly short:

1) A committee of experts will have one month to suggest changes to the 2012 constitution.

2) The new Constituent Assembly will have two months to prepare a final draft.

3) A referendum will have to be organized with one month of the draft’s completion.

Altogether that is a three-month deliberation process, followed by one month of national debate, which altogether is around half the time that the Constituent Assembly had in 2012. Some observers have noted that the constitutional declaration deliberately does not envisage an entirely new drafting process and that the new assembly should work off the 2012 constitution, but that will not make much of a difference given that the drafters of the 2012 constitution were themselves heavily inspired by the 1971 constitution. The problem with the short timeframe is not that drafters need more time to come up with precise formulations of the ideas that are on the table; the problem is that there is still yet no consensus on what those ideas are, or even where the table is. The assembly, or rather the country, needs far more time to engage in a deliberate and national debate on what their state and society should look like, and the authors of the new constitutional declaration have once again robbed them of that opportunity.

Articles 28 and 29, on how the committee of experts and the new Constituent Assembly will be composed, are perhaps the most surprising provisions of all, given how important they should have been and how short they are on detail. To begin with, article 28 states that six of the 10 experts on the committee should be judges. What this essentially does is create a channel through which these individuals will be able to heavily influence the rewriting of the 2012 constitution. Given how traditional and conservative Egyptian judges can be, and given how much controversy there is around their working methods in the country, article 28 has already raised a number of eyebrows. One can only hope that progressive and professional individuals will be chosen for this important task.

Article 29 provides some indication as to how the Constituent Assembly will be composed. The assembly will be made of up 50 members, who are supposed to represent all components of Egyptian society. There are also some examples of which organizations are entitled to be represented in the assembly (political parties, trade unions, religious institutions, etc.), but it does not state how these organizations will select their representatives, or how many representatives each will be entitled to. Some of the questions that this leaves open include: how many of the 50 members will be from the political parties? How many members will each party be entitled to have on the assembly? How will each party’s weight be measured? On the basis of the previous parliamentary elections? Surely not, given the context, but if not, then what will be done? Also, how will the assembly be making its decisions? By majority vote or through consensus? What will happen if the assembly does not reach an agreement? The simple answer to all of these questions is that we have no idea. Finally, the article states that youth and women will make up at least 10 out of 50 members. One of the reasons for which the 2012 Constituent Assembly was criticized was because it was so poor on youth and gender; it seems that the new assembly will not improve on its predecessor even in that respect, even though it would have been a very easy and obvious thing to do.

One final point is that the declaration provides no indication as to how the electoral laws will be drafted or even who will be responsible for overseeing those elections (article 30 states that the electoral commission will be responsible for overseeing the referendum but makes no mention of the parliamentary or presidential elections). This is a major point of contention, given how difficult and controversial the process of drafting electoral laws was during the first half of this year. The 2012 constitution provided that all electoral laws should be approved by the Supreme Constitutional Court before they enter into force; that was a very cumbersome process but it did lead to significant debate on the electoral law’s content which might have pushed it in a positive direction. Today, we have no idea how the laws will be drafted or if there will be any mechanism to ensure that it will not be stacked against particular political forces. That is the type of detail that would have been helpful to reassure opponents of the new transition process at this early stage.

Many of the country’s political forces are already clamoring for the new declaration to be amended. I wish them every success, but there is a deeper problem at play here than just which words will be put on paper. Ultimately, they will have to overcome the deeply conservative and narrow mentality of a whole generation of people who are working against genuine progress in the country. That is a challenge that every revolution has to overcome, and Egypt is no exception in that regard.