Amending the Egyptian Constitution of 2012: The Defeat of Popular Sovereignty

Aug 14

I originally had hoped to publish this as an op-ed somewhere, but events are spiralling out of control so quickly in Egypt that the concerns I raise here seem so trivial as to be almost laughable.  Nevertheless, since I wrote it, I decided I might as well post it on my blog.

The Egyptian government has labored to convince world opinion that the Egyptian military’s removal of President Mohammad Morsi was a vindication of the popular will, and not a military coup.  The acting foreign minister, Nabil Fahmy, stated that the military’s intervention was necessary to save Egypt’s democratic transition.  John Kerry, the U.S. Secretary of State, echoed this sentiment when he stated that the Egyptian military was “restoring democracy”.

Egypt has certainly suffered from a chaotic and polarizing transition since Hosni Mubarak’s resignation.  And while one cannot rule out the possibility that ex-President Morsi entertained a secret desire to turn Egypt into a single-party authoritarian state in the manner of Mubarak’s Egypt, a fair analysis of the legal and factual realities suggest that such a goal – even if it existed – was extremely unlikely to succeed.  Morsi, for example, never had effective control over the levers of the military and the police and so he could not have imposed himself on the Egyptian people as a dictator unless the law itself made him one.  But it clearly did not.

The Egyptian Constitution of 2012, which has been roundly criticized as “the Muslim Brotherhood constitution,” provided a robust framework for a competitively pluralistic political system.  Unlike the 1971 Constitution which it replaced, the 2012 Constitution guaranteed crucial political rights necessary for the genuine exercise of popular sovereignty: the right to form political parties (without regard to their political ideology), the right to publish print media without prior government permission, and regular parliamentary and presidential elections which, based on the five elections that took place after Mubarak’s resignation, would have almost certainly been reasonably fair and competitive.  The 2012 Constitution also limited presidents to two four-year terms, and crucially, given Egypt’s history under Mubarak, substantially curtailed the President’s unilateral right to declare states of emergency.  It also provided for a parliament that would have had real teeth, unlike the rubber-stamp parliaments that Egypt had known for the last 50 years.  Indeed, Egypt was moving for parliamentary elections in the fall which, if held, had the potential to seat a parliament with the power to remove President Morsi via impeachment or less drastically, to replace the prime minister and his government.

Despite these clear gains for popular sovereignty, the 2012 Constitution was criticized as failing to provide sufficient protection of personal rights, particularly in the spheres of freedom of expression, freedom of religion, and gender equality.  One might think that any proposed changes to the 2012 Constitution would preserve the gains in political rights while expanding the scope of personal freedoms.  All indications, however, suggest that the opposite is taking place.  Ominously, the interim constitution does not recognize the civilian president as the commander-in-chief of the Armed Forces.  It also grants the President the right to declare a state of emergency, with the approval only of his own cabinet, for up to six months without any popular accountability.  It also suspended many other political and civil rights, including the right to strike, which had been recognized in the suspended 2012 Constitution.

And if the 2012 Constitution was criticized as being non-representative, what are we to say about the process the military government has imposed for amending that document?  Ten hand-picked experts in constitutional law have been charged to propose amendments to the 2012 Constitution. These proposals are to be debated and approved by a committee of fifty, and then finally submitted to a popular referendum.  The majority of this committee of fifty, however, will be persons with strong institutional ties to the state; indeed, ten of them will be hand-picked by the military-backed interim government.  Shockingly, this regime has allocated only six spots to all of Egypt’s political parties, giving them the same number as that allocated to the Islamic and Christian Egyptian religious establishments.  This is a process designed to vindicate the interests of powerful Egyptian institutional actors, not popular sovereignty, a fact that gives the lie to Egypt’s claims that the military acted to protect democracy.

Western states are clearly uncomfortable with an electoral democracy which empowers the Muslim Brotherhood; however, instead of tacitly endorsing a coup, they should insist that Egyptian opponents of the Muslim Brotherhood, whether inside the state or outside, express their opposition democratically, and not through the barrel of a gun.  If, as appears likely, powerful state actors succeed in making wholesale revisions to the 2012 Constitution to insulate themselves from democratic accountability, the Mubarak regime will have succeeded in reinstating itself as the dominant political actor in Egypt.  Such a result would be disastrous for Egyptians and the west.  To prevent this outcome Western democracies should make clear to the interim government that they will not recognize the legitimacy of a constitutional process that rolls back the expansion of political rights ushered in by the January 25th Revolution and the 2012 Constitution.

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