The Constitutional Referendum

            Today Egyptians will go to polls to vote in a national referendum amending the existing, but suspended, constitution.   This is an exhilarating as well as confusing moment for the Egyptian people as well as for the immense popular movement for change.  It will also provide some early indications as to the balance of political forces in the country and presumably will induce the Supreme Council of the Armed Forces (SCAF) to indicate the next steps in the political process.

            What is exhilarating is that, as many Egyptian commentators have pointed out, this is the first election in 60 years whose results remain completely unknown and unpredictable in advance.  Choosing that date—a 60 year period—is itself an important political statement because implicitly it is the equivalent of saying that the last free election in Egypt was the one that brought the Wafd to power in 1950 when British troops still occupied a portion of the Egyptian territory.  It marks an agreement that, no matter how important one might believe the social policies of the Nasserist period to have been, political freedom was not in fact one of its characteristics.

            Along with free elections has come a remarkable change in Egyptian daily life that one can only hope remains a permanent characteristic: an intense interest in political discussion.  For the last two or three weeks many Egyptians have been carrying on deep and often quite sophisticated discussions about the proposed amendments.  Those who thought Egyptians were simply unconcerned with politics have, I think, learned a different lesson at least if they have been here.  Egyptians are quite concerned with politics and capable of thinking about them and arguing passionately now that their political voice actually matters.  Politics is no longer the shuffling a ministerial personnel by a distant and unresponsive government or almost entirely marginal oppositional demonstration to a distant and unresponsive government.  Now, all of a sudden, votes and thoughts matter.  Not simply intellectuals and the proverbial cabdrivers but many other people as well.  Perhaps the most eloquent example of electioneering I’ve seen so far was a young woman wearing a headscarf and long dress who was walking down a busy street  simply holding up a small circular printed placard that said “we want a new constitution” which implied her support for a “no” vote.

 Note the small disk in her right hand

            If feelings of participation and activity are strong, almost everything else about the vote and its consequences is vague and reflects the ongoing fluidity of the situation.

            There are two sets of issues at play and they intersect in a way that, as one prominent legal figure said the other day, makes many people feel as if they are at a dead-end.  Of course, in one way, this is not true but it expresses a foreboding about the absence of clarity involved in the transitional period in which the country is now living.

            Because no final official text of the amendments has been issued, it is not clear exactly what Egyptians will be voting on today.  Officially they will be voting on a set of amendments that open up much more space for nominations for the presidency and that place significant limitations on presidential power without actually transforming the office.  Most important at present is that the amendments open the door to a new constitution without requiring that one be presented.  In other word, the amendments make a new constitution more likely but by no means guarantee that one will be forthcoming.  So one set of issues is that voting “yes” in the referendum makes real but quite limited changes in a constitutional document that was written to be the foundation of authoritarian power.

            The other problem is that the army still seems to be planning to return power to a civilian government as rapidly as possible although whether parliamentary elections will precede presidential ones (or the reverse) is, like everything else, quite uncertain.  The prevailing thinking is that rapid parliamentary elections favor the Muslim Brothers (MB) and what remains of the old ruling party (the National Democratic party or NDP) at the expense of liberals, leftists, and secularists.  This has placed many liberals in the paradoxical situation of calling for the army to remain in power longer while the MB and NDP seem to be calling for the rapid restoration of civilian rule and parliamentary elections.  So it is widely believed that a “yes” vote favors the MB and NDP both of which have called for a “yes” vote.  Whether the MB and the NDP can actually get broad support for the leadership’s positions remains to be seen.  On the other hand, it is probably true that many Egyptians may vote “yes”cause they think it is the quickest and surest way to get the army out of the business of governing.  Their concern is that once the army becomes used to maintaining power Egyptians will be living once again be living in a world in which the army, however screened by nominally civilian politicians, effectively controls society with the help of a renewed security apparatus.

The bulk of the other parties and the bulk of the still unorganized young people who formed the leadership of the January 25 movement have called for a “no” vote.   Instead of calling the proposed changes “amendments”, they have taken to calling them “patches” and have called on people to oppose “constitutional patchwork.”  These are, of course, exactly the kinds of people who ordinarily would oppose prolonged military rule.

Under the pressure of a truly free election and the new political atmosphere the hierarchical power of the old parties and movements is breaking up.  Although the MB narrowly avoided a confrontation with its youth cadre last month there are indications that the conflict inside the organization is once again heating up.  Consequently in early elections the MB may no longer be a single unified movement nor may it do as well as its leaders and its most determined opponents believe it can.

Interestingly enough most of the likely presidential candidates including  Muhammad al-Baradei (the former head of the International Atomic Energy Agency) and Amru Moussa (former Foreign Minister) have come out for a “no” vote.  For Baradei this may be largely a matter of personal belief and for Moussa largely a question of how he thinks his likely constituency thinks although elements of both calculation and sentiment are at play for both.  The noted televangelist, Amru Khalid, who is touted as a presidential candidate for the secular Wafd party has also come out for a “no” vote as has the movie star Basma whose grandfather was a prominent Communist leader the last time Egyptians voted in a free election.

One very important aspect of the vote has nothing to do with its content.  Rather it is the intense concern about the constitution as a legal document that many Egyptians—both legal scholars and jurists as well a ordinary citizens—evince.  During the collapse of the Eastern European and Soviet governments there was relatively little popular or elite concern with revising the constitutions of the old regimes.  Apart from removing clauses about the leading role of the communist parties the old constitutions were, for a variety of reasons, left largely intact until they were completely re-written several years later.  In other cases of military coups I understand from Northwestern University law professor Kristen Stilt the constitutions were abrogated rather than suspended as was the case here last month. 

One profound difference between Egypt today and those other situations is that the judiciary has retained something of its autonomy and integrity throughout the last 60 years.  As a consequence even if the old parliament and presidency have lost whatever legitimacy they had that is not true of the judiciary which continues to have significant legitimacy and popular respect.  So much so that the judiciary remains the preferred institution for overseeing elections (as opposed for example to the clergy which no one would propose oversee the elections).  In such a situation the constitution and the legal structure that it generates and that has provided Egyptians with one of the few avenues for protest over the past 30 years (which will be the subject of a forthcoming book by Professor Mona al-Ghobashi I hope), the constitution has become a significant part of the political culture of modern Egypt.

This election seems to me to have less to do with the amendments themselves than with the profound emotions that underlie all political activity.  There is significant and profound pride and joy in simply having the first free elction in the memory of most living Egyptians.  And then there are a wide range of political calculations.  But people will also be voting out of their hopes and their fears.  Oddly enough a similar mix of hope and fear seem to be driving people on both sides of the debate.  Fear that the forces arrayed against democracy will use a period that is either too long or too short to consolidate themselves and hope that the process of building an Egyptian democracy can go forward.  The most hopeful single aspect of what is going on at the moment is that partisans of both “yes” and “no” seem to recognize the legitimacy of the other side’s arguments. 

Besides the question of which side wins, the election will provide the first window into the relative strength of the contending forces.  For the first time Egyptian political analysts will be poring over district level returns and trying to gauge the relative strength of the MB, the NDP, the secular opposition, the salafiyyin (extreme Islamists), and the Christian hierarchy. 

           

           

Constitutional Amendments and Elections

            The committee to propose amendments to the constitution has completed the first, and primary phase of its work.  It has submitted a report to the Supreme Committee of the Armed Forces (SCAF) proposing a series of amendments to the existing but presently suspended constitution.  The texts of the proposed revisions has not been made public but Tariq al-Bishri, retired judge and chair of the committee, made a fairly complete presentation of the gist of the proposals at a press conference. 

            I don’t think anyone has actually disagreed with the content of the proposed revisions although at least one item has attracted some puzzlement so in one sense they are positive, uncontroversial and welcomed.    In addition the committee has already made some important proposals about the mechanics of voting that are widely welcomed and will considering proposals about amending some relevant existing legislation.

            Despite the assertions of the committee’s independence, there is very little reason to doubt that SCAF was aware of the proposals as they were debated or that they will come as much of a surprise to the military leaders.  So the proposals are quite likely, after some period of public debate, likely to be put before the public for a referendum as planned in April.  Parliamentary elections may well follow in June with a new presidential election tentatively scheduled for August although this is not yet clear.  The electoral sequence will give us some idea of just what kind of regime will emerge from this huge upheaval.  The rapidity of the proposed schedule is not, as far as many Egyptians are concerned, an especially good omen but as with so much else things change greatly with immense rapidity these days in Egypt.

            What has stirred significant debate are two items connected with the committee and its agenda.  The first is whether the existing constitution should have been (or even can be) amended.  The second is whether the committee should have considered several important clauses that it avoided.  Since Americans (and I would guess also Europeans) tend to focus on the role of the Muslim Brothers in elections and whether Egyptians are ready for democracy (Bernard Lewis says no but Nicholas Kristof says yes), it might be useful to expand a bit on the discussions that Egyptian legal scholars and professionals are having these days. 

            For several weeks there has been a significant, albeit minority, body of opinion that the constitution neither should have been amended nor in fact can be amended.   Although this sounds like an outrageously radical idea that only a handful of people could hold, it is a well-considered idea propounded by several important legal figures including a former head of the Judge’s Club and a sitting Supreme Court Justice.  One form of this argument is that the massive demonstrations in Tahrir themselves destroyed the old regime and its foundational documents.  Another is that since the SCAF itself has no constitutional existence (there is a military council mentioned in the Constitution but it’s not SCAF and it’s headed by the now-resigned president Mubarak) and has taken control of the government by extra-constitutional means the constitution is not “suspended” as the military believes but has ceased to exist.  This is not a majority opinion but there is no doubt that, with parliament dissolved and the constitution suspended, Egypt is in something of a constitutional and legal limbo for the time being while crucial decisions about the restoration of civilian rule, the timing and order of elections, ministerial organization and even the minimum wage are all made by military decision.  So far this has been done military announcements rather than military decree.  Just this morning (March 1) the military decided that, for the time being, there will be no sales or purchase of real property in Egypt.

            Within the legal profession and among the Egyptian public and certainly among the members of SCAF, however, the dominant view appears to be that the constitution, although suspended by a non-constitutional body, continues to have some kind of ghostly existence.  More to the point, the existing constitution, as amended, will be the basis for the re- constitution of civil government in Egypt.  This, along with some of the proposed changes, has real consequences that may not be immediately apparent.

            Before January 25, 2011 Egypt had just held elections that eliminated the opposition from essentially any role in parliament.  It was in part widespread public revulsion at the open and wide-spread fraud that sparked the January revolt.  In the normal course of business the 2010 parliamentary elections were due to be followed by presidential elections in the fall of 2011.  These elections were to be conducted under a very restrictive set of constitutional provisions that made it nearly impossible for anyone other than an official leader of the government National Democratic party (widely believed to likely be Mubarak’s son Gamal in the event Mubarak himself did not choose to run again) to the office of president. 

            One thing that is important to keep in mind is that under the existing constitution the president is an extremely powerful figure.  Although a parliament must meet in November according to the constitution, the president may convoke it earlier.  It does not seem to have the power to convoke itself.  The President also chooses the Prime Minister and other minister as well as the Vice President.  The President may also issue decree-laws but while the president may propose constitutional amendments he may not himself make them.  In the “ordinary” constitutional scheme, then, there should be a presidential election in the fall of 2011. 

           

            So what has the amendment committee proposed?  They have not changed very much of the president’s power.  They appear primarily to have focused on vastly expanding the openness of the electoral process and to have limited those areas of presidential power which have been most resented, most egregious and which may be inherently most liable to abuse.  They have assumed that, even if the old constitution temporarily will be in place, it will be re-written within the next year.

            It has also proposed that voting be based not, as in the past, on the basis of registration on electoral registers but simply based on the presentation of the national identity card (or so-called “national number”).  This is certainly also a welcome change and would be broadly similar to the use of so-called “motor-voter” rules in the United States.  It would ensure that citizens easily be able to use the franchise.  The old system was clumsy at best and extremely prone to abuse and falsification at worst.  No Egyptian will soon forget the viral videos of election officials “casting ballots” wholesale during the 2010 elections while voters were frequently denied physical access to polling stations.

            In regard to presidential elections they have made it much easier to run for president.  Effectively any Egyptian citizen (and only those who are solely Egyptian citizens) who is the child of Egyptian citizens (and married to an Egyptian citizen) can run if they can get 30,000 other citizens from several provinces to sign petitions.  In other words, anyone with even relatively small support spread across the country can run.  Parties with even a single seat may also nominate candidates.  The presidential election itself will be supervised by the judiciary.  It is not clear why marriage to an Egyptian citizen is a matter of principle but it does, along with the revised provision that candidates can only have one citizenship (Egyptian), have an immediate practical effect.  It means that Nobel prize winning chemist, Ahmad Zuweil, who was considering a run for the presidency can now disband his efforts.  Although born in Egypt, he is an American citizen and is married to a Syrian.  Thus one possible “technocratic” and non-professional politician has been eliminated.  Two figures who remain are Muhammad Baradei, the former head of the International Atomic Energy Agency, who is well-known in the US and has been in Egypt for over a year and Amr Moussa, the secretary-general of the Arab League and former foreign minister (for Mubarak) in the 1990s.   The proposals would also require the president to appoint a vice-president rather than making the vice-president an elected office.

            Other changes in the constitution eliminate parliament’s absolute right to seat its own members.  Where the present constitution gives the Court of Cassation (the highest appellate court) the right to look into complaints about election practices the parliament is not required to abide by the court decisions.  The revisions would transfer the final decision on seating members (at least in regard to electoral practices) to the Supreme Constitutional Court.  This would make Egypt one of the few places where the legislature is not the judge of its own members.

            The proposals also severely limit the ability of the president to invoke a state of emergency.  In effect, the president cannot invoke such a state on his own for more than a week nor can he continue it for more than 6 months without winning a plebiscite.  The committee also proposed eliminating the president’s right unilaterally to transfer terrorism cases to any tribunal of his choice.  Mubarak often referred civilians to military courts but that would no longer be possible and cases would once again necessarily be tried in what the constitution refers to (somewhat opaquely in the view of more than a few scholars) as their “natural” jurisdiction or in the official translation “competent judge.”

            One other proposed constitutional amendment is to allow, in addition to the president who already has this right, half of the legislature to request amendments to the constitution or the writing of a new constitution.  Given that the committee has proposed that the new parliament elect a constituent assembly within 6 months of its own convocation and that a new constitution be voted on within 6 months after that this last proposed amendment may seem supererogatory.

            As of this morning the schedule for the restoration of civil government looks like this:  in early April a plebiscite on whatever proposed amendments SCAF puts before the people (probably all of them).  As things stand now it has been proposed that parliamentary elections be held in June and presidential elections in August. 

            So here is where things get interesting if a bit technical.  Under the existing constitution Egypt has a bicameral legislative body.  Legislative power lies with the  People’s Assembly (Maglis al-Shaab) which is wholly elected based on districts.  Under the existing constitution half the seats in this house must be held by workers and peasants.  While these are broadly defined, it has proven difficult in the past for largely middle class parties (such as the Muslim Brothers and the Wafd but this would certainly be the case for many “youth” or “Facebook” parties) to find enough workers and peasants to run.  SCAF could propose scrapping this bit of Nasserist window-dressing which reinforced the power of the state but if not it may, paradoxical as it may seem, limit rather than enhance democracy. 

            There will probably be more parties running.  The moderately Islamist party, Wasat, has just been given legal status by the relevant court decision.  The Muslim Brothers have announced that they will form a party to be called the Justice and Freedom party which will abide by the principles of the MB without necessarily being directly subordinate to it (and yes, everybody—including members of the MB—are as puzzled about what that means as are you and I), there are plans to create a unified leftist party as well as a January 25 party.  No doubt there will be more.  In addition there is always an 800-pound gorilla somewhere.  Here it is the government National Democratic Party of Husni Mubarak.  Despite repeated requests by activists it has not been dissolved.  While the party may be widely discredited among many sections of the population (notably urban and as class sectors) it may also have a second life as the primarily patronage-driven network many academic observers believe it had become in the past decade.  In other words, the NDP may remain as a vehicle for already-existing political professionals at the local level to maintain access to the state.

            The so-called Shoura Council is not exactly a second legislative branch.  Some people have argued that, in the absence of a federal system, it simply ought to be abolished.  It does not legislate but it does have the right to advise and comment on legislation.  Like the People’s Council half of its members must also be workers and peasants but in addition one-third of its members are directly chosen by the president. 

            It is now somewhat easier to see why the sequence of elections from here on out matters.  If parliamentary elections are held first and if SCAF decides that parliament can meet before November without being convoked by the president then it can begin the process of writing a new constitution.  It can do so without someone wielding the still-great powers of the president in the wings.  It can also do so without having presidentially appointed-members in its midst although it may still have a large number of NDP deputies.  Such a parliament might well be interested in enhancing its own power relative to that of the executive.

            Amr Moussa has a different proposal.  He would prefer that Egypt retain a strong presidency.  He would also prefer that the presidential elections precede parliamentary elections and he has made it clear in interviews that he expects, certainly if elected to the office himself, that the president and not parliament will play a key role in writing the new constitution or significantly revising the old one.  Should the president be elected first he will wield significant powers, official and unofficial, over the two elected bodies.  Baradei has not yet made his ideas explicit but he has suggested that the more quickly elections are held the less likely it is that the ideals of the January 25 revolt will be put into action.  He, like many others, fears that quick elections favor already organized political forces (certainly the MB but also the NDP or whatever remnants of it contest for power).  Like some of the legal experts as well as many activists he seems to prefer a longer period in which a socalled technocratic (or caretaker) government rules while a constituent assembly is elected and a new constitution written.  This current of opinion therefore argues for a longer transitional process but (and this is important) one not overseen by the army.

            The huge and on-going demonstrations in Tahrir Square are now a thing of the past.  While there may be more large demonstrations, they are at least for the moment not continuous.  The economy is disrupted by strikes but these frequently come and go.  Workers obviously feel empowered to demand higher wages or better treatment and there is much to be said simply for changing the very complicated (and inherently not very fair) way in which wages are calculated.  But these do not challenge the political system in the way that massive revolt of late January and early February did.

Reporters and op-ed writers have moved on to Libya, Wisconsin, or other places where courageous people are accomplish exciting goals.  I certainly would not expect Tom Friedman or Nicholas Kristof to remain in the Semiramis Hotel and follow the minutiae of Egyptian constitutional law and politics as it gets played out           

in meeting rooms both ornate and shabby or in the connecting corridors.  But in fact that is where the next phase of Egyptians’ struggle to achieve a more accountable political system is going to be played out.  The decisions will seem to be dry, technical and remote.  But they will be profoundly consequential and their effects will be wrenchingly immediate (as with Zuwail’s candidacy) as well as long-term.