Plebiscites and Parasites

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The upcoming referendum on the proposed amendments to the Egyptian constitution, scheduled March 19th, gives people a sense that the revolutionary process is reaching its end. The limited scope of the amendments, the majority dealing with electoral matters (such as presidential term limits, reduced length of the president’s term, judicial oversight of elections…), imply that the 11 men of the amendment drafting committee were not attempting to upend the existing order, but were attempting to establish a legal framework for the transition from Mubarak’s rule.

Yet, over the last few days, the legal community – including human rights lawyers, law professors and lawyers in general practice – has begun to coalesce around a consensus in favor of completely rewriting the constitution as the necessary next step in the political process. Many legal professionals believe that the amendments represent a dangerous step backward. As a result, many in the legal community have begun to organize a call for the referendum to be scrapped and/or for people to cast a “no” vote in protest to the entire process.

There are several principal complaints about these constitutional amendments, but the most significant is directed at the amended version of article 189 and the implications of the process it creates. The amendment calls for “A Constituent Assembly of 100 members, to be elected by the majority of the two houses of a joint meeting of parliament, to undertake outlining the new constitution during a period of time not more than six months from the time of its formation.”

The natural question on everyone’s mind regards who will make up the majority of the two houses of a joint meeting of parliament. Many political analysts predict that the remnants of the formerly ruling National Democratic Party (NDP) and the Muslim Brotherhood, together, will end up taking a majority of the seats in parliament by virtue of their being the two most organized political forces in the country. This sets up a situation where these two conservative political factions can create a coalition and essentially write their own constitution.

The general presumption in the western practice of constitutional law is that a body created to write a new constitution must be widely inclusive or it will be seen as illegitimate by the people. Similarly, many Egyptian legal analysts are extremely skeptical of the lack of an open and representative process for writing a new constitution. With so much blood and hope put in to the revolution, many people don’t want to take any chances that the constitution will be hijacked by a conservative majority, leaving other political forces locked out of the process. But, with so little time between now and the referendum, it is unlikely that an organized campaign to defeat the referendum can emerge.

This situation is particularly dangerous considering the current state of constitutional law in Egypt. The legal status of the military’s assumption of power after Mubarak’s resignation has been skeptically viewed by many lawyers. Further, one of the first acts of the Supreme Council of Armed Forces was to suspend the constitution upon taking power. As a result, there has been a constitutional crisis in Egypt since Mubarak resigned.

In strictly legal terms, some scholars argue that the military engineered a coup that invalidated the constitution when it took power upon Mubarak’s resignation. Others say that progress towards stability should move forward under a presumption that the constitution is still in place. Views, such as that of Tahani al-Gebali, Egypt’s first female judge and vice president of the Supreme Constitutional Court, express the legal trouble at issue. She argues that passage of the constitutional amendments could override the suspension of the old constitution and legally block the military from a legitimate decision making role in the country’s political process, invalidating their call for presidential and parliamentary elections.

Alternatively, the Muslim Brotherhood is predictably calling for a “yes” vote on the amendments and is already making plans for their own emergence as a major political force. The prominence of Brotherhood members on the amendment drafting committee only reinforces the skepticism of the left in the honesty of this whole process. Looking down the road at a potential NDP and Brotherhood dominated constitutional committee gives many people reason to smell a conspiracy with the army.

This interplay of law, politics and power is probably the fundamental issue regarding the future of the revolution. Egypt’s current lack of adherence to legal and constitutional norms provides ample opportunity to manipulate the process while reducing the ability to challenge abuses. The ability of the Egyptian public to influence the course of these challenges will continue to evolve as the process continues.

The army is forcing us into a premature yes/no decision that is being mulled by all of us in Egypt. As everything the past few weeks where the army is involved, the consequences are yet uncertain.

source: Plebiscites and Parasites | http://www.occupiedlondon.org/cairo/?p=378

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