Although Egypt deserves a quick transition to a functioning democracy, it also needs more time to carefully craft its permanent constitution.
Following the incredible initial success that Egypt’s popular revolution has had in removing Hosni Mubarak from power, on 30 March 2011 the Supreme Council for the Armed Forces published an Interim Constitution that is to guide the country through the coming period. Although the text opens up exciting new possibilities and opportunities for change, it is also deeply problematic, particularly in so far as the mechanism for drafting the permanent constitution is concerned. In that regard, Egypt can learn many lessons from Iraq, which is the only country in the Arab region to have engaged in a constitutional drafting process in recent memory.
Every country in the Middle East has its own share of challenges and attributes, and there is no question that Egypt’s constitutional drafting process will be a far different experience to what took place in Iraq in 2005 (not least because Egypt does not have to suffer the consequences of a foreign military occupation). However, there are enough similarities between the two countries (aside from obvious linguistic, cultural, religious and historical ties) that allow for one to learn from the other in relation to specific issues. Egypt and Iraq have many of the same basic needs, some of which can at least be partly addressed through a successful constitutional drafting process. In that sense, the Iraqi experience has failed miserably and Egypt should take stock and learn from that experience, with a view to avoid repeating the same fatal mistakes.
An Impossible Timeline
What is most shocking about the Egyptian Interim Constitution is the timeline for the drafting of the permanent constitution. Article 60 provides that the constitutional drafting process will last six months and that a referendum should take place 15 days later. Article 60 does not provide for the possibility that that timeframe can be extended. Remarkably, the American occupation authorities in Iraq had also imposed a six month timeframe on the Iraqi constitutional drafters, although mainly in order to satisfy domestic US concerns. On the opposite side of the spectrum is the South African constitutional process, widely recognised to have been amongst the most successful in modern history, which lasted all in all around 7 years. It is therefore surprising, to say the least, to see Egypt, of its own volition, mimic what has now been widely recognised as a failed constitutional process.
It is common knowledge that Egypt has a wealth of constitutional and legal scholars to drawConstitutional drafters can and should work to understand which institutions are the most efficient and which are dysfunctional, in order to decide how the new constitution can improve on the existing framework. There are many institutions that have been fulfilling their responsibilities to the satisfaction of Egyptians. Why have some been successful where others have failed, and what can the new constitutional framework do to encourage the emergence of other successful institutions in the future? from, many of whom will no doubt have much to contribute during the drafting of their new constitution. However, there is little guarantee that any of these individuals will be able to play an official role in the drafting process itself. Given the circumstances, there is a strong chance that, as was the case in Iraq, the constitutional drafting committee will be dominated by political appointees that will have little or no experience in constitutional law. Given also the nature of the previous regime, some of Egypt’s future leaders may have spent a significant period of time either outside the state altogether, or worse either in prison or exile. Although constitutional drafters can certainly learn on the job, six months is clearly insufficient, which opens up the possibility that a dysfunctional or incomplete constitutional framework may be created. Although Egypt deserves a quick transition to a functioning democracy, it also needs more time to carefully craft its permanent constitution.
Designing Institutional Frameworks
Drafting a new constitution in any part of the world necessarily involves an effort to properly understand the workings of the respective country’s institutional framework. Even constitutions that are born in the throes of a popular revolution cannot hope to start a completely fresh page. A large number of existing institutions will be preserved, and their reporting lines, working methods and other traditions will impact the new constitution’s workings. As a result, constitutional drafters can and should work to understand which institutions are the most efficient and which are dysfunctional, in order to decide how the new constitution can improve on the existing framework. In addition, changes to the country’s overall governance structure can impact the way in which specific institutions operate, even if those same institutions are not mentioned in the constitution itself. In the absence of sufficient foresight in relation to these issues, any changes are likely to lead to unforeseen results, which can never be a good thing.
Given Egypt’s recent history, this is an operation that will take significant time to carry out successfully. The revolution was in part spurred by a partial breakdown in Egyptian state and society, caused in no small part by the state of inertia that Mubarak’s National Democratic Party had instituted. There are however many institutions that have been fulfilling their responsibilities to the satisfaction of Egyptians. Why have some been successful where others have failed, and what can the new constitutional framework do to encourage the emergence of other successful institutions in the future? What form of oversight should be instituted to monitor a specific institution’s performance, and to what branch of government should that same institution report its findings to? Comparative constitutional practice provides many possible answers to these questions but whatever option Egypt chooses will have to emerge from an honest and detailed debate about the performance of Egyptian institutions and cannot rely entirely on theoretical and comparative models. That effort will necessarily require close collaboration with a large number of senior and mid-level public officials, who should be invited to participate in the process of the redesigning of the state. That effort will also require much more time than six months.
In Iraq, given the short timeframe, constitutional drafters were mostly unaware of how the country’s bureaucracy functioned in practice. There was also no time to consider how general changes in the nature of the state would impact specific institutions. For example, in 2005 Iraq transitioned from an extremely centralised presidential system that was dominated by the Baath party to a parliamentary system of government that was populated by dozens of political parties. Under the previous regime, Iraq’s audit institution, the Board of Supreme Audit (which was responsible for inspecting state expenditure, excluding Saddam Hussein and his family’s largess obviously) was widely considered to be operating effectively under difficult circumstances. Its reports were circulated throughout the one-party state, which reacted to suggestions of misconduct with what has been described as ruthless efficiency by independent observers. Since 2005, the new constitution requires the Board of Supreme Audit to report to the parliament, which means that it isnow at the mercy of dozens of rival political parties that are either completely disinterested in its reports or who seek to make use of them solely as ammunition to accuse rivals of corruption. The Board’s staffhas since been targeted in dozens of assassination attempts, and its reports are kept away from the public domain for safety reasons. To this day, the Iraqi parliament and the prime minister’s office are involved in a power struggle to determine which of the two will obtain ultimate control over the Board.
The point here is not that the previous system of oversight was ideal (far from it), nor that the Iraqi constitutional drafters should have maintained that system. The point is merely that the drafters clearly contributed to the current levels of corruption by not considering how the shift to a parliamentary system of government with a low electoral threshold would impact oversight in the state. In fact, because of the six month deadline, there was not even enough time to consider the possibility that this would occur.
Leaving The Future To The Politicians
Even more glaring is the need to establish a proper framework within which political partiesEven more glaring is the need to establish a proper framework within which political parties should operate. But perhaps most importantly in countries such as Egypt and Iraq is the need to engage in an honest debate on the relationship between religion and state. should operate. The process through which detailed rules relating to financial transparency are decided is a difficult and time consuming one. In countries such as Egypt and Iraq, where multiparty democracy and true financial transparency were hitherto completely unknown quantities, some time is required for parties to adjust to the rules in principle and in practice. When the issue of financial transparency is first raised in emerging democracies, political parties tend to balk at the prospect of state or private auditors inspecting their accounts, and significant effort must be made to convince political parties of the necessity of such rules. Secondly, a debate on specific rules would be most appropriate for the country in question given its own individual context must ensure. These rules can be extremely complex, particularly when it comes to enforcement, which means that significant time is required for careful consideration and drafting.
In their eagerness to see Egypt transition to a fully fledged democratic society as soon as possible, many commentators have brushed aside these issues as secondary concerns, arguing that Egypt already has rules relating to financial transparency and that any remaining detail can be left to after the new constitution has entered into force. Iraqis learned the hard way that politicians should not be allowed to decide the rules within which they themselves operate. Despite rules established by the Iraqi electoral and integrity commissions requiring financial transparency, Iraq lacks an effective enforcement mechanism, which senior anti-corruption have argued isone of the main causes of graft in the country. The Iraqi constitution also contains few rules relating to how elections are supposed to be carried out in practice, such that parliament is solely responsible for deciding how elections are to take place. The result in Iraq is that, in the 2010 elections, candidates were still elected as part of a list, and electoral districts were so large that they often allowed for more than a dozen members to be elected in a single constituency. In Iraq’s new democracy, a deep chasm exists between politicians and ordinary citizens, damaging the entire system’s legitimacy.
Debating Fundamental Rights
Perhaps most importantly in countries such as Egypt and Iraq is the need to engage in an honest debate on the relationship between religion and state. In Iraq in 2005, the matter was discussed within the constitutional committee but a compromise could not be reached in the given timeframe. American officials therefore imposed a solution which provided that “no law may be enacted that contradicts the established provisions of Islam” or that “contradicts the principles of democracy”. Although a draft constitution was circulated prior to the referendum date, there was insufficient time to allow the population to properly engage with the issue, to reflect upon possible ramifications of the adopted wording and to suggest alternatives. Millions of Iraqis voted without even having seen the draft themselves, and the referendum was presented as an option between order and chaos (which feels eerily similar to the choice that Egyptians are being presented with in its own constitutional process). Despite all its flaws, the constitution was approved overwhelmingly.
The absence of an open debate on the role of religion has resulted in the provision being applied inconsistently throughout the country, with some provinces concluding that it should lead to the banning of the sale of alcohol, a lead that other provinces have refused to follow. Meanwhile, some extremist groups have taken to bursting into Christian organisations’ offices demanding that they leave the country, on the basis that Iraq is now an Islamic state. This is but one of the factors that have caused Iraq to become an increasingly unichrome country, in which religious minorities feel that they have essentially lost their place in society.
The examples set out above are only a few of the difficulties that were imposed on Iraqis after the failed constitutional process in 2005. There is no reason why Egypt should have to endure these same tragedies. The country should remain confident that its revolutionary spirit will continue to guide it through the coming period and avoid the temptation to rush to an illusory ‘normalisation’. The revolution should allow the constitutional drafting committee the amount of time that it needs to fully engage with itself, with the country at large, and to benefit from the experience of others, even if that means learning from their mistakes.
Zaid Al-Ali has practiced international commercial arbitration for more than ten years. In 2005, he was an international adviser working on the Iraqi Constitution. From 2006 to 2010, he was advising on constitutional, parliamentary and judicial reform in Iraq. He can be found on Twitter @Zalali