Less is written, at least on the international press, on an apparently arcane dilemma facing the political transition: now that the electoral process for the Assembly of the People and the Shura is almost complete, should it be followed by the approval of a new Constitution and then by the election of a new President, or should the Presidential election be held first, while the new Constitution would be discussed and approved once the new President has been empowered? And how long should the whole process take to be completed?
On purely abstract grounds one would be tempted to answer that it would be logic to approve first a new Constitution, and then elect the new political bodies it provides for. And that the whole process should be allotted enough time to ensure a thorough examination of all constitutional and political aspects of the issues involved, and a reasonable level of participation by the body politic. After all this is, more or less, how things where conducted in Tunisia during 2011, up to now with apparent success.
But things are not that simple. As a matter of fact the Presidential functions are today exercised fully by the Supreme Council of the Armed Forces, the SCAF, which has inherited them directly from deposed President Mohamed Hosni Mubarak. And the SCAF, far from being an impartial arbiter in the transition to democracy, has largely proved during the past twelve months to be hostile to a democratisation of the country that could put in question the political prerogatives and economic privileges it “de facto” enjoys, and to be ready to resort to forms of repression at least as harsh as those practised by the deposed regime, causing hundreds of deaths and thousands of wounded among largely peaceful protesters.
Discussing the new Constitution before a handover of power by the military establishment to a (hopefully) civilian President means that the newly elected parliamentary bodies, the Assembly of the People and the consultative Shura, and the – still to be named – Constitutional Assembly, will have to deal with the SCAF, which has retained the right to discipline the timing and the procedure of the transition process.
However, what could appear to be the logical order or a rational transition has already been breached by the election of the two parliamentary bodies according to rules devised by the Supreme Council of the Armed Forces SCAF. This election has also created an important political fact: the electoral legitimation, by a very wide margin, of the Freedom and Justice Party (FJP), representing the Muslim Brotherhood, and of the other Islamic inspired parties of various hues, in the face of very poor results of their liberal, progressive and secular competitors.
The legal underpinnings of the problem – as far as they matter – are rather muddied. On March 19, 2011 the SCAF submitted to a popular referendum (which was approved with a 77% majority) nine amendments to the existing Constitution, one of which stated clearly that the new President should be elected before the discussion and the approval of the new Constitution: it clearly stipulated that the President, together with a majority of the Parliament, is to demand the drafting of a new Constitution by a Constituent Assembly which should be composed by 100 members chosen by the elected Parliament members.
But the results of the referendum where translated by the SCAF in a Constitutional Declaration of 63 articles in which the word “President” was substituted with “SCAF”. This constitutional sleight of hand ensures that the military establishment will continue to govern the process of political transition, and therefore maintain an important role in running the constitutional process.
This interpretation has been confirmed on January 29, 2012 by the Minister of Parliamentary Affairs, Mr. Mohamed Attia. Reaffirming its intention to exercise a measure of control also on the Presidential election, the SCAF has also made known the prerequisites it has set for Presidential candidacies: each candidate should be over the age of 40, endorsed by at least 3O MP’s, or 30.000 voters in 15 different Governatorates, should be born in Egypt to Egyptian parents, and should not be married to a foreigner.
As the Presidential election remains set for June (by the SCAF, naturally) it appears that the process of redacting, discussing and approving the Constitution risks to be rushed in a way that could prejudice any pretence of seriousness and democracy. The alternative, not surprisingly, would be to extend the process, and therefore delay for an undefined period of time the transfer of power from the Egyptian military establishment to a civilian elected President.
As things now stand, there is therefore a definite risk that the new Constitution will be decided by the Islamic majority in Parliament together with the military establishment, without participation from the liberal and secular minorities, and without the mediation of an elected President.
The liberal parties and revolutionary forces, that one year ago ignited the Egyptian Spring, are strongly against this procedure. They demand an immediate handover of power by the SCAF to a provisional civilian entity (various solutions are envisaged), a rapid election of a civilian President, and thereafter, the discussion and approval of the new Constitution, without interference by the military. But it must be recognised that their poor showing in the parliamentary elections has definitely weakened their hand, even if they still manage to organize demonstrations in Tahrir square. In November 2011 they had already organised large demonstrations to oppose the holding of parliamentary elections under military rule, but elections took place anyway when the Muslim Brotherhood endorsed the timetable set by the military. The same thing is bound to happen now.
Their fundamental weakness seems to have been implicitly recognized by Mohamed el Baradei, who recently withdraw his candidature to the Presidency, stating that the democratic conditions needed for a fair election are not existing today.
Both the Muslim inspired political parties and the SCAF endorse the “Constitution first” approach, albeit for different, and somewhat opposing, reasons.
The JFP and the other religious Parties, thanks to their wide majority in the two Houses of Parliament, will be able under the present system to choose the majority of the 100 members of the Constitutional Assembly, and therefore promote the issues of a confessional State and of a legal system inspired by Islamic Law (up to now Islamic Law is recognized as “one of the sources” of Egyptian Law). The President of the FJP, Mohamed Morsi, has stated on January 6th, that it supports the timetable defined by the military establishment, but in the same time has confirmed fears of interference by the SCAF, stating that “We also reject any kind of guardianship over the people by putting conditions or criteria on the selection of the Constituent Assembly members”.
In the same time the SCAF – which hopes to continue to manage the process of transition as it has done up to now – hopes to inscribe in the new Constitution a privileged position for the military, to allow for a degree of political intervention when considered appropriate, and also to shield the enormous economic privileges that the Egyptian military establishment has acquired through time.
But there is also another issue, increasingly important for the Egyptian military. While in the last fifty years they had abstained from direct participation in political repression, during the last twelve months it was military personnel – under direct orders of members of the SCAF – that confronted demonstrations (very often peaceful demonstrations), allowing grave provocations, and causing hundreds of deaths and thousands of injured. The trial of President Mubarak, for whom the death penalty has been demanded for similar crimes, must ring a bell with the SCAF. At this stage they must also be aiming to obtain a form of immunity from prosecution, before any transition that would leave them without any legal protection.
At the present moment there seems to be no guarantee that the liberal, democratic and secular forces, that have been the original promoters of the revolt against Mubarak, will be represented in the 100 member Constitutional Assembly, and that their minority voice will be heard. Especially on constitutional matters, the rule of the majority is no guarantee of democracy.
Coming back to the timetable of the political transition, the order of precedence between the new Constitution and the Presidential election is therefore an issue of substance with very important political implications. It seems now to have been decided on the basis of a coincidence of interests between the ruling military establishment and the Islamic majority in the Assembly of the People.
The moment is therefore coming now for a negotiation which will involve how much power the military establishment might be ready to relinquish, and what guarantees it might receive. Negotiations will certainly involve the powers of the new President, if not its person. A compromise is conceivable between the SCAF and the Muslim Brotherhood, but a reciprocal guarantee of their respective priorities might not cover democratic values. And one can imagine the consequences in terms of public discontent and potential further unrest. The failure to arrive at a compromise, however, could also mean a further period of instability and violence on the banks of the Nile.
It has often been said that the Egyptian military aspire to the position enjoyed by the Turkish military under Kemal Ataturk. A more worrying alternative, that has been put forward a few days go on the New York Times, is that the role of the Egyptian military may come to resemble that of their Pakistani colleagues [1]. This worst case scenario – which is still far from being a foregone conclusion – would not only damage relations with the Unites States (here much damage has already been done), but be very prejudicial to regional stability.
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[1] “Can Egypt avoid Pakistan’s Fate?“, by Michele Dunne and Shuja Nawaz, The New York Times, February 3, 2012
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