The Challenges of Drafting a New Constitution in Tunisia and Egypt

Drafting a New Constitution in Tunisia and Egypt (August 1, 2011)                                         by Colleen McCullough

Tunisia and Egypt face a crucial moment for their future as they draft new constitutions, to support the democratic systems they strive for. This moment is also exciting because it is an opportunity to implement new theoretical approaches to constitution-writing, and through studying the recent successes and failures of democratic transition in other parts of the world, such as in Eastern Europe. In this paper, I will review some recent work by scholars about different democratic systems: I draw largely on Andrew Reynolds’ Architecture of Democracy (OUP: 2002), which is a comprehensive collection of essays by scholars of constitutional theory. I will then discuss what this work suggests for Tunisia and Egypt today as each of these countries seeks to reform their constitution.

First, a caveat: while constitutional design does seem to be important for the stability and longevity of democracy, it is only one factor among many. A solid constitutional design is by no means a guarantee against instability, wether external or internal. A supportive civil society is essential for a successful system.[1] However, rules create incentives for behavior. They can encourage strong parties or weak ones, many parties or fa ew, a more or less authoritarian government, a moderate government or a radical one. In this way, the governmental structure established through the constitution affects the health of the resultant democracy.

There are two main elements of democratic design to consider. The first is presidential versus parliamentary system, and the second is  proportionally representative versus single member district legislature. Each of these systems has additional nuances, some of which I will discuss.

Presidential versus Parliamentary

In parliamentary systems, the legislature selects the executive, which depends on legislative confidence, and the executive consists of a cabinet of co-decision makers; whereas, in a presidential system, the people (directly or indirectly) elect the executive separately from the legislature, and the executive consists of an individual with his or her advisers.[2]  In general, scholars support a parliamentary system over a presidential one; they worry presidential systems foster zero-sum competition, lead to deadlock between executive and legislative branches, and encourage personalist leadership.[3] However, each system has its own advantages: presidential systems can increase accountability, as presidents are less likely to be able to attribute mistakes to coalition partners. However, presidential systems can vary dramatically, making it is difficult to generalize.[4] On the other hand, parliamentary systems avoid “lame-duck” executives and empower more experienced party members, rather than “dark horse” presidents who manage to garner popular support.[5]

Perhaps the greatest concern, especially for the North African countries at hand, is the propensity for presidents to concentrate power in the executive. This often happens because the executive is solely controlled by a single party, and because presidents tend to be continually reelected. An incumbent president is more likely than not to be reelected (chances of 1.3:1), while the opposite is true of prime ministers (chances of 0.66:1).[6] One way of countering this affect is to institute term limits. Term limits necessitated more than 70 percent of the changes of presidents internationally between 1946 and 1996.[7] This indicates the power of an incumbent in a popular election, in that presidents often do not leave office until it is constitutionally required. This statistic also raises awareness about the problem of accountability; term limits relieve presidents of accountability to the public in their final term. Thus in a system that seeks to maintain low executive power, a parliamentary system is preferable.

In Egypt, a presidential system would likely empower the Muslim Brotherhood. Although the party promises not to run a candidate for president in the first election, after constitutional reforms are in place this promise no longer holds.[8] The Brotherhood’s candidate would likely win by a plurality if the secular parties do not unite behind a single candidate. If they do, this will stifle healthy dissent between secular parties who would benefit from spending these first years establishing strong, independent platforms.

If, instead, Egypt institutes a parliamentary system, a coalition of moderate, probably secular, parties will likely form the government.[9]  Notably, worries earlier this year about the Turkish AKP winning a super majority in parliament were based on the projection that the AKP would reform the constitution to create a presidency, which would then give them more control.[10] This fear demonstrates that presidencies can empower one party at the expense of others. Thus, conforming to most scholarly analysis, it would be best for Egypt to establish a parliamentary system without a president.

As the Egyptian system stands now, a president will be elected after parliamentary elections. However, when the parliament appoints a council to rewrite the constitution, the rules will change and new elections will be held.[11] Hopefully, this new system will not continue the presidential system.

In Tunisia, it is difficult to make predictions, as more than half of Tunisians do not know which party they will support, according to a recent Al Jazeera poll; even the prominent Al Nahda has support from a little over 20 percent of the population.[12] A presidential system in Tunisia would likely face many of same the problems as it would in Egypt. Tunisia’s history with undemocratic presidencies will probably deter Tunisians from taking that path. As in Egypt, a parliamentary system would likely allow more moderate parties to form a coalition and control government – a result that is more likely to promote long-term stability. According to the same Al Jazeera poll, most Tunisians want a parliamentary system.[13] The American Supreme Court Justice Stephen Breyer, in a speech to Tunisian conference on the new constitution, said that the American model is not transposable to Tunisia,[14] in a nod to the need for a less authoritarian system in the country.

Proportional Representation (PR) versus Single Member District (SMD)

Proportionally representative systems (PR) allow parties to run a list of candidates in a district – or nationally – on which individuals vote. The legislature is then composed of candidates from the parties in proportion to the number of votes they received. In the Single Member District system (SMD), each district represents an individual. Thus the legislature overall may or may not have the same proportional composition as the general population.

PR tends to encourage small parties, whereas SMD tends to repress them. The United States, under an SMD system, has only two main parties; whereas, Israel, under the PR system, had twelve parties represented in the legislature in 2009.[15] There are many nuances of each of these systems: some systems require quotas for certain groups, like women or religious minorities. Some PR systems require a threshold number of votes in order for a party to gain parliamentary seats (in Turkey, the high threshold of 10% gives the larger parties more seats than is proportional).[16] Some PR systems have “closed” lists, meaning voters cannot vote for individuals within the party list, while others give voters more choice through “open” lists. Each of these factors influences the political system.

Many countries have implemented mixed systems, with both a PR and a SMD element. In 2000, 30 countries had mixed systems, and about half of all post-communist countries were using a mixed system; in most cases, the system had two separate votes, one in SMD and the other for PR representatives.[17] The constitutional designers assumed that the two incentives from each system would balance each other out: PR would produce national parties that would build coalitions, while SMD would reduce proliferation of parties from PR. However, countries with mixed systems had more fragmented party competition than those with pure PR alone because small parties were introduced through regional elections. SMD essentially operated against the threshold imposed in PR.[18]

Prominent political scientist Arend Lijphart argues that well-established democracies tend to have fewer than six main political parties.[19] Too many parties make compromise difficult and governance unstable. Young democracies tend to face this problem: the 1991 elections in Bulgaria fielded 21 main parties, and Poland in saw 17.[20] Egypt and Tunisia are both struggling to build stable democratic systems. Egypt has already seen dozens of parties register,[21] and more than 80 political parties are registered in Tunisia.[22] Many of these parties are now joining together. Egypt’s SCAF has proposed a mixed system for the first parliamentary elections in the fall. Overwhelmingly, Egypt’s political parties reject the mixed system and argue instead for a PR system alone. They argue that SMD elections perpetuate corruption and cronyism,[23] problems which Egypt must work particularly hard to eliminate. Therefore, once it has formed, the constituent assembly should change the electoral system to embrace a PR system alone.

Additionally, the SCAF’s proposed elections has a threshold of only 0.5% and a quota of 50% for workers and farmers. Both will be harmful for the parliament and should be overturned in the coming reforms: The low threshold will allow many small parties into the parliament, which, at over 500 seats, will already be so large as to be unwieldy.[24] Lijphart argues that, as a guideline, thresholds of around 3% tend to work best for democracies.[25] Mubarak’s administration abused the quota for workers to appoint its own deputies to parliament.[26] If elections are truly free and honest, such a quota would be unnecessary.

Tunisia’s new electoral system will follow a single, closed-list proportional method to appoint the National Constituent Assembly, which will rewrite the constitution. This simple electoral system will serve the country well and should be maintained. Additionally, Tunisia has instituted an unprecedented quota of 50% for women in the Assembly.[27]

There are many additional questions for these young democracies to answer in designing their democratic systems. Electoral systems are complicated: first past the post and majority run-off are two methods that can have big impacts.[28] Usually, young democracies follow a pattern: They design their electoral systems with little study of other countries, and get preoccupied with short-term, partisan benefits at the expense of long-term goals.[29] Therefore, above all, this paper seeks to encourage an academic study of the democratic systems that these states may implement so that these important debates will not become co-opted by actors seeking personal gains.

There are a few general lessons for constitutional design from Rein Taagepera, a professor emeritus from the University of California Irvine, which will prove useful for Egypt’s and Tunisia’s young governments: First, make electoral rules simple. This way, people know how to strategize within the system, thereby avoiding unpredictable results. You can make adjustments (that tend to complicate the system) later. Second, learn from others’ experiences – unfortunately few new governments consult other nations. Third, generally keep the same rules for at least three elections. People have to develop the skills to use the rules and develop a functioning system around them. Fourth, and lastly, change rules incrementally, so as to be sure you’re making the right adjustments, and to be sure you don’t do too much.[30]

These words of advice caution reformers in Tunisia and Egypt from expecting a perfect system to emerge immediately. Realistic expectations account for shortcomings, both in the rules – demanding reform – and outside the rules, which sometimes requires time to allow society to fix itself. Constitutional reforms could mean very little without the development of a strong civil society with the tools to use the law. Each society will require time to flush out corruption and establish a new system that operates with integrity. Civil society organizations play an important role, and take time to develop.

Colleen McCullough is a philosophy major at Princeton University, class of 2012, minoring in Near East Studies.

[1] Shvetzova, Olga. In Reynolds, Andrew. The Architecture of Democracy – Constitutional Design, Conflict Management, and Democracy. Oxford: Oxford University Press, 2002. Oxford Scholarship Online. Oxford University Press. 21 July 2011<;. Page 75.

[2] Lijphart, Arend. In Reynolds, 49.

[3] Reynolds, 6.

[4] Ibid, 87.

[5] Frye, Timothy. In Reynolds, 84.

[6] Cheibub, Jose Antonio. In Reynolds, 133.

[7] Ibid, 133.

[8] Bruce Ackerman, “Egypt: Parliament to the Rescue.” March 2, 2011. July 21, 2011.

[9] Ibid.

[10] Ozan Varol, “Electoral Politics and Turkey’s New Constitution.” June 14, 2011 July 21, 2011.

[11] “El Baradei, FJP agree on guidelines for choosing constituent assembly.” The Daily News Egypt. July 18, 2011.

[12] “Tunisians Undecided Ahead of October Vote.” Al Jazeera English. Jul 6 2011.

[13] Ibid.

[14] “La nouvelle constitution et les attentes du peuple.” Le Temps. July 24, 2011.

[15] “Government: Political Parties in Israel.” Israel Science and Technology.

[16] Shvetsova, Olga. In Reynolds, 63.

[17] Ibid, 65.

[18] Ibid, 65.

[19] Lijphart, Arend. In Reynolds, 54.

[20] Shvetsova, Olga. In Reynolds, 68.

[21] “Three new political parties register in Egypt.” USA Today. June 14 2011.

[23] “New Electoral Law Unwelcome Across Egypt’s Political Spectrum.” Al Ahram. 21 Jul 2011.

[24] Ibid.

[25] Lijphart, Arend. In Reynolds, 52.

[26] Ibid.

[28] Lijphart, Olga. In Reynolds, 47.

[29] Taagepera, Rein. In Reynolds, 251-2.

[30] Ibid, 258-8.

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