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“The battle for the constitution”. This was the most accurate and most frequently used expression to describe the approach of key stakeholders to the constitution making process in post-Mubarak Egypt. The “battle” began when the leading political parties failed to define the rules that govern the constitution making process. Such rules should reflect stakeholders’ conception of the process as well as of the general contours of the substance of the constitution. The perception of the constitution as a social contract, and as the reference for governing state and society, stems not only from consensus over its content but also over the participation-representation principle that governs the whole process. This is why there was little hope that the content of Egypt’s 2012 Constitution would overcome the deficiencies of the process that produced it. The constitution making mechanisms lacked clear criteria and did not ensure equal participation through equal representation of all stakeholders. This made it difficult for those who did not take part in writing the constitution to join the process at a later stage, a situation that could not but affect their assessment of the constitution’s content. This in turn made it impossible for the constitution to act as a reference point for all political stakeholders and for the political institutions . From that moment onwards, the existing political process became in itself the reference for the drafting and assessment of the Egyptian constitution.
The Egyptian situation reflects the conflict between two schools of thought over the process of writing constitutions. The first is the classical school that sees the constitution making process as a distinct field that rises above the ever-changing day-to-day politics. This means that all those involved should help protect the constitution’s lofty status and preserve its value as a reference for both the government and the governed. At the revolutionary idealist moment that existed after Mubarak’s overthrow, this school’s opinion was closer to that of the unorganized Egyptian masses who thought it possible to separate the constitution making process from the unfolding struggle for political power. The second school is closer to political realism in believing that the constitution making process cannot be separated from the political balance of power in which constitution making takes place. This school stresses that this is usually the case during democratic transition. Stakeholders have thus to come up with strategies that would empower them to trigger a regime change within this particular context.1 In Egypt, the parties in control of the constitution making process went too far in adopting the second school’s view, while those who were excluded from the process went too far in adhering to the idealist perception of constitution making. The gap between the two groups continued to deepen until the Supreme Council of Armed Forces (SCAF) and well-organised political groups – namely Islamist parties and remnants of the Mubarak regime – imposed a view that sees the constitutional process as a short-term political deal rather than a long-lasting social contract. This is how the stakes that govern the day-to-day political process became the reference for governing the constitution making process. Thus, since the rules of “majority” and “mass-mobilization” became the criteria that govern the political process, the same rules were applied to constitution making.
To the time of writing (November 2013), the constitutional process in Egypt has witnessed three different waves since the ouster of Mubarak in February 2011. The first was from the Constitutional Declaration of February 2011 to the first referendum of March 2011; the second lasted from June until December 2012, during which the Declarations of 17 June, 12 August, 21 November and 9 December were issued; and the third and current constitutional wave began with the Constitutional Declaration of 8 July 2013. During each of these waves, political stakeholders perceived the constitution as a means for immediate political empowerment via political victory over their opponents. The participation-representation norm continued to be disregarded while the military establishment became the main arbiter defining the mechanisms and participants of constitution writing. Oddly enough, although the SCAF’s partners in 2011 and 2013 were different, they all accepted that the “military” decides, with whomever it chooses, the manner in which the “revolution’s constitution” should be written.
This paper explains how the constitution was created as a document that reflects the conflict of interests and short-term political alliances at the time of its writing, instead of being the common reference for the political, economic and social systems in post-Mubarak Egypt. The first part of the paper explains how yielding the constitution making – not just constitution writing – process to the dictates of the political balance of power affected the mechanisms of constitution making. The second part explains how the Constituent Assembly’s composition led to the adoption of a constitution that “locks in” the existing political balance of power and to the reproduction of the old political regime. The third part addresses the Constituent Assembly’s attempts to control civil society participation in the constitution making process, and how the excluded stakeholders resisted and managed to challenge and contest the legitimacy of the constitutional process, thus paving the way for the suspension of the 2012 Constitution only six months after its adoption. The conclusion revisits the most important lessons learnt from the 2012 constitutional process in a manner that sheds the light on a number of shortcomings in the 2013 process.