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Members of Egypt's constituent assembly discuss during the last voting session on a new draft constitution at the Shoura Assembly in Cairo

Egypt’s constitution-making process has seemingly attained warp speed. Facing the threat of judicial dissolution, members of the Egyptian Constituent Assembly voted last Thursday to accept a draft of a new constitution. President Mohamed Morsi has called for an “almost immediate referendum” in which a majority is likely to approve the document.

Is this extralegal process the final vindication of the people’s will? Or is it a unilateral demonstration of majoritarian will with dangerous consequences for Egyptian constitutionalism?

At the center of Egypt’s growing constitution-making crisis is the body drafting Egypt’s new constitution, the Constituent Assembly. From the very beginning, the makeup of the Constituent Assembly has been contentious. After the first Assembly included 66 (out of 100) Islamists, secular and youth groups had filed legal challenges claiming the Assembly did not sufficiently represent young people, women and minorities. In April, an Egyptian court – with the backing of the military – accepted this argument and suspended the first Constituent Assembly. The second Constituent Assembly has been dogged by similar legal challenges.

Morsi’s November 22 Constitutional Declaration sought to finally put an end to the judicial role in constitution-making, squarely holding that the court can no longer dissolve the Constituent Assembly for failing to represent Egypt’s diverse social groups. For Morsi and his Islamist power base – who have long characterized these judicial challenges to the Constituent Assembly as political attempts to slow down the revolution by old regime-era judges – the courts’ continued threats to disband the Constituent Assembly violate the principles of popular sovereignty inherent in the revolution. Thus, they argue, his actions are the only way to advance the revolution.

“Morsi and his supporters are drawing on an intellectual tradition of ‘popular constitution-making’… that sees the majority as unlimited in their ability to draft a new constitution.” – William Partlett, Brookings

For the courts and the opposition, court supervision is necessary to ensure that the Constituent Assembly produces a draft that reflects the interests of all Egyptians (and not just the Islamist majority in the Assembly). Rallying behind the courts, many people have once again taken to the streets and called on Morsi to respect the role of the courts in ensuring the inclusiveness of the constitution-making process.

French and English constitutional legacies

Hossam al-Gheriani, chairman of the constituent assembly, presents Egyptian President Mohamed Morsi (R) with the final draft of Egypt's constitution, Cairo, December 1, 2012 (Reuters).

Egypt’s constitutional debate has deep roots in constitutional theory. Morsi and his supporters are drawing on an intellectual tradition of “popular constitution-making” (tracing back to the French revolution) that sees the majority as unlimited in their ability to draft a new constitution. In this version of constitution-making by the “We, the Majority,” the courts have no legitimate role in a revolutionary constitution-making process.

The Egyptian courts and the opposition are drawing on an intellectual tradition dating back to Anglo-American constitutional history. This tradition of “legal constitution-making” states that constitution-making should not be the product of a bare majority. Instead, it should be a more consensual and deliberative process that involves participation through pre-existing institutions and law. As Hanna Arendt described this tradition, constitution-making must be the result not of the monolithic popular will of the majority but instead of “the organized multitude whose power was exerted in accordance with law and limited by them.”

Protesters chant anti-Morsi slogans in front of the presidential palace in Cairo, December 4, 2012 (Reuters).

Recent research has shown popular constitution-making to be a favored strategy for those interested in unilateral assertions of power. From Hugo Chavez to Boris Yeltsin, charismatic individuals and political parties have long sought to use their command of electoral majorities to exclude the opposition and stack the constitutional deck in their favor. Unsurprisingly, these unilateral assertions of constitution-making power have ultimately hindered the development of constitutionalism.

Those that have followed the legal and more deliberative path have been far more successful in building stable constitutional democracy. South Africa, Poland and Spain have all recently followed this “legal” model of constitution-making, making wide use of deliberative roundtables, pre-existing law and judicial supervision to ensure an inclusive approach to constitution-making.

Until recently, Egypt had been following that promising legal direction, allowing the courts to ensure an inclusive process of constitution-making. But the Egyptian leadership’s decision to “railroad” the Egyptian Constitution by placing it above judicial review reverses course. This decision therefore threatens not only to make the new Egyptian Constitution a divisive document but also to exclude and undermine a key institutional player in the implementation of this document: the courts.

This post was originally published under a similar headline by Brookings.edu.

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William Partlett

William Partlett, a non-resident fellow at Brookings, is a postdoctoral research scholar at Columbia Law School. He holds a JD from Stanford Law School as well as a PhD from Oxford University.

5 Comments

  1. Sunny Enwerem

    December 15, 2012

    It shouldn’t divide a country no matter what,y r the muslim brother hood hijacking a countries revolution as theirs?

    Reply
  2. Allen Hamilton

    December 10, 2012

    I agree with Dr. Partlett and I think he’s given a very accurate depiction of the situation to date. I would further say that Mr. Morsi’s has a strategy which was well thought out and has been executed flawlessly up to this point.
    His decree that put his decisions above judicial review was twofold. At best (from his point of view) it would allow him to mold the constitution and laws to his party’s liking. At worst it would give him something to concede which would make him appear reasonable in the eyes of the world.
    At the same time it would confuse the issue sufficiently that it leaves no time for true debate on further inclusiveness. Machiavellian to say the least.

    Reply
  3. Benedict E. DeDominicis

    December 9, 2012

    William Partlett conveniently forgets what every American schoolchild learns; the American Revolution happened with roughly one-third of Americans for independence from Britain, one-third Tory and one-third in the middle. Thanks to French intervention, the pro-independence faction won, and many (but not most) Tories went to Canada. The new relevant minority, the slaveholding South, pushed many of the "restrictions" against strong central government in the Constitution. Since Egypt has had dictatorships for most of its modern history, how about letting the majority have a shot at determining Egypt's constitution, Mr. Partlett? As for Hannah Arendt, if Mr. Partlett is claiming that the Muslim Brotherhood is somehow comparable to the Russian Bolshevik or German Nazi parties, then he should say so.

    Reply
  4. Magda Zaki Eltoulouny

    December 7, 2012

    Since 1928 the Muslim Brotherhood has been a traitor, they joined Nasser and turned against the king (even though the king helped them at some point in their capacity of a charity organization) Then they turned against Nasser who dialogued with them and tried to kill him , so Nasser jailed some of them and the rest fled to Saudi Arabia were they became Wahabis, then Sadat welcomed them back to Egypt, so they Killed Sadat that is the brief history of the MBs and no one respect them.

    Reply
  5. Worry

    December 7, 2012

    Deep roots in constitutional theory are apparent? I am sure that the Muslim Brotherhood is filled with constitutional lawyers and scholars of the French Revolution.Are the present protestors sans-culottes, and is Morsi Robespierre? Partlett probably would have said the same things about Egypt and Gamal Abdel Nasser in 1952. Brookings really has gone down on its knees with this sort of banal analysis.

    Reply

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