—Andrew Arato, Dorothy Hart Hirshon Professor of Political and Social Theory, The New School
No serious interpreter has claimed that the Egyptian constitution-making process has been satisfactory or even adequate. Even in the context of revolutionary populist constitution making to which this case belongs, the Egyptian version is distinguished by its inconsistencies and idiosyncrasies. In revolutions, generally, a new holder of power is capable of occupying the seat of a provisional government and dictate the pace, the form and the outcome of constitution-making. Even that has not happened here. Of the revolutionary version, this case inherits arbitrariness and unjustified claims of embodying the sovereignty of the people, but not consistency and clarity.
Two things have been the ultimate source of difficulty. The existence of two and even more powers capable of making sovereign claims, and the presence in the culture (national and international) of the legitimating principles of the post-sovereign method of Central Europe and South Africa: ideas of inclusion, plurality, public openness, participation, fair compromise and self-limitation. It is significant that these last principles helped to disorganize the process, but without a genuine, organized set of forces representing them they could not break through as the alternative.
Note that alternatives based on inclusion, compromise, plurality have been occasionally raised and even enforced if in a negative manner. The idea of an interim constitution before elections was raised, but was misunderstood and was rejected by the two strongest forces. What Egyptians got instead is the nonsensical combination of an annulled constitution that was amended repeatedly, and supplemented by equally top down constitutional declarations first by SCAF, then by the president. The idea of “supra-constitutional principles” a la South Africa was seriously raised, but then perverted by the SCAF before embodied in the defunct Selmi draft. One non-consensual assembly with majoritarian rules was dissolved, only to be replaced by a similar successor with rules under which the Islamic majority could not lose a single vote. This body then remained in session even as its parent, the elected parliament was dissolved. In effect the committee survived the body to which it needed to report too, at least under similar circumstances.
We know what happened before this second constituent assembly could be dissolved, after its non Islamist members left. The sole point of President Morsi’s last Constitutional Declaration was to keep it in existence in the face of possible HCC action.
Even after the president’s declaration, that was met by an amazing response from civil society, its citizens and organizations, there was (and is) an obvious way out. Negotiations and setting up an institution of negotiation like the current Turkish Constitutional Concordance commission, that need not decide by full consensus as in Turkey, but would be able to renegotiate all the truly divisive points. The second constitutional assembly could have even stay in place, with President Morsi’s guarantee that it would adopt most of the new recommendations. This was not done, not because no one thought of it, but because the very point of the exercise has become, since the elections, majoritarian populist revolutionary constitution-making in the supposed name of the Egyptian people.
It is already clear that SCAF did not speak in the name of the people, whatever that would have meant. The same is now turning out to be the case for the MB government of President Morsi. The revolutionary legitimation now sounds hollow; it always does when the process is imposed in a very divided society. From the beginning the populist revolutionary imaginary of this transformation pointed toward such an outcome, although it could have been avoided through constitutional learning.
Is that learning still possible? Yes, but it is very late in the day. It depends on Egyptian civil society, its movements and organizations: jurists, artists, students, ordinary citizens.