Monday, March 19, 2012 - 3:00 PM

In the year since Egypt's Supreme Council of the Armed
Forces (SCAF) drafted and issued its "Constitutional Declaration,"
the Egyptian political process has followed no consistent political logic. But
it has largely followed the declaration's text, which is leading to some
results that should have been expected but largely were not. On one critical
and controversial issue -- the sequence of constitution writing and
presidential elections -- the document was simply silent. However, on another
critical and controversial issue it was definitive: who would write and approve
the constitution.
Observers, and even more, some participants, overlooked the significance of the
silent and the definitive provisions -- sensibly enough, since they made little
sense. But these odd features have now combined to bring the SCAF's control of
the process near an end. It is still not clear what political system will
emerge (though the players who will make that determination are becoming
clearer and beginning to show their hands). But unless the SCAF has the
appetite for a second coup, or somehow discovers a way to shoehorn in its
puppet as president, the constitutional vehicle that gave the military such
political authority will soon turn into a pumpkin.
First, with regard to sequence, most observers have suspected that the SCAF did
have a specific order in mind. They thought that if presidential elections
could be postponed, the generals could oversee the writing of the constitution
If this is what the SCAF planned, however, it is difficult to explain why the
Constitutional Declaration contains detailed provisions for presidential
elections - which would be unnecessary if the temporary constitution were to be
replaced before elections. Much more likely was that the SCAF was following no
clear strategy at all and simply wrote a document that allowed for various
possibilities.
Others feared that electing a president on the basis of
the skeletal Constitutional Declaration would return Egypt to the days of an
unaccountable presidency. Their fears were reasonable but probably exaggerated --
with the prior election of an assertive parliament and the likely triumph of a
non-partisan figure to the presidency, it is unlikely that whoever is elected
to that office will be able to rule as did his predecessors.
What was behind this discussion and disagreement regarding sequence was the
assumption that there must be logic behind it. But it is now clear that not
only was there no logic. In fact, there is also no sequence. The constitutional
process and presidential elections are each marching ahead along unrelated
timelines. But if there is no logic or sequence driving them, there are some
clear effects of having them proceed independently. First, it is difficult to
imagine the constitution being completed by May when presidential elections
have finally been scheduled. Second, when the president takes office one month
later (still with the constitutional drafting likely far from completed), the
SCAF loses its position as effective president. It does, of course, retain its
position at the head of the armed forces, but even there it loses a measure of
its autonomy -- the SCAF may return to having the president chair the body, and
the Constitutional Declaration has the president also chairing the National
Security Council.
And what of those detailed provisions for drafting the constitution that drew
insufficient attention a year ago? The parliament has exclusive authority to
elect all one hundred members of the drafting body. There were, to be sure,
some attempts by outside actors to shape and even dictate the identity of the
drafters, but the most ambitious such attempt -- led by then deputy prime
minister Ali al-Silmi last fall -- was
politically fatal to him. That effort also led the Muslim Brotherhood (which
was eagerly awaiting its parliamentary role) to call its supporters into the
street. The Silmi maneuver has not merely been forgotten but even (in the words
of one Brotherhood legal figure I spoke with two months ago) "sent to
hell."
And the parliament has taken up its task of naming the
drafting body with enthusiasm, deciding that half of the members will come from
its own ranks, and the other half from various groups in Egyptian society.
Once the drafters begin their work, they are subject to only two constraints.
First, they have six months to complete their task. Second, the people must
approve their draft in a referendum within fifteen days. No body has been
granted the authority to review their work. The parliament, the president, the
cabinet, or the SCAF might make suggestions but there is no provision allowing
them to impose their advice on the drafters.
With a stronger parliament, generals in retreat, and round after round after
round of competitive and meaningful elections, critical aspects of Egyptian
authoritarianism are waning. Still more slights to the despotic system are to come
-- the state of emergency expires this summer (and it is politically
inconceivable that the parliament would renew it), and the parliament is drafting
laws that could liberalize various areas of Egyptian life.
But this is not to say that democracy has broken out. The constitution is not
yet written and meaningful oversight of the security services and the military
has not come (and, if it does arrive, will likely do so quite gradually). There
is no real prospect of a healthy electoral counterweight to the Muslim
Brotherhood, save perhaps the Salafis (who continue to say the darndest things).
In the Constitutional Declaration, the restraints on the presidency are vaguely
defined if at all (until the permanent constitution is written, the office is
more likely to encounter political barriers than legal ones). And there are
other gaping holes in the interim constitutional order. How long will the president
and parliament serve? Until their terms expire or until a permanent
constitution is in place? What happens
if the constitutional drafters miss their deadline or have their work rejected?
Moreover, who has the authority to answer such questions? Some housekeeping
changes have already been necessary in the Constitutional Declaration; who has
the authority to make changes after the SCAF's reversion to its purely military
role?
Oddly, most of these gaps were perfectly apparent a year ago for anyone who cared
to look. But few did. The process appears almost intentionally badly designed. But
there is little method to the constitutional madness. The problem is less
hidden hands and secret agendas and more so that there are so many hands
working at cross-purposes and agendas that, while perfectly open, push the
country in different directions.
Many of 2011's revolutionaries voice deep frustrations and some even suggest that no revolution has happened. I disagree. The revolution has made Egypt a country where nobody (or everybody) is in charge. That change is quite significant and, if I can be permitted one personal word, good.
But it sure is taking some getting used to.
Nathan J. Brown is a professor of political science and international affairs at George Washington University and nonresident senior associate at the Carnegie Endowment for International Peace.
Peter Macdiarmid/Getty Images
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