Egypt votes, freely and perhaps spectacularly

On Saturday Egypt will vote on constitutional amendments designed to pave the way for presidential and parliamentary elections, and then for a constituent assembly to write an all-new constitution. That’s five weeks after Hosni Mubarak stepped down. Everything I’ve seen leads me to believe this haste is genuinely a result of the ruling military council’s distaste with ruling, unconstitutionally and undemocratically, in the aftermath of a popular democratic uprising. They seem to want to hand off to more legitimate structures, processes and representatives.

It may not be that easy.

The amendments seem likely to be rejected by voters. (This post has a lot of links; for the best overview of the situation, ignore the others but follow this first link.) The whole process raises serious questions. That’s not proof of bad faith; you can’t get from dictatorship to democracy without raising serious questions. But among the questions are whether the military council has any constitutional standing and whether Egypt still has any kind of functioning constitution; and why on earth presidential candidacy is apparently restricted to men and clearly forbidden to anyone with a non-Egyptian spouse.

(Also worth checking out, at least by completists and wonks, is the Carnegie Endowment’s extraordinary website devoted to the Egyptian democratic transition.)

More generally, there seems to be a growing suspicion that these amendments propose minimal changes to the Sadat-Mubarak constitution, not because more sweeping change will come later, but because the military council isn’t interested in sweeping change.

I haven’t followed this process in sufficient detail. My hunch, as I’ve said, is that the military council has acted with surprising and conspicuous good faith. But in the last day or so I’ve started leaning to the conclusion that, if the transition process is already unpersuasive to a broad cross-section of Egyptians, then it may be best to stop it now. I’m tentatively inclined to believe the amendments should be defeated in Saturday’s referendum.

One more thing. Comparative constitutional law isn’t my field, so I can’t be sure of this. But I’ve done some cursory searches on all the Canadian law blogs I can find. I simply can’t find an analysis of the proposed Egyptian constitutional amendments, or of the referendum process, by a prominent Canadian lawyer, law prof, law school, bar association, grad student or basement comparative-constitutional-law geek. I really hope this is an indictment of my blog search abilities, because if it reflects widespread apathy among Canadian lawyers and legal scholars about the largest and most consequential democratic transition attempt in the world in the last 20 years, then that’s upsetting.

INSOMNIA UPDATE, Friday morning: In the comments, reader “JeffS” says there are indeed scholars in Canada doing good work on this file:

“I’m afraid it is indeed your blog search abilities that are to blame. Or at least, there are plenty of Canadians providing top notch analysis of Egypt’s constitutional reforms, though they may not be found in any of the usual places.

“Here, among others, is Tamir Moustafa, who teaches at Simon Fraser University. Moustafa is, without a doubt, one of the best scholars of Egypt’s constitutional politics in North America:…

“He is also the author of a very important book on the same topic:….

“And here is Mohammad Fadel, professor of law at the UofT. Though his expertise is in neither Islamic nor Middle Eastern law, Fadel supplies an excellent analysis of Egypt’s legal transition from authoritarianism to (hopefully) something more democratic.

So I’m happy to be shown that these two scholars, who both moved to Canada from the United States within the past five years, are helping to lead the international conversation on Egypt’s attempted transition to democracy. I hope they influence some of their colleagues, hint hint. – pw

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