Monday, April 29, 2013

What is a Constitution Anyway?

Samuel Tadros

Available for download as a PDF

On the 15th and 22nd of December 2012 Egyptians headed again to the polls for the eighth time[1] since the January 25, 2011 revolution which toppled President Mubarak and his regime. The frequency of the voting was not, however, an indication of a vibrant democracy taking shape; rather, it has been the result of the haphazard transition that post-revolutionary Egypt has undergone. Nearly two years after the revolution and after seven elections, Egypt has still not formed the institutions required to sustain a democracy. Today, the country only has an elected president and an upper chamber of parliament—a body which, even though it exists, suffers from the same specter of unconstitutionality under electoral law that haunted its lower counterpart’s existence and led ultimately to its dissolution. However, what was at stake in the elections was far more important than merely an elected body. Moreover, the election wasn’t purely about approving or rejecting a proposed constitution. Instead, the battle over Egypt’s proposed constitution is a function of the larger battle unfolding over ownership of the 2011 revolution and the very identity of the country.

As the saying goes, victory has many fathers, and the Egyptian revolution is no exception. The astonishing success of the revolution in bringing down the Mubarak regime has left political forces scrambling to take credit for the revolution and sole ownership of its narrative.[2] Non-Islamists, who can claim few political successes if any over the past two years, have become nostalgic for the eighteen days of protest in Tahrir Square which set-off the revolution. Given their lack of anything to celebrate since the uprisings, non-Islamists are adamant on being the sole owners of the revolution. It was the non-Islamists, they claim, who sparked the revolution and who led its battles. In a sense, life itself began for them on January 25, 2011 when a new Egypt was born in Tahrir Square.[3] At a time when the Muslim Brotherhood remained in the shadows hesitant to join the anti-regime protests, when Salafi Shaykhs were rejecting the popular calls for disorder, it was the non-Islamists who were on the front lines and who fought for every yard and inch of the street.
For Islamists, however, the revolution represents the culmination of a much longer historical struggle. Some trace the struggle back to 1954, when the Brotherhood believed itself close to taking power but was then ruthlessly crushed and forced underground by Nasser.[4] Others trace it to an older battle between Islam and secularism that began in the nineteenth century and which Muslims have fought ever since against foreign missionaries, colonialism and Westernization.[5]   After languishing for years in Mubarak’s prisons, newly released members of jihadist groups asserted that it was their struggles that were the precursors to the 2011 revolution. When accused of being latecomers to and hangers-on of the revolution, Islamists are quick to respond that it was they who protected the revolution during its darkest moment in the “Battle of the Camel,” when all hope seemed to be lost. Left unsaid is the role Islamists played in the attacks on police stations and prisons throughout the country, which arguably was the most important factor in the regime’s collapse.
The struggle now between Islamists and non-Islamists over ownership of the revolution is only one part of the story, however. Before the constitutional referendum and the present-day impasse and street clashes between the supporters and detractors of President Morsi, the battle over the constitution and over Egypt’s future was fought not only along Islamist vs. non-Islamist lines, but among the Islamists themselves. Indeed, within the Islamist camp, the Muslim Brotherhood and Salafis were involved in a battle over what Islamism both meant and necessitated in post-revolutionary Egypt and how this should be expressed in the language of the country’s new constitution.  Each side approached the question of the constitution from a different point of view, and while they have, for the time being, managed to overcome their differences and unite against non-Islamists, examining the past disputes between them provides fascinating insights into their current relationships and their prospective ones as well.

The Brotherhood’s Plan
The Muslim Brotherhood approached the constitutional writing process with a keen eye on how to manipulate both the process and the new document to further strengthen their power in Egyptian politics. With a long history of political participation and organization, the Brotherhood’s senior leadership is politically sophisticated and shrewd.  They have clearly been aware that the new constitution could potentially give them unparalleled powers to shape the political process in their favor. As an Islamist movement that has sought to both rule Egypt and shape its people’s identity, no area of the new constitution was irrelevant to the Brotherhood, and all areas represented opportunities to enlarge the movement’s power.
The first area of attention for the Brotherhood was the political system. Following the uprising, when the Brotherhood was still unsure of the governing military council’s agenda and was also eager to assuage Western and non-Islamist fears, the Brotherhood had initially promised not to run a presidential candidate. Because of this, and since they were also well-aware of their movement’s potential to dominate a parliament, the Brotherhood leadership was adamant that the country adopt a parliamentary system. In articles and press releases the vices of a presidential system including its prospects for authoritarianism were highlighted while the virtues of parliamentarianism lauded. The Freedom and Justice Party’s official program stated explicitly that the Brotherhood preferred a parliamentary system.[6] However, changed political circumstances and dynamics, including ones that led to the Brotherhood’s decision to contest the presidential elections (and ultimately win them), changed the movement’s thinking about the desired political system. Especially after the Constitutional Court dissolved the parliament, the Brotherhood sought to give its man in the presidential palace all the powers he needed to ensure its domination of the political system.
After the revolution, the Brotherhood wasn’t initially convinced that the regime had actually fallen.  There was in fact disbelief over how easily Mubarak fell.  After decades of conducting its affairs secretly under heavy state repression, the movement was sure that a “deep state” still stood and was actively conspiring against its vision of Islamist revival and reform.  A series of court rulings dissolving parliament, the first constituent assembly, and barring the Brotherhood candidate Khairat El Shater from running for the presidency, while all legally sound, only served to strengthen this conspiratorial mindset. As a result, the Brotherhood felt driven to ensure that the sole institution it dominated, the presidency, was more powerful and able to defeat all others. Thus, the Brotherhood began to pay special attention to constitutional articles that dealt with the Supreme Court and the District Attorney, and attempted to limit their powers. Moreover, a means to exclude former ruling party cadres from competing in future elections was also sought.
The second focus of the Brotherhood’s attention in the unfolding constitutional debates concerned how to co-opt its traditional adversary, the military, so as to insure that it does not stand against the movement’s interests and plans. To accomplish this, the Brotherhood has publically sought to ensure that the military’s main organizational goals and interests are protected.  Since the Brotherhood shares the military’s ultra-nationalist views and believes in the existence of an international (and also homegrown) conspiracy against Egypt and the Islamist movement, the Brotherhood’s decision-makers needed little convincing to adopt the military’s point of view on the defense budget.
Thirdly, the Brotherhood was clearly aware of the potential spoiler effect that the Salafis might have on the constitution drafting process.  Because the Salafis far outnumber Brotherhood members and have the ability to mobilize the masses under the banner of Sharia, the Brotherhood needed to keep them on board and make sure that the Salafis were satisfied enough with the constitutional process. If there were ever a chance that the constitution would be defeated, it would be defeated by the Salafis. Thus, by all means necessary, the Brotherhood aimed to ensure that such an outcome would not materialize.
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