The Middle East Channel

Does Egypt need a new constitution?

As street protests in Egypt witnesses its third week, we hear frequent calls for a new Egyptian constitution.  The April 6th Youth movement reiterated its demand that Mubarak step down from power immediately and that a transitional coalition government lead a process of transition, including the drafting of a new constitution. Similarly, a statement from the Faculty of Law at Cairo University calls on Mubarak to "comply with the will of the nation," and, among other actions, to draft a new constitution.  Political parties, civil society organizations, and activists of all stripes have voiced the same call, both before January 25 and after. But will a new constitution provide the fundamental break from 30 years of authoritarian rule that Egyptians are calling for? Does Egypt need a new constitution? 

While parts of the existing constitution are no doubt regressive, on the whole it is a surprisingly liberal document. Many of the fundamental freedoms that the pro-democracy movement wish to see enshrined in a new constitution are already present in the existing document. These include protections on the freedom of speech (article 47), freedom of the press (article 48), freedom of assembly (article 54), and freedom of association (article 55) among others. The constitution is also clear on the independence of the judiciary (articles 65 and 165), the independence of judges (article 166), and division of powers between the executive and the legislative branches. The state is subject to the law (article 65) and citizens are provided with guarantees to access their rights in a court of law (article 68). 

These fundamental liberties, it should be remembered, gave opposition activists the legal tools to challenge the regime throughout the past three decades. When all other avenues of political activism were closed, it was the courts to which human rights lawyers, opposition parties, leftists, liberals, Islamists, and everyday citizens flocked to challenge the state. Egyptians frequently prevailed, at least when the stakes were low. But even in politically charged cases, political activists occasionally scored major victories against the state.

This is not to say that the constitution is a perfect document -- far from it. Some of the most egregious problems with the constitution were introduced in the 2005 and 2007 constitutional amendments.  Article 76, for example, restricts the nomination of candidates in presidential elections to parties that hold a minimum of 3 percent of the seats in the People's Assembly and Shura Council. By definition, this narrows the playing field to the formal opposition parties, which are notoriously weak. Even the largest opposition party, the Wafd, currently holds only 6 of 508 seats in the current People's Assembly, or slightly more than 1 percent. To make matters worse, article 76 of the constitution raises the bar further for subsequent elections, when nomination must be secured from 65 members of the People's Assembly, 25 member members of the Shura Council, and 10 members of local councils in at least 14 governorates. In other words, article 76 makes it virtually impossible to have a meaningful presidential election.

Other articles that should be amended include article 78 (which sets no limit on successive terms for the Presidency), article 88 (which governs the supervision of elections), article 93 (which prevents the courts from invalidating membership to the People's Assembly as a result of election irregularities), article 179 (which provides broad powers to a Socialist Public Prosecutor), and articles 112, 113, 136, 167, and 171 (which collectively weaken the People's Assembly and the judiciary vis-a-vis the Executive Authority). 

It was also recently announced that the Constitutional Amendments Committee, which was formed by presidential decree on Tuesday, agreed to amend six articles of the constitution, including article 76. After two weeks of mostly cosmetic changes, this announcement could be the first sign of meaningful concessions from the regime. But proof of concrete reforms must come in the details. To be sure, there are articles of the constitution that can and should be amended. But the pro-democracy movement must not lose sight of the fact that the current constitution already contains most of the liberties and protections that they currently seek.

And this points to a far more ugly and complicated reality:  the legal conundrums that Egypt faces are far deeper than the constitution. The regime has spun out illiberal legislation for decades, making constitutional guarantees on fundamental rights ring hollow. Laws regulating the press, political parties, police powers, elections, trade unions, non-governmental organizations, and just about every other area of political and social life are designed to strengthen the hand of the executive. These are precisely the laws that political activists challenged in the courts over the past three decades, but the same dynamic always played out:  When litigation succeeded in striking down legislation, the regime would simply use its rubber-stamp People's Assembly to hammer through new legislation, often times more illiberal than the last iteration. 

Even if the constitution is amended and Mubarak steps down, this web of illiberal legislation would remain on the books. It would provide the current regime with all of the same tools to manipulate elections and exert control over other areas of political life in very familiar ways.  In other words, if the way forward is through the existing legal system, it will be rough going the whole way. It would be simple and straightforward if a new constitution was all that required to break from past political dynamics, but in some ways, the constitution is the least formidable obstacle to change.

For a different take on the constitutional reform project, see Michael Wahid Hanna's "Egypt's Constitutional Conundrum."

Tamir Moustafa is an Associate Professor of International Studies at Simon Fraser University and author of “The Struggle for Constitutional Power: Law Politics, and Economic Development in Egypt” (Cambridge University Press, 2007).

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The Middle East Channel

The price of democracy in Egypt

Since 1979 the United States has spent nearly $2 billion annually on aid to Egypt.  Approximately two-thirds has been spent on "foster[ing] a well-trained, modern Egyptian military," with the purpose of ensuring stability in the country and in the region.  The remainder of the aid has funded development and economic aid programs targeting civil society development, political party training, and educational exchanges, among other aims.  In light of the Egyptian people's ongoing and forceful demonstrations for the removal of President Hosni Mubarak and their calls for a free and democratic political order, the U.S. should shift its aid distribution so that development aid is on par with funding to the military.

President Obama has already called for political change in Egypt leading to more freedom, opportunity and justice for the Egyptian people.  In remarks on February 1, the President went so far as to press for an immediate and "orderly transition," leading to free and fair elections rooted in democratic principles. It is now time to begin putting in place the policies that support these words.

When the inevitable collapse of Mubarak's regime takes place - in days, weeks, or months from now - Egyptians will have the opportunity to create a freer, more democratic and representative government.  There will be more real space for civil society groups to function and political parties will have more freedom to organize and contest elections.  And the United States will have a once-in-a-lifetime opportunity to live up to American rhetoric about democracy, freedom, and human rights.  The United States should therefore be fully prepared to offer assistance to these groups and parties, whose growth and development Mubarak cynically and successfully stifled throughout three decades of dictatorship.

While Congress has entertained the notion of cutting some portion of US funding to Egypt in order to send a message to President Mubarak, the Egyptian people need to hear the message that the U.S. supports their struggle for a free and democratic Egypt.   By shifting the relative amounts of current U.S. funding so that development aid and military financing enjoy the same level of support, the U.S. has the opportunity to make good on its commitment to democracy and human rights without alienating the Egyptian military and still sending a strong message to Mubarak.

Through existing programs like the State Department's Middle East Partnership Initiative (MEPI), non-governmental organizations such as the National Democratic Institute (NDI) and the International Research and Exchanges Board (IREX), and a variety of local partners in Egypt, additional funding could enable exactly the types of assistance Egyptians will most need as they work to create a new, accountable, democratic, and responsive political order.  These programs and organizations already have initiatives to carry out political party training, election monitoring, and building the capacity of civil society organizations.  These activities were less effective and meaningful in an Egypt living under the weight of an authoritarian regime, which viewed them suspiciously as attempts to create the necessary conditions for a more democratic order.  Organizations like NDI have struggled to carry out their work in Mubarak's Egypt, but as the country experiences a transition from autocracy to representative democracy, the U.S. should be ready and willing to provide the practical training and advice that Egyptians will need and that the above organizations and programs are meant to provide.

MEPI provides a concrete example of how the above-mentioned programs were hampered in the past and how they could be more effective as Egypt transitions to a democratic system.  In 2005, when President Mubarak announced that Egypt would hold multi-party elections later in the year, it was MEPI's small grants program that allowed the U.S. embassy in Cairo to identify and fund local groups to conduct election monitoring and civic education.  At the time, the work of these local groups was rendered impotent by the regime's orchestrated efforts to retain power.  In an Egypt actively transitioning to a democratic order, it is exactly these types of programs that are relevant and necessary.

Indeed, U.S. development assistance has made a measurable impact in advancing the democratic aims of citizens in many Arab countries.  To cite just one example, NDI's work in Yemen across the spectrum of parties - Islamist and secular alike - in the last decade helped Yemenis to hold more genuinely democratic elections by fostering dialogue between opposition parties and helping them to organize greater voter turnout than at any time in the past.  The inclusion of Islamist parties in this work - such as in Yemen - has helped to bring them into the fold of pragmatic groups contesting elections in a flawed but improving democratic political system.

What's more, shifting the relative levels of existing funding will not cost the United States any additional money, though it will buy for the Egyptian people more tangible and enduring improvements in their lives than the purchase of yet another installation of the newest weapons systems.  The decades of Mubarak's authoritarian rule squelched Egypt's political opposition, left the notion of freely contested democratic elections a foreign phenomenon, and criminalized the gathering of citizens to press their government for meaningful change - an essential role played by civil societies everywhere.  Recovering from such repression will take exactly the types of training and experience that the U.S. has to offer.

In his speech at Cairo University in 2009, President Obama affirmed that governments that are transparent, respect the rule of law, and rule by consent of the governed ultimately are more stable, successful, and secure.   Facilitating the Egyptian people's efforts to create a democratic order in the country will help provide for such a stable, successful, and secure partner in the region, as it is now clear that President Mubarak is not capable of such a thing.

For decades now the United States has acted as though stability in Egypt - a stability that masked profound inequalities and injustices - was more important than freedom for Egypt's citizens.  While the U.S. cannot turn back the clock, it can make the right decision moving forward and offer to Egyptians some of the crucial skills and tools they will need to develop a free, just, and democratic country.  It is difficult to imagine a more opportune place or time for the U.S. to make good on its commitment to democracy in the Middle East.

Andrew Masloski is the Director of Educational Outreach at America Abroad Media.

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