Egypt’s constitution-making process has seemingly attained warp speed. Facing the threat of judicial dissolution, members of the Egyptian Constituent Assembly voted to accept a draft of a new constitution on Thursday. President Mohammed 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 Thanksgiving Day 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.
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
Egypt’s constitutional debate has deep roots in constitutional theory. Mr. 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.”
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.