Constitutionalism vs. democracy : two competing theories of development in Post-Arab spring Egypt

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FACULTEIT DER

MAATSCHAPPIJ- EN

GEDRAGSWETENSCHAPPEN

Afdeling P

oliticologie

UNIVERSITEIT VAN AMSTERDAM

Constitutionalism vs.

Democracy

Two Competing Theories of Development in

Post-Arab Spring Egypt

Roderick Detmers Blom (10012788)

Weesperstraat 11N 1018DN Amsterdam 06-42969046 roderick_db@hotmail.com 27-06-2014 Bachelor Politicologie

Bachelorproject Postkolonialisme en ontwikkeling Eerste beoordelaar: dhr. dr. S. Rezaeiejan Tweede beoordelaar: mw. V.C. Marapin MSc

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Introduction and research question

Ever since protests against the Egyptian regime began in 2011, the direction the polity would develop in was uncertain. A volatile period of depositions of power, coup d’états, rapid rewritings of laws and interventions by the Egyptian military has taken place for the last three years. The question has arisen whether and how Egypt can fend off the autocratic fundaments of its form of state. There seems to be a substantive wish for democratisation among the Egyptian population; however, a lingering fear of a takeover through democratic means by Islamists also appears to be present. The election of Muslim Brotherhood president Mohamed Morsi and his subsequent removal from power by the military halfway through 2013 seems to support this notion.

The call for democratisation on the one hand and the need for a stable form of state on the other has developed itself into a conundrum. The past years have seen constant newly set elections, constitutional amendments and interventions by the courts and the military which are supported by a large part of the population. This provides for neither true democracy nor a stable form of state. Besides the establishing of democracy, the struggle in Egypt consists of another element: laying down a proper rule of law through a solid constitution. The people of Egypt seem to be aware of this difficult situation. Hence, public debate in Egypt does not only pertain to the best and quickest way to achieve democracy, but also to the role, form, and importance of the constitution. The Egyptians are able to distinguish the ups and downs of both. After decades of autocracy, the people are anxious to have more control over their political system and democracy therefore seems inevitable. On the other hand, scepticism of democracy is also still present, out of fear for either Islamist occupation of power or instability due to the lack of a strong ruler. Suspicion also exists for the power of the constitution, for it was under this document that oppression had been possible in Egypt. However, it is for this very reason that the people realise that a sound constitution is critical in preventing tyranny. The contest of the constitution in Egypt is one in which every party in Egypt wants a stake.

The public struggle in Egypt is linked to an academic debate: whether the foundation of the rule of law takes priority over democratisation or the other way around. The one position argues that the introduction of a solid liberal constitution will lead to democratisation. The other argues that democratic development will lead to rule of law. In this thesis, this academic debate will be explored and explicated. Subsequently, it will be applied to the case of Egypt, where its implications are very palpable. The goal is to discover if one or the other is applicable to Egypt or whether perhaps a synthesis provides a more satisfactory explanation. The timeframe will be limited to the first transition in Egypt, from the revolution until the election of Mohamed Morsi, because the most

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relevant developments happened in this period. Furthermore, by focusing on a limited timeframe a more detailed research can be made.

Thus, the research question is: do the developments in Egypt during the first transition support the notion that the foundation of solid rule of law based on liberal constitutionalism will lead to democratisation or the other way around?

Theoretical framework

In order to clarify the debate between the priority of constitutionalism vs. the priority of democracy, the two terms need to be conceptualised. This is necessary to properly analyse the possible causality between these concepts. Furthermore, the extent to which democracy and constitutionalism are described as either entangled or discrete concepts, greatly affects the manner in which they can be related to one another. For this reason, the definitions of democracy and constitutionalism as delineated by authors who link them will be analysed and compared. After this, the different arguments for either the priority of constitutionalism or democracy will be explicated. Finally, theory specific to the Middle East and Egypt will be added to the equation. In all, this will lead to a new thesis or multiple theses concerning the relation between democratisation and constitutionalism.

Conceptualising democracy and constitutionalism

In his article The Rise of Illiberal Democracy, Fareed Zakaria distinguishes different forms of democracy. Zakaria asserts that the democracy as it is viewed in the West actually constitutes liberal democracy. He defines democracy as free and fair elections; the liberal part is actually constitutional liberalism which, as the term applies, consists of two different but closely related dimensions. Zakaria briefly defines “constitutionalism” simply as the rule of law, and “liberalism” as the emphasis on individual liberty. All the other ideas and institutions that might make up either constitutionalism or liberalism, he gathers under the shared denominator of constitutional liberalism. These concepts are the separation of powers or checks and balances, the protection of civil liberties (i.e. freedom of religion and speech), equality under the law, impartiality of the judicial branch, and the separation of church and state (1997: 22-23, 26). Even though Zakaria presents constitutional liberalism as a very unitary tradition, the definitions that manifest themselves from his writings are of “liberalism” as the idea of inalienable individual rights and of “constitutionalism” as the institutions with which these rights are to be protected.

An illiberal democracy, as opposed to a liberal one, constitutes a regime which has been democratically elected, but subsequently uses its position to erode basic civil rights and liberties and its power limits. In illiberal democracies, elections may not be as free and fair as they are in liberal

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democracies, but they still reflect popular opinion (ibid.: 22-23). As is clear, Zakaria views democracy and liberal constitutionalism as two distinct concepts, the former being widespread and embraced in most parts of the world, the latter being ignored and underrated in its ability to guard liberty.

Larry Diamond as well defines two forms of democracy. He distinguishes them into two thresholds: an electoral democracy and a liberal democracy (2003: 8-9). Diamond conceptualises liberal democracy largely in the same way as Zakaria does. However, Diamond’s electoral democracy has an important distinction with Zakaria’s term of illiberal democracy.

Diamond splits the concept of liberal democracy into not two, but three distinct components, which he based on writings by Guillermo O’Donnell. The first is democratic: the vertical accountability of a government, the ability for citizens to choose their rulers in free and fair elections and to participate politically through other ways. The second is liberal, which simply means that there are certain rights which should not be trampled on, namely by the state. This is the limitation of state power and therefore the protection of civil liberties. The third is republican: the horizontal accountability, subjecting government power to the law, and holding all actors equal before the law. This constitutes the rule of law (Diamond, 2003: 9) (O’Donnell, 1999: 30-31). While Diamond and O’Donnell are more explicit in dividing liberal democracy into three different dimensions, Zakaria’s aforementioned definition is quite similar.

An electoral democracy as defined by Diamond is subject to regularly held free and fair elections. This means that it can exist in a country with a weak rule of law. But the rule of law must still be strong enough for the will of the voters to be reflected in the outcome of elections, and therefore for unpopular incumbents to be voted away if the voters so wish. Furthermore, the freedoms of speech, publication, assembly, organization and movement should be guaranteed for parties and candidates in order to safeguard an open electoral arena (ibid.: 8). This is where Diamond significantly distinguishes himself from Zakaria. The latter has not properly defined what makes elections free and fair in his original article. In the book based on it, The Future of Freedom, he however did make a small note on it, stating that freedom of speech and assembly should be protected as the minimal requirement (2003: 19). This is still far less fundamental than the prerequisites Diamond attributes to democracy. Thus, as described by Diamond, the rule of law appears to be more entwined with democracy than Zakaria asserted.

When exactly these conditions lack so heavily that one can no longer call an election free and fair, is an assessment which is difficult to make. Even in established democracies, there can be certain advantages for incumbent parties or executives, such as easier access to media and the ability to use staff and other means from the government (Diamond, 2002: 28). Clearly, the scale of unfree to free elections is incremental and judgements about it should therefore be made carefully.

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If one tries to view (liberal) constitutionalism and democracy as distinct theories, instead of as one mingled concept which is applied to most states today, significant differences can be found. As Zakaria put it: democracy is about the procedures for selecting government, constitutional liberalism is about government’s goals (2003: 19). This distinction can be led back to the very nature of both theories. In democratic theory, the process is what makes decisions made by government morally binding. The people should be free to choose representatives, those representatives should subsequently debate and let their ideas compete, after which a policy gets chosen. This policy should be enforced by administrators. The representatives should be up for re-election in order to call them to account (Murphy, 1993: 4). In a democracy, these are, in a nutshell, the conditions of what makes a governmental decision just. Not the content of a policy itself, but the fact that it was made in an open political market makes it right. Because of this stance, democracy can be seen as a moral relativist theory (idem).

Constitutionalism, on the other hand, is footed in moral realism or absolutism. The main assumption is that there are certain standards to be discovered to determine the justice of government action. The process of decision making can therefore not plainly be designated as the indicator of whether a policy is legitimate. This is also dependent on substantive criteria. This means that even when approved by a majority of the population and having acted according to proper democratic processes, a government cannot violate the fundamental individual rights of its citizens (ibid.: 6).

Despite the differences between the two theories, an essential similarity remains: both democracy and constitutionalism attempt to protect the population from tyranny. They differ on how to best accomplish this: constitutionalism intends to limit governmental action altogether, democracy tries to disperse political power among the population (idem). These different views have implications on whether the two theories can either impede or fortify each other. This will be clarified in the next section, where both the priority of constitutionalism before democracy and the other way around will be explicated.

Priority of constitutionalism vs. priority of democracy

It is clear what issues underlying democracy Zakaria wants to reveal. If free and fair elections produce governments which trample on the rights of their citizens and ignore power limits, what is the point of having a democracy? (2003: 17). Illiberal democracy is, according to Zakaria, caused by a lack of constitutional fundaments on which a democracy can be based. Democracy can only function properly, when the rule of law and other nondemocratic institutions are present beforehand. They are meant to “temper public passions, educate citizens, guide democracy, and thereby secure

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liberty.” (ibid.: 26). Constitutional liberalism is about limiting governmental power, democracy is about accumulating and applying it. The corollary of this notion is that democratic power which is not limited enough constitutionally, will enable a regime to usurp powers extraconstitutionally both horizontally and vertically and thereby develop into a dictatorship. The only difference is that it has more legitimacy (ibid.: 101-102).

While Zakaria logically relates a lack of rule of law to abuse of democratic power, there is a question that does spring to mind: if a regime is able to appropriate powers by ignoring the constitution, what good can a constitution do at all to prevent tyranny? This issue is addressed by Walter Murphy. Mere words can indeed not constrain power. However, by creating institutional restraints on power and fracturing it among different offices, officials can be forced to link their own interests with the interests of their office, making them guard their powers against possible incursions. Moreover, if authority is divided in such a manner that there is always some overlap between institutions, no one official can use their power without titillating other officials into defending their own authorities. Finally, the text of a constitution may become part of a nation’s culture and customs, causing officials to respectively observe its commands (1993: 7).

Constitutionalism seems to offer checks against tyranny through institutional divisions. Democracy takes another approach: the people will not tyrannise themselves. Popular participation will discourage governments to encroach on individual rights. Besides this, democracy operates in large, diverse nations, which means that most people have little concern for the majority of issues. This will ensure that coalitions of minorities can temporarily cooperate, trading support on different issues. Since political cleavages rarely cumulate, interest groups are not continuously allied in the same formations. While they might not always protect liberty, these checks can make politicians wary of oppressing any one group, for it might be needed for a different coalition in the future. The need to broker between interests makes tyranny through winner-take-all decisions unlikely (ibid.: 5).

This might ring true for countries in which democracy is already firmly established. But for democratising countries, there is a risk that “the winner really does take all” (Zakaria, 2003: 158) leading a regime to develop into an elective despotism or “delegative democracy”, which may not at all be representative of its population (O’Donnell, 1994: 56). However, Diamond argues that democracy and freedom actually go hand in hand. Civil liberties and the rule of law are most respected in democracies, and violations of human rights are invariably found in countries which are not democracies. According to these findings, developing the rule of law without focusing on democratisation is a strategy which is very limited (2003: 9).

Zakaria also supports his notion that democratisation and illiberalism are two directly related trends (2003: 106) by giving empirical examples. One of these is Venezuela. Although somewhat

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dated, his description of Venezuela having developed into an illiberal democracy still holds up. Hugo Chávez has indeed usurped power under mass approval of the population (ibid.: 96-97). However, Thomas Carothers questions whether this can be appropriated to a quick rise to democracy without constitutional liberalism. According to him, Venezuela has as a matter of fact passed through more than hundred years of constitutionalism and liberalising autocrats before it reached democracy in 1950. The downfall of the political system in the last decades can therefore hardly be blamed on premature democratisation (Carothers, 2003: 139).

Carothers further attacks Zakaria’s thesis of the necessity of constitutionalism before democratisation by noting that this formula can simply not be applied in this day and age. A slow build-up of the rule of law and other institutions before democracy can be introduced, did work in some places and times, such as Europe in the 19th_{century. However, the global political culture has}

changed in such a way that people everywhere want democracy and see it as the only right form of government. It is no longer feasible to expect societies to live under a few generations of liberalising autocrats, especially since time and time again, they promise reforms but eventually turn out to be power-usurping autocrats (ibid.: 140).

What all authors seem to agree on, is that there need to be some institutional guarantees before a democracy can properly function. Whether this entails only the freedoms of speech and assembly as Zakaria argues or a wider pattern of liberties as suggested by Diamond, is a matter of dispute. Still, both of them note it is possible for a democracy to exist with a weak rule of law and large scale violations of human rights. Surprisingly, Diamond and Zakaria seem to concur as well on the fact that it would be best for a country to have strongly developed liberal and republican institutions to base a democracy on. However, where Zakaria believes that this is a universal formula and that premature democratisation will always lead to an illiberal democracy, Diamond, along with Carothers, makes a valid point in stating that such a strategy might not be suitable for any country at any time. The question remains whether democratic processes can lead to a stable polity with a strong rule of law through the democratic checks stipulated by Murphy. In order to discover the right strategy for Egypt at the present time, first more writings on democratisation and constitutionalism in the Arab world and Egypt specifically need to be analysed, including those that focus on the specific circumstances after the Arab Spring.

The Arab world: pre-Arab Spring

The long predicament of persistent authoritarianism in the Arab world is sometimes blamed on Islam. Zakaria argues that while Islamism might be a threat to Arab societies, the fundamental problem does not lie with the Muslim world but in the Middle East (2003: 127). Diamond agrees,

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pointing out that there a number of Muslim countries which are democracies (or were at the time of his writing) (Diamond, 2003: 10). Eva Bellin as well finds Islam an unsatisfactory explanation, noting how different cultures around the world were once thought to be incompatible with democracy, but have now seen democratisation (2004: 141).

Although Zakaria claims the motor of change in the Middle East is the spirit of the peoples themselves, he believes that the Western world can pressurize Arab regimes into making substantial reforms. The West, and specifically the United States, should ask for these reforms in return for the aid they are giving. Following his general formula, Zakaria states that constitutional liberalism should be the first thing the U.S. should press for, before a democratic transition can begin. Particularly through economic reform can the rule of law be established, as capitalism needs contracts. The breaking down of feudal structures in the economy and in government will eventually lead to democratisation. Egypt is the most promising case in his eyes (2003: 150-153).

Surprisingly, Larry Diamond agrees with Zakaria on his strategy. Because of the closed off political arena and the possible threat of Islamism, moderate groups need time to surface. Before widespread democratisation can take place, horizontal accountability and the rule of law have to be built up, in order to prevent the winner of the elections to abuse the system (Diamond, 2003: 25). As it seems, Diamond seems to believe that Zakaria’s strategy might be limited, but one which still is very well applicable to the Middle East.

Carothers debunks Zakaria’s stance, explaining that U.S. has in fact repeatedly tried to push Egypt into reforming, but that simply nothing has been carried out. He points out that it is the authoritarian political system in Egypt itself that has consistently blocked any attempt at reform. The key therefore seems to lie with the willingness of the regime to change (Carothers, 2003: 141).

This is also the true exceptionalism of the Middle East, according to Eva Bellin: regimes have been both willing and able to hold off any sort of transition for such a long period of time. The robustness of a state’s coercive apparatus is thus decisive in the extent to which it can hold off any reform initiative from below (Bellin, 2004: 143-144).

The Arab world: post-Arab Spring

In a recent essay, Diamond clearly showcases that his support of an exceptional rule-of-law-first approach for the Arab world has disappeared after the Arab Spring. Paradoxically, he still supports his general thesis of democratisation first, while neglecting to mention the fact that he saw the Middle East as a distinct region with a distinct solution. He fights the notion of the Arab world not being ready yet for democracy (even though he defended it earlier himself) and points to mass support of democracy throughout the Arab world, although not in a complete liberal and secular

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way. He still sees democracy as decisive in protecting all other fundamental rights. Even though he is aware of the possibility of democratic breakdown, he proposes instant democratisation, because there is simply no reason to assume why extended autocratic rule will be a better solution. He finishes off with the pregnant phrase “The best way to democracy is through democracy” (Diamond, 2013).

Reflecting on the occurrences in Egypt last year, Zakaria seems to have adjusted his points of view. He believes that ousting Islamist forces from the political arena is ineffective, as it will only make them resort to nondemocratic means. He is still convinced that Egypt is a textbook case of an illiberal democracy as he originally defined it. However, the choice for Egypt right now is not one between an abusive but freely elected regime and an open, liberalising autocracy. It is between an illiberal democracy and an illiberal military rule. As Zakaria does not expect the military to establish liberty and the rule of law, he has become a proponent of immediate elections. Inclusion of Islamists in the democratic process and subsequent defeat through it is the best chance of Egypt ever becoming a liberal democracy (Zakaria, 2013). Both Diamond and Zakaria implicitly endorse the democratic checks outlined by Murphy: people will not tyrannize themselves if they can elect their government freely.

The role of the military in the democratisation process as mentioned by Zakaria has already been comprehensively delineated by Eva Bellin. In a 2012 essay, she looks back at her original theorem of the state’s coercive apparatus being central to the robustness of authoritarianism in the region. Her original thesis could not explain why some Arab countries faced massive protests while others did not. However, for the countries that did, the thesis stands the strain remarkably well. (Bellin, 2012: 129-130). Bellin expands on the central elements explaining the acts of the coercive apparatus: the will and capacity to suppress popular uprising. Of course the coercive apparatus consists of many different security forces. However, when confronted with mass unrest as in the Arab Spring, the military is the only institution large enough to be pivotal in the regime’s survival. In none of the cases of mass protests during the Arab Spring, including Egypt, was the capacity of the military decisive in regime survival (except for perhaps Bahrain). The will of the military to suppress is therefore the key determinant in regime survival. This will is shaped by three missions of the military: to defend the country, to maintain security and order, and to protect its institutional interests. The latter can be broken down into three further components: the maintaining of internal cohesion, morale and discipline; the protection of the image and legitimacy of the military; and the security of the economic interests of the military (both institutional and individual). (ibid.: 130-131). Furthermore, the extent to which the military is institutionalized greatly affects its decisions regarding the suppression of popular uprising. If the military is professional and can act separately

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from the regime, its own fate is not linked with that of the regime. However, if the military is organised alongside patrimonial lines, and may be linked through blood, ethnicity or cronyism, the downfall of the regime might just as well mean the downfall of the military (ibid.: 132-133). Applying all these factors to the case of Egypt, it becomes clear that at the time of Mubarak’s reign, the military was professional and not related to the regime through familial or ethnic ties. It was however dependent on the regime for crony reasons. In the end, it appeared that the military could imagine a life after the regime and decided not to shoot on the crowds when it was asked to, sealing Mubarak’s fate (ibid.: 134). The question now is whether the military may not be dependent on this particular autocrat per se, but still be dependent on autocracy as a regime form itself to defend its interests.

Methodology

This research can be defined as a qualitative single case study. In order to answer the research question, the first transitional process in Egypt will be analysed. This period started on 11 February 2011, the day Hosni Mubarak stepped down as President of Egypt. It is deemed to end at the official transfer of military power into civilian hands, when Mohamed Morsi was installed as the President of Egypt. All the relevant political developments during the period will be evaluated. The choice for researching only the first period is mainly prompted by practical considerations. The amount of developments which are relevant to the topic is too high to take on a scope of the full period from the revolution until now. The greatest disadvantage of investigating solely the first transition is of course that the predictive value is a lot smaller. However, a more condensed research of the whole period would cause that certain important events would not be recorded in the analysis, thereby making its conclusions less valid.

The literature review compounded above is meant to balance out general theorisations on constitutionalism and democracy with those specific to the Arab world and Egypt. The findings of this research can therefore only be fed back to theories on constitutionalism and democracy inasmuch as they actually reflect on them. However, since the number of factors that might play a part in the development of a polity is too large to oversee, this thesis should be mainly viewed as contributing to the research on the political development of Egypt.

Data

The Carnegie Endowment for International Peace has a comprehensive archive on the developments in Egypt since the Arab Spring. They offer essays on constitutional and democratic developments in Egypt with references to topical issues in the country. Particularly the writings of Nathan J. Brown,

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who has a large expertise on constitutionalism and its applicability in the Middle East, can be very useful for this research. Besides these explorative articles, there are also links to more technical articles describing all the constitutional changes and the emergency laws that have been implemented in Egypt since 2011. Although the Carnegie Endowment presents itself as a reliable expert on politics in the Middle East, most of its articles are of a more contemplative nature. For this reason a source that provides more funded findings has to be used as well.

This can be found in the International Crisis Group (ICG), an institution with comprehensive reporting on Egypt. They offer a number of different resources, focussing mainly on reporting on topical crises. The most extensive information supplied by the ICG can be found in policy briefings or regional reports. They consist of up to 35 pages of detailed reporting and commentary, and are published annually. These will be the main guide to understanding the transition process. Finally, the Crisis Group links to commentary published by other sources.

Lastly, sources from within Egypt itself have to be present as well. Without them, the possibility might arise that relevant information or perspective is not accounted for. Even though institutions like the Carnegie Endowment might provide valid analysis, any discrepancy in findings or appreciations between them and Egyptian sources has to be considered. This discrepancy itself might provide some valuable information as well. The newspaper Al Ahram frequently publishes on all topical developments in Egypt. It offers both news reports and background analysis, and maintains a separate file on the latest constitutional developments.

Variables and operationalisation

The research question: “Do the developments in Egypt during the first transition support the notion that the foundation of solid rule of law based on liberal constitutionalism will lead to democratisation or the other way around?” is twofold in character. It is comprised of the following hypotheses:

I. The first transition in Egypt shows liberal constitutionalism will lead to democratisation II. The first transition in Egypt shows democratisation will lead to liberal constitutionalism This means that the two main concepts “liberal constitutionalism” and “democracy” are both a dependent variable in one hypothesis and an independent variable in the other. As the goal of this research is to establish the proper cause-and-effect relationship between these two concepts, the two hypotheses will be answered jointly through the main research question. The outcome can range anywhere in between a complete acceptance of one hypothesis and complete rejection of the other, and partial acceptance or inconclusive outcome of either.

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In order to reach a correct conclusion, these two main concepts need to be properly conceptualised an operationalised. First and foremost, it is important to note that Egypt finds itself within the context of a transitional paradigm since the Revolution of 2011. Therefore, the process of democratisation and of implementing liberal constitutional articles is what will actually be measured. A particular event, for example an election or a new constitution, will be analysed and checked to see whether it can be linked to another such event that happened afterward.

For liberal constitutionalism, this implies that a constitutional development will have to be more than a simple establishment of the rule of law: after all, Islamic constitutionalism could also be interpreted as rule of law, as long as the government is bound by it as well. The constitutionalism that will be measured in this thesis must have a liberal or republican dimension. For example, if a new constitutional article is approved in which citizens acquire more freedom of speech or in which judges have more room to operate independently, this is counted as a movement towards constitutional liberalism. If, however, a new law based on Shari’a is passed which would protect freedom of religion except for apostasy from Islam, this is not counted as constitutional liberalism.

Democratisation has to be operationalised in such a way, that a democratic development can account for the standards of electoral democracy as described by Larry Diamond. This means that the elections should be free and fair, and that the freedoms of speech, publication, assembly, organization and movement should be guaranteed. However, there are three important notes on this. First, the scale of free to unfree elections is incremental, so one should be careful about harsh judgements. Second, since the process of democratisation is investigated and not an actual state of democracy, not all conditions might be present while a significant step towards electoral democracy is still made. The most important condition is that the will of the voters is reflected in the outcome of the elections. Third, there is still the caveat of conflating the rule of law with prerequisites for democracy. In order to disentangle these two concepts in the analysis of topical developments in Egypt, the sequence should be kept in mind. If, for example, elections are held well after the establishment of free speech in the constitution, priority can be said to lie with constitutionalism. If, however, freedom of speech is only upheld in the wake of elections, priority can be said to lie with democratisation.

A final variable which will be analysed is the Egyptian military. The role of the army is not directly theoretically related to either constitutional liberalism or democracy, but it still needs to be included in this case since the Egyptian military plays a very dominant part in domestic politics. As described in the theoretical framework, the Egyptian military has its own institutional interests and can therefore have certain preferences regarding political developments. Furthermore, its actions

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and possibilities can affect and be affected by both democratisation and liberal constitutional development.

Analysis

The question of priority of either democracy or a solid constitution has been central to Egypt’s transitional struggle. It is not as a dichotomous one as it might appear: ever since the removal of Mubarak as head of state, a convoluted process has ensued, entailing constitutional amendments, elections, appointed or elected constitutional reform committees, new election laws, plebiscites on new constitutions, and so on. Careful analysis is needed to prevent inversion of causality. In order to make sense of all the events that have taken place since the 2011 Revolution, this chapter will be divided into subsections. The first subsection will give a description of the Egyptian constitution and election laws as they existed just before the overthrow of Mubarak. The second one sees an analysis of the transitional period starting from that overthrow up until the transfer of power from the military to Mohamed Morsi. The third one will encompass application of the theoretical framework on the events that happened in Egypt. This means both feedback on the theory by means of new insights and the answering of the research question by applying the theory on the transitional developments.

Egypt before the Revolution

The constitution under Mubarak’s rule stemmed from 1971, when it was installed by Anwar El-Sadat. The document was drafted by a large and very diverse committee, including for instance Islamists and Copts but also liberals and feminists. As a result, the ruling National Democratic Party (NDP) was weakened, and power was fractured amongst different institutions. At first glance, a solid rule of law seemed to have been established: there were guarantees for individual liberties, democracy, and independence of the judiciary branch. However, for every one of these promises, there was another article somewhere else in the constitution that ultimately gave the president or the security apparatus far more power than would initially appear. Sadat got what he wanted: he could hold rival party members in check, he appeased different groups, and could still enjoy very limited power (Brown, 2011a).

Mubarak mostly left the document crafted by his predecessor alone. He liberalised the party system some more, and also created room for some opposition press and independent press to operate. However, the judiciary actually ensured that some of the constitution’s liberal elements were upheld. The Supreme Constitutional Court (SCC) gained significant autonomy. Through decisions on electoral laws it forced through a balloting process which was much more open. By

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2005 this had resulted in a parliament which saw one-fifth of its seats occupied by the Muslim Brotherhood and other representatives who, although mostly allied with the regime, were harder to keep in check due to the loose party system (idem).

In 2007 Mubarak decided to crack down on the liberal aspects of the constitution. Judicial supervision was removed from elections, which were now instead controlled by regime-filled commissions. Multiple candidates for presidential elections were technically allowed but so severely restricted that a lot of candidates were prevented from entering. The Muslim Brotherhood was officially forbidden to form a party (idem). Moreover, the state of emergency, which was in nearly continuous effect since 1939, was formally entrenched in the constitution. This allowed the president to try civilians before military courts, for instance (Brown, 2011b).

The increased authoritarianism in the constitution culminated in the 2010 parliamentary elections, where security forces caused widespread manipulation, obstruction form supervision, and the inability for some opposition supporters to vote (Dunne & Hamzawy, 2010). As it appears, the situation in Egypt before the uprisings offered little room to make significant changes towards either a liberal constitution or democracy within the system. The constitution made phony promises of liberal and republican values but lacked any institutions to actually back them up. No institutional fractions or overlaps as delineated by Murphy were present. As Brown (2011b) describes, the authoritarian character of the constitution is deeply secured in it, as emergency measures stem back to the era of British rule. Democracy on its turn was never even close to Diamond’s electoral threshold during Mubarak’s reign: even during his most liberal stages, there was no real open contention for political power. The will of the people was not reflected in electoral outcomes, and all existing opposition was either oppressed or provisionally tolerated by the regime. Whatever the exact causes of the 2011 Revolution, after it an opportunity presented itself in Egypt to resolve the constitutional and democratic deficiencies.

After the fall: Egypt’s first transition (11 February 2011 – 30 June 2012)

When the mass protest against the Mubarak regime commenced on 25 January 2011, two of the demands were the end of the Emergency Law and a two-term limit on the presidency (International Crisis Group, 2011: 3). This showcased the awareness of the Egyptian people of the importance the constitution can make in the way the government can exercise its power (Brown, 2011a). After Mubarak’s removal on 11 February the Supreme Council of the Armed Forces (SCAF), the highest military body, took control. On 13 February, it dissolved parliament and suspended the constitution. Awaiting new elections and constitutional reforms, the SCAF appropriated full legislative and executive powers (International Crisis Group, 2011: 14). The Revolution granted Egypt an

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opportunity to both establish the rule of law through a new constitution and have the Egyptians craft their own political system through a referendum (Said, 2011). However, a few roadblocks to a smooth transition soon become apparent. First, there was no existing procedure on writing a new constitution. Second, it was still very unclear to what extent the SCAF was willing to reform the system and if this could happen in a transparent and inclusive way (Brown, 2011a).

Besides this, there was also division on the date of new elections. The SCAF had set them at six months after they took control. Many in the revolutionary movement feared, however, that elections which come that quick will not have granted opposition forces enough time to organise. A system with such a large inclination towards the executive and a single party could only reinstate the status quo or benefit the only organised opposition group, the Muslim Brotherhood. Furthermore, civilian groups doubted whether limited constitutional amendments, pertaining only to the fairness of elections, would be enough. Even if free and fair elections could be guaranteed within the framework of a revised 1971 constitution, chances where that elections would only empower a new autocrat. Reform would also be less likely according to these groups, since newly elected representatives would want to maintain institutional arrangements instead of overhauling them (International Crisis Group, 2011: 29). It seems that early on in the transition period, concerns about the lack of both democratic and constitutional checks were present in Egypt.

The SCAF appointed a committee that would recommend constitutional revisions in the wake of parliamentary and presidential elections. On 26 February, the committee proposed a set of amendments. Procedures for creating a new constitution were laid out: the parliament was to select a 100-member committee which will draft a new constitution and put this draft up for a referendum. Moreover, the amendments regulated elections. Eligibility criteria for presidential candidates were specified, while a limit of two consecutive four-year terms for an elected president was installed. Parliament was provided with judicial oversight. These amendments were approved in a popular referendum on 19 March. On 23 March, The SCAF issued a constitutional declaration including these amendments. The declaration also set out deadlines for parliamentary elections (six months) and the new constitution referendum (one year) while remaining silent on the date of presidential elections (International Crisis Group, 2012: 2).

The SCAF had chosen a roadmap in which elections would precede a new constitution. This drew criticism from non-Islamists: they feared the SCAF would seek to maintain the old constitution or that the Muslim Brotherhood would dominate the drafting of the new one. Liberal activists therefore took to the streets to demand a new constitution be written before elections were held (International Crisis Group, 2012: 3) (El-Din, 2011). Alarmed by the prospect of an Islamist-dominated parliament having a large hand in writing the constitution, the SCAF itself started to have

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doubts about its roadmap as well. It reserved the right to postpone the parliamentary elections and suggested it could delay presidential elections until mid-2013, after the deadline for the adoption of the new constitution. Seemingly, it wished to hold on to power long enough to ensure it could maintain its privileged position. The SCAF made some more controversial decisions: it intended to stick to old electoral rules, favouring NDP members. It also proposed supra-constitutional principles. These would grant the SCAF the right to appoint most members of the constitution-drafting committee; protect the military budget from parliamentary oversight; retained the military’s veto power regarding issues of war and laws about the military; and formalised the military as guardian of “constitutional legitimacy”. The SCAF had to retract both these decisions: non-Islamists were heavily opposed to the old electoral rules, which they saw as advantageous towards the Muslim Brotherhood. The SCAF issued new laws, one of which ensured two thirds of parliament would be elected proportionally, and the other which barred corrupt members from the old regime from holding public office. Islamists were the force against the supra-constitutional principles, because they subverted parliament’s role in the drafting of the constitution (International Crisis Group, 2012: 4-5).

The long and divisive transition meanwhile took its toll on the SCAF, which saw its image decay and its popular support decrease. As a response to mass protests, Field Marshal Tantawi finally announced that power would be handed over to an elected president on 30 June 2012 at the latest (ibid.: 6).

From 28 November 2011 to 11 January 2012 parliamentary elections took place in Egypt. As expected, the Muslim Brotherhood’s Freedom and Justice Party won with over 47 per cent of the seats. The Salafist Al-Nour party came in a strong second with 24 per cent. The Revolution Continues, a coalition party of movements which partook in the uprisings, showed poorly with only 1.4 per cent of seats (BBC News, 2012a). The Carter Center reported that while there were some issues regarding the legal framework, the elections were ultimately a broadly accurate reflection of the voters’ will (The Carter Center, 2012a). On 24 March, the newly elected legislature appointed 100 members for the constituent assembly, according to its own rules: 50 from within parliament and 50 from without. 65 per cent of the assembly ended up being Islamist. Non-Islamists were enraged by the domination of Islamists and the under-representation of Copts and women in the assembly. (International Crisis Group, 2012: 7) A wave of resignations by non-Islamists followed (Ahram Online, 2012a). The Supreme Administrative Court declared the assembly unconstitutional, because it contained members of parliament itself and was not reflective of Egyptian society (Ahram Online, 2012b) (BBC News, 2012b).

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Pending the forming of a constituent assembly satisfactory for all parties involved, Egyptians could turn their heads to presidential elections. The disagreement on the constitution-forming procedure between Islamists and non-Islamists translated into heavy competition for the upcoming elections. The Muslim Brotherhood furthermore feared one of their Islamist rivals might steal the victory. The SCAF mingled by a backroom demand for the right to appoint several ministers in future cabinets, even after completion of the transition. Moreover, it threatened to marginalise or dissolve the Islamist-dominated parliament. All this pushed the Brothers into reneging on their past promise not to put forward a presidential candidate. On 31 March it was announced that Khairat El-Shater would stand for the presidency on behalf of the Freedom and Justice Party (International Crisis Group, 2012: 7-8).

Former intelligence director under the Mubarak regime Omar Suleiman responded by announcing his own candidacy. A dramatic turn ensued, when the Supreme Presidential Electoral Commission (SPEC) disqualified ten presidential candidates. The three most prominent were El-Shater (because of a conviction under the Mubarak regime), Suleiman (for a lack of official endorsement statements), and Salafi candidate Hazem Abu Ismail (because his mother was a U.S. citizen) (ibid.: 8). The SPEC was not subject to any judicial oversight according to Article 28 of the 2011 Constitutional Declaration (Website Egyptian Government), and its decisions were therefore final. Supporters of Abu Ismail staged a protest against the SPEC (Ahram Online, 2012c) and The Muslim Brotherhood accused the SPEC to be colluding with the SCAF. The head of the SPEC responded by threatening with legal action (Ahram Online, 2012e).

All these events made the build-up to the presidential elections very confusing to the public. The SCAF added to the volatility by announcing it wanted the constitution to be drafted before a new president is appointed. It even went so far as to state that the military should take matters into its own hand if the parties involved would not be able to agree on a new constitution. While some liberals welcomed the idea of the military taking on a leading role as long as this would reduce the Islamist influence on writing the constitution, the Muslim Brotherhood as well as some non-Islamist parties shot the idea down, fearing the SCAF was intent on retaining power after the transitional period had ended (International Crisis Group, 2012: 9) (Ahram Online, 2012d).

The Muslim Brotherhood replaced El-Shater with a new candidate: Mohamed Morsi. In the polls he was considered to be the third favourite after former foreign minister for Mubarak Amr Houssa and Islamist rival Abdel Moneim Aboul Fotouh. The last prime minister under Mubarak, Ahmed Shafiq, was considered to be an outsider (Ottaway, 2012a). With an absence of a constitution and clearly defined boundaries of power for the new president, the elections were

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building up to a highly contested, winner-takes-all game (El-Shimy, 2012). The first round of the election was held, as scheduled, on 23 and 24 May.

In a surprising outcome, Mohamed Morsi got a plurality of votes with 24.5 per cent. He and Ahmed Shafiq progressed to the run-off round, with Shafiq just trailing behind with 24.1 per cent. Secular leftist Hamdeen Sabahi did better than expected, securing a third place with 21.1 per cent of the vote. Abdel Moneim Aboul Fotouh and Amr Moussa disappointed by getting 17.8 and 11.3 per cent respectively, nowhere near enough for participation in the second round. This result meant that the old regime was basically pitted against the Muslim Brotherhood, which for many Egyptians was a ‘nightmare scenario’ (Ottaway, 2012b) (Shukrallah, 2012).

In the run-up to the second round of the presidential elections, some progress was made on the developing of a new constitution. After the SCAF threatened to either reinstall the 1971 constitution or issue another Constitutional Declaration, the parliament agreed on the composition of a second Constituent Assembly on 7 June. An equal division Islamist and non-Islamist members was decided on. However, just mere days after the agreement squabbling between Islamists and non-Islamists recommenced, with mutual accusations of the other party trying to renege on the deal (Ottaway, 2013c) (Ahram Online, 2012f).

The power struggle for the constitution and the presidential post not only manifested itself in the electoral arena, but also in the courts. This became clear when the Supreme Constitutional Court ruled on 14 June that the parliamentary elections were unconstitutional and parliament was therefore dissolved. The ground of the ruling was the fact that independents did not have the same chances of getting elected as party members. Compared to previous dissolutions of parliament by the SCC, this ruling was made very swiftly and came across as rushed. While the full ramifications of the decision were not instantly clear, it became a very real possibility that the agreement on the Constituent Assembly would be invalid as well, providing a setback in Egypt’s transition. In another separate ruling, a political exclusion was declared unconstitutional. This law would bar members from the old regime from taking public office. Thus, only now was it finally confirmed that Ahmed Shafiq was able to join the second round of the presidential elections. Just two days before the second round of the presidential elections, these two rulings left the country confused and instigated fears that SCAF might want a permanent spot in power (Brown, 2012a) (Mallat, 2012).

Late on the evening on Sunday 17 June 2012, the second and last day of the presidential election run-off, the SCAF announced a new addendum to the Constitutional Declaration originally published in 2011. In it the SCAF froze the membership to its current one; otherwise the newly elected president would have become the head. Furthermore, the SCAF was given full discretion on military manners, and martial law was basically restored. It also granted itself legislative powers until

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a new parliament was elected. Finally, the SCAF appropriated significant powers in forming the new constitution. It gained the right to appoint a new Constituent Assembly should the current one fail, and it could demand of any article in the new constitution, if it is believed to be in conflict with the revolution’s goals or with any previous constitution (Ahram Online, 2012g) (Brown, 2012b).

After a few confusing days in which both Morsi and Shafiq claimed victory (Ezzat, 2012), one week after the elections ended, on 24 June, it was finally announced that Mohamed Morsi had won with a narrow 52 per cent of the vote. However, the recent constitutional amendment made Egyptian commentators fear that the president would have no true power and that the SCAF would retain control (Tarek, 2012) (Trew and Shukrallah, 2012). The Carter Center issued a report on the course of the elections. Its observations were limited, because the Supreme Presidential Electoral Commission did not allow for witnessing of the final vote count and issued time restrictions on witness presence inside polling stations. While campaigning and access to polling stations were generally considered free, harsh candidate restrictions and confusion caused by the recent political and constitutional uncertainty were criticised. The Center noted that the political roadmap of the transition and the exact powers of the president to be elected should have been clear well before polling day (The Carter Center, 2012b).

On 26 June the Supreme Administrative Court overturned the article of the constitutional addendum which granted the SCAF the right to arrest civilians (the de facto martial law). It also delayed decisions on the dissolutions of the parliament and the Constituent Assembly to 9 July and 4 September respectively, enabling the Assembly to continue its work (Ahram Online, 2012h) (Daily News Egypt, 2012). Prior to this announcement it was speculated Morsi would refuse to be sworn in before the High Constitutional Court (HCC), as is stipulated by the constitutional addendum, because this would be a tacit acceptance of the addendum and the dissolutions of parliament and the Assembly. However, on 30 June Morsi did take the oath at the HCC (Ahram Online, 2012h) (Rashwan, 2012). Power was now transferred into civilian hands, but the uncertainty surrounding the presidential powers, the legality of the parliament, and the forming of the new constitution meant that the transition was far from over.

Theoretical application

The developments in Egypt from the revolution up until the installation of Morsi as president have some implications for the theorisations stipulated in this thesis. First, all of Zakaria, Diamond, and Carothers do not take into account the fact that the choice is not always between a direct establishing of democracy and an incremental build-up of the rule of law. Egypt’s transition showcased that relatively free elections can happen just mere months after the fall of an autocracy,

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but the actual handing over of power to democratic officials and institutions can take longer, regardless of elections. Forming a new constitution can be slow, as the problems surrounding the Constituent Assembly have shown, but the constitutional decrees issued by the SCAF that a rule of law can be laid down swiftly. It has to be said, though, that the constitutional declarations issued by the SCAF did not entail liberal constitutionalism. They mostly consisted of either outright authoritarian stipulations or measures intended to guide the transition smoothly.

This does confirm the point made by both Carothers that the willingness of the regime to change is a key factor. This applies to both democratisation and to strengthening the liberal and republican aspects of the polity. In the case of Egypt’s first transition, the SCAF can be seen as the regime. The way the SCAF acts can be understood as securing both their interests and their ideas in institutions. As stipulated by Bellin, the SCAF has certain economic interests. This explains why it wants to safeguard its independence on military decisions in the constitution. The SCAF also wants to protect its image and legitimacy. Thus, when public discontent grows too much and the SCAF is perceived as being too misaligned with the revolution, it may retract proposals.

The split the SCAF tends to make between by wanting to control the transition on the one hand and caving in to public pressure on the other can be explained by their ideas. The military sees itself as the guardian of internal security of Egypt. It is therefore not afraid to appropriate the right to detain citizens, as it showed by issuing the constitutional addendum, if it feels this is necessary to maintain order. However, the belief that constitutional legitimacy and a republican form of state should be defended is deeply entrenched in the military (International Crisis Group, 2012: 10). Hence, the SCAF tried to affirm its role as guardian of constitutional legitimacy, and it is weary of quick democratisation. Still, it sees that democratisation is a widespread wish amongst the Egyptian population. For reasons of maintaining stability and ensuring a legitimate state, the SCAF is not necessarily an opponent of democratisation. It appeared to be a proponent of incremental change and democratisation on its own terms. Constitutional control seemed the most important for the SCAF. At this point in time, it was still very unclear to what extent it would allow for Morsi to exercise true democratic powers. Ostensibly, the several SCAF attempts of usurpation did not bid well.

The final theoretical implication is one missed by Diamond and Carothers. They argued that democratisation is inevitable when the political culture has shifted towards a pro-democracy stance. In the case of Egypt, however, the people’s awareness of and wishes for democracy were just as present as their awareness of and wishes for constitutionalism. The debate of who should write the constitution, what should be in it, and when it should be written was maybe even more vivid than the debate on democracy. More so even, the debate on the sequence of a new constitution and

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elections had become the centre of the transition. For the population, constitutionalism and democracy did not appear to be complete opposite concepts which should be elaborated differently, but two closely linked ones which need one another, with the most significant question being which should come first.

The developments in Egypt described in the previous two chapters lead to the answer of the research question. The first thing that becomes clear is that the transition process did not give a clear priority to democratisation or constitutionalism in the sense that one of these was to be completed before the other could start. The transition was also not completely centrally managed, as several actors, such as political movements, civilian movements, the judiciary and the SCAF tried to steer things the way they wished. However, developments took place in such a way that certain causal relations can be exposed.

While the SCAF started out the transition with constitutional amendments, these were mainly intended to outline the procedures for elections and the writing of the new constitution. Considering this and the fact that the amendments were approved in a popular referendum, the SCAF seemed to want to put an early focus on democratisation. The parliamentary elections were to precede the new constitution. The division that existed on the sequence mirrored the arguments made in the theoretical framework. The criticism made by non-Islamists that a priority of elections would lead to a retaining of the old constitution or an Islamist-dominated drafting of a new one, is an elaboration of Zakaria’s warning that elections with blank checks would lead to elective despotism. The worries of the Muslim Brotherhood that a new constitution prior to elections would lead to an authoritarian state with no democratic power or influence on the drafting of the constitution, reflects Diamonds theorem that the rule of law is best maintained in democracies. As the parliamentary elections were considered a fair representation of the will of the voters, and the Constituent Assembly was appointed by the parliament, it looked as if the side pushing for the priority of democratisation had won. The direction changed, however, when the Supreme Administrative Court declared the assembly unconstitutional.

There are a few important things to note on these occurrences. First, democratisation had barely begun when the Constituent Assembly was democratically appointed. Still, it can be seen as a priority of democratisation, because the legitimacy of the parliament and of its assignation of the Assembly was based on popular will. Of course a priority of constitutionalism could have been made, while still retaining democratic legitimacy. For this to have happened, a special body could have been directly elected, with a specific mission of crafting a new constitution, after which it were to be dissolved. The democratic mandate would then have only amounted to the creation of a constitution, instead of being more general as was the case now.

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Second, the intervention by the court was indeed a turn away from direct priority of democratisation. Together with the resigned members of the Assembly, the court concerned appeared to try to lay priority with constitutionalism. While the members of the Assembly were of course free to choose to no longer fulfil their duties, the ground on which the court based its decision is subject to more serious scrutiny. To declare something ‘unconstitutional’ on the basis of what basically amounted to an SCAF decree is dubious, particularly when the rules concerning the creation of a new constitution are so recent and vague. However, one cannot expect the courts to sit idly by. Whether or not this was a right decision, the judiciary will attempt to outline the legal framework of the political transition. Still, it is doubtful whether a constitutional decree issued by a military body can be qualified as ‘liberal’.

Third, these events can be observed through the lens of Walter Murphy, who specified the different checks both constitutionalism and democracy can posit against tyranny. Constitutionalist checks are ensured through institutional fracturing and overlap. While the uncertainty surrounding the constitutional developments could not offer a strong footing for that, Egypt does have a history of courts ruling against the regime. Also after the revolution different higher courts ruled independent of each other, sometimes in favour of the SCAF, such as in the case of the dissolution of the parliament; sometimes against the SCAF, such as in the case of the overruling of the constitutional addendum just before the results of the presidential elections. In any case, the courts can be said to act relatively independent from each other and the SCAF. The habituation effect of the constitution is of course not present during a vacuum as this. Yet, the SCAF’s conviction of the importance of constitutional legitimacy can make them sensitive to calls for constitutionality. Constitutional checks therefore seemed to be reasonably effective during this period.

Murphy describes two major democratic checks. The first one is the very fact of popular participation, which will discourage governments to slide into authoritarianism. This was present in the sense that pressure by the public and political parties forced the SCAF to retract certain proposals, such as the supra-constitutional principles and the claim that the constitution should be finished before a new president was appointed (uttered just before the first round of the presidential elections). The second democratic check is the fact that political cleavages will lead to brokered deals and issue-trading. This is decisively not the case in this stage of the transition. The parliament was Islamist-dominated, perhaps largely due to organisational advantage. Furthermore, there can be no real case of issue-trading when all parties focus on building a new polity. Of course, compromises can be made, but not in the sense that there are certain areas of debate which are not important to certain parties. Because of this, democratic checks were not as strongly present during the first transitional phase.

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The volatility of Egypt’s transition continued in the build-up to the presidential elections. The refusal of three of the most prominent candidates was another outing of a struggle between democratic and legal forces. The three were denied participation on technical grounds, though still correct according to the letter of the law. The real bottleneck is that the body responsible for these decisions, the SPEC, was not subject to judicial oversight. Hence, it could never be checked whether it truly operated independently and objectively or whether the rumours of close ties with the SCAF were true. It is hard to put the blame for this: was it because of a focus on constitutionalism, or because of the fact that the role of the SPEC was approved in a popular referendum? It seems like neither, and merely the consequence of authoritarian handling of the transition by the SCAF. Carothers’ note on the key of a regime’s willingness for change finds truth here. In any case, new candidates representing the three sides did make the cut.

The SCAF kept upsetting the timeline of the transition by announcing just before the first election round that it wanted the constitution to be finished before the new president assumes office. While the goal of a clear constitution as framework for the president’s power was not a bad idea in itself, the sheer timing showcased how confusing the whole transition was to the Egyptians. The proposal could of course never work, because the priority of elections over constitution would still be in place (i.e. the Egyptians would still not elect a president under a known constitution), and because a rushed drafting of the constitution would never grant satisfactory results. The rejection meant Egypt was back on track for the elections first roadmap.

The first round ended in a standoff between one representative of the old regime and one of the Muslim Brothers, ironically the thing Mubarak had warned for during his reign. The numbers three and four were, however, not far behind. This gives credibility to the idea that the extra time that passed vis-à-vis the parliamentary elections granted candidates more time to organise. The presidential elections would of course always amount to a winner-take-all situation, but a delay in parliamentary elections might just have caused a better reflection of the will of the voters and a more diverse parliament. This pertains to Zakaria’s argument that a rushed democracy will lead to authoritarianism.

The agreement on a new Constituent Assembly proved to be an unstable deal. While it was now more than clear that a new constitution would be completed well after the elections, the whole process of forming one could be observed by the Egyptians. It must have therefore been a factor in the run-up to the second round of the presidential elections. Instead of a clear-cut deal where the drafting of the constitution would completely take place either before or after presidential elections, the public now had to deal with two entangled processes, which meant neither could be properly executed.

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Mere days before the second round of the presidential election, the Supreme Constitutional Court spread new confusion on the fate of the president, the parliament, and the constitution by means of two rulings. The overruling of the presidential exclusion law meant a confirmation that Shafiq could run for president. To only know this in between the two rounds is of course a grave shortcoming for the legitimacy of the election. This event can be explained as a lacking legal framework, which allowed parliament to try and push through such a law. Had more time been taken to properly draft the constitution and to outline the guidelines for handling the old regime and the course of the elections, this situation might have been prevented. This is another pointer in the direction of Zakaria, who claimed that rushed democratisation without a proper constitutional framework would lead to accumulation of power. Whether or not the dissolution of parliament based on its unconstitutionality might have been made on reasonable grounds, its timing was political. There did not seem any reason for the court to make the decision at that moment. Even if the parliament was unconstitutional, it would have been better to announce the ruling well after the presidential elections in order to keep it clear from unwanted influences. As it stands now, the ruling comes across as an attempt to subvert the process of democratisation. This case seems to be supportive of Diamond’s notion that the rule of law is best upheld in democracies and of Carothers’s statement of the regime as a key factor. The fact that the Constituent Assembly was possibly implicated by this ruling as well was a further disturbance to the transitional roadmap.

The constitutional addendum announced by the SCAF on the evening of the last election day constitutes as an attempt to have a firm grip on power. Whether intended to just steer the transition in its way or to establish a permanent position of power after it, the addendum and the unilateral way in which it was declared have very little to do with either liberal constitutionalism or democracy. Especially the timing of the addendum raised suspicions of an authoritarian rise.

The second round of elections was considered to be generally fair. While there were some imperfections, these are to be expected in a democratising state. Diamond’s threshold of electoral democracy can therefore be said to have been reached in these elections. After the elections, fear arose that Morsi would have no true powers as president. This was mainly caused by the troubling prospect of further usurpation by the SCAF. Yet, a Morsi who would cleverly be able to turn things his way was not entirely unimaginable either. This power struggle could exist, because of a lack of a constitution. The president could now play a part in the crafting the constitution, and thereby determine the limits of his own power. This is of course a direct consequence of electing a president before clarifying his exact role in the constitution.

The overturning of the constitutional addendum as well as the postponements on the decisions of the dissolution of both the parliament and Assembly meant that the court had created

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room for the parliament and president to exercise their powers. This appeared to be a constitutionalist check against usurpation by the SCAF right on time for the Constituent Assembly to do its work properly. With the parliament and president now also in place, the transition process could move ahead. In the end the priority of democratisation over constitutionalism clearly vindicated in this period, with the parliament, the president, the SCAF, and the judiciary all on their way to decide the rest of the of Egypt’s political development through conflict and cooperation.

Conclusion

This thesis sought to understand the events that took place during the first transition period in Egypt after the revolution. It did so using a framework based on theories of liberal constitutionalism and democratisation. Two competing theories were formed, one of which supported the notion that constitutional liberalism will lead to democracy, and the other stating that democracy will lead to liberal constitutionalism. With this in mind, all the events in Egypt that were a movement towards democratisation or a movement towards liberal constitutionalism were investigated. The Supreme Council of the Armed Forces (SCAF) was taken apart as a separate actor, because of its central role in guiding the transition.

The findings in the analysis had some implications for the theory itself. First, the dichotomy between a slow build-up of liberal constitutionalism and a direct establishment of democracy is simply false: both can come about in slow and fast paces. Second, the key player in change is indeed the regime, but this is true for both democratisation and constitutional liberalism. Third, political culture in Egypt has not only made democracy inevitable, but also a solid rule of law based on a constitution.

The SCAF can be seen as an actor which is driven by ideas, interests, and institutions. In the period investigated, it revealed itself to be ambiguous in its wish for a permanent place in power. Its belief that it is responsible for internal security and its wanting to preserve its economic interests said that it might want to; its conviction that republican form of state should be based on constitutional legitimacy and its wish for maintaining its image and popular support said that it might not.

The research question was: “Do the developments in Egypt during the first transition support the notion that the foundation of solid rule of law based on liberal constitutionalism will lead to democratisation or the other way around?” To answer the question, the first thing that has to be established is whether the first transition constituted a priority of liberal constitutionalism or of democratisation. The answer is not completely uniform: there was a lot of confusion and conflict surrounding the sequence of elections and constitution-drafting. The SCAF added to the uncertainty