A committee appointed by the military council in charge in Egypt recently released several proposed amendments to the constitution. They will be voted on by the people within the next few weeks. For a full review, check out Nathan Brown and Michele Dunne's piece here. For this blog, I'm going to focus on one of the proposed changes: Article 189.
Originally, it was expected that this committee would propose changes to the constitution essential for fair elections, elections would be held for parliament and then president, and finally the newly elected officials would take a more thorough look at how to change the constitution more broadly (or write an entirely new one). The proposed Article 189 changes that plan.
Instead of mandating further constitutional changes after elections, it instead offers a procedure for how and when a new constitution can be written and adopted. Specifically, either the president or a majority in both houses of parliament can vote in favor of a new constitution. If that vote passes, parliament forms a 100 member constituent assembly to draft a new constitution to be voted upon by the people within 6 months.
If this measure passes, notice that it'll be easier to change the constitution in Egypt than it is to pass a law in the United States. This is a problem. Constitutions are supposed to act as the bedrock of politics, stable enough to provide security, flexible enough to ensure relativity. That's why after over two centuries, we've only amended our constitution 27 times. Of those, 10 were added simultaneously with ratification and two cancel each other out. So practically, we've only passed 15 amendments that stuck.
Yet if Article 189 passes, it'll be far too easy to amend the Egyptian constitution, defeating its purpose of providing political stability. Instead, with every shift in of the political winds, the constitution will be at threat. The temptation to seek amendments to gain political advantage will always be lurking behind every legislative debate and electoral challenge.
Now admittedly, it is likely the committee proposed Article 189 with the intention of making constitutional change easy the first time around, expecting the article to be removed in the next round of amendments. Practically, this plan makes sense as a political compromise in a time of immense uncertainty.
But here's the problem. Democracy isn't just about institutions and processes. It's a deeply-engrained understanding that a government serves its people. While not all democracies have constitutions, all democracies understand that a contract between people and government form the foundation of politics. The Egyptian constitution should outline that social contract and give life to its budding democracy. Adding amendments to that fundamental contract with the intention that they should be removed when convenient is not exactly an auspicious start.
It sets a bad precedent. Moreover, it echoes the worst of its antecedents. Mubarak lasted for nearly three decades by creating what political scientists call a liberalizing autocracy. Essentially, he set up all the bells and whistles of democracy - constitutions, elections, parliaments, etc - while squashing any force that truly portended democratic values. Mubarak's democracy was a sham democracy. Mubarak's constitution was a sham constitution. It helped him stay in power, and when it didn't, he changed it to keep him in power. After Mubarak forced through several devastating amendments in 2007, some government websites failed to even bother updating their websites.
That is what the constitution was worth in the old Egypt. In the new Egypt, a constitution must mean so much more. It must not only capture the organic spirit of Tahrir, but also organize that spirit into a workable and stable politics. By proposing Article 189 that is not intended to last, the committee has focused too keenly on the momentarily pragmatic at the expense of an enduring ideal.
I recognize I'm nitpicking here. There are so many things to worry about in Egypt right now. Amendment 189 is far down on that list. But this is the future Egyptian constitution we're talking about here. It should be nitpicked.