Why Nobody Noticed What Egypt’s Opposition Has Won

By Nathan J. Brown 
This commentary was published in Foreign Policy on 28/03/2011

Egypt's opposition campaigned vigorously for a "no" vote in the referendum on revisions to the Constitution, while 77 percent of Egyptian voters voted yes. But that electoral setback is misleading. In fact, the Egyptian opposition won some important battles over the content of the new Constitution. But the process has been so confusing and opaque, nobody seems to have noticed.   

From the beginning, many Egyptians worried about the fast pace of the transition, the rush to any kind of elections, and any attempt to work with the 1971 constitution even on a provisional basis. The opposition argued instead for a more protracted process that explicitly promised a new constitution, an explicit abandonment of the 1971 constitution and its substitution with a provisional "constitutional declaration," and the formation of a "presidency council" with a civilian majority. They lost the referendum, but some of their most positive ideas have actually been adopted.

The real problems in Egypt lie in the process, not the content, which has been obscure and sometimes seems haphazard. In contrast with most post-1989 transitions in Eastern Europe -- and even with Tunisia -- Egypt's interim leadership is making even its most sensible decisions in the most opaque manner possible. Such an exclusionary, confusing, and obscure way of redesigning the Egyptian polity is a strange and probably inadvisable way to proceed.  Egypt's ruling junta, the Supreme Council of the Armed Forces, needs to learn to consult more publicly, regularly, and transparently if it is not going to deepen suspicion and mistrust.  

Many of the answers to the most important questions about Egypt's new constitution are actually known. It is true that the constitution has not been written; that those will write it have not been selected; and that those who will select those who will write it have not been elected (nor have the rules by which they will be elected been written). But thanks to the constitutional referendum, we still know a lot about how the new constitution will be written. A new parliament will be elected; that parliament will select 100 people to draft a new constitution; that document will be presented for an up-or-down vote. The parliament would seem to be fairly free to pick whomever it wants for this body -- it can turn to political leaders, its own members, technical experts, civil society activists, public intellectuals, or any combination of these. Once it picks the members, the only clear check on their work is a deadline (six months) and the popular vote on the body's work.

We also can make very good educated guesses about the content of the new document when it is written -- we can be fairly sure from the course of public discussion over the past decade that there is a strong consensus favoring a less presidential and more pluralistic system; that mechanisms of horizontal accountability (judicial independence; parliamentary oversight; strong independent and nonpartisan state commissions) will be strengthened. Limits on emergency rule will be strengthened, and political freedoms will be more carefully guaranteed. Whoever drafts a constitution will be expected not merely to enunciate general principles, but to think very carefully about how these will be enacted and enforced. Eagle eyes, hardened by years of watching older provisions being twisted and manipulated, will hunt down obvious loopholes.

Where has the opposition won some under-appreciated victories? First, by sticking to their insistence that parliamentary elections precede presidential ones, the governing junta (the Supreme Council of the Armed Forces) has offered some suggestion that they do not wish to see a new imperial president. Second, and more in keeping with the opposition program, the junta has endorsed the idea that a new constitution is now required (and not merely optional as some readings of the constitutional amendments suggest). Third, parliamentary elections have apparently been pushed back until September (though no official announcement has been made), and presidential elections until the end of the year or perhaps even until next year  The junta was even forced to deny a report that the delay in presidential elections might last longer until the new constitution has been drafted..

Most oddly, the junta has recently revealed that the constitutional amendments that were recently approved were not amendments at all. And it is here that those who were defeated at the polling place on March 19 may have won their biggest victory. Instead of amendments, the articles approved by the voters are now to be important elements in a "constitutional declaration" to be issued any day now -- or at least so we have been told each day for the last week. The 1971 constitution has gone from being "suspended," as it was when Mubarak was forced to resign, to being buried; the country's interim rulers have abandoned any idea of reviving it even as amended and are now suggesting that they will simply select certain articles along with some other provisions to govern Egypt until the new constitution is written. 

This is far short of the full alternative sketched out by the opposition to the referendum, but it approaches some of the same spirit by offering abandonment of the 1971 constitution, a set of interim devices to prevent the quick emergence of a new presidential dictatorship, and credible promises that a new constitution will be written. But who is making these decisions and how? What will be in the interim constitutional declaration? Who is writing it? What is the purpose behind the shifts? None of these questions have clear answers, and that is the problem. Kristen Stilt of Northwestern University has also noted the junta's habit of provoking questions without providing answers.

Egypt's military junta keeps on making decisions that leave observers guessing at the underlying logic; if it engages in a process of consultation more extensive than reading the newspaper, watching television talk shows, and small private meetings, that process is completely hidden from public view. The 1971 constitution has moved from hibernation to interment without explanation. The junta has intimated in private meetings what will go into the constitutional declaration but said very little in public. It assembled an ad hoc committee to draft the amendments to submit to the March 19 referendum, but consulted with few people about the composition of that committee and gave little explanation of why these individuals were selected. 

At each step, most of the indications about the junta's direction seem to have come from leaks by individuals who met with the junta or claimed some insight into its thinking; on occasion, an individual junta member might offer a slightly more expansive explanation of the body's point of view. But extremely significant legislative changes -- such as a new law on political parties -- are at most the subject of description; little text was released before the law was actually promulgated today. Even descriptions of forthcoming changes are lacking on some critical matters -- such as the electoral system to be employed in the parliamentary elections. There is little information on whom the junta is consulting with on such matters and virtually none on the people who are actually doing the drafting. 

This failure to explain the procedure by which procedures will be designed has two major costs. First, it can greatly detract from the legitimacy of the entire process. Second, it generates an enormous amount of suspicion inside the country. 

For example, the Muslim Brotherhood's endorsement of the referendum coupled with the presence of a former Brotherhood parliamentarian on the committee drafting amendments have led some to see a Brotherhood hand behind the entire process. My own reading is that the Brotherhood's ties with the junta are far more tenuous than such suspicious minds suggest. And the Brotherhood's preferences about the process are much milder than are often assumed. The leadership does want to avoid having the junta entrench itself and therefore does not wish to see the process prolonged. But the widespread assumption that it wants to start with early parliamentary elections that it thinks it can dominate does not have a powerful logic behind it -- the Brotherhood has sworn off a parliamentary majority in the upcoming elections. And a presidential campaign in which the Brotherhood does not run its own candidate but still can deliver a handsome share of votes to whichever candidate outside the organization woos the Islamist movement most effectively is hardly something to postpone or avoid. The Brotherhood is not dominating this process, but the junta's secretive and confusing pattern of decision-making has led to a search for hidden hands when none may exist.

The junta's attitude seems to be that its actions speak for themselves. They do not. A clearer articulation of the vision motivating the logic of this transition is necessary. And that vision needs to be the product of something more than speculation and gossip; it needs to be the outcome of sustained and transparent consultation. On this one point, the junta has given little to the opposition. And that mistake may rob many sensible decisions of any positive effect.

Nathan J. Brown is a professor of political science and international affairs at George Washington University.