Blog of the International Journal of Constitutional Law

Awful Process, Terrible Ending and (Most likely) Disastrous Results

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.



9 responses to “Awful Process, Terrible Ending and (Most likely) Disastrous Results”

  1. Andrew Arato Avatar
    Andrew Arato

    A self comment, if I may. After I finished this piece, the so-called constituent assembly, or its chair decided to rush through the voting process today, namely thursday. In effect this abrogates the one positive feature of Pres. Morsi’s Constitutional Declaration, extending the process to allow more discussion and, presumably, possible coming to an agreement on at least some disputed points. Why the rush now? three possible reasons
    1. hoping to diasarm the crowds and the judges by making the open provisional dictatorship shorter.
    2. fear of judicial action declaring the body and perforce its eventual product illegal, and attempt to pre-empt it
    3. hardliners in the MB want no part of the President’s pragmatism, and wish to force his hands.

    the three are not mutually exclusive.

  2. Tom Ginsburg Avatar
    Tom Ginsburg

    Now the Constitution has passed but early signs are that it will not mollify the crowds–

    Note that in the article, Zaid Al-Ali mentions an additional point on which the process was botched: total exclusion of outside expertise and comment.

  3. Andrew Arato Avatar
    Andrew Arato

    And now, the people are asked to choose between “two fires” as it is said on the street. Either approve a badly composed, inadequate, imposed constitution or be stuck with a presidential dictatorship indefinitely.

    General K. Evren: are you watching this? Napoleon Bonaparte , who invented the method can rest in his grave at Les Invalides. After revolution, Bonapartism. What else is new?

    The only act of freedom can be a loud “no”. But it is difficult to organize and attain.

    My prediction: the MB will badly lose the first parliamentary election as did Evren.

  4. Andrew Arato Avatar
    Andrew Arato

    And now, Friday evening, reversal is near.

    Note well: If this happens it would not been accomplished by the HCC, or even the administrative courts, but by the movements of civil society.

    This is a lesson we should all learn, even as we note the important democratizing potential of courts.

    Amazing story.

  5. Andrew Arato Avatar
    Andrew Arato

    Now another possibility: martial law, and the continuation of the imposed process.

    Meanwhile: other alternatives are possible:

  6. Andrew Arato Avatar
    Andrew Arato

    This should not be treated as any kind of compromise. Yes, there is a choice now, yes to the constitution or a no, meaning the elections of a new assembly. But when? Morsi remains in full power for months, and can issue constitutional declarations as he wishes.

    The added powers, so-called, of the Presidential Declaration, were needed to pass the constitution the Brotherhood wanted without judicial interference, and the need for consensual process.

    Now these powers are no longer needed, or rather remain in reserve. The only issue of importance is the draft constitution. Will it be re-negotiated? Will the referendum be even slowed down allowing more careful consideration? No. Do the courts get back the powers lost to them through the previous Declaration? Not unless they are capable of fighting for them, a big if.

    But the story is not over, however awful the present state of affairs. The popular resistance continues. The courts could still come back into the picture. A no vote is possible. Finally, it is possible to defeat the Brotherhood in parliamentary elections.

    1. Andrew Arato Avatar
      Andrew Arato

      And July 3, 2013 was possible as well

  7. […] steamroll opponents rather than co-opt them. The result is much more conflict than necessary, and a process that is deemed illegitimate by many even if a majority of the population voted with the country’s […]

  8. […] steamroll opponents rather than co-opt them. The result is much more conflict than necessary, and a process that is deemed illegitimate by many even if a majority of the population voted with the country’s […]

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