Egyptians recently concluded their second attempt at passing a constitution that conveys the aspirations of the 25 January 2011 uprising. However, the 2014 constitution is not much different than the now maligned “Morsi constitution” of 2012 — whether in content or process.
Although the language in the two constitutions incrementally strengthened individual rights and preserved the rule of law, both drafting processes were fraught with exclusivity, circumscribed collaboration, and insufficient transparency. Contradictions abound between a purportedly legitimate constitutional drafting process and the violent crackdown and marginalisation of dissidents by those in control of the government at the time.
Under Morsi, the Muslim Brotherhood and their Salafi allies dominated the process. Secular liberal parties, youth leaders and Copts were included in the constitutional drafting committee only to be ignored. Once it became clear that their inclusion was aimed to create an appearance of inclusiveness to legitimise an otherwise predisposed outcome, the non-Islamist groups had no option but to resign in protest.
At the same time that Morsi was touting the pending passage of the new constitution, his supporters were violently quashing protesters in front of the presidential palace. Rather than realise such railroading would doom the constitution in the long run, Morsi and his Muslim Brotherhood allies took a route all too familiar in Egyptian politics. He responded to dissent with force bolstered by a constitutional declaration that placed him above judicial scrutiny long enough to ram through the constitutional referendum to a public vote. With a low voter turnout of 33 percent and a boycott by multiple stakeholders excluded from the process, the constitution was approved by 64 percent of voters.
Morsi and his Muslim Brotherhood had won the legal battle, but would soon pay dearly when they lost the political war six months later.
The similarities between the Muslim Brotherhood’s domination over the 2012 Constitution, which ultimately led to their demise, and the secularists’ domination over the 2013 drafting process are glaring. Nearly one year after Morsi’s fatal push to vote on a constitution rejected by a number of influential political stakeholders, a second constitution was put before Egyptian voters in January 2014. But for different political actors it, too, was drafted through a non-inclusive process.
Indeed, voter turnout was a mere 36 percent, just a few points above the turnout for Morsi’s constitution with a large swath of Egyptian youth not bothering to vote. To them, the referendum’s outcome was predetermined just as it had been under Mubarak.
As the Muslim Brotherhood’s leadership was detained en masse, predominantly secular and non-Islamist stakeholders, with the exception of the opportunistic Salafis, drafted the new constitution. The constitutional committee’s invitation for the Brotherhood to participate was met with the same rebuke by the non-Islamists one year prior. To the Brotherhood, this was merely an exercise in legitimisation of an otherwise illegitimate process in their eyes — ironically the same indictment that confronted the Muslim Brotherhood during the 2012 constitutional drafting process.
Despite the promising language protecting individual rights in the 2014 constitution, the political reality could not be more contradictory. In August 2013, nearly a thousand civilians protesting against the deposal of Morsi were reportedly killed by Egyptian internal security forces in retribution for their refusal to stop their sit-in protests in Rabaa Al-Adawiya and Nahda squares. Even during Mubarak’s notorious police state, internal security forces had never killed so many Egyptians, some in cold blood, in such a short timeframe.
When youth activists’ concerns with military trials of civilians and the increased powers of the military in the new draft constitution were ignored, they too resorted to the streets. Unable to stop the protests through political compromise, the interim president unilaterally passed a draconian anti-protest law that legalised the quashing of political dissent. And if these developments were not enough evidence of the polarised political climate, the designation of the Muslim Brotherhood as a terrorist organisation effectively shut them out of politics.
Though the past three years appear unpredictable, a common theme grips Egypt’s political landscape.
The culture of authoritarianism grounded in a zero-sum game mentality has been the modus operandi for whoever is in power. Whether it was the SCAF’s harsh military trials of over 10,000 civilians to mute dissent, Morsi's ominous constitutional declaration placing him above the law, or the current military-backed interim government’s mass arrests of political dissidents from both the religious right and secular left; the Egyptian political process looks eerily similar to the Mubarak era.
Despite this, the January 2011 revolution has proven that the authoritarian mode of politics is not sustainable in the long run. While current rulers may win short term political gains by pushing through constitutions as the opposition is marginalised or imprisoned, the long term legitimacy of the document is jeopardised. This leads to further instability that Egyptians can no longer afford as they focus on strengthening their economy, creating more jobs, and improving the quality of their lives.
It is long overdue for whoever takes on the weighty responsibility of governing Egypt to recognise that legitimacy of the law is the key to sustainable political stability and economic prosperity for all Egyptians. Without such, the aspirations of the January 25 Revolution will remain unfulfilled.
The writer is associate professor of law, Texas A&M University School of Law.