Constitution-Writing in Egypt

Simon Frasier University’s Tamir Moustafa has published a new paper (PDF) on constitution-writing in Egypt that is meant to draw attention to “the gulf between ‘best practices’ in constitutional design and the political realities of the Egyptian transition.” He writes:

As the fundamental document establishing a framework for governance, the new Egyptian constitution will have a lasting effect on Egyptian law, politics, and society for years to come. However, Egypt’s transition is shaping up to be a case study in how not to initiate a constitution-writing process. If Egypt is to emerge with a stable constitutional order that protects basic rights, it will be in spite of the mismanaged transition dictated by the ruling Supreme Council of the Armed Forces (SCAF).

According to Moustafa, SCAF’s mismanagement results from its arrogance and selfishness. “Acting in a unilateral and opaque manner,” he writes, “SCAF has continually changed the rules of political transition to suit its own evolving interests.” The transition would be go much better if SCAF would take their cues from “experts in constitutional design,” who “emphasize the importance of an inclusive and transparent process for achieving buy-in from major political actors and a sense of ownership among the general public.”

An inclusive and transparent process may be the best way to go if the objective is to achieve stable democracy. But for whom is that really a goal? The expert prescription Moustafa endorses assumes the existence of powerful but disinterested overseer–a manager rather than a politician–or at least a political society dominated by a set of groups who see durable democracy as a desirable end in itself.

This prescription, and the critique of Egypt’s constitution-writing process that Moustafa bases on it, are emblematic of a technical modernist worldview that pervades applied academic work on democratization. According to this view, political institutions can and should be designed to solve social problems. During transitional moments, political leaders are expected to behave as if they were in Rawls’ original position, adopting a “veil of ignorance” about their current assets and future interests so they might construct a set of rules that will be fairest to all.

The prescriptions that emerge from this technocratic perspective can be both correct and unrealistic at the same time, like specifications for a hyper-efficient car that can only operate in the vacuum of space. More realistic about what’s happening in Egypt, I suspect, is Nathan Brown’s description of a process of gradual and uneven change driven by the self-interested behavior of powerful organizations. Where Moustafa chides SCAF for mismanaging the transition, Brown assumes the extrication of the security establishment from Egyptian politics will take decades because it is so powerful and deeply embedded.

The Egypt of the past half century has been one in which the security establishment exercised control over civilian life. There are now powerful forces at work that seek a reversal so that there will be civilian oversight of the security establishment. This may be a Herculean task but it is not completely a Sisyphean one. An attainable goal over the short term may be a relaxation of security vetting for sensitive state institutions…There will be no sudden change — the geriatric leadership of many Egyptian state institutions will neither step aside quickly nor allow the floodgates to open immediately — but the slow transformation of state institutions to be far more diverse is a likely result even if it occurs at a glacial pace.

In contrast to Moustafa’s admonition of SCAF to follow “best practices,” Brown’s simply assumes that security forces will continue to pursue their organizational interests. In fact, he expects other powerful corporate groups to do the same, mostly by using the current uncertainty to grab as much autonomy as they can, and he sees the resulting tugs of war as the defining feature of Egyptian politics for at least the next two decades.

The institutions brought long ago under presidential domination are now striving hard to wriggle free. Two of the major tools they seek to use to achieve independence are the ability to select their own leaders from their own ranks (rather than have the president dominate the institution through a hand-picked sycophant) and the writing of a law that will give them full institutional autonomy from other parts of the Egyptian state. The leading Islamic institution, Al-Azhar, has already achieved some of that goal; labor unions, the judiciary, professional associations, and the universities will be working to shove their way to the agenda of the newly-elected parliament to attain something similar. In a sense, the military is seeking the same thing: to be able to run its own affairs, administer its own budget, make its own security policy, and select its own leaders with only minimal civilian oversight. Many of these causes (such as the judiciary’s claim on independence) are popular; some (such as the military’s) are far more controversial but still backed by powerful political forces.

Even if the specifics turn out differently, Brown’s mental model of the transition process is surely more realistic than Moustafa’s. As I wrote in a recent post, democratic transitions are not ruptures in history that wipe away old institutions and replace them with new ones. Instead, they are more like floods that add a new layer of institutions atop the old ones, and the interactions between the old and new can take a long time to play out.

Western policymakers looking for levers to pull will probably find Brown’s analysis more frustrating that Moustafa’s, but that doesn’t mean it’s wrong. The best strategies are based on realistic assessments of what’s possible, not hopeful visions of how we want them to be. I hope Egypt finds its way to a durable democratic government soon. If that happens, though, it won’t be because SCAF catches democracy fever. Instead, it would probably happen when the array of powerful groups Brown sees pursuing their own interests get stuck in a stalemate and grudgingly forge a compromise.

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