To safeguard democracy in Egypt, postpone the referendum. An outsider’s perspective.

Egypt is in total chaos. In a few days people will have to vote on the new constitution of the country. This is a moment of utmost importance. If Egypt votes in favour it will set the lines for all politics in the next ten years. Such an important decision should be made with at least some knowledge and in a calm atmosphere. Egypt’s situation today is the complete opposite.

Chaos started with the Constitutional Declaration of President Morsi on November 22. In this decree, he took all power in order to prevent the Supreme Constitutional Court to abort the constitutional process. This would be a logical step for the Court as it declared the People’s Assembly unconstitutional before. And it was this Assembly that selected the Constitutional Assembly. Morsi believed that rather than a legal point of view, the court was taking a political one, with a goal: obstructing the Islamist majority. True or not, Morsi went much too far than necessary for his purpose.

When the Islamist majority (the others had left) voted the constitution in a rush, everything pointed in the direction of an Islamist takeover of the country. Most worrying indeed, but the question is, is it illegitimate? I think everyone agrees that the power grab of Morsi was not legitimate. I am sure he thinks so himself. More importantly however is the question if the constitution is illegitimate? Frankly, I don’t see why it would be. The people elected the People’s Assembly. The one third of the candidates that should have been independent from any party, weren’t independent. However, not only the FJP failed to do that; all parties were complicit. So, it might be unconstitutional but is not undemocratic or illegitimate. (By the way, I never understood why nobody ever said before the elections to all parties that party people would be barred from running for these seats.) In any case, this free and fair elected assembly selected a Constitutional Assembly of 100 people. One can discuss whether this selection is fair, but it is certainly not undemocratic or illegitimate.

Why did so many representatives run out of the Constitutional Assembly? Writing a constitution is not the same as making a budget. The latter can easily be voted majority against opposition. That’s politics. But a constitution is different. Constitutions are essentially the protection of minorities, of weaker groups and people, of individual freedom as well. Constitutions are the protection of the minorities against whatever majority. The fact that several ‘minorities’ felt insufficiently heard, gives this constitution a flavour of fundamental unfairness. But that doesn’t make it illegitimate.

In short, President Morsi took power in an illegitimate way in order to protect a legitimate draft constitution. But that doesn’t mean that the constitution is a fair and fully democratic piece. Also from a legal point of view one might have some questions. How on earth, for example, can a constitution say that it is forbidden to insult a human being? Is saying to my neighbour that I don’t like his shirt unconstitutional?

But back to the chaos. The soap of the last days is of almost mythical proportions. From the opposition side as today it is totally unclear what its position is. They said yesterday that they are against all presidential decrees. But at the same time some parties are campaigning for a no in the referendum. It is still unclear if the opposition (or a part of it?) will boycott the referendum or not. Some say Morsi has to go, others that he has to change his decrees and change the constitution. The chaos from the president’s side however is much more confusing. The day after he gives his (much delayed) speech in which he says nothing is going to change, the Vice-President said something might change. Even more, VP Mekki said the President might delay the referendum, while Al-Awa said after the negotiations that a delay is impossible. The President said the constitution is not going to change, but at a bit later he says (through his spokesman) that if the opposition agrees on the articles it doesn’t like, he will put them in a law and bring it to the next parliament. One week before the referendum the President issues a law that increases taxes on a lot of things, but he cancels the law the same night at 2.30 am. The government wasn’t informed. And there is also the question of the organisation of the referendum. Some judges decided to boycott, others said they will overview. What is the army going to do? Who is going to count the votes? Who is going to supervise the counting of the votes?

This is the atmosphere in which the people of Egypt have to decide on the most important document of the next ten years, at least. One can disagree if the constitution or the process is democratic or not. But everyone cannot but agree that a referendum in the current chaos would be very undemocratic. Democracy is essentially a system to disagree in a civilized way. It also means giving people a chance to disagree. Organizing a referendum in one week time is denying the people the chance to discuss about the constitution and yes, also disagree.

So there are essentially two sides. Morsi and his Islamist forces exude confidence that this constitution is fair and representative of Egypt’s values. And they are confident of victory. Fine. Then they should have no problem with a delay. The other side feels the constitution is flawed and does not represent Egypt’s values. Fine again. Then they too should support only one constitutional decree that gives a thirty-day delay to properly make their case to the Egyptian voters. So, it becomes simple: hold the referendum in mid-January 2013. And let’s have a proper debate.

  1. #1 by jon livesey on December 10, 2012 - 9:41 pm

    There is a degree of pedantic cluelessness in this column. A constitution in any country is only a beginning. The important thing is how the Courts, perhaps a Supreme Court, interprets it, and that changes over time.

    Just consider how the US Supreme Court has changed its interpretation of Civil Rights in the past two centuries. It has gone from considering that outright slavery was consistent with the Constitution to guaranteeing equal protection under the law. That is a very big change.

    And that Answers the rather silly question about a constitution forbidding you to insult another. Sure, tell your neighbour you don’t like his shirt, or the colour he painted his house, and it will be the Courts, using prevailing social standards and norms, that will decide if that is protected speech or not.

    And no, delaying this to January is not the point. It’s what Egypt’s Courts do over the next two centuries that is the point. Either Egyptian society has reached a level of maturity that will allow it to administer a Constitution, or it has not. No form of words can change that.

  2. #2 by orit on December 11, 2012 - 11:46 am

    It amazes me how nobody even noticed the Army role in this episode. Lets see: On Nov 17 Morsi issued 2 presidential decrees handing over to Sisi the Full power on everything concerning the army (operations, reserves recruitment and mobilizing troops). On Dec 1 we found out that Morsi also secured for the Army article 9/10 of the El-Salmi Doc in the new Constitution Draft. and if that’s not enough he brought back from the dead the Martial Law aka Military Trails are back. So….

    Well one more thing worth to mention is that in the last month MB’s tried to impose 3 new laws + 1 decree: 1. Curfew on shops, cafes (Nov 2) – Postponed 2. Block access to online porn (Nov 8) – Postponed 3. Tax increases on energy, soft drinks, cigarettes, alcohol – Postponed. 4 Presidential decree – Cancelled

    So one should ask himself why not to postpone also the referendum in few more weeks ?! unless someone is in a hurry to sealed his own interests in a constitution.

    Just sharing thoughts….

  3. #3 by john konings on December 14, 2012 - 11:47 pm

    The dire need is for a clear understanding and meaning of DEMOCRACY, that is generally understood and supported by the majority of qualified and equal electors.
    My view is that religion has no part in any government as it operates subjectively, restricts freedom and demands loyalties that clash with the interests of a unitarian state or states.
    The current Egyptian experience is a prime example.

  4. #4 by Marc on December 18, 2012 - 4:54 pm

    Still more democratic than the Eurosoviet Union.