Why Egypt’s new constitution may not turn out as badly as you think

January 16
A man holds a poster of Gen. Abdel Fatah al-Sissi, Egypt’s popular army chief and de facto leader, outside a polling station during the vote on a new constitution in Giza, a suburb of Cairo. (Mahmoud Khaled/AFP/Getty Images)
A man holds a poster of Gen. Abdel Fatah al-Sissi, Egypt’s popular army chief and de facto leader, outside a polling station during the vote on a new constitution in Giza, a suburb of Cairo. (Mahmoud Khaled/AFP/Getty Images)

Joshua Tucker: The following is a guest post from political scientists Michael Albertus (University of Chicago) and Victor Menaldo (University of Washington).

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Egypt’s revolution is set for a new phase. The country’s armed forces have taken their turn writing and winning support for a constitution entirely of their own making. On Jan. 14 and 15, Egyptians voted on a heavily revised version of the December 2012 charter authored by President Mohamed Morsi and the Muslim Brotherhood — an illiberal document that alienated the military and secular groups and helped precipitate a coup against Morsi last July. The constitution is expected to pass with resounding support.

The Egyptian military, as well as the United States and the international community, strongly and publicly pushed for adoption of the new constitution as a precondition for transitioning back to elected civilian rule. The new document sets the stage for the armed forces to formally relinquish executive power. Although the head of the Egyptian military, Gen. Abdel Fattah al-Sisi, is widely anticipated to run for president, he will be forced to hang up his military uniform and run as a civilian.

Yet the new charter heavily favors the military and undercuts Islamists. Religious parties such as the Muslim Brotherhood are banned from political participation. The military retains the right to try civilians in military courts. And the armed forces have a veto over the choice of defense minister for two presidential terms. Despite these “flaws,” the military’s constitution passed – partly because Islamists decided to boycott the constitutional referendum.

Egypt is not alone as an example of unelected or transitional leaders constructing a constitution that sets the rules of the game under democracy. Research we have conducted indicates that since 1800, only 29 percent of new democracies began with a constitution that they created themselves or inherited from a past episode of democratic rule in their country. Prominent examples after World War II include Greece, Argentina, the Philippines, and Mongolia. A total of 71 percent of new democracies – including Egypt if the transition goes through – inherited a constitution that was designed under dictatorship and where outgoing elites dominated the transition process. Chile, Turkey, South Africa, Indonesia, and Thailand illustrate this more common scenario.

Many countries that inherited autocratic constitutions struggle with elite dominance over democratic institutions, often manifested as high levels of corruption, illiberalism, and economic inequality. And some fear that in Egypt a similar outcome will obtain: the Egyptian military may strangle the democratic opening augured by the new constitution. If Sisi runs for and wins the presidency, former regime elements and sympathizers will gain a toehold in the government that affords them veto power over major issues such as punishment of outgoing regime officials. Bulgaria after communist rule is one case that exemplifies this: when the former dictator, Lukanov, was charged with corruption under democracy, the minority communists in parliament (the Bulgarian Socialist Party) were able to successfully push the government to drop the charges against him, despite the fact that they only controlled 44 percent of the seats.

In the worst-case scenario, Egypt may go the way of Burma, where democracy never got off the ground in the wake of a constitution imposed by the military. There, a constitution engineered by the generals who ruled for the past half-century stipulates that one-quarter of the seats in parliament must be reserved for the military. Much of the remainder is held by members of the pro-government party. Despite recent electoral gains by the chief opposition party, the National League for Democracy, Burma’s constitution appears likely to remain in effect for the foreseeable future, given that three-quarters of the parliament must vote in favor of any constitutional amendment for it to pass.

Yet Egypt’s future is not condemned to be as dim as Burma’s. Many democracies that did not actually create their own constitution are stable and prosperous. In fact, the democracies that are most long-lived are those that inherit constitutions from their autocratic predecessors. Of all democratic regimes that subsequently reverted to dictatorship, 58 percent had constitutions that were forged under democracy. Only 42 percent had constitutions created under autocracy.

Consider Chile since its 1989 democratic transition on terms set by Gen. Augusto Pinochet’s 1980 constitution. Its democratic institutions are robust, and there is a strong consensus around the rule of law. Furthermore, the middle class has burgeoned in the wake of an enviable record of economic growth and targeted social policy. Chilean citizens are now the wealthiest and best educated in Latin America.

A new democracy can also jettison or overhaul a constitution inherited from the military or outgoing autocratic elites. Since 1950, 31 percent (a total of 19) of the countries that democratized with autocratic constitutions went on to shed their inherited constitutions and replace them with new social contracts. Returning to the Chilean case, incoming president Michelle Bachelet has vowed to discard the country’s heavily biased binomial electoral system, an albatross that represents one of the most conservative legacies of the 1980 constitution.

If Egyptians are to successfully coax the military from power and usher in a more liberal democratic future, they must be pragmatic. This might entail, like in the case of Chile and Bulgaria, completely eschewing retaliation and extending military leaders reliable assurances that their worst fears – prosecution, forced retirement, seizure of their assets, or even death – will not materialize after a transition. Forbearance of this type, even if unpopular, may give the Egyptian people the opportunity to gradually revise the military’s constitution, eventually expunging it of its most illiberal precepts.

In Portugal in 1975, for instance, the exclusion of Communists — who threatened to expropriate  businesses and land owned by former autocratic elites — from the left-wing party alliance that headed a transitional government was key to convincing the military to give democratization a green light. It also reduced the likelihood that elites would have a reason to topple democracy later down the line. This transition served as a model for future transitions in Spain and across Latin America. It may also be a useful model for Egypt.

This means that if the Egyptian government is to represent all of its people, there must be another future phase of reform. To become a more perfect democracy, Egypt’s next political vanguard will have to wage a different type of revolution, one dedicated to institutional reform. While some of these battles may still be waged in Tahrir Square, many of them will take place behind the scenes and involve lawyers, academics, and other members of civil society – including Islamic clerics – persuading Egypt’s politicians to themselves become the advocates of a fuller version of democracy.

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