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A Path to Transition and Reform in Egypt

by TAMER BAGHAT And KHALID EL-SHERIF

“Today we reign in our valley and restore the glory of our past, and build glory with our hands. A country we sacrifice for and which sacrifices for us. A country with justice we support, and with God’s support we build.”

– Ahmed Shawky

As Egypt’s revolution enters its fifth week, developments continue apace, with the process of amending key areas of the constitution already under way. Yet this rapidity, with a mere 10 days allocated by the Supreme Military Council for the Constitutional Amendment Committee to complete its work, is a cause of concern. In the ongoing jubilation following Hosni Mubarak’s resignation, crucial questions about the final goal of the Revolution are yet to be asked, not least what specific form of government Egypt requires to secure the gains of the past month, and prevent the return of autocracy.

Rather, attention has been directed towards ensuring a swift transition from temporary military rule to an elected civilian administration. While there is understandable eagerness for the burden of governance to be passed to civilians without delay, the process by which this is achieved is of paramount importance for Egypt’s democratic foundation. Without a solid and comprehensive programme for reform that enjoys broad support, this transition will be impeded, incomplete, and potentially self-injurious. In such circumstances, it is difficult to envisage a situation where the military will feel comfortable detaching itself completely from the affairs of the state. The best guarantee for an expedited and permanent handover of power is the manifestation of the people’s continued unity of purpose, and their capacity to move forward methodically.

Under the current timeline for transition, presidential and parliamentary elections to select a new government are expected to be held within six months. Many have hailed this as sufficient to ensure democratic rule. However, democracy is infinitely more than free and fair elections which, without appropriate safeguards, may result in an ‘elective dictatorship’ (a tyranny of the majority constrained only by the requirement to hold elections every four to six years). Pinning the country’s hopes on a new government that will operate under a slightly modified version of the existing system ignores the proven reality that the current framework is dysfunctional, and hazardous to the long-term welfare of the state. Piecemeal repairs will not rectify this failing.

Moreover, due to the previous government’s deliberate policy of suffocating independent political activity, Egypt’s political parties are inherently weak, disorganised, and unfamiliar to the vast majority of voters (with the exception of the Muslim Brotherhood, and the National Democratic Party of former President Mubarak). Decades of suppression cannot be countermanded in a matter of months, and expecting people to vote for persons and parties about which they know little is a disservice to democracy. Parties and political activists require time to develop, publicise, and defend policies, and compete freely in the marketplace of ideas.

Additionally, there is the risk that the current enfeeblement of Egyptian party politics might result in a parliament crippled by being composed of numerous small parties all lacking a mandate to govern by themselves. In the absence of anything approaching an overall majority, vote trading between different political parties would be unavoidable. While positive consensus building would be the desired consequence, the danger is that the parliamentary system would be reduced to a crude dance of bartering, and jockeying for power that promotes narrow party political objectives rather than national interest. Such a woeful affliction is evident in Nepal, and post-invasion Iraq (where it is aggravated by a constitutional system tailored specifically to guarantee a fractious and impaired central government).

The time required to redress these serious problems is in excess of the six months that Egypt has been given under the current timeline for transition. Indeed, it is reasonable to expect that at least 12 to 24 months would be required before Egypt would be able to establish a political system that is genuinely fit for purpose. Evidently, the current arrangements under which the country is being governed cannot be sustained for such a prolonged interval. Egyptians are conscious of the absence of any electoral mandate held by those administering the country currently, and the prospect that the military may feel compelled to extend their period of government to prevent a damaging political vacuum. A formula is required that will both permit the creation of an elected civilian government to which the military can handover power with confidence (thereby avoiding the spectre of a return to military rule subsequently), and provide the required time for constitutional and electoral reform, and political development.

A possible solution would be to change the basis upon which the upcoming elections are to be held. Rather than electing a new president and parliament for full six and five year terms respectively (as under the current constitution), voters would elect a temporary transitional government (preferably one free of partisan alignment) whose term would be explicitly limited to a relatively short period of time (perhaps to two years), thereby mitigating in large measure the possible negative consequences mentioned above. This intermediate administration would be mandated to, among other things, redress definitively the catalogue of flaws in the existing constitution and electoral laws through a constitutional convention, public commissions, and parliamentary committees, and to allow the growth of a functioning party political system. This would enable Egyptians to explore what ‘democracy’ means for Egypt, such as creating a free space for political discussion and dissent, empowering the press to challenge politicians and public figures, and upholding the right to form and join civil organisations free from state interference or intimidation.

With the conclusion of this critical transitional period, the approval of a new constitution in a nationwide referendum would then pave the way for a new government to be elected for a full term (ideally not to exceed four to five years, as opposed to the current six year presidential term), giving the country a thoroughly reformed political system that ensures the integrity of political competition and participation. This would require dedicating the next six months to determining the parameters of the proposed transitional government – how it would be elected, the length of its term, and the primary objectives of its reform agenda.

Undeniably, this is an ambitious proposition, particularly given the prevailing preference to vest responsibility for political, economic, and social reform in the hands of whatever government emerges after the elections in six months. This assumes that the current euphoric spirit of co-operation will survive to permit cross party collaboration. Egyptians should not discount the possibility that the newly elected President and his/her party may well advance their own agenda in defiance of other political groups, a prospect made all the more likely by the sheer breadth of powers granted to the President by the existing constitution, and the aforementioned weakness of most political parties. Additionally, such a hasty schedule would prevent the sober, reasoned constitutional debate that Egypt needs so acutely.

The brevity of such well known terms as ‘separation of powers’ and ‘checks and balances’ conceals the varied factors to be considered in selecting which governmental system to adopt. By electing a government in six months under the existing constitution, Egyptians would have unconsciously assented to the perpetuation of a particular system of government without performing the necessary diligence to consider alternative options. Rather than simply accepting the current malformed and inadequate model, the question should be asked: ‘What system will work for Egypt – presidential, semi-presidential, or parliamentary?’. Resolution of a matter of such overarching importance demands time.

The immediate and long term challenge for Egypt’s revolutionaries, and military guardians, is to craft a new political system that will deliver competent and effective government, safeguard the citizens’ rights and liberties, and protect the country from foreign domination and exploitation. This is a sacred duty owed not only to the Egyptians of today, but to future generations who have no immediate representation. Proceeding with haste risks placing this future in jeopardy. With so much at stake, a calm and undisturbed environment is required for the creation of a new constitutional and electoral framework, and the germination of genuine political life. As the old Egyptian proverb advises, “Go slower to reach your destination faster”. Treading the path of transition with care is the best means of ensuring that the torch of the revolution remains in the hands of the people.

Tamer O. Bahgat is a transnational lawyer with a predominant International Law Firm in London, with experience in corporate and international law, and a focus in economic and constitutional reform in emerging markets.

Khalid El-Sherif is a legal and policy professional with experience in regulatory reform, public and private international law, with a focus on development in the Arab World.

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