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Egypt’s Constitution Needs an Expiration Date

Author: Meghan L. O'Sullivan, Adjunct Senior Fellow
December 13, 2012
Bloomberg

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Egyptians living abroad began voting Dec. 12 on whether to accept the nation's proposed new constitution. Yet, even as they took to the polls and those in the country prepared to vote this weekend, President Mohamed Mursi continued to meet with a "national dialogue" committee on compromises that might allow more members of the opposition to accept the controversial draft.

While it is difficult to imagine many ideas that could bridge the yawning –-- and violent –-- gap between the president's supporters and the opposition, one just might do the trick: a review mechanism that would require Egyptian political forces to reconvene in five years to consider changes to the constitution.

In the last 24 hours, the Egyptian opposition decided to urge voters to cast their ballots against the draft constitution, rather than boycot the referendum altogether. This decision was welcome; the opposition signaled that it is still invested in and willing to play within the rules of the political system.

Delayed Loan

It is, however, only one glimmer of light in an otherwise dark situation. By forcing through the referendum this weekend on a document that has raised concerns about fundamental rights and around which there has been no public debate, Mursi is inviting prolonged civil strife, which has already led to the delay of the delivery of a $4.8 billion International Monetary Fund loan that Egypt so desperately needs. The prospect of a founding constitution that many see as creating opportunities for Islam to curtail the rights of women and minorities has galvanized the until-recently dormant liberal forces in society and politics that ousted Hosni Mubarak.

The violent protests in Egypt over the last two weeks have underscored a reality that cannot be wished away: Egypt is a fundamentally divided society. There may not be the Sunni-Shiite or Arab-Kurd divisions familiar to us from Iraq, but there is nothing resembling a national consensus about what Egypt should look like in the future. This deep discord was evident in the results of June's presidential election. Mursi, supported by the Muslim Brotherhood, defeated Ahmed Shafik, Mubarak's last prime minister, by only 800,000 votes; 51.7 percent of Egyptians cast their ballots for Mursi while 48.3 percent backed a very different candidate.

In the almost six months since, this division was obscured somewhat by Mursi's surprising but welcome pragmatism. His focus on the economy resonated with all Egyptians and allayed fears that he was dedicated to an unyielding Islamist agenda designed to alter Egyptian society. Mursi's recent decree to put his actions above judicial review and his efforts to force through a draft of the constitution, however, have rekindled anxiety, seeming to confirm initial fears about his actual devotion to democracy.

While Mursi has rescinded most of the offending decree, he has made no real concessions on the matter of the constitution - –- which most Egyptians understand is what really matters over the long term. To be fair, the opposition has not shown any real interest in negotiation. Both sides must recognize that Egypt, already at risk of economic calamity, will suffer greatly without some consensus upon which to move forward.

Second Referendum

Mursi and the opposition should agree that the draft constitution, if ratified in tomorrow's vote, will later be subject to a comprehensive review. In a specified period of time, Egyptian political forces would reconvene in a special session -- perhaps involving another constituent assembly -- to rework the constitution, which would again be subject to a referendum.

For Mursi and his supporters, the obvious downside of this proposal is uncertainty over whether they would be able to lock in the changes they have secured in the current draft; the upside is that they could hope to quell opposition to the current draft and, in the interim, convince Egyptians that they should be content to live under it. For the opposition, the benefit would be an opportunity to reshape the constitution at a later date in a way that is more conducive to its interests; the disadvantage would be the uncertainty around whether the opposition would, in the interim, be able to organize itself into a more cohesive force that could negotiate with the Muslim Brotherhood.

A constitutional review mechanism has been used in other divided societies with mixed results. South Africa enacted an interim constitution in 1994, then two years later held a successful referendum on a final document considered the finest and most legitimate constitution in Africa. Iraq, in contrast, also adopted a constitutional review mechanism –- after having an interim constitution -- but with much too small a window for debate and no punishment for non-cooperation. Egypt should learn from Iraq's mistakes.

Constitutional reviews should be considered by many of the Arab states undergoing political transitions. The process mitigates the effects of holding elections soon after revolutions, a practice that political scientists and policy makers lament because of the advantages they give to more organized political forces at the expense of the -- often secular -- opposition.

Lowered Stakes

The issue with early elections is not so much the likely Islamist nature of the first government or parliament; the real concern is that those bodies inevitably hold so much power in crafting the institutions, particularly the constitution, that decide the trajectory of the country for years or decades to come. A constitutional review mechanism lowers the stakes somewhat, creating space for a broader array of political forces to organize and articulate positions before the foundations of a state are made permanent.

No single proposal is going to smooth over the acute political division in Egypt. Yet a deal over a constitutional review holds the prospect of at least breaking the impasse. It also offers something for each side, making it plausible that leaders of both could persuade their constituencies to accept it, and to step away from the political crisis threatening to jeopardize the nation's future.

(Meghan L. O'Sullivan, a professor at Harvard University's Kennedy School of Government and former deputy national security adviser in the George W. Bush administration, is a Bloomberg View columnist. The opinions expressed are her own.)

This article appears in full on CFR.org by permission of its original publisher. It was originally available here.

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