An E-Roundtable with Hussein Agrama, Asli Bali, Samera Esmeir, and Tamir Moustafa Reposted from Jadaliyya.com
Since the Mubarak presidency ended on February 11, 2011, the debate has shifted from how—or if—to amend the existing Egyptian constitution to how to replace/rewrite it. What, in your opinion, are the consequences of the suspension of the constitution to consolidating the gains and advancing the protesters’ aspirations for a post-authoritarian political order in Egypt?
TAMIR MOUSTAFA: Replacing the constitution was one of the central demands of pro-democracy activists. On the one hand, this suspension facilitates political reforms outside of the narrow procedures that were set out in the constitution. But this route forward also places the military outside of any legal framework. Amendments to the constitution are dependent on the military’s good will – something that we cannot take for granted. And even if Egypt proceeds towards free and fair elections, the military’s direct entry into political life will likely haunt the Egyptian political system for years to come. A similar tension between political expediency and democratic representation casts a shadow on the constitutional reform committee that was established by the Supreme Council of the Armed Forces. This committee is staffed mostly by jurists with legal expertise, but makes almost no attempt to represent various political trends. This is obviously objectionable from the standpoint of democratic representation, and it clearly undermines the legitimacy of the process. The only potential benefit of this route forward is the possibility that amendments to the constitution can be adopted more swiftly than they would if the whole constitution were rewritten. But meaningful amendments are dependent on the military’s willingness to make a genuine break from the past – and this is anything but certain at this point.
ASLI BALI: I agree with Tamir that the consequences of suspension depend entirely on the process that is put in place. But I disagree that the Egyptian constitution can be fixed by amending it. While it has some liberal elements, they have been badly distorted by numerous amendments and suspensions under emergency decrees. In his February 2 speech, Mubarak himself promised amendments to Articles 76 and 77, which would revise the terms of eligibility for presidential candidacy and introduce term limits. Such modest reforms would not be nearly expansive enough to address the repressive elements that have been introduced since the adoption of this constitution in 1971, and particularly the introduction of a deeply repressive package of amendments by the Mubarak regime in 2007. Further, the existing constitution has long been associated with the consolidation of executive power, weakening of the judicial branch and the rights deprivations of the Mubarak era, which makes it an intrinsically defective instrument from which to initiate regime transformation. Reports have emerged that a limited amendments package of five or six provisions is now being undertaken. Whatever additional provisions are included, such a limited package of incremental amendment will not be sufficient to entrench the goals of the revolution. Egypt needs a new constitution, one that shifts the balance between the branches of government away from the executive, introduces (or reinstates) institutional guarantees of judicial independence, lifts the emergency decrees and restores civilian judicial jurisdiction over most matters, strengthens individual rights protections and repeals emergency-based limitations, and establishes the basis for a pluralist party system. In other words, the constitutional architecture needs to be radically altered to excise the “legalities” of authoritarianism.
The replacement of the current constitution with one that better reflects the aspirations of the protesters and lays the foundation for the liberalization of the political order is probably the best avenue. But a number of institutional conditions would have to be met to make this alternative feasible (rather than creating a pretext for a military junta to draft a new constitution at its own discretion). In my view, the best approach would be to undertake extra-constitutional measures to convene a caretaker national unity government with proper institutional protections (e.g., those who serve in the caretaker government would not be permitted to run for presidency). This caretaker government should represent a broad swath of the non-National Democratic Party (NDP) organized political spectrum and the leadership of the protest-based opposition. It should also include elements of the military who do not reflect the political chain of command under Mubarak, but a lower level of the military’s professional bureaucracy. This caretaker government would essentially pursue a technocratic governance model designed to put in place the mechanisms of institutional transformation, including introducing a liberalized political party system and convening new legislative elections within 6-9 months of liberalization once parties have had a chance to form, and presiding over a constitution-drafting process that is turned over to the new parliament as a constituent assembly. This caretaker government should eventually oversee a transition to a new executive (whether presidential or parliamentary). Ideally, there will be a provisional arrangement to create the institutional infrastructure in order to convene new legislative elections in a truly competitive multi-party electoral environment. A freely elected legitimate parliament would then be able to serve as a sort of constituent assembly to preside over the drafting of a new constitution (with an initial draft produced by an independent commission of jurists with a representative composition drawn from legal academics, jurists and constitutional experts reflecting Egypt’s political diversity), its vetting through the assembly and ultimately a constitutional referendum.
TAMIR MOUSTAFA: I agree entirely with Asli on the illiberal aspects of the constitution. But it is important to note that out of its 211 articles, only about a dozen are fundamentally illiberal and each of these is easily identified. These articles can and must be amended. But the pro-democracy movement should not lose sight of the fact that the current constitution contains most of the liberties and protections that they currently seek. I also want to point out that there are significant risks in scrapping the constitution entirely and starting from scratch. As Asli notes, this route forward would take up to a year to complete in the best case scenario. In the meantime, a number of divisive issues would almost certainly come to the fore. For example, should a new constitution declare that “Islam is the religion of the state” and that “Islamic jurisprudence is the principle source of legislation” as the current constitution does? And what should a new constitution say about the nature of the economy? These fault lines would inevitably emerge if a constitution was rewritten from the ground up and you can bet that the cooperation we have seen among pro-democracy activists would come under significant strain as a result. I am not suggesting that these are not important debates to be had – they most certainly are, and genuine debate on these issues is long overdue. I only suggest that such debate at this juncture would further imperil an already difficult democratic transition. Rather than demanding a completely new constitution, pro-democracy activists may be wise to make targeted demands for constitutional amendments and to mobilize all their energy to force those targeted amendments through. After the most crucial constitutional amendments are in place and free and fair elections are held, a fully representative People’s Assembly could, of course, propose additional amendments, or bring an entirely new constitution to a national referendum. The number one goal right now should be to remove the most egregious roadblocks that are entrenched in the constitution, not to open divisive can of worms through a complete rewrite of the constitution.
SAMERA ESMEIR: The Egyptian revolution constituted a state of exception—that is, a suspension of the grounds of legitimacy of both the Egyptian state and its constitution. Notwithstanding its many “progressive” articles, as Tamir notes, this constitution enabled, and was enabled by, a lingering state of emergency and a normalized state security apparatus. The Egyptian revolution interrupted this illusionary state of emergency and introduced instead a new temporality shattering the continuity of the previous emergency/security. By so doing, the revolution shifted the definition of the exception from the grounds of normalized security-driven legalities, which were the Egyptian state’s technologies of rule, to the self-organized plural groups working collectively “on the ground” and laying claim to the present and the future of Egypt. It might have been necessary to suspend the previous constitution if one were to remain true to the new political temporality of the revolution. But as Asli points out, the constitution was suspended so that some of its articles could be amended. In criticizing this approach, Asli argues that the “constitutional architecture needs to be radically altered to excise the ‘legalities’ of authoritarianism.” Her critical point is crucial to guaranteeing genuine regime change. Yet it seems to me that the political praxes of the Egyptian revolution, like other popular revolutionary movements, surpass the demand to transition to a new regime that will join the universal family of liberal democracies.
Historically speaking, wars, social movements and reform movements were all vehicles to regime change. The ongoing Egyptian revolution has an additional aspect: It has been claiming new grounds of legitimacy, while engendering collective political practices that defy the order of legality/security. A new revolutionary constitution, whether reformed or newly drafted, must inscribe in its articles this practice of disobedience and collective organization/mobilization; it must allow for the ongoing revolution to persist in making political claims. If the new/reformed constitution is to follow the footsteps of the revolution, it should not be merely a text constituting yet another vehicle for transition from authoritarianism to liberal democracy with a renewed security paradigm. Rather, it should provide a vehicle for revolutionary political praxis. The challenge, of course, is that such a revolutionary constitution will cease to be a constitution. And this perhaps indicates that constitutional reform may even occasionally contradict this revolutionary moment.
Is constitutional reform one of the most pressing issues at this point, or is this secondary to other kinds of legal and political reforms? Why?
TAMIR MOUSTAFA: Constitutional amendments are a crucial first step in laying the groundwork for political reform. One of the most insidious tactics of the Mubarak regime was to build illiberal constitutional amendments right into the constitution itself, so that they could not be challenged even in the courts. As Asli notes, the 2005 and 2007 constitutional amendments entrenched aspects of the emergency law directly into the constitution (article 179), robbed the judiciary of its role in monitoring elections (article 88), and made it virtually impossible to have meaningful contestation in presidential elections (article 76). But the legal conundrums that Egypt faces are far deeper than the constitution alone. The regime has spun out illiberal legislation for decades, undermining the constitutional guarantees on fundamental rights that are already specified in the constitution. Laws regulating the press, political parties, police powers, elections, trade unions, non-governmental organizations, and just about every other area of political and social life are designed to strengthen the hand of the executive. Even if the constitution is successfully amended, a deeper web of illiberal legislation will remain on the books until it is revised by an empowered and representative People’s Assembly.
ASLI BALI: Constitutional reform is a pressing priority because the constitution has been an instrument for the consolidation of authoritarian control. Without addressing the centralization of power in the hands of the (unaccountable) executive power, Egypt would continue to have Mubarak-style governance without Mubarak. Constitutional reform is an essential first step for redressing the distribution of power between the branches of Egyptian government, among other crucial goals, though as Tamir points out, constitutional reform alone will not be sufficient.
SAMERA ESMEIR: Constitutional reform is a pressing issue because it is underway. One of the first texts that will constitute the post-Mubarak era will be the constitution. We may recall, however, that the revolutionaries in Egypt did not posit constitutional reform as the most important priority, just as they refused to swap Omar Suleiman with Hosni Mubarak. The Egyptian revolutionary movement articulated a set of linked political demands; constitutional reform was only one of them. The unifying slogan of the revolution was: “al-sha'b yorid isqat al-nitham," or, in English, "the people want to topple the regime.” This concise slogan captures complex political aspirations that the singular demands, on their own, fail to articulate. Situating the constitutional question next to other demands reveals an appreciation, on the part of the revolutionaries, of the hollowness of a legal text that lacks institutions to enforce it. The constitutional text itself, as constitutive as it may claim to be, is destined to remain abstract and general, and thus open to different, competing interpretations. This ambiguity of legal language, indeed any language, is not necessarily negative. But this ambiguity is a reminder of the obvious point that any constitution is a site of battles and conflicts that are never resolved apriori and is not a recipe for redemption. Further, most legal/regulatory action takes place not in the constitutional text, but in other numerous laws, statutes, regulations and security practices that ultimately constitute the world of the law. Often times these other legalities neither validate nor violate the constitution, while being the most constitutive of social and political life. Because they lived under an intrusive security state, the revolutionaries seem to have understood this proliferation of security legalities in many domains of social life and therefore did not restrict their demands to constitutional reform. The challenges for the revolutionary movement are therefore much more complex than replacing an “illiberal” constitution with a “liberal” one. One of these challenge is to overcome the security state, whether liberal or authoritarian.
HUSSEIN AGRAMA: I find myself largely in agreement with what Tamir, Asli and Samera have said. This protest movement cannot be framed as a referendum on constitutional reform, even though such reform is, and has been, one of its demands. But, as Samera has pointed out, we need to view all of the protestors’ demands together in order to see the full extent of their political aspirations. The animating principles of the protest movement can also be discerned by the manner in which it developed over its 18-day span. Here are two of the principles that I saw being articulated by the movement as a whole. The first is that no one – no one person, group of people, social or economic class, religious or ideological political orientation—should have a monopoly on power. It is worth noting that during the protests, no one person or group emerged as the leader. Even those people who were hailed for having sparked the movement (like Wael Ghonim) rejected any such leadership or symbolic role. All efforts were deliberately collaborative, and this ethos only grew as the days went by. The second principle is that the national security paradigm, which has gripped Egypt for so long and has become intensified under its “war on terror,” must be completely dismantled. It should be remembered that much of the animus of the protestors was directed at against the Ministry of the Interior, a hub of the massive security apparatus that had come to define the state.
It is precisely these two principles that constitutional reform is ill-equipped to defend. To take just one example: it was the rise and entrenchment of the state security apparatus that led to the distortion and erosion of constitutional protections, and not the other way around. And, as Tamir has rightly noted, it takes only a few articles to distort the entire thing. If this happened before, despite constitutional guarantees, what is to prevent it from happening again? That is why I think that overemphasizing constitutional reform would represent a serious setback for the overall aspirations of the protest movement. From within the oft-made political distinction between constituting and constituted power, a constitution falls decidedly on the side of the latter. When a constitution loses its links to the powers that ostensibly established it, then its text becomes open to the widest interpretive distortions of legal and judicial thought. From the vantage point of the tradition of democratic legitimacy, what we saw in Egypt was a historic assertion of unbridled popular sovereignty – self-organized, sustained, focused and resolute. As a manifestation of constituting power, it sweeps away what came before and is itself the source of the legitimacy of what comes after. The question, then, is not so much how to amend or reform particular articles of the constitution, but rather, how to maintain the links to this democratic constituting power – a question that cannot be resolved on constitutional grounds. To put this another way, we have long been suffering under the illusion that it is a constitution that guarantees and protects our rights. But the truth is that it is constitutions themselves that need be protected and guaranteed. The question of how to do that cannot be resolved on constitutional grounds, but in the case of Egypt, it cannot be resolved solely on domestic grounds either. This is a point I will say more about below.
Beyond the constitution, which laws must be addressed (and how) in order to advance the goal of anti-authoritarianism and a democratic political system in Egypt?
ASLI BALI: The panoply of repressive legislation passed by the Mubarak regime since the 1980s affects press freedoms, restrictions on the right of peaceful assembly, draconian regulation of non-governmental organizations (Egypt’s odious NGO law became a model for the Palestinian Authority), procedural protections, civilian court jurisdiction, establishment of extraordinary security courts, rights of collective bargaining, political party formation, the convening of elections, and the broad expansion of police powers. All of this legislation emanating from the state of emergency imposed in October 1981 would have to be repealed and dismantled, but the permissive condition for this legislation has been a constitution that does not protect against such far-reaching assertions of police powers and which, since 2007, has constitutionalized the infrastructure for normalizing the emergency decrees through new counterterrorism laws. The constitutional infrastructure has to be dismantled and new guarantees put in place before the legislative measures to repeal emergency provisions would represent a durable anti-authoritarian reform.
What role, if any, can/should political parties, movements, and activists play in influencing the process of post-Mubarak legal reform in Egypt? How will protesters/opposition movements influence the pursuit and legitimacy of ongoing reforms?
SAMERA ESMEIR: One difficulty in Egypt is that the revolutionary movement did not result in a revolutionary council taking over the work of governance during the so-called transitional period. Instead, there was a realignment of forces within the regime, and some hope that this realignment may engender a rupture with the past. Absent such a revolutionary council, the process is being orchestrated by figures that were either previous actors in the Mubarak regime or are now “neutral” actors. Further, after the fall of Mubarak’s regime, Egyptians are still in the process of articulating political programs, backed up by specific political movements, to implement the demands of the revolution and to resist the new security state. The result is that these demands remain, in part, attached to idealized slogans of unity and love. The politicization of these demands entails relocating them to the field of the political, of conflict, and of disagreement with the military. The rhetoric of love, unity, neutrality and technocracy risks depoliticizing the revolution—which is a political event par excellence—by disconnecting it from the political process, now fashioning itself as technocratic and neutral, despite its being orchestrated by the military. I agree with Tamir that “the military’s direct entry into political life may haunt the Egyptian political system for years to come.” The Supreme Council of the Armed Forces has particular political and economic connections that are far from neutral. There are many signs, however, indicating resistance to depoliticization. This resistance points to the political influence that the revolutionaries are attempting to effect beyond the legal reform process.
TAMIR MOUSTAFA: I agree with Samera that if meaningful legal reform is to materialize in Egypt, it will be the result of sustained mobilization of the Egyptian public, both inside and outside of formal political institutions. There are important and specific roles for political parties, rights groups, trade unions, professional syndicates (especially the lawyers syndicate), and other formal political groupings. These formal organizations have the ability to articulate specific and targeted demands for legal and institutional reforms and they can play an instrumental role in coordinating political engagement. But the last three decades and the last three weeks of Mubarak’s rule underline the fact that these formal organizations cannot bring about change by themselves. It is “everyday Egyptians” who have proven their ability to force change in Egypt. The most crucial developments to nurture in the months and years to come are therefore the organic links between political parties, civil society organizations, and the Egyptian masses. These are precisely the organic links that the Mubarak regime severed so successfully through three decades of authoritarian rule.
HUSSEIN AGRAMA: Again, I fully agree with Tamir, Asli and Samera that some kind of revolutionary council or (non-NDP) care-taker civilian unity government should take over from the Supreme Council of the Armed Forces. I also agree that that ongoing political mobilization from within formal and informal institutions is an absolute necessity if the protest movement is to achieve its goals. This is one of the ways to maintain the links to the constituting power that I mentioned above. But I am afraid that even this will not be enough.
Tamir notes that it was everyday Egyptians who were able to force change. I want to consider the distinct possibility that it was not everyday Egyptians that forced change, but that their protests were used by the army as a pretext to effect a realignment of political forces within the regime. (This is not to devalue any of the achievements of the protest movement.) Had the army taken a different stance toward the protesters, things might have turned out quite differently. But the army seems to want to put back in place, albeit in a somewhat restructured form, existing institutions of the regime – including the state security forces. But one of the animating principles of the protest movement was the dismantling of the national security paradigm which has reigned in the country for so long, and confounded all democratic possibilities. Will the army let go of this paradigm?
The army, at least the highest echelons, is a moneyed and propertied class whose interests coincide with the foreign policy imperatives that sustain it rather than the overall dispositions of Egyptian people. So there is a broader, regional dimension to the question constitutional and legal reform. Many of the strategic regional arrangements with the army, particularly between it, Israel and the United States, will not be accepted by a genuine civilian government. But it is precisely these arrangements that sustain the army. What this means, given the current situation, is that the protest movement, if it is to move forward, must at some point clash politically with the army. It means that the army will have to be restructured, so that it can no longer be the moneyed, propertied, rentier class that it is. The army must become subject to a different set of regional political and economic incentives. And this depends on broader regional transformations – particularly the future of Palestinian rights. In this sense, the future of the protest movement in Egypt is linked to the fate of Palestine. That future, in turn, is interwoven with that of the entire region. No discussion of genuine legal and constitutional reform can ignore the question of the army within this broader, regional dimension.
What is the relationship between constitution drafting and revolutions? What are the grounds of legitimacy of each event, how do they overlap or diverge from each other in the case of Egypt?
ASLI BALI: Revolution is typically an extra-constitutional or irregular transition in power within a given society producing regime change as a result of popular bottom-up demands or vanguard-led top-down overthrow. Either way, a revolution represents a break in ordinary legality and constitutes an extra-constitutional moment. To establish the bases for the legitimacy (and claims to authority) of the new regime, a revolution will typically be followed by a constitutional exercise. The legitimacy of that exercise derives from the consent it is able to command from either the popular constituency of the revolution, or in the case of a revolution without a social base from the acquiescence and tacit consent the new system enjoys. In a case like Egypt, the revolution has been the result of a popular uprising and the source of the legitimacy of the new constitution will have to be the participation and consent of the social constituency of the revolution, meaning the representatives of the opposition protesters. The measure of a legitimate constitution will be (1) the participation of representatives of the revolution’s constituents in the drafting process; and (2) the relationship between the substantive protections afforded by the constitution and the anti-authoritarian demands of the uprising.
SAMERA ESMEIR: A revolution is not constitutional reform. The first exceeds the latter and may also contradict it. Revolutions disrupt the taken for granted association between legality and legitimacy, introducing new grounds of legitimacy beyond state law. As Asli writes, revolutions are “extra-constitutional.” And I would add, revolutions are “extra-legal.” Modern law is incapable of sanctioning a revolution. Revolutions, however, maintain an aspiration to constitute a new legal order. Ironically, this order for the most part institutes new relationships of obedience between the law and the citizenry, making it illegal to wage another revolution, or to introduce the political praxis cultivated among the members of the revolutionary movement.
This paradoxical relationship between law and revolution is evident in contemporary debates about legal reform. Specifically, because the revolutionary movement in Egypt is yet to accomplish its declared objectives, the focus on legal reform, and the institution of a new legal order, becomes one way to secure some objectives. But this focus may jeopardize the ongoing revolution in two ways. First, this focus risks confining the sphere of political action and political opposition to the realm of the juridical, and therefore ignoring a much more difficult challenge to the security institutions of the state, including the military. If such narrow focus is to become dominant, Egypt's democratic practice will be mainly centered on the law, like many Western democracies, sidelining other alternatives for democratic politics—ones that do not necessarily pursue politics through the law. Second, this focus also risks translating the revolutionary practice of collective self-organization to the practices of law-drafting that lack the collective, self-organizing element. The experience of the revolutionary movement in Egypt, however, has taught us, as Hussein points out, that collective self-organization is in itself an important political practice and the challenge therefore is not only how to translate collective demands into the law, but how to maintain collective action as a form of political practice.
How did the 18-day revolutionary act get equated, in some circles, with a constitutional crisis, and what does this “rhetoric of crisis” reveal about the relationship between legality, revolutions and the possibilities for democratic politics?
ASLI BALI: The rhetoric of constitutional crisis, constitutionalism and legality was cynically deployed (at least in some circles) as an argument for enabling the Mubarak regime to set the terms of a transition, thereby undercutting the very demand of the protesters – an end to the Mubarak regime – by enabling the regime itself to control and manage the process by which it would be replaced. This amounts to a ploy for regime maintenance under a different leadership (i.e., a managed succession plan in the name of legality) rather than regime change. To demand that regime transition be undertaken in accordance with the constitutional rules of the ancien regime is to assert the legitimacy of the very system protesters were seeking to remove. This logic is apparent in the cries of those who would have extended Mubarak’s term in office to enable him to issue decrees that would provide putative legitimacy to the process by which he would be removed. To suggest that continuation of Mubarak’s presence in his office was required in order to manage his removal is nonsensical without a claim that there is some legitimacy associated with a process dictated by rules written by the regime to consolidate power in the hands of Mubarak. But to concede such legitimacy is to deny the basic claims of the protesters that such consolidation of power (represented by the terms of the constitution, inter alia) is intrinsically illegitimate¸ precisely why the demand was that Mubarak had to go.
In none of the celebrated moments of transitional justice around the world in the 1990s was there a suggestion that erstwhile authoritarians were in a position to dictate the terms of the transition. Romanians did not apply Ceausescu’s rules to depose Ceausescu. Arguments from legality that proposed the current Egyptian constitution’s rules around executive control as the appropriate benchmark for determining what rule of law would require were naïve at best and disingenuous at worst. Human rights advocates look to international norms to assess the legality of transitional measures; democratic politics looks to the legitimacy of popular consent. The order created by Mubarak’s distortion of constitutionality could not satisfy either benchmark and should not be deemed an appropriate yardstick for managing a transition away from authoritarianism.
SAMERA ESMEIR: The rhetoric of constitutional crisis accomplished three tasks. First, this rhetoric equated the revolutionary movement with the generation of crises, hence depicting the older regime as orderly. Second, this rhetoric was also anti-revolutionary in that it argued for the necessity of a quick transition away from the “crisis”--that is, from the revolution. Third, the focus on crisis also prioritized the old constitution over the revolutionary movement and its modalities of political practice. Legal experts began to focus on the risk of a constitutional vacuum, forgetting that when there was no such vacuum, and even prior to 2007 when the more draconian articles were introduced, the constitution was incapable of safeguarding Egyptians. Crucially, then, this rhetoric intensified the power of the constitution by circularly justifying its existence on its own grounds; the constitution is necessary as a constitution. Meanwhile, the revolutionary movement was understood in limited instrumental terms—achieving certain objectives—as opposed to more constitutive terms—a reservoir of political practices guiding the future of politics in Egypt (and elsewhere). Ironically, then, even though there is less reference to the vocabulary of crisis during these post-Mubarak days, its logic persists: Constitution drafting is assumed to put an end to the state of emergency and to deliver Egypt to a new era. But what escapes critical analysis is that the work of the contemporary security state needs not rely on the state of emergency. Rather, the state of emergency could be abolished and new normal legalities could be introduced to strengthen the security state. Recently, we heard that the State Security Police would not abolished, but reformed. This reform, like constitution drafting, does not necessarily mean weakening security forces, but often times it also means perfecting their operations. To combat these operations, the constitution is not the most central tool. Necessary are the political practices that the revolutionary movement initiated in January 2011 as they undergo further politicization while struggling with the new rulers of Egypt.