Why Morsi's mess will have a long legacy

Egypt's Constitution Conundrum | Foreign Affairs

The bottom line from Nathan Brown's latest on the draft constitution:

It makes little sense to read such provisions in the abstract: mechanisms of accountability work quite differently depending on who is in government. And here there is cause for worry. As long as Islamists keep winning parliamentary and presidential elections, there will likely be no push to rein in the presidency. But if the two authorities fall into competing hands, the new constitution could produce gridlock rather than real oversight.

For too long, observers have analyzed the prospects for democracy in Egypt by speculating about the intentions of important politicians and movements. Now almost everyone in the country claims to be a democrat, even if they all have very tarnished credentials. But the viability of Egyptian democracy depends not on real or claimed intentions but on healthy processes, accepted rules, and well-designed structures. And that should give us little reassurance.

Of course a constitution produced in a rushed process that created extreme polarization and a sense of injury among large elements of society is not going to result in that.


Issandr El Amrani

Issandr El Amrani is a Cairo-based writer and consultant. His reporting and commentary on the Middle East and North Africa has appeared in The Economist, London Review of Books, Financial Times, The National, The Guardian, Time and other publications. He also publishes one of the longest-running blog in the region, www.arabist.net.

Holy crap

Egypt constitution draft to be finished Wednesday | Reuters

Nov 28 (Reuters) - The head of the assembly drafting Egypt's new constitution said the final draft would be finished on Wednesday, and three other members of the assembly told Reuters the document would be put to a vote on Thursday.

"We will start now and finish today, God willing," Hossam el-Gheriyani, the assembly speaker, said at the start of a meeting of the constitutional assembly in Cairo. He said Thursday would be a "great day", without elaborating, and called on the members who had withdrawn from the body to return.

Even if it's approved tomorrow, there has to be a referendum on it. Victory is not guaranteed and a referendum will take at least a couple of weeks to organize. The supervisory commission to run it would be difficult to form, because it has to include senior judges who would likely boycott it, and judges are supposed to also be present at polling stations. All this points to a royal mess, a constitution that has no legitimacy among a big part of the public, and gives the opportunity to the Salafis — whose votes the Brothers now need to approve the latest draft — to introduce modifications to the text. 

I wonder if there are Constituent Assembly members left who oppose this — they might delay the process through a technicality, creating enough time for the SCC to rule (one way or the other) on the legality of the Assembly.


Issandr El Amrani

Issandr El Amrani is a Cairo-based writer and consultant. His reporting and commentary on the Middle East and North Africa has appeared in The Economist, London Review of Books, Financial Times, The National, The Guardian, Time and other publications. He also publishes one of the longest-running blog in the region, www.arabist.net.

In Translation: Nader Fergany on the Egyptian draft constitution

These days in Egypt, plans always seem to be overtaken by events. This week’s translated article from the Arabic media — made possibly by the wonderful translations service Industry Arabic — was selected before the current political crisis over President Mohammed Morsi’s decree erupted on Thursday evening. Then, aside from the conflict in Gaza, the biggest issue in Egypt was the withdrawal of secular forces from the Constituent Assembly and the debate over the draft constitution. I chose the article by Nader Fergany out of a torrent of articles on this issue for two reasons: first, Fergany was the lead author of the first Arab Human Development Report, which (for all the criticism it received) I think can be fairly described as one of the intellectual underpinnings of the movement against dictatorship in the last decade. Secondly, Fergany (while he is a secularist, leftist and rather irascible nationalist) eschews the two typical responses you tended to have in the media, where partisans either said the draft constitution is great or it was a disaster.

The draft constitution is better than expected, but…

Nader Fergany, al-Ahram, 18 November 2012

The corruption of political life for an entire people, including the oppression and pauperization of its vast majority, is an abominable crime that I believe needs to be dealt with as a crime against humanity deserving of the most severe punishment. It shall not be allowed to forgotten, nor shall its perpetrators be tried solely within the confines of the country in which they corrupted politics.

The authoritarian regime—against which the great popular revolution rose up at the end of January 2011—sold the Egyptian people the most despicable forms of the corruption of political life for many decades, leaving in its wake a deep heritage of oppression, poverty, and social injustice that accumulated until the people could bear it no longer. They rose up in hopes of securing the noble ends for which the demands of the revolution were drawn up: freedom, equitability, social justice, and human dignity. Unfortunately, the transitional period’s government was intent on acquitting those who were responsible for the corruption of political life before the revolution from having to face the punishments necessary for just retribution, which has contributed to post-revolution corruption in political life. This corruption has resulted in a state of confusion and legislative and political blunders as a result of the path the elections took before the constitution, which is reflected in the controversy and disputes around the Constituent Assembly and the draft of the constitution prepared by the assembly.

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Nevermind the deep state, here's the shallow but pervasive state

Egypt's State Constitutes Itself - By Nathan J. Brown | The Middle East Channel

Brown on the Egyptian corporatism and the degree to which state institutions have gotten to define their own position in Egypt's constitutional debate, in negotiation with the MB:

But this is no long-term solution. It rests in part by awarding critical institutions more autonomy from external oversight than is appropriate in a democratic system. So the short-term problem may be too much autonomy for these bodies. Over the long-term, there may be the precise opposite problem: the autonomy of many bodies will rest on implementing legislation (for instance, the provisions for the Supreme Constitutional Court allow the current law to be maintained but do not prevent future changes in that law). A series of Islamist majorities might chip away at the freedom that state bodies now seem to think they may be achieving through the constitution.

So in the end, if things work badly, the result might look a bit more like the Mubarak regime than anyone now wants. Mubarak's authoritarianism was presidential and despotic to be sure, but it was not based on having the presidency micro-manage the affairs of various state bodies. Instead it was based on placing those bodies in reliable hands, coopting key members, and reining them in if they suddenly discovered ways to act too autonomously of presidential will.

If Egyptians are not careful they will slip back into that pattern. In the end, there is simply no substitute for healthy democratic competition.


Issandr El Amrani

Issandr El Amrani is a Cairo-based writer and consultant. His reporting and commentary on the Middle East and North Africa has appeared in The Economist, London Review of Books, Financial Times, The National, The Guardian, Time and other publications. He also publishes one of the longest-running blog in the region, www.arabist.net.

What Tunisia Did Right

What Tunisia Did Right - By M. Steven Fish and Katherine E. Michel | Foreign Policy

I missed this piece a couple of weeks ago:

Yet a fact of great weight remains: Tunisia has made remarkable progress toward democracy. To a greater extent than any other country, it has shaken the perception that Arabs are destined to suffer the tutelage of monarchs, militaries, or mullahs. Why is Tunisia leading the way? Institutions -- and especially the constitutional order -- are a big part of the story. Much press coverage has focused on whether Tunisia's new constitution will contain a blasphemy clause. Of far greater import will be how the new fundamental law distributes power between the executive and the legislature. On this vital matter, Tunisia is getting it right. According to a recent empirical study we conducted, Tunisia's decision to create a system with a strong parliament and a constrained president is a recipe for robust democracy. Other countries in the Arab world can learn from Tunisia's example.

I think they've got half the story. The other half is a far more reasonable political class that steered the country wisely through the first six months or so after the fall of Ben Ali, a secular-Islamist divide where at least some people had the sense to build bridges across, and a transitional administration led by an elderly man, Beji Caid Essebsi, who was much more on the ball than the awful leadership provided by Hussein Tantawy's SCAF in Egypt. No wonder they can say "Tunisians are uprooting dictatorship, not merely expelling the dictator." 


Issandr El Amrani

Issandr El Amrani is a Cairo-based writer and consultant. His reporting and commentary on the Middle East and North Africa has appeared in The Economist, London Review of Books, Financial Times, The National, The Guardian, Time and other publications. He also publishes one of the longest-running blog in the region, www.arabist.net.

Egypt's draft constitution, translated

The full translation of the official draft of the new Egyptian constitution — which will probably be significantly revised in the next two weeks — has been made available by IDEA. You can get it here [PDF] and marvel at how badly it is written, starting from article 1:

The Arab Republic of Egypt is an independent unified and sovereign State that shall not accept division. The Republic enjoys a democratic system of government. The Egyptian people are part of the Arab and Islamic nation and are proud to belong to the Nile Basin and Africa and of its connections to Asia, and contribute positively to human civilization. 

It forgot to mention that they are ahsan nas and that their hair smells really good. 

I wish I had time for more serious commentary — the bits where it contradicts itself, the runway conservative populism, and many grey areas — but I simply don't.

Update: The Atlantic Council's Egypt Source has an alternative translation.

Issandr El Amrani

Issandr El Amrani is a Cairo-based writer and consultant. His reporting and commentary on the Middle East and North Africa has appeared in The Economist, London Review of Books, Financial Times, The National, The Guardian, Time and other publications. He also publishes one of the longest-running blog in the region, www.arabist.net.

Podcast #36: Mean Streets

Back for another podcast! Ashraf tells us about his ordeal in Tahrir Square, where secularists gathered against Muslim Brotherhood domination. We take a look at the political dynamics of the fight over Egypt's constitution, and the possible scenarios it could lead to. And finally we discuss the last US presidential debate, or at least the bits that have to do with the Middle East, and wonder at the lack of big ideas on either side.

Show notes:



Podcast #36:

Egypt’s Draft Constitution Opens the Door to a Religious State

Egypt’s Draft Constitution Opens the Door to a Religious State

Ragab Saad, for the Atlantic Council's Egypt Source:

If this constitution passes, it will be the first Egyptian Constitution that adopts a specific religious doctrine for the state. It also means that ancient texts on Islamic jurisprudence, and others that may not even exist anymore, will become sources of Egyptian legislation from which a parliamentary majority may select what it wants from its provisions, instituting authoritarianism in the name of religion. This scenario is the driving force behind the insistence that the constitution provide for a democratic regime in Egypt based on the principles of "Shura" (or consultation). It is an ambiguous concept that has no specific legal characterization, but it refers to a legacy of jurisprudence that ensures that “Shura” does not belong to the ruler alone. This is the essence of democracy.

The political climate in Egypt appears volatile, heated, and tense, with no signs of the social or political consensus necessary for the drafting of a new constitution. In the event that the Administrative Court dissolves the current Constituent Assembly, President Mohamed Morsi will form a new assembly under the provisions of Constitutional Declaration he issued in August. The president will not likely be able avoid a renewed crisis in the Constituent Assembly, and by extension the perpetuation of the conflict between Islamist parties and civil political groups. However, it is worth noting that the civil forces have yet to formulate a clear vision on the formation of the Constituent Assembly if the court rules to dissolve the current Assembly.

Yup on all counts.


Issandr El Amrani

Issandr El Amrani is a Cairo-based writer and consultant. His reporting and commentary on the Middle East and North Africa has appeared in The Economist, London Review of Books, Financial Times, The National, The Guardian, Time and other publications. He also publishes one of the longest-running blog in the region, www.arabist.net.

Egypt's new constitution

Egypt's constituent assembly is working away at the country's new constitution, which they hope to finish and put to a referendum by the end of the year. 

Some articles of concern so far are article 8, on religious right and freedoms, which states that "freedom of belief is safeguarded" without specifying that the state is responsible for doing the safeguarding and gives the three heavenly religions (therefore limiting recognized religions to Islam, Christianity and Judaism) the right to practice but only "according to the law and without violating the general order"; and article 36, on women's rights, which states that "the state will take all legislative and amdministrative measure to entench the principle of women's equality with men in the political, cultural, economic and social fields as long as it does not violate the rulings of Islamic Sharia [...]."

The much-discussed article 2  for now remains the same (I believe) as it was in the 1971 constitution, invoking "the principles of Sharia" as "the main source" of law.

Another area of concern is an article that would make the ancient religious institution of Al Azhar the official "reference" for determining whether legislation is in accordance with Sharia. This idea keeps being taken up then taken back then taken up again by Islamist parties, seemingly based on their sense of their capacity to eventually control Al Azhar.  

The assembly actually has a pretty good website, where you can look up draft artices (and give them thumbs up or down) and read the minutes of the 12 general assemblies held so far. But sessions haven't been televised (which would have reached a much wider audience), the negotiations over various articles remain an opaque affair and generally there has not been an effort to engage Egyptian society in a real debate over the constitution.

A number of liberal and secular figures — already great underrepresented in the assembly — have boycotted. They are likely to be unhappy with the final result, but it is doubtful that they have the leverage necessary to challenge it -- with the army now largely out of the equation and with President Morsi holding the power to dissolve and reconstitute a new assembly of his own choosing (Morsi recently said he cannot interfere in the constitutional assembly's negotiations, which — given the sword of Damocles he holds over the entire process —is patently disingenuous). 

So far as I can tell, there is little indication of the powers of the presidency being dramatically diminished. The upper house of parliament — the Shura Council — which has been largely considered an irrelevant, influence-peddling body, is apparently to stay. And the question of what kind of electoral system Egypt will adopt (individual candidates, party lists, or some combination of the two) remains under discussion. 


Ursula Lindsey

Ursula Lindsey is the managing editor of the Arabist blog. She writes about culture, education and politics in the Arab world. She lived in Cairo from 2002 to 2013 and got her start at the ground-breaking independent magazine Cairo Times. She was the culture editor of Cairo magazine in 2005-2006 and served as special projects editor at the independent news site Mada Masr in 2013-2014. She is the Chronicle of Higher Education's Middle East correspondent. She contributes to the BBC-PRI radio program The World, and has written for Newsweek, The New York Times, The New Yorker online, Bookforum and the blog of the London Review of Books.

Egypt: Morsy Tells Local Community in U.S - I Have No Power to Interfere in Constituent Assembly Works

Egypt: Morsy Tells Local Community in U.S - I Have No Power to Interfere in Constituent Assembly Works

This is B.S., because Morsi clearly has moral authority to help strike a compromise agreement between political leaders, and is able to dissolve this assembly and appoint another. If he is to be the "president of all Egyptians" he claims to be, one would think he would have gathered political and civil society leaders around the table for this. But perhaps he believes, accurately, that the gap between Islamists and secularists is too great for compromise and wants to see his fellow Islamists get their way.


Issandr El Amrani

Issandr El Amrani is a Cairo-based writer and consultant. His reporting and commentary on the Middle East and North Africa has appeared in The Economist, London Review of Books, Financial Times, The National, The Guardian, Time and other publications. He also publishes one of the longest-running blog in the region, www.arabist.net.

Monopolizing Power in Egypt

Monopolizing Power in Egypt

Michael Hanna is completely right in this Foreign Policy piece:

As a matter of democratic principle, the concentration of political power represented by President Morsi's constitutional decree is wholly objectionable. These actions are even more objectionable coming as they do in the midst of a transition that will define the parameters and fundamentals of a new political and constitutional order. As a result of the self-granted authority to appoint a new constituent assembly if the current body fails to produce a constitutional draft for ratification, President Morsi will have vast coercive authority to influence the drafting of the constitution. In light of the decisive role of his Muslim Brotherhood colleagues and other Islamist allies on the assembly, the work of the current assembly could be intentionally undermined in the hopes of a more compliant body selected by the president. While political constraints might curtail the practicability of this threat, it nonetheless might influence the contours of discourse and debate within the assembly.

Furthermore, the domineering approach of the Muslim Brotherhood to the transitional period and their exercise of political power should give pause to those beguiled by assurances of inclusion and broad-based political consensus. The track record of the Brothers during this period is characterized by promises broken and silence in the face of SCAF abuses, such as military trials for civilians and the application of the emergency law for most of the SCAF's tenure. The Brothers, in tandem with the SCAF, also sought to tarnish those intent on continuing the protest movement through mass mobilization and public actions. Their tenure in parliament was marked by unilateralism, lack of consultation, and consistent efforts to dominate all facets of the political process. While giving rhetorical credence to notions of inclusivity and consensus, their attempts to dictate the constitutional-drafting process belied any such assurances. With institutional aggrandizement as their lodestar, the Brothers managed to alienate nearly the entire Egyptian political class. With this recent history in mind, it is unreasonable to accord them unlimited faith and trust -- faith and trust that would be misplaced if accorded to the most enlightened of philosopher kings.

And he even offers some options:

As such, a constitutional decree could embed checks and balances on executive authority. This is complicated by the absence of a parliament after it was dissolved by the SCAF in accordance with a judgment by the Supreme Constitutional Court (SCC), but there are imaginative alternatives if there is a will and interest in political balance. One such approach would be to vest temporary legislative authority in the currently-functioning constituent assembly. Another alternative would be to construct a broad-based council composed of diverse representatives of the political class whose ratification of legislation would be necessary for promulgation. The president could also issue a transitional decree enshrining individual rights to blunt concerns that this government will now consolidate power by silencing critics and muzzling expression. None of these options are ideal, but they are a qualitative improvement over dictatorial power.

I made a similar argument in my National column yesterday:

It might be argued that in the absence of a parliament, Mr Morsi had no choice but to assume these responsibilities - someone had to other than the military. But, considering the legal and constitutional limbo he is operating in, it might have been wiser to ensure power is shared or at least to engage other political forces.

The appointment of the new vice president, Mahmoud Mekky, a senior judge said to have Brotherhood sympathies who was a leader of the fight for judicial independence under Mubarak, reinforced the perception that Mr Morsi is not reaching out. Christians, women and personalities of diverse political backgrounds have not been promoted despite Mr Morsi's pledge to be a uniter.

In Mr Morsi's defence, he is not alone in bearing responsibility for this. Over the past month and a half, many personalities - from young revolutionaries to secular politicians - turned down offers from the Morsi administration, preferring to remain in opposition.

The calculus then may have been that, as long as Mr Morsi and Scaf were at loggerheads, it was better to be on the outside - or even simply that participating in an administration that lacked formal power was pointless. Well, the situation has changed. Being in government in today's Egypt is an ungrateful proposition, but one cannot simultaneously complain of a Muslim Brotherhood hegemony and reject offers of power-sharing without even testing if they are genuine.

On Sunday, Mr Morsi should have called for a national conference to hammer out a compromise on the constituent assembly. He can still do so, and perhaps even delegate legislative power to that assembly or give it some kind of veto over new legislation.

I think it's very important to stress that there is no reason to expect magnanimity from the Muslim Brotherhood and Morsi. They appear to have a clear idea of what they want and how to implement it. Their opponents should also have a clear idea of what they want, be willing to get their hands dirty and take up opportunities to have a seat at the table. The various parties should now make their demands, and the conditions of their participation clear — personally, I think they need to demand that Morsi amend his recent changes to the constitution by withdrawing his power to appoint a constituent assembly and delegate legislative power to a new assembly. They better articulate that demand clearly and show a strong consensus.

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Issandr El Amrani

Issandr El Amrani is a Cairo-based writer and consultant. His reporting and commentary on the Middle East and North Africa has appeared in The Economist, London Review of Books, Financial Times, The National, The Guardian, Time and other publications. He also publishes one of the longest-running blog in the region, www.arabist.net.

No matter which way you look at it, trouble ahead

As I warned on Twitter, there should be caution about rushing to think Mohammed Morsi is Egypt's next president. From my understanding from this morning's figures, the difference between he and Shafiq is about 900,000 votes with over 3,000,000 votes uncounted. The Presidential Election Commission says it will not give the final results until Wednesday or Thursday and there is likely to be some contestation by both sides, and perhaps even partial recounts. Ultimately what the PEC says will hold, since you cannot appeal their decision.

So one real possibility is that Shafiq will be declared president and the MB, having already announced its victory, will go ballistic. Or that Shafiq will lose and his supporters will go ballistic.

And then there's the question of parliament. It's still expected that tomorrow MPs (at least Islamist ones) will march to parliament to hold a session on which they will decide parliament's response to the court verdict. Except that parliament is surrounded by army troops who have orders not to let anyone in.

Likewise there is confusion about the state of the constituent assembly — notably whether the one appointed by parliament last week (which has already had walkouts by secular members because of a dispute on its composition) is still valid. When the Supreme Constitutional Court dissolved parliament, it specified that its actions were still valid. There was a law on the formation of the constituent assembly passed last week, but SCAF did not sign it. So it's probably not valid. And SCAF clearly seems to intend to form its own constituent assembly with its own rules, different than those agreed upon in the negotiations of the past two weeks (one sign if the requirement of an 80% approval of the draft text, as opposed to 67%).

Finally last night the Muslim Brotherhood (to its credit) said it does not recognize the new constitutional declaration issued by SCAF as legal or valid. So that's another fight.

So to recap, you have a possible fight on the result of the presidential election, an almost certain fight on the fate of parliament and the constitutional declaration, and a longer-term fight on the drafting of the future constitution. If you're not worried already, start worrying now.

Update: Another way to look at this is that the MB is being forced to pick its fights. It can't challenge on all front, so what will it choose to focus on, the presidency, the parliament, or the constitution? Especially as it has no major allies and very few political actors, including the MB, has a history of acting on principle. 

Update 2: I am reminded by Ed Webb that there is case to dissolve the Muslim Brotherhood that will begin tomorrow, adding another threat to the Brothers should they contest the above.

An instant analysis of Egypt's new constitution

Nathan Brown — a professor at GWU and Carnegie Scholar whose fantastic writings on Egypt’s transition you can find at Foreign Policy and Carnegie among other places — has hastily jotted down some very quick observations on the supplementary constitutional declaration just issued by SCAF (here's a scan of the constitution [PDF] Update: English text.). Here they are:

The supplementary constitutional declaration really does complete the coup in many obvious ways–basically returning martial law (in its more original sense rather than the “state of emergency” that just expired), making the military unaccountable, and grabbing back oversight of the political system for the military just weeks before the scheduled end of military rule. Most of this is clear on the surface and does not need much analysis.

Two more detailed notes I would add that may otherwise be missed:

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Egypt's constitutional crisis (continued)

The Islamist majority in the Egyptian parliament appears to have badly overplayed its hand with its attempt to rush the formation of the constituent assembly and impose a majority of its own pre-selected candidates without negotiation. Liberal, secular, labour and other representatives (including those of the Coptic Church, Al Azhar and the Supreme Constitutional court) have withdrawn from the assembly, and negotiations to convince them to come back have been unfruitful. The assembly's legitimacy is so tarnished (and its collection of members so arbitrary, unrepresentative, and in some cases undistinguished) that it really would probably be better to start over. 

As the negotiations drag on, AUC professor, Marxist activist and advisor to moderate Islamist presidential candidate Abdel Moneim Abul Fotouh Rabab El-Mahdi makes some good common-sense points to those critial of the Islamist-selected assembly about what they should be focusing on now, and the importance of process over names. The following is my own abridged (and imperfect) translation from a recent column in El Shorouk newspaper: 

Ever since parliament began forming the constituent assembly more than two weeks ago, the battle over the constitution has returned to dominate the political scene -- before our attention returns to the  presidential race once again. And despite the fact that this important, historic contest should concern the entire Egyptian people, whose social relations and relations with the nation will be shaped by this constitution, what’s deplorable is that this contest has turned into a battle between those who are called -- mistakenly -- the “madani [”civil” commonly meaning “secular” in Egypt today] forces” (liberals, nationalists and leftists) and the political Islam current or “the Islamists.” And as members began withdrawing from the the assembly, activists started to criticize the absence of this well-known emigré doctor and that dean of a college in Canada, as if the criteria for belonging to the assembly were distinction in one’s professional field; they mentioned particular names, as if those people’s presence in the assembly were the issue. The majority party presented a list clarifying the percentage of “Islamists” and “non-Islamists” and mentioning the names of Christians as if this were a sectarian battle [...]. And the name of women were mentioned not on the basis of who or what they represent but on the basis of their gender. Meanwhile some others resort to the army to annul the assembly and issue a constitutional declaration on this matter at a time when the parliamentary majority is fortified by its numerical power. And everyone forgets that conducting the battle this way will not bestow a better constitution upon us but rather will entrench a sectarian nation and military rule. Following are a few observations that have been absent from this contest.

Also check out our previous translation of parliamentarian Ziad Baha' El-Din account of how the selection of the constituent assembly took place. And blogger Zenobia's breakdown of the members (including funny instances of outright nepotism, i.e. young relatives of Muslim Brotherhood leaders being selected as "youth representatives.").

The rest El-Mahdy's column follows.

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In Translation: Egypt's constitutional crisis of consensus

First, a word about the people who make this possible. Our “In Translation” series is brought to you by the good folks at Industry Arabic. If you need anything translated — press articles, specialised reports, academic documents, anything! — I really recommend going to them. I’ve been referring people to them for over a year and heard only great feedback. They’re fast, professional, can work in all sorts of Arabic dialects and multiple European languages. And even if you need to translate from Arabic to Eskimo, just ask them. You never know.

As many readers know, the selection process for Egypt’s constituent assembly — which will write the country’s next constitution by next March at the latest — was decided a week ago. After weeks of debate, the Islamist majority in parliament (the Muslim Brothers and the Salafists) decided to keep 50 of the 100 seats for MPs. Secular forces have long advocated that the constituent assembly should be diverse, and there are more worrying indications that the Salafists want to blackball any figures they consider too secular. There is a growing movement to deny both parliament and the assembly legitimacy, either on constitutional grounds (the parliament may be declared unconstitutional in a case that has moved from the Appeals Court to the Supreme Constitutional Court) or simply because many feel the assembly should be as representative as possible — if it looks like parliament, it will include few minorities or women, for instance.

This is a serious issue, and not just for liberals and leftists. If there is a sizeable number of people who think the constitution is illegitimate and the consensus around is weak, there is a risk down the line that this would make a coup (soft or hard) easier. Egypt will be naturally coup-prone in the next few years, and while the Brothers say they want consensus, the Salafists have a more winner-takes-all approach and want to nominate figures such as Sheikh Mohammed Hassan, a popular preacher, who will push for a very strict interpretation of Sharia.

The commentary below is by Ziad Bahaa-Eldin, a lawyer and former head of the Stock Exchange and Investment Authority who was elected to parliament in Asiut, on the Social Democratic Party list (part of the Egyptian Bloc). Bahaa-Eldin is a widely respected technocrat, someone with extensive legislative experience (he wrote several laws over past decade governing investment, and during his tenure at the investment authority won much applaud for cutting red tape). His article is important in that it reflects the potential for rejection of the future constitution by a significant part of the political spectrum, rather than a document that has wide consensus, and the increasing polarisation of politics.

The Constituent Assembly and the Crisis of Consensus

By Ziad Bahaa-Eldin, al-Shorouk, 20 March 2012

Last Saturday afternoon, the plan designed to achieve consensus among the political forces hit a setback, at least in regards to drafting a new constitution for Egypt in which all of society’s forces participate. The setback occurred when the major parties in Parliament limited deliberation and discussion, and in a few, brief minutes made use of the majority they enjoy as they rushed to finalize the formation of an assembly to draft the constitution. They decided that half the members of the Constituent Assembly will be drawn from the ranks of MPs, and the other half from outside of Parliament. It is true that it may be said the decision to form the Constituent Assembly was reached in a democratic manner, and through a peaceful, legal vote that expresses the right of the majority to impose its opinion when it likes. This is true under normal circumstances. However, this description does not apply to what happened with the formation of the constituent assembly, because it involves an unnecessary maneuver, and because it concerns the pressing issue on the scene that is most in need of consensus right now – that is, drafting the constitution and forming the Constituent Assembly tasked to do so.

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ElBaradei proposes alternative transition path

Mohamed ElBaradei seems to be picking up from the clear enthusiasm in Tahrir for an immediate transition to civilian rule and the refusal by many activists of a constitution drawn under military rule and offering a new initiative:

Egyptian dissident Mohammed ElBaradei on Friday proposed a new political timetable for the country, amid growing discontent over the military rulers’ handling of the transition from Hosni Mubarak’s rule.

The ex-UN nuclear watchdog chief called for the newly elected “parliament to elect an interim president immediately”, followed by the formation of a panel to draft a new constitution.

In a statement on his Facebook page, ElBaradei said the new charter “must define the political system and guarantee a civil state, rights and freedoms.”

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The legal travesty of Egypt's transition

Here's a summary of recent constitutional changes in Egypt (I use it for convenience, it's from a newsletter by HC Brokerage):

The government approved amendments to the Presidential Elections Law [on Wednesday]. The amendments were proposed by the advisory council and sent to the Supreme Council of the Armed Forces (SCAF), which in turn sent them to the cabinet for approval. Article 2 of the law was amended to stipulate that a presidential candidate must be supported by at least 30 elected members of parliament or by 30,000 citizens from 15 different governorates. Article 3 was amended to allow political parties with at least 1 seat in parliament to nominate a presidential candidate. Article 23 was amended to allow citizens to vote in any governorate, not necessarily in their governorate of residence. The amendments also penalize, with 6 months’ imprisonment or a fine of EGP5,000, citizens who vote for more than 1 candidate.

On top of that you have changes made in December to formally grant a few more powers (rather vaguely) to the prime minister.

So to recap, in March Egyptians voted for the amendment of nine articles of the 1971 constitution, which had been suspended on February 10 when SCAF issued its decree #1. At the end of March, SCAF promulgated a "constitutional declaration" that now serves as the interim constitution before a new one is drafted and approved by popular referendum later this year (probably in April or May if the SCAF and the FJP-controlled parliament want to move at breakneck speed, which seems to be the case.) But then SCAF made changes to the constitutional declaration at its whim, with token consent from people it appointed itself.

I'm not a lawyer or a constitutional expert — in fact I have very little legal training. But to me, this seems like a constitutional and legal travesty — one that Egypt's chief judges and legal scholars have either stayed silent on, or been complicit in (like the otherwise admirable Tareq al-Bishri, who presided over the referendum charade in March and said nothing). And, in a way, it is at the core of what's wrong, what has gone wrong, with the SCAF-led transition process.

Issandr El Amrani

Issandr El Amrani is a Cairo-based writer and consultant. His reporting and commentary on the Middle East and North Africa has appeared in The Economist, London Review of Books, Financial Times, The National, The Guardian, Time and other publications. He also publishes one of the longest-running blog in the region, www.arabist.net.

Egypt's constitution confusion

The confusion over Egypt's transition continues. Salma Shukrallah reports in Ahram English:

Egypt’s Minister of Parliamentary Affairs Mohamed Attia declared on Sunday that the presidential elections will be held only after a new constitution is drafted and approved.

While Attia’s statements clarified the confusion over what steps will follow the parliament’s formation, it has left many wondering to what degree such a decision is in harmony with the results of the constitutional referendum held on 19 March, which left many assuming presidential elections will be held before the constitution is finalised.

A member of the committee which drafted the amendments approved in March, Judge Tarek El-Beshry, has condemned the decision in several interviews, insisting that such a decision does not follow the sequence specified in the nine amendments that millions voted for last spring.

According to El-Beshry, who took part in the committee that was appointed by the ruling military council (SCAF) to amend the 1971 constitution, the presidential elections should take place before the new constitution is drafted.

SCAF continues to make it up as it goes along, and this presents constituent assembly with a dilemna: rush things along to draft and approve a new constitution in two months so you can have presidential elections in June as expected, or defer the presidential election until after. Not to mention that this matter is not really supposed to be up for SCAF to make the decision alone, and al-Beshri (who deserves to live out the rest of his days in infamy for his handling of the constitutional committee last March and his silence over the way the Constitutional Declaration was promulgated) does have a point in that it's not what was voted for in the referendum.

Read the rest of the piece for an explanation from prominent reformist judge Ahmed Mekky on why the referendum was intended to have elections for the president first, before the drafting of a new constitution. It's a good argument for bringing the presidential elections forward, and keeping SCAF out of the drafting of the new constitution.

Issandr El Amrani

Issandr El Amrani is a Cairo-based writer and consultant. His reporting and commentary on the Middle East and North Africa has appeared in The Economist, London Review of Books, Financial Times, The National, The Guardian, Time and other publications. He also publishes one of the longest-running blog in the region, www.arabist.net.

SCAF, parliament and the next constitution

I was away from Egypt for the last few days and I missed yesterday's big event: a SCAF representative invited nine foreign correspondents in what clearly was an attempt to send a message (to the US in particular) that the incoming parliament would not get to ride roughshod over the rest of the transition period, including the writing of the next constitution.

One might note several things at this juncture:

  • The oddness of making this important statement — the drawing of a red line — to foreigners rather than Egyptian politicians or even the Egyptian public;
  • That the SCAF has chosen to make this statement indirectly suggests it does not feel confident for a direct confrontation (as over the "supra-constitutional principles") and prefers sending signals at this state;
  • That this is happening as the new government and its "council of advisors" is being composed, with this council being given powers to guide the appointment of the members of the constituent assembly (a further distancing of SCAF from direct implication in this issue after the failure of the "principles")
  • The nonsensical nature of what was said — particularly the idea that the elected parliament does not represent Egyptian society, with the implication that the unelected SCAF does represent that society;
  • The dueling constitutional challenges of the next few months: on the one hand, parliament seems to have the right to appoint the constituent assembly, but SCAF wants to guide the process; and on the other, SCAF seems to have the right to appoint the government, but the incoming parliament (and Tahrir) want to have a voice in that.

I've been thinking of what the larger meaning of these elections and the recent unrest in Tahrir is, and I would venture that together these mean the beginning of an end for the 1952 regime and a transformation of Egyptian politics that will be deep and meaningful:

  • The Tahrir (and elsewhere) protests and Tantawi's speech showed for the umpteenth time that SCAF will capitulate to public pressure and that they lack self-confidence. It also showed that there is widespread dissatisfaction with the SCAF's management of the transition, whether or not most people want Tantawi out or not.
  • The elections showed that the military's political class (what was the tanzim tali3i) has collapsed and the generals no longer have an interface to manage the country, as they did through the NDP and before it the ASU. The failure of the felool, in particular, is telling of this.

To me, whether or not the Muslim Brothers, as many fear, decide to collaborate with the SCAF for a few years is irrelevant: the military regime is over, its legitimacy spent (even if there is still much respect for the institution) and the generals' power will decline as civilian rule returns. It might take time, but I would venture that short of a new coup led by charismatic officers, the era of the generals is over. They simply don't have the competence, leadership or the "will to power" to rejuvenate and relaunch the Free Officers' regime.

Below are excerpts from several pieces reporting on the meeting, or touching on the wider issue of the SCAF-parliament relationship and the military's role in politics.

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