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Editorial: Institutions, not Constitutions

Members of the Egyptian constitutional panel vote on a new constitution at the Shura council in downtown Cairo on November 30, 2013. The new constitution is intended to pave the way for a return to elected rule after July's military overthrow of Islamist president Mohamed Morsi. AFP PHOTO/GIANLUIGI GUERCIA (Photo credit should read GIANLUIGI GUERCIA/AFP/Getty Images)
Members of the Egyptian constitutional panel vote on a new constitution at the Shura Council in downtown Cairo on November 30, 2013. (GIANLUIGI GUERCIA/AFP/Getty Images)
Members of the Egyptian constitutional panel vote on a new constitution at the Shura Council in downtown Cairo on November 30, 2013. (GIANLUIGI GUERCIA/AFP/Getty Images)

By the end of January, Egyptians should have gone to the polls to ratify (or reject) their third constitution in as many years. The modest presentation of the latest constitutional document—submitted to interim President Adly Mansour and to the Egyptian people on December 3 as a small booklet bound in the colors of the Egyptian flag—belies the key role it has played in the power struggles that have wracked Egypt since the uprising that ousted Hosni Mubarak in 2011.

Egypt has already had two heavily revised constitutional documents since the January 25 uprising, each drafted by different components of Egyptian society: first the army, then the Islamists, and now those who accept Mohamed Mursi’s ouster. As the country prepares to adopt a third, it is worth asking whether controlling the constitution is really the key to controlling Egypt’s future.

Depending on how you count, Egypt’s next constitution will not only be the third such document in two years, it will be the fourth ostensibly based on the 1971 document adopted under Sadat, and the seventh in the last century. Egypt is not alone in this seemingly incessant constitution drafting: about 700 constitutions have been adopted or significantly amended worldwide since the Second World War. Very few of them have ended up as the foundations of the stable, prosperous democracies they purport to govern.

With this in mind, it is important to remember that no constitution—no matter how well-written or consensus-based—can guarantee basic rights and freedoms in a country that lacks the political culture, institutions and history to support them.

Egypt is a country where, until very recently, the law was seen as a career path for students who performed poorly in high school, so little effort or resources was expended on legal education and training. But without well-trained lawyers and judges and an independent and impartial judiciary, the slight changes in the meaning of the constitution’s articles with each new draft will have no real effect on Egyptian law.

Equally, the enhanced protection of habeas corpus introduced in this draft—a constitutionally protected right to remain silent and a 24-hour period to either refer detainees for interrogation or release them—will mean nothing if there is no professional, civilian police force that respects that right. It is worth noting that Egypt has been under emergency law for almost all of the last 46 years. Police powers have actually been enhanced by some articles in this draft, in a country where police brutality was one of the main reasons behind the uprisings and continues to be a serious problem.

More fundamentally, it will not matter whether the Egyptian Parliament has two houses or one—as it appears to have in the current draft—or when and how elections for it are held, or how the Cabinet is selected, if the body is disbanded by popular revolt every few months.

Egypt only needs to look to its Arab neighbors to understand the importance of institution-building. In a 2005 referendum, Iraq adopted what constitutional lawyers would say is an extremely well-written constitution. But in the absence of any internal consensus between its many sects on their social contract, that constitution has done essentially nothing to help bring stability and prosperity to the country. Syria also adopted a new constitution in 2012 that makes it a “democratic state,” but that basic law is clearly not worth the paper it was written on.

We know that Egyptians are set to go to the polls several times in 2014: to ratify the draft constitution, and then to elect a new president and parliament. After the ballots have been counted and the new government begins its work, it would be wise for elected officials, and for Egyptians of all political stripes, to remember that institutions, not constitutions, are what will make Egypt the state its people have been fighting for over the past three years.

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