We know who represents Egypt. But who constitutes it?

Neither the Brotherhood nor SCAF wants a system of checks and balances. Might that be exactly why they eventually produce one?

As before November 18, when the MB and Salafi parties very successfully challenged SCAF’s attempt to impose “supra-constitutional principles” ahead of the first-round parliamentary elections, the MB is standing up to SCAF on matters of legitimacy and power. Specifically, who gets to write the constitution? Will it be people named by the democratically elected parliament? If not, why?
SCAF held a ridiculous (foreigners-only) press conference Wednesday claiming that the to-be-elected parliament does not “represent Egyptian society” and therefore asserting control over the process of naming the constitution-drafting committee. In response, the MB withdrew from SCAF’s “advisory council” — another ridiculous initiative aimed at legitimizing the military junta’s arbitrary rule and spreading the blame for its failures. (The Arabist has a good wrapup of various coverage; but I think his own view that this is the last gasp of military rule is way too optimistic.)  The whole thing should backfire against SCAF: as though Egyptian liberals or their bilingual Facebook friends didn’t read The Guardian! But it might not.

Nicholas Kristof just wrote an amazingly dumb dinner story. Here is mine.

We had dinner today with my lovely friends whom I’ve known for a decade: they are both journalists, with two kids, an apartment full of books, and very liberal views (Arab liberal = favoring liberal democracy, i.e. elected civilian rule with constitutional protection for minorities; they’re also lefty and pointedly secular). Their younger child was born seven days before January 25 but, to the extent possible given two working parents and a newborn, they have been quite active in the revolution. The mom and kids had to go away to her parents’ house in another city during the week their street was flooded with noxious tear gas. In short, they loathe SCAF with every fiber of their being.Ditto for the Brotherhood: when two polite MB canvassers visited their apartment building in October giving out Eid gifts and leaflets and asking where people would pray the Eid prayer, my equally polite friend not only refused their gift but told them he was not planning to pray.
Imagine yourself now in these people’s position. The specter of illiberal democracy is stalking the region.  From all sides one hears the words “Turkish model”: for Brotherhood supporters it still means (despite the disenchantment with Erdogan that Piotr Zalewski analyzes here) “moderate, non-corrupt Islamists boost economy and enhance global stature”; but for liberals it now means “the military as guarantor of democracy.”  The problem is the transitional process SCAF has designed. But the ironic result is that some liberals may be tacitly turning to the junta for help.

Me: So [the SCAF general] claimed the elections didn’t represent the population? That’s ridiculous.

My friend: No it isn’t.

Me: But they’re free elections.  Isn’t that SCAF’s claim too?

Him: But a constitution is not for one five-year electoral cycle; it’s supposed to be forever.  It’s the fundamental law that constitutes the political system and decides how the other laws are made. For one parliament elected at one point in time to be allowed to write the constitution would not be fair.

Me: Why not?  Aren’t you doing the classic liberal thing, calling for elections and then rejecting the results?

Him: Not really.

Me: You are. If the parliament accurately represents the current views of Egyptian society, which I think we agree it (unfortunately) will, why shouldn’t it be allowed to decide what the political system looks like?

Him: What about protection of minorities?

Me: Hmm.

Him: What if the Islamist parliament appoints a constitution-drafting committee that throws out established principles of human rights? Or backs away from international rights accords that Egypt has signed? What if they only recognize three possible religions — Islam, Christianity, and Judaism — without making room for people who are Bahai or something else or atheist?

Me: Hmm.  So just like in the Mubarak days, secular liberals are tolerating the military dictatorship as a bulwark against organized popular Islamism.

Him: No.

Me: You are running to SCAF for help.

Him: No, this is SCAF’s fault in the first place. They put in an absurd set of procedures for the transition: an elected parliament first (before we even know whether Egypt will be a presidential or parliamentary republic or what), then a constitution afterwards. How can you have a parliament before the division of powers? Whereas the Constitution should be the fundamental thing, coming straight from a transitional civilian government, as ElBaradei had initially suggested. If they had really been interested in transferring power…

Me: I know, it’s messed up. But constitutions aren’t forever. They can be amended; they contain procedures for amendment. When the US Constitution was adopted, women couldn’t vote and a black person was only 3/5 of a person. 

Him: You can’t have parliament changing the constitution every five years. If people like me managed to elect a Socialist parliament one time, I wouldn’t want them to be able to rewrite the constitution either.

Me: No, you’re right. Plus, constitutional amendments aren’t easy.  I just kind of glossed over the whole Civil War thing that those U.S. amendments required.

Him: You see what I mean?

I do. How the hell to have a democracy where 60 years of misrule (or should we count the British and make it 130?) has fried the demos? It’s hard enough everywhere else.

Me: So who would you say should represent Egyptian society for the purpose of writing the constitution?

Him: There are other groups. Syndicates, for instance.  The syndicate of doctors, lawyers, engineers. The writers’ union, the syndicate of journalists. (Ah, the journalists.) Give each of those groups a representative.  And then give the parties in parliament representatives proportional to their seats, comprising maybe half or two-thirds of the constitutional committee.

I see the appeal of having some intellectuals involved. But — writers and artists appointed by generals, really? Plus, isn’t that pretty much what the SCAF guy said?

So we come back to the scenario of SCAF-MB checks and balances. If the MB can actually win the power to see the military’s budget, and SCAF in turn can help the MB tame rather than appease the probable crazy social-conservative agenda of its Salafi co-parliamentarians (whether they end up being coalition partners or yappy opposition), then the country certainly will not move forward; checks and balances are designed for gridlock. But at least it may get a bit of breathing room and stable-cleaning. That is the only remotely optimistic medium-term outcome I can see.


SCAF’s strategic (?) failure to make law

The banners keep multiplying and the party alliances shifting, but I find it hard to get too excited about the parliamentary elections next week. Not because of any possible rigging, but because there’s some chance the results will simply be disregarded. For instance it is easy to imagine the parliament being sidelined in the drafting of the new constitution… or the constitution itself being sidelined… like the draft “constitutional principles” document that has provoked a big fight even though no one knows whether it will be binding or not.

Remember all fuss about the constitutional amendments referendum back in the spring? Amendments were proposed to five articles of the 1971 Constitution, and the referendum kept civil society preoccupied for weeks. The “no” side objected, among other things, to the overly broad powers still granted to the presidency – they claimed the amendments were just a “tiny operation” (implication, according to this nasty ad subtitled by my friend Hazem Azmy: the amendments are like a hymen restoration surgery for a basically fallen system of government). The “yes” side spun the “no” vote as an effort to de-Islamize Egyptian law (since Article 2 said and would continue to say that shari`a is the basic reference of Egyptian law) and turned out in force to defend religion, spinning its resulting victory as “ghazwat al-sanadiq,” the holy conquest of the ballot boxes (as in this infamous video also subtitled by Hazem).
All that seems like ancient history now. SCAF just annulled the whole constitution, amendments and all, and issued a new Provisional Constitution. Unclear why. Did they belatedly discover (!) that if the amended 1971 Constitution were left standing then their own rule would have no constitutional legitimacy, since it stipulates the Speaker of Parliament should take over if the president resigns? Or did they have some other reason? Was it their plan all along? Since then they have been ruling by proclamation, trial balloon, and Facebook page decree. Everything they do (as my teacher Sayyed Ismail Dayfallah points out) looks like improvisation but somehow has the effect of increasing their power.

In the “Why Rule of Law?” seminar I taught in the Georgetown government department in 2005 and 2006, we read from a brilliant little book called The Morality of Law by Lon Fuller. Among other things, Fuller presents this list, which I assigned in tandem with an excerpt from Kafka’s The Trial:

Eight Ways to Fail to Make Law
From Lon Fuller, The Morality of Law (1964)

1) Make case-by-case decisions rather than general rules.
2) Make rules, but neglect to publicize them.
3) Make rules whose application is retroactive.
4) Make rules that are too obscure to be readily understood.
5) Make rules that contradict each other.
6) Make rules requiring conduct that is physically impossible.
7) Change the rules so frequently that behavior cannot be guided by them.
8) In your actual administration, disregard the rules.

Fuller’s prose is quaint, but his issues are relevant. The book grows from his deep concern with the legal system in post-Nazi Germany: how to move from a state of no law to a state of law? What to do with the remnants of the old regime (such as illegal laws)? How to create and enforce — and I think this is what the people of all stripes marching to Tahrir right now and tomorrow are demanding, and unfortunately they can do little more than demand it — a government bound by law?

At a crossroads

In a discussion of an al-Jazeera segment on “religion and politics” today, it finally came home to me what it means for a country to have an opportunity to write itself a constitution from scratch.  Yes, I had known it before, but realizing it was huge.  Imagine what would erupt if the U.S. were facing a moment like that, now, today, not in 1783? What kind of gruesome compromises would we come up with this time? (Assuming they were compromises at all and not fast-forward to the Civil War.) What an amazing crossroads to be at.

Tahrir, Sept 5, 2011

Midan Tahrir, Sept 5, 2011

This doesn’t happen so often in history. Unlike Iraq a few years ago, Egyptians have a relatively clean crack at a constitution, with no occupying army breathing down their neck.

Or at least, only occupied by their own army. The military presence is far more obtrusive than before January 25. Look at the “Siniyya” (tray, or bowl) in the center of the Tahrir traffic circle in the photo above: ringed with state security guys even on an ordinary day. The next big demo (“miliyoniyya”) isn’t planned till Friday. I’ve heard several people use the word “qishra,” like a thin skin or vegetable peel or facade, to describe what this “revolution” has peeled off from the reality of praetorian rule — apparently this is enough of a cliche to have merited a whole Marxist analysis on Facebook months ago.