■ Egypt's transition scenarios: A reflection on political processes to avoid the Constitution mousetrap

Goran Fejic

The current constitution of Egypt contains clearly undemocratic provisions and has been used extensively in the past to exclude important stakeholders from elections and from political life in general.

Clearly, reforming the constitution is a priority, but one can reasonably doubt that a credible constitution-reform process can be based on the provisions of the same – undemocratic constitution.

Our attached legal analysis shows that a transitional scenario set within the provisions of that same constitution could be possible under two assumptions, both of which quite unlikely when matched with the reality on the ground:

• First, that the ruling elite and the NDP (with or without President Mubarak) are willing to use the constitution for the purpose of phasing themselves out of the privileged political status they are granted by the constitution as it stands now, and
• Second, that in engaging in such a process, they would enjoy the trust and confidence of opposition forces and the people at large for a certain period of time – months rather than weeks.

This scenario, in view of the leading or coordinating role it would confer to the current ruling elite, would hardly send a message to the grass-roots that a transition is indeed “starting now”. Most likely, it would be perceived as another delaying tactics, and the perception may, unfortunately, be true.

The alternative is a “non-constitutional scenario” (in other terms, “a revolution”), which does not necessarily mean political vacuum and “chaos”, and does not even represent an alternative lacking political legitimacy if the process is sufficiently inclusive and transparent.

Even the current constitution, in its article 3, invokes the sovereignty of the people: “Sovereignty is for the people alone; they are the source of authority”. The problem is that the same article prevents people from exercising that sovereignty when it specifies: “The people shall exercise and protect this sovereignty, and safeguard national unity in the manner specified in the Constitution”.

Historical experiences of inclusive dialogues in transitional processes exist and their applicability and relevance for the Egyptian situation should be explored.

As explained by Helga Welsh “One of the specific features of the transitions in Central and Eastern Europe was the emergence of round tables in which representatives of the old, Communist political system discussed the norms of transition with representatives of the opposition. In some countries, members of the political and social organisations who were closely aligned with the ruling Communist party participated in the negotiations. In East Germany and Poland the mediating role of the churches was evident…In Hungary a number of independent observers, including church personalities, also attended some of the negotiations. The main goal of the round tables was similar in all countries: to set the terms for the creation of a new political system.”

In Poland, the Round Table Agreement (1989) brought about a significant number of amendments to the old 1952 Constitution. The negotiations were convened by the government, but included all the main opposition groups, the first among them being the Trade Union movement Solidarnosc. The process did not “scrap” the existing Constitution, but focused on amending it. However, the round tables themselves were a new institution drawing legitimacy from political inclusiveness rather than the existing, undemocratic constitution.

The process could also be seen as a “negotiated phasing-out” of the old system and the “phasing in” of a new one. Keeping the existing constitution as a reference and focusing on amending it was possible because there was an implicit acceptance of the old regime to take part in a process aimed at phasing it out.

This does not seem to be the case in Egypt, though one could still imagine that some elements representing the current regime could evolve towards accepting to participate in a similar process. Again, when the process is inclusive and transparent and, hence enjoys the confidence of all relevant stakeholders, the question of its being located within or outside the constitutional framework becomes less relevant. Finally, isn’t there an intrinsic paradox in the very idea of using a democratically flawed frame as a tool and reference for democratic reform?

Experiences from other democratic transitions may be worth looking at, though every national context is unique and would hardly lend itself to a simple “transfer” of knowledge.

In Indonesia, several elements seem to have contributed to a successful transition: a) a joint stance of senior government officials and, most importantly, the army, that Soeharto should resign at the very beginning of the process, b) the quick announcement of major reforms – freedom of the press, lifting the control over mass organisations, the East Timor referendum etc. and c) these initial changes have set the ground for a gradual process of reforms which, eventually, went far beyond what the old ruling elite would have been ready to accept at its outset. Constitutional reform was on the agenda, though the brunt of the pressure for change was rather on elections. Also, the Indonesian 1945 Constitution was a rather vague document which could be used to justify a number of things and, as such, quite different from the detailed and very constraining Egyptian constitution.

The recent democratic advances in Turkey included a thorough reform of the constitution (in particular, abolishing the clauses protecting the military, introducing clauses to protect individual rights and privacy etc). Yet, the constitutional referendum of September 2010 was made possible by a vote in Parliament. The current composition of the Egyptian Parliament, in which the dominance of the NDP has been assured by flawed elections and an unlevelled playing field enshrined in the constitution – limits the applicability of a similar scenario in Egypt.       

Our principled position is that the ways for democratic reform in Egypt need to be designed by the Egyptians themselves. The challenges are enormous, regardless of whether the process takes place within or outside the Constitution. The most important procedural concern, in our view, and the most important message to Egyptian stakeholders should be about the need to set up a fully inclusive dialogue process and to maintain that inclusiveness throughout the negotiations.

Written by Goran Fejic, February 2011