Blog of the International Journal of Constitutional Law

From Cairo: Kristen Stilt on Assessing Tahrir’s First Ballot Box

[cross-posted from] The need to establish stability during a period of great uncertainty was a central issue in Egypt’s constitutional amendment referendum held on March 19. Advocates of a “yes” vote championed an immediate path to political, economic, and social stability through amendments to the most offensive provisions of the constitution, which would be followed by parliamentary and presidential elections in the coming months. Only then would a new constitution be considered. While 77.2% of Egyptians approved the referendum, the vote will not bring clarity and assurance to the country. Even though a new sense of confidence has come from the process of the referendum, the implementation of its provisions threatens to spur a new kind of instability and uncertainty.

The referendum asked voters to approve or reject several amendments intended to quickly fix aspects of the constitution dealing mainly with the emergency law and presidential elections. The vote also paved the way for the drafting of a new constitution. None of the amendments were particularly controversial in substance, but an opposition movement quickly developed to denounce the amendments as a mere “patching” of an unacceptable constitution that had become null and void as a result of the revolution. Opponents of the referendum also expressed concern that starting with parliamentary elections would benefit existing power structures-the remnants of the National Democratic Party (NDP) and the Muslim Brotherhood in particular-to the exclusion of new and fledgling parties. Thus, the parliament that would oversee the new constitution would fail to be truly representative, they argued.

Referendum opponents, including political groups other than the NDP and the Muslim Brotherhood, Christians, liberals, and some of the revolutionaries, wanted to begin with the drafting of a new constitution in a process that would include the full range of views in Egypt. Then, elections would follow. They were accused by their opponents, however, of seeking to extend the current period of uncertainty into what was expected to be a protracted constitutional process. During that period, the Supreme Council of the Armed Forces (SCAF) would remain in power. “No” advocates were willing to tolerate military rule as long as necessary to get a new constitution in place that reflected the true wishes of the Egyptian people. Their opponents, however, characterized this as an unacceptable lengthy extension of the status quo.

The “no” advocates were working against a strong presumption in favor of the referendum. While the SCAF refrained from persuasive advertising itself, the sheer fact that the referendum was brought to the people by the SCAF made its position clear. The Muslim Brotherhood campaigned vigorously in favor of the referendum, emphasizing that its passage would end what they called the current state of chaos. Through this theme, they were able to tap into popular concerns of instability, both real and created. Economically, a drastic drop in essential revenue from tourists and a general inability or hesitation by Egyptians to spend has severely damaged the local economy. The Egyptian stock exchange has been closed for some time, but promised to reopen after the referendum, with the clear implication that its adoption would help to reduce the pain expected on the opening day.

Advocates of the referendum also played on fears of crime and insecurity, claiming that social stability would continue to worsen during a protracted constitutional process. The extent of an actual rise in crime-and the changing nature of that crime-is difficult to determine, but there certainly is a perception in some circles that this is the case. At a polling station in Imbaba where I spent many hours on referendum day, voter after voter spoke of their fears of crime and banditry and the need to “move on” to parliamentary elections that would restore a sense of security and normalcy. For many Egyptians, the military’s unwillingness to act as a police force has allowed deviant actors in society to flourish. One man told me that even though Egyptian universities had re-opened, he would not let his daughter attend because he did not think the streets were safe. If the referendum passes, he said, we will know what happens next, and we will feel more secure.

The interests of the SCAF, the Muslim Brotherhood, and other supporters of the referendum also coincided on the issue of return to civilian rule and the resulting benefits to Egypt’s national security. The military seems to want out of the business of ruling as soon as possible, and the Muslim Brotherhood has also reinforced this as a goal. It is more than a matter of principle: if the military is busy ruling, who is watching the borders, many asked? I heard a number of references to the current crisis in Libya, the desire of the Nile Valley countries to restrict the flow of water to Egypt, as well as to the enduring threat of Israel as reasons why the referendum should be adopted. These arguments carry power, especially as the threat of Israel has long been used to manipulate public opinion.

But will Egypt truly move into a period of stability? A “constitutional declaration” is expected from the SCAF setting out the precise timetable for parliamentary elections in the coming months. Intense discussions have already begun over the formation of new political parties and the procedures for the new elections. Many serious questions are now immediately relevant: how much religion will be allowed in the electoral process? What if Egypt’s Christians want to form their own equivalent of the Muslim Brotherhood’s new Justice and Freedom Party? What role will the former members of the NDP, now currently in the process of re-forming itself, play in the elections?

The SCAF must oversee the adoption of new laws and regulations concerning all aspects of the parliamentary and even subsequent presidential elections since the existing ones are unacceptable. This not only further entrenches the military in tasks best left to the legislature but also opens topic after topic for major contention amongst political parties and factions that are quickly forming. Unlike the simplicity of the referendum, the parliamentary elections will be complex, and opportunities for fraud and intimidation will grow exponentially. Old electoral structures will be hard to dismantle, and parties will surely seek to harness those networks of patronage to their advantage. And once the parliament and president that are elected under these contentious circumstances turn to the new constitution, the choice of drafters and the entire process will be in their hands. Does this really promote long term stability in the Egyptian legal and political system?

In addition, the questionable legal status of the newly amended constitution undermines the claim that adopting the referendum will lead to stability. This is a somewhat technical issue, raised by lawyers and judges rather than the average voter, but with potentially grave implications. The amendments did not add a constitutional role for the SCAF, leaving its status unclear. Although an extra-constitutional actor, is it bound in any way by the constitution? Or obligated to ensure that all other actors in the country comply with it? In the coming months when new issues arise, will the SCAF find a need to change other provisions of the constitution, calling for another referendum, or will it act on its own? Might the parliamentary and presidential elections and even 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.

The referendum can, however, claim to have created a sense of stability in one important way: through the process itself. More than 18 million voters participated, over 40% of those eligible, waiting as long as three hours in some places on a hot day and yet were generally very pleased to be doing so.

“It is like a wedding,” one voter in Nasr City told me. “We all came out even though not everyone knows exactly why.” Many voters said exuberantly that it was the first time they ever participated in an election; previously, there was no point, most said, since the results were pre-determined. While there were some incidents of voting irregularities and disturbing cases of intimidation – including one against Mohamed al-Baradei himself – by and large the voting took place in a way that was free, fair, and transparent. Immediately after the results were issued, prominent opponents quickly acknowledged them.

The referendum succeeded in providing a genuine election to Egypt’s citizenry, and that in itself is a source of national stability. What the referendum requires, however, is another matter. It forces important new questions far too quickly and without the proper groundwork, threatening the integrity of the parliamentary and presidential elections that are soon to come. The referendum also creates uncertainties about the status of the current constitution. Unfortunately, these problems very well may jeopardize the ultimate goal of a new constitution worthy of the new Egypt.

–Kristen Stilt, Northwestern Law School


2 responses to “From Cairo: Kristen Stilt on Assessing Tahrir’s First Ballot Box”

  1. Anonymous Avatar

    Constitutionalism takes from Aristotle’s identification of Polity as the nobler form of government by the many differing from the tyranny of the majority in a democracy in that certain fundamental rules are binding on even the majority unless deliberately altered. Power control is its essence and the basic policy choice controls every subordinate level policy choice. Egypt witnessed the consequence of working a’constitutional state’as a ‘democracy’. It has a message for every country which adopts a controlling or normative constitution and quickly converts it into a nominal one by working it as a democracy.The power arrangements in the two models are different.
    Tibet was a country of indigenous people with a distinct political,legal,economic social and cultural institutions of their own.The peaceful people were left to suffer a political rape and they have managed to keep their identity though refuge in another country.It was not theocracy as the west has known; the spiritual head was also political head and head of government and the benefit was that exercises of power were highly moral. Spiritual discipline gave a detached attachment to power which was regarded as a sacred trust to promote the happiness and welfare of all.’The happiness of the people was the happiness of the King; Their desires were his desires’ as Indian Rajadharma said was what the Tibetans followed. With the separation of the spiritual from the governmental, there is a risk of sympathies and antipathies taking centre stage in the name of democracy.One can only hope that the Tibetans will be able to be themselves with the full enjoyment of the substance of Article 5 of the UN Declaration of the Rights of Indigenous Peoples of 2007 because China is not known to be generous with power-sharing.

  2. Andrew Arato Avatar
    Andrew Arato

    Such referenda are highly constrained.

    the people get the following choices: stability or instability; these amendments or the junta stays without any rules. moreover it would have been easy enough to pose separate questions a sin hungary in 1989. A package a la Erdogan’s in 2010 is prima facie suspicious.

    I repeat my previous. this is a bad , top down process. The democratic opposition came to agree, but too late. The no vote was not a real option.

    The only chance today is to settle on a unity candidate and defeat both the Brotherhood (“Justice and Freedom”) and the revamped governmental NDP.

    Is it possible? Turgut Ozal did it under equally bad conditions in 1983. Yes it is possible. But we should not be praising such a bad process.

    Andrew Arato

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