Many Egyptians are intensely debating the pros and cons of the constitutional amendment referendum taking place here in Egypt on Saturday, March 19, but in these discussions, what would seem to be the most obvious topic is almost completely missing: the content of the amendments themselves. By and large, what the amendments actually purport to do is acceptable to opponents and supporters of the referendum insofar as the amendments substantially lower the bar to becoming a presidential candidate, limit the term of the presidency, make the emergency law much harder to impose, and pave the way for the drafting of a new constitution. (Tamir Moustafa has reported on the text of the amendments and so I will not review them here (although the drafting commission made one significant change recently: the Court of Cassation, and not the Supreme Constitutional Court, is the authority that decides the validity of membership in the People’s Assembly per Article 93.))
Only a few of the proposals are controversial in substance. For one, the amendment to Article 75 enhancing the rules relating to the nationality of the president and his (or her) parents and spouse has been criticized as an unnecessary extension to the presidency of rules applicable to the army and the diplomatic corp. Of more significance, the amendments do not require the next People’s Assembly and Shura Council to form a drafting committee for a new constitution in a transparent manner and they do not demand public participation in the drafting process itself. Rather, these ideals are left to the political process to enforce. And opponents of the referendum object to the requirement of Article 189 bis that the new constitution be written within six months of the initiation of the drafting process (which itself may not even be required, depending on how Article 189 and 189 bis are read together).
In general, though, the vigorous debates are taking place over larger issues, some principled and some consequential, that ultimately get at the question of just what does it mean, constitutionally, to have a revolution? Referendum opponents insist that the revolution abrogated the constitution in its entirety and that the Supreme Council of the Armed Forces (SCAF) had no authority to revive it in order to call for its amendment. “No!” a flurry of red signs posted around the cosmopolitan neighborhood of Zamalek read, on the grounds that the revolution rendered the old constitution null and void. According to this argument, recognizing the constitution even for the purpose of amending it is an impermissible return to the unacceptable past. But if Egyptian protesters can themselves abrogate a constitution, then several questions follow: how many protesters does it take to bring down a constitution? And how do we know exactly when it has happened? Can a constitution be abrogated by public protest while a regime remains in power, or vice versa?
In addition to these arguments about the death of the constitution, opponents claim that the amendment and referendum process are being done in an impermissible pre-January 25 style. The SCAF appointed the drafting committee, which was hardly a revolutionary group of men (the presence of one Muslim Brotherhood affiliate did not change that characterization, and may have even reinforced it), and they operated in secret. They more or less stuck to the task assigned to them, which was to create basically the same set of amendments that Mubarak offered in a final effort to remain in power. The referendum presents the slate of amendments as a single package to accept or reject in a patronizing tone of the past that suggests the leader knows best. The amendments themselves were not even available until quite recently, and while there has been some effort to discuss them in the press and on radio and television, the lack of time to develop a real national dialogue about the text and its implications means that many will not really understand what they are voting for. The process seems thrown together hastily: just today, the “official” Ahram newspaper listed locations of polling stations and printed an example of the actual ballot. More significantly, judges, who are supposed to oversee this referendum as they have done for parliamentary elections, complained that as late as yesterday they did not have instructions or details about their task. (Some, however, have argued that keeping judges ignorant of their locations and tasks until the final hour was intended to avert opportunities for fraud by the very judges entrusted with preventing it.)
On the other side, referendum supporters seem to rely on the presumption that the constitution was still in force when the SCAF took power and that it has the right, acting as the constitution’s extra-constitutional protector, to oversee its amendment. If the amendments are adopted, the revised constitution will be put back into effect, and will serve as the basic ground rules for the parliamentary elections that will follow in a few months and then, in a few more months after that, presidential elections. (While not explicit, the SCAF appears to envision elections taking place in that order). Then, a completely new constitution will be drafted, again in a relatively short period of time. Adopting the referendum is a quicker and surer way to move forward and away from Mubarak’s constitution; it will lead to a faster transition to civilian rule and to a new constitution than any other proposal on the table, they argue. The Muslim Brotherhood, which is officially and enthusiastically in favor of the referendum, is promoting these positives, announcing succinctly in its promotional banners like the one stretching across a road on the southwestern edge of Cairo that a “yes” vote will deliver four things that every Egyptian should want: a limited presidential term, judicial supervision of elections, the formation of a new constitution, and the abrogation of the state of emergency.
And yet there are real concerns about moving forward with an amended 1971 constitution, as the referendum envisions. The amendments do not add a constitutional role for the SCAF, although that could have been done, leaving its status unclear. If the SCAF is an extra-constitutional actor, is it even bound by the constitution? Or is it constrained by political forces, including the need for its own popular legitimacy, rather than by law? Can it later decide that ignoring or changing other aspects of the constitution is also the people’s will and act accordingly, without another referendum? If parliamentary and presidential elections take place under the supervision of the SCAF and with the revised 1971 constitution in place, can the entire process—including the drafting of the new constitution—later be challenged as unconstitutional? Some Supreme Constitutional Court judges, who would be the ones to receive such a challenge, are very worried about this last question in particular.
These arguments about the status of the current constitution and its ability to be amended also line up with practical concerns about who benefits from the process the referendum envisions. These concerns, unlike the constitutional ones I analyzed, are discussed openly in the press. Holding parliamentary elections in just a few months is seen to benefit the Muslim Brotherhood (and its newly-formed Justice and Freedom Party) and the National Democratic Party (which may reformulate under a new name) as the groups that are organized and ready to compete successfully in elections in the near term. Other new and fledgling parties argue that they will not be able to compete that quickly, and will lose out in the crucial elections that will form the parliament that will in turn oversee the drafting of a new constitution. The Muslim Brotherhood, however, has said that it will not aim to win more than about one-third of the seats in the first parliamentary elections following the referendum. Opponents of the referendum demand that the first step must be the drafting of a new constitution in a process that is fair, transparent, and attentive to public participation and dialogue. While that may ultimately result in a faster constitution, they focus more on process than speed and do not have a time table. By the subsequent parliamentary elections, they believe that they will be sufficiently established and ready to compete.
While many Egyptians are discussing the referendum openly and passionately, many surely are left out. The process has been so rushed that there has been little time to explain the details and implications of the amendments to those without the inclination or ability to follow carefully the complex arguments as they have unfolded over the past few weeks and this week in particular. Some may still feel that despite the revolution, they are not a part of the political process. “What does that have to do with me?” one young man answered when I asked him today how he would vote in the referendum. Another asked me what the referendum was about. When I told him, he said he would vote however “the people” were voting, although he did not yet know what that position was.
I will be out at polling stations on Saturday and will have more to report afterwards. The results are expected late Saturday or Sunday.
–Kristen Stilt, Northwestern Law School