Egypt's Experts Propose a Constitution — and It's Not a Good Start

The 10-person expert committee charged with making recommendations for a new or revised Egyptian constitution finished its task this week. The draft constitution will now head to a larger, 50-person committee for further review or changes before being sent to be voted on by the Egyptian people. While other recommended changes, such as those regarding gender equality, application of sharia, and the nature of political parties, get more attention, the design of the legislature will be the focus of this article. Despite the committee being composed of law professors and judges, the proposed new structure is not only remarkably simplistic, it is unimaginative. The recommended changes are also ill-suited for the realities of Egypt, and if they are retained by the larger committee and affirmed by the people, they could lead to long-term trouble for the country’s political landscape.

The unicameral, majoritarian structure of the legislature lacks imagination. It is simply the oldest and perhaps least democratic design the committee could have selected. By "least democratic," I mean it will likely seat politicians in proportions that are not reflective of the will of the people. As Zaid al-Ali has written before, there will likely be no legal revolution in Egyptian elections or legislative structures.

There are two main problems with the selected majoritarian system: manipulation and representation. First, a geography-dependent system can easily fall victim to partisan gerrymandering. Outside the U.S. context, gerrymandering was heavily used in South Africa before 1994. Next, representation is often skewed in most majoritarian elections. Of particular concern in Egypt must be the Christian minority. With only roughly 10% of the population, Christians will be hard-pressed to get elected in any districts where they are not a plurality of the population, as garnering 10% of the vote in a majoritarian district awards a candidate zero power. In a proportional system, however, 10% of the vote would gain a party 10% of the power, generally. Further, experience shows that most majoritarian systems structurally disadvantage female representation — an oversight Egypt cannot afford. This system will give power only to those who can garner a majority of support in each district, which risks the disenfranchisement of the many smaller political factions which exist in Egypt. I have recommended before that the committee find a more inclusive political structure for such a divided society. 

Perhaps the most frustrating aspect of the current situation is that there are so many less flawed systems from which the committee could have chosen. Egypt’s previous constitution featured a mixed system whereby one-third of the representatives were elected by first-past-the-post and two-thirds were elected by proportional representation (PR). While some might recommend pure PR in divided societies, such a system precludes both geographic representation and the creation of an individual accountability nexus between citizens and their legislators.

The system I'd propose for Egypt would be a proportional representation system with open provincial lists. In such a system, each of Egypt’s 27 provinces would have open lists featuring local candidates. This would require each party contesting in a given province to present a list of local, party-approved candidates. The number of seats given to each province would be proportional to their populations. This system would allow for individuals from each province to be represented in Cairo without the concern of gerrymandering (so long as the provincial boundaries remain) while still creating multi-member districts in which women and political and religious minorities have real chances for meaningful representation. This system’s open lists would allow voters to have control over which individuals are seated, thus increasing party transparency and helping to ensure that those seated are truly selected by the people they represent.

While my suggestion is by no means the only good solution, it seems the experts chose the worst one. A pure majoritarian system will give disproportionate representation to larger parties and to the parties that can organize and mobilize best. Ironically, assuming that neither are functionally banned, the likely beneficiaries of such a system are the Muslim Brotherhood’s Freedom and Justice Party and the National Democratic Party of former President Mubarak. While a constitution alone does not make a democracy, a poorly written constitution can severely cripple one. Egyptians, unfortunately, know this better than most.

Ryan J. Suto is a Research Associate at the Tahrir Institute for Middle East Policy.