Thoughts on the March 19th Constitutional Referendum

Mar 15

Many friends and relatives have asked me whether, in my opinion, Egyptians should or should not approve the proposed constitutional amendments in the fast-approaching March 19th Referendum.  I have consistently refused, however, to express an opinion because, unlike most of the views that I have expressed thus far on the progress of the Revolution, I don’t see this referendum as representing a decisive turning point. Accordingly, it does not raise, in my mind at least, a clear issue of principle.  Moreover, my analytic response to this question (unconvinced that there is a need to adopt an entirely new constitution to replace the 1971 Constitution) is at odds with the strategy I have used since January 25, namely, to defer to the leaders of the January 25th Revolution.

Based on what I have been able to determine from the media, it seems that the Jan. 25 Youth Movement, or its leadership, is largely against the proposed amendments.  Their reasoning is that the 1971 Constitution itself is the problem, and Egypt cannot take the risk of restoring that dictatorial constitution.  With the events of Jan. 25th still fresh in the people’s minds, they argue, now is the time to strike a decisive blow against dictatorship once and for all and put in place of the 1971 Constitution a genuinely democratic constitution.  It goes without saying that the present constitution, even assuming that the proposed March 19th amendments are approved, is a deeply flawed document.  Indeed, one of the virtues of the proposed amendments is that it contemplates, expressly in the proposed amendment to Article 189, that either the President, Parliament, or both, will call for a constitutional conference that would draft a new constitution.

Having lived more than fifty years without a deep public commitment to constitutional life, it is somewhat surprising that the Egyptian people have suddenly become so enthralled with getting the constitution “right.”  As my colleague Tamir Moustafa has pointed out, correctly I believe, the authoritarian political culture of Egypt was not simply a product of the 1971 Constitution; it was largely legislation passed under its authority that allowed the Presidency to subvert the otherwise relatively democratic principles in that constitution.  More is required than constitutional reform, in other words, before meaningful democracy can be restored to Egypt.

Moreover, I think the camp that advocates getting rid of the 1971 Constitution in favour of drafting a new constitution underestimates the challenges involved in drafting a new constitution.  Egypt continues to suffer from class, sectarian, and ideological divides.  While the Egyptian people successfully overcame these differences under the banner of the January 25th Revolution that does not mean that those divisions have simply disappeared now that the Mubarak presidency has departed the stage.  They continue to exist, albeit hopefully in less virulent forms with various segments of society now better prepared to listen to its opponents and willing to engage them in a spirit of cooperation and compromise.  Yet, it is important to emphasize that other than removing Mubarak, the aspiration to move beyond old divisions has not been tested in the heat of political battle.  Prudence suggests allowing these various forces and divisions within Egyptian society more time in working together toward more mundane goals such as purging the police of a culture of torture and civil society of corrupt managers before the necessarily divisive task of drafting a new constitution is undertaken.

Finally, and regardless of the outcome of March 19’s referendum, the people will sooner or later have to confront directly the role of the military.  The military, in case there continues to be doubt, is not a revolutionary actor in this drama.  Its interest is wed to preservation of as much of the status quo as possible, as is evidenced by the fact that it only acts when pressured. Otherwise, when no one is looking, the military is not unwilling to use arbitrary arrest and even torture to intimidate citizens when it thinks it can get away with it.  What this means, effectively, is whether the amendments are passed, in which case there will be presidential and parliamentary elections in the fall, or they fail, in which case, Egyptians will proceed immediately to the drafting of a new constitution, the Jan. 25th Movement cannot let down its guard.  It must continue to increase the breadth and depth of the Revolution.

What does this mean?  The Revolution’s breadth must expand from the narrow focus on police brutality and the corruption of ministers, to the structural corruption that infected the Egyptian polity at all levels, by educating the people that their future, and the future of Egypt, can only be secured by comprehensive reform that affects all Egyptian institutions, political, civil, religious and above all, the military and the police.  The Revolution’s depth must also be expanded by increasing citizens’ consciousness of the sacrifices needed, above all from them, if Egypt is to abandon a fifty-year long tradition of dependence on authoritarian leadership.  Above all, this means enshrining a culture of democratic decision-making throughout Egyptian institutions.

I remain optimistic, despite all the obstacles that lie in Egypt’s path, primarily because I see the increasing breadth and depth of the Revolution.  At the same time, the Revolution’s supporters should be on guard not to make the perfect the enemy of the good.  In my opinion, Egyptian political culture has long strived as a primary goal to enshrine and institutionalize anti-authoritarianism as a foundational political principle.  Egyptians as of today, however, have yet to produce a liberal political culture.  That should not be surprising: many political theorists argue that a liberal political culture can only arise after a formally democratic constitution is in place and various groups in society have the opportunity to cooperate productively with other citizens whom they previously may have held in contempt on account of their ideological divides.  Overcoming these preconceptions of the internal “other” was one of the most significant accomplishments of Tahrir, but it is not clear to me whether the rest of Egypt has successfully made this transition.  Accordingly, the goal should be to maintain the revolutionary spirit among as broad a swath of the Egyptian public as possible until an anti-authoritarian constitution, and such statutes as entrenched authoritarian principles into positive law, are removed.

Once that is established, and I believe it can be done through an interim constitution, than it would make sense to open more ideologically divisive issues.  Until the basic democratic achievements of the January 25th Revolution are consolidated, however, it will be risky to seek a complete overhaul of the 1971 Constitution.

To conclude, I think patriotic Egyptians can take different positions on whether to approve the proposed amendments on March 19 and accordingly, each should vote according to his or her conscience.  If Egyptians do so, I think no matter what the result, the referendum will have a positive impact on the Egyptian march toward democracy.  No patriotic Egyptian, however, can be content with such changes, and we should all be working together over the next one to two years to ensure that the anti-authoritarian principles of the January 25th Revolution become firmly entrenched in Egypt’s new constitution – whether interim or permanent – and authoritarian statutes are expunged from Egypt’s statutory law, remembering that many forces, internal and external, have strong interests in the failure of the January 25th Revolution.


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