Talkin’ ’bout a constitution: the document that is shaping Egypt’s struggle

Ballot and Beyond
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Ballot and BeyondIn this article, Clément Steuer explores the role of the constitution in Egypt’s conflicts. He argues that the opposing sides differ on which collective of actors has sufficient legitimacy to pen a new constitution, and what the parameters of that document should be. Clément is a political scientist at the French Documentation and Research Center (Cedej) in Cairo, and he is working with a funding of the Région Rhône-Alpes.



Egyptian constitutional law is both a legal frame for the struggle of various opposing political players, and the main issue of that struggle. As an issue, it is highly polarizing, because Egyptian society is divided between Islamist and secular forces and -though less dramatically- between supporters and opponents of the military tutelage over the State. As a legal frame, the Constitution failed to define clear political rules that could be held in common by the majority of the players. Consequently, fighting has broken out not only over what constitutional principles should exist in the future, but also over what constitutional rules should apply now.

The constitutional issue has played a key role in the development of the actual political crisis. Indeed, the power of Muhammad Morsy was challenged in the streets for the first time in the end of November 2012, when he issued a presidential decree to prevent any judicial threat against the Islamists-dominated Constituent Committee. Then, that Committee published a draft Constitution prematurely, which was adopted by referendum in under three weeks, despite popular protests and the opposition of the judicial body.

The apex of this politico-judicial crisis was reached when Muslim Brotherhood protesters besieged the High Constitutional Court to prevent it from canceling the presidential decree and dissolving the Constituent Committee before the adoption of the Constitution. Six months later, on 3rd of June 2013, the Court pronounced the unconstitutionality of the Constituent Committee, and of the Consultative Assembly which hold the legislative power and was controlled by the Muslim Brotherhood and their allies. However, the judgment recognized the validity of the Constitution itself -since it was adopted by referendum- and the right of the Consultative Assembly to keep legislating until the election of a new People’s Assembly, this right being granted by the above-mentioned Constitution itself. Whilst this judgment didn’t change anything in the judicial order, it helped to erode the constitutional legitimacy to which the Muslim Brothers clung.

Nowadays, Morsi supporters are claiming constitutional and elective legitimacy, since Muhamad Morsy was fairly elected, and the Constitution approved by the polls. Nevertheless, they are facing an interim president who came from the High Constitutional Court, and who is backed by large sectors of the civil society: justice and media, political parties and syndicates, but also the Egyptian churches as well as the Islamic institution of Al-Azhar.

Since the departure of the ousted president Hosny Mubarak and the suspension of the Constitution of 1971, the main question dividing Islamists and secularists has been, who is legitimate to write the new Constitution? For the Islamists, popular will -expressed uniquely through ballot boxes in a purely arithmetic sense- is the only source of the constituent power. Similarly, elected representatives should dominate the penning of a new Constitution. Meanwhile, the secularists have been arguing that the Constitution should be written in a consensual manner that includes all sectors of the society: army, justice, religious institutions (both Christian and Muslim ones), academics, political, social and associative activists. From this point of view, the Constituent Committee should reflect the diversity of the Egyptian society, including particularly Christian, women and the youth.

That is why in 2011, liberal and revolutionary forces called for ‘the Constitution first’, and the Islamists for ‘the elections first’. If the SCAF agreed with the Muslim Brotherhood that there was a need to elect new representatives quickly and fairly, it always appeared reluctant to let Islamists totally control the constitutional writing process. In November 2011, the government appointed by the SCAF issued a draft set of ‘constitutional principles’, aiming to frame the work of to the future Constituent Committee. This document provoked a strong opposition on the streets, and the government was forced to step back. Also in June 2012, when the High Constitutional Court dissolved the Islamist-dominated People’s Assembly a few days before the election of Muhammad Morsy, the SCAF issued a constitutional declaration, giving itself the power to appoint another Constituent Committee, if the one elected by the Parliament should fail to accomplish its task. Indeed, the army itself is the main representative of a third block: the so-called counter-revolutionary block.

So, Egypt is currently divide in three blocks, each one leaning on its own kind of legitimacy: religious, nationalist, and revolutionary. Significantly, the three sides all advocate modernization and respect for the popular will, but disagree on their definition of these two notions. The Muslim Brotherhood is a heir of the 19th century Nahda movement: it believes in an endogenous model of modernity, mixing Western techniques and science with a cultural revival based mainly on Islam. Originally, the Muslim Brotherhood believed that sovereignty belonged to God, but in the last decades, they shifted to an acceptance of the notion of popular sovereignty. The main cause of this evolution was the spectacular re-islamization of the society, begun in the 1970’s: with the majority of people believing in Islamic values, sovereignty of God and popular sovereignty are merging. That is why the Muslim Brotherhood are now defending an arithmetic vision of democracy. The nationalist block, on the other hand, believes in the centrality of the State, which represents the Nation and, thus, the People. The army, in turn, represents the State and is, therefore, the true representative of the People, as well it is their vanguard, guiding them towards social justice and modernity.

Revolutionaries claim these models have both failed: the army and the Brotherhood are pretending to rule people for their own sake, in the name of God or of the Nation, but they are actually ruling for their own interest. They are not contesting the State nor the religion, but the military elite and the religious counter-elite, who are using these two notions for egoistic purposes. Revolutionaries are not against elitism: they are themselves well-educated young people and/or well-organized, well-trained social movement leaders, and they think people must be educated in order to escape the tutelage of the military and religious leaders. But they are contesting the hierarchical organization and the lack of transparency which prevail within the State and the Muslim Brotherhood. They believe that modernity requires decentralized and loose networks of association, which can mobilize, and finally express, the popular will.

The ousting of president Morsy was the result of a tactical alliance between revolutionaries and nationalists. One of the first moves of the new rulers was to suspend the Constitution of 2012, and to appoint a committee to reform it. This new committee will include representatives of the State and of the civil society, writing the rules of the game before they seek popular approbation throughout electoral mechanisms. So, constitutional issues are still in the heart of the political struggles in Egypt, and they will stay so during the next period of this tumultuous transition process.

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