A Tale of Two Countries: Constitutional Reform in the Middle East

As Tunisia and Egypt move a step closer toward completing constitutions this week, their experiences highlight the divergent fates of the Arab region's Islamist movements, resulting from the wise and foolish political choices of each country's political elites.
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An Egyptian woman votes in the country's constitutional referendum in Cairo, Egypt, Tuesday, Jan. 14, 2014. Upbeat and resentful of the Muslim Brotherhood, Egyptians voted Tuesday on a new constitution in a referendum that will pave the way for a likely presidential run by the nation's top general months after he ousted Islamist President Mohammed Morsi.(AP Photo/Khalil Hamra)
An Egyptian woman votes in the country's constitutional referendum in Cairo, Egypt, Tuesday, Jan. 14, 2014. Upbeat and resentful of the Muslim Brotherhood, Egyptians voted Tuesday on a new constitution in a referendum that will pave the way for a likely presidential run by the nation's top general months after he ousted Islamist President Mohammed Morsi.(AP Photo/Khalil Hamra)

Most of us know Charles Dickens' famous phrase about the best of times and worst of times, but few remember the next line: "it was the age of wisdom, it was the age of foolishness." As Tunisia and Egypt move a step closer toward completing constitutions this week, their experiences highlight the divergent fates of the Arab region's Islamist movements, resulting from the wise and foolish political choices of each country's political elites. With any luck, Tunisia may yet see the best of times after it concludes its final reading of the Constitution; we can only hope that Egypt has already seen the worst, but that is far from clear.

The key difference between the two countries comes down to one word: inclusion. In Tunisia, the Ennahada party has navigated a contentious constitution-making process by making significant compromises with liberals, and has been repeatedly held accountable for its actions in government. In Egypt, in contrast, the Muslim Brotherhood made many missteps during its brief period in power before the June 2013 military coup. The Brotherhood has now been branded a terrorist organization and driven underground, with its constitution to be replaced this week with a new document drafted by the military-bureaucratic regime.

The differences are visible in the streets. When I was in Egypt last month to discuss the new Constitution with a group of lawyers and judges, I saw military tanks stationed just off Tahrir Square, where demonstrations continue to be held episodically. In contrast, the main street of Tunis, Avenue Bourguiba, is filled with people strolling and sitting in sidewalk cafes.

What has gone right in Tunisia? Surely the constitution-making process has had its share of bumps. The Tunisian Constituent Assembly has been working for over two years, and has had to extend its mandate as it produced four successive drafts of a constitutional text. The process has been fraught with political grandstanding and mutual recrimination between liberals and the moderate Islamist Ennahada party, which controls the majority of the seats in the Assembly. Political assassinations have led to great distrust and delayed the process. In the end, however, the country's leaders have been willing to compromise and to engage in a genuine deliberation. Ennahada backed off of provisions that seemed to threaten gender equality, and the final Constitution does not declare Islam the source of law, unlike many other such documents in the region. Tunisia, in short, seems to be the one example of an Arab country in which spring might actually lie ahead.

Whereas Tunisia's elites repeatedly stepped back from the brink to engage in genuine compromise, Egypt's leaders have consistently failed to act inclusively. In late 2012, then-President Morsi rammed through a constitution that had a distinctly Islamic tinge. His failure to bring in other groups led to massive street protests and his removal from office by the military, a few weeks before parliamentary elections. The military in turn has sought to demonize the Brotherhood, killing many of its members engaged in peaceful protest. None of these decisions was inevitable.

To be sure, there are important differences between the two countries that help to explain their divergent paths. Tunisia's population is wealthier, better educated, and more literate; its military played a minimal role in politics during the long dictatorship of Zine Ben Ali. Liberals and trade unions in Egypt are politically marginal, whereas they are more important in Tunisia. But these structural conditions do not offset the fact that Egypt's transition has been botched by political decisions at every turn.

Will this week's referendum on Egypt's Constitution provide an opportunity for more inclusive governance? The key to watch is turnout. The 2012 Constitution pushed by the Brotherhood passed with the support of only about 20% of the electorate, as many voters stayed home. If this week's referendum has better turnout, it might indicate a genuine turning of the page in Egypt's long struggle for stability. There are some Islamist parties that are supporting the constitution, and the government is doing its best to minimize dissent. With elections scheduled over the summer, there may be a new chance for a legitimate government that reflects a genuine political choice among alternatives. Only the Brotherhood is sure to be excluded at this point.

On its surface, the proposed constitutional document has much to commend. It is much more symbolically pluralist, speaking in glowing terms about the country's various religious traditions, and requiring the state to help rebuild churches. The provisions on Islam are similar to those that have been in place since 1971, and the Constitution makes clear that they will be interpreted by the largely secular Constitutional Court. This continuity is reassuring to many who felt threatened by the Brotherhood's agenda.

However, there are other ways in which the continuity with the past is less reassuring. The political system in the new Constitution provides for a strong presidency, returning to Egypt's long tradition of strongman rule. The rights provisions continue to be qualified by law, limiting their efficacy as checks on government power. And the central state institutions, the military and the judiciary, are largely self-governing, retaining significant power without many checks. All this means that the institutional structure could facilitate a return of the long period of stagnation under de facto military rule. As Egyptian strongman Ahmed Al-Sisi hints that he will take a "yes" vote on the Constitution as a mandate to run for office, that outcome looks more plausible than ever. While the new Constitution ought to provide for a fresh start, there is a distinct possibility of a return to yesterday. That would be a foolish outcome.