“Judge Helped Egypt’s Military to Cement Power” NY Times, July 3, by David Kirkpatrick is a very important report. While it has been possible to follow the scenario in Egypt in the available literature (especially an essay by Tamir Moustafa and in reports by the Crisis Group), this is the first time that an important inside actor tells the basic story so far, a discouraging one but full of important lessons. While Kirkpatrick has little sympathy for the military and the judges who according to him allowed it to cement its power, those who are interested in Egyptian democracy and constitutionalism should see the events in a more complex manner than he does. As in South Africa and later Iraq, there were two dangers here, not one: the fiat of the holders of the means of violence and majoritarian imposition. In Egypt these were represented by the two main agents in the process, the SCAF and the Islamic Brotherhood. The Iraqi case comes closest, reading CPA for SCAF and Sistani for the brotherhood. The third position here as well there represented by more democratic forces, was weak, and was never linked to a plausible model of constitution making. In South Africa that position was much stronger, also within the ANC, and thus a creative new process paradigm was generated. In all three contexts the fundamental question for the all important process of constitution making was whether elections or a new constitution should come first. The NP and CPA, as now the SCAF along with some secular actors, represented the perspective of constitution first, fearing above all the imposition of the majority. The ANC and Sistani, as now the Brothers represented the majoritarian alternative, namely elections first, appealing to unitary popular sovereignty as the only legitimate source of constitutions. As J. Albie Sachs recently said, both sides were right, I would add in terms of their fears, and I also add, both were wrong in terms of their initial project. A negotiated interim constitution was the solution, and failed in Iraq only because the negotiations were highly exclusionary. The interim constitution of a first stage solves the problem of elections or constitution first, with guarantees for the advocates of “constitution first”, and a new constitution made by a freely elected body for the advocates of ”elections first” in a second stage. In South Africa, the certification process indeed by the Constitutional Court was to guarantee the internal relationship of the two stages, a job that could have been done badly by restricting the elected assembly too much, but it was done in fact very well.
Egypt has a superficial resemblance to all this, much like a caricature resembles its object. Here too there were documents even called interim constitution, but in fact these were one sided declarations by the SCAF. The gulf between after and before was not bridged by a negotiated solution, but by a series of declarations with little legitimacy. The conflict between after and before became explosive, and while here too it was dealt with by courts, the job was done badly. The elected legislature dominated by the Brothers proceeded in a fully majoritarian manner, though it could have created a broadly representative drafting body with consensual rules of decision, it did the contrary. It was dissolved recalling Lenin in 1918, rather than South Africa in 1995 or even Iraq in 2005. The military, as Lenin in that other revolution, resumed all powers including the constituent one. This involved the claim that it could create an alternative drafting body on its own, and review and reject even its work. It is this that should have been called by my friend Nathan Brown (cited in the article) a ”constitutional obscenity”, not the final place of appeal in the old constitutional court, as against the new one in South Africa. But what we should realize reading the article is that even these lamentable moves were really counter moves to the very serious errors (let us say charitably!) of the Brotherhood.
We should ask why Judge Tahani el-Gebali, deputy president of the Supreme Constitutional Court, has gone public with her probably quite accurate reconstruction. I think what she is attempting to do is mobilize secular opinion on behalf of what was done, already pretty well understood by politically sophisticated people in Egypt. This is presumably needed in the upcoming battles between SCAF and new president, that she wishes to influence in a secular direction. If I am right , and Brown’s comment is any indication, she has already failed. I fear that she is likely to further compromise both her Court and the secular option. Both would be disastrous. So we should reject the urge to condemn. Yes Egyptians had a terrible process, and in my view they failed so far because they failed to include a negotiated meta process in the constitution making process as a whole. It may however still not be too late to do so, even though there are great sequencing problems in the way of the best solution. Coopted bodies representing all sides in an inclusive manner a difficult to legitimate after free elections, as we found out in Iraq where Sunni inclusion was unsuccessfully attempted at the end of the process. Yet it should be tried. The place to do so would be in choosing a constitution drafting body. So far neither the attempts of the Brotherhood, nor the proposal of the SCAF regarding how this should be done have been convincing. Thus a president has been elected, not only without a constitution articulating his powers, but even without a constituent process in place. It is this process if well organized that could provide a way out of polarization and impasse. It is on this that we should all concentrate. It is time for a liberal democratic option to be put on the table.
–Andrew Arato, New School