The debate over the Egyptian constitution has shifted quite dramatically over the five weeks since the military council took power and there’s a chance that voters will reject the proposed amendments when they vote on them in a referendum on Saturday. If they do, that would mark a precedent of some significance – in all previous referendums on constitutional changes (and there have been four of them since 1971) a powerful president and the whole apparatus of the state were behind the proposals and made sure they passed. This time the debate has been open, substantial and lively, with many of the contributions hostile to the limited proposals on offer.
Superficially this might seem surprising, given that the country has been living in a constitutional vacuum since February 11, when the military council took power, an act which was in itself unconstitutional. Attempts to arrange a constitutional transfer of power collapsed because Hosni Mubarak was always one step behind the demands of the protest movement and in the end he ran out of options. The military council then ‘deactivated’ the existing constitution and asked a committee to draft amendments to make it more democratic, concentrating on opening up the field of possible presidential candidates and on steps to ensure free and fair elections.
But the experience of the past five weeks has shown that it is possible, if slightly inconvenient, to run a country without a constitution and the idealists who favour a fresh start through a constituent assembly (a ‘second republic’ as the French would say) have been gaining ground as the revolution advances.
The objections to the proposed amendments are quite persuasive:
* If they approve the amendments, the Egyptian electorate will in effect be reactivating the whole of the rest of the old constitution, which gives excessive powers to the president and fails to provide effective checks and balances between the various estates (executive, legislature, judiciary and so on).
* The political groups that took part in the uprising against Hosni Mubarak say the old constitution has lost any legitimacy it ever had and is irreparable. It has been replaced by what they call a ‘revolutionary legitimacy’, which they want to see enshrined in a document drafted according to a completely different vision of the relationship between the state and the people.
* Under the amended constitution the president and the next parliament would take on the task of drafting further changes to the constitution. But many Egyptians say that a hastily elected parliament will not be fully representative, because political forces excluded from the political arena for the past 30 years need more time to organise. The main beneficiaries of early elections would be the Muslim Brotherhood and local strong men associated with the discredited National Democratic Party, which dominated parliament from the mid-1970s. A constituent assembly could be more representative, although there is no consensus of how the participants would be chosen. Not surprisingly, the Brotherhood and the rump NDP are the main forces asking their supporters to support the amendments.
* Even the most prominent candidates for the presidency – Amr Moussa and Mohamed ElBaradei – say they would prefer to seek election under a new democratic constitution which has broad popular input and support. To take power under a constitution contested by significant political groups would diminish their authority.
* The military council appears to have chosen the fast-track option because it did not want to stay in power beyond six months. But public sentiment has gradually shifted, giving more weight now to a thorough overhaul of the system of government and less weight to sensitivities about the dangers of military government. Despite the council’s excessive caution and occasional heavyhandedness, the generals deserve some credit for convincing Egyptians that they are not a threat to democracy.
* Although some Egyptians remain worried about the consequences of a ‘no’ vote, the campaign for a constituent assembly appears to have momentum and the many advocates of rejection must have some confidence that their view will prevail if the referendum returns a convincing ‘no’ vote.
The Arabist quotes an opinion poll as saying that 49 percent of people are against the proposed amndments, 36 percent are in favour, 13 people are undecided and 2 percent won’t vote. The big change is in the number who say they won’t vote: in previous referendums the real turnout may have been less than 10 percent, especially if one excludes all the public-sector employees bussed to polling stations. There’s plenty of anecdotal evidence that people who would never have dreamt of voting in the past are now examining the arguments in detail and asking how they can take part. That would be an achievement in itself. Since the Brotherhood will vote in favour, the referendum will also be a test of the movement’s real electoral weight and the mobilizing capacity of the new untested forces which the revolution has activated.