In the middle of the messy transition that we are going through, there is a strong argument that I often hear for the elections first; proponents of this argument say “we should focus on the upcoming parliamentary elections… forget about everything else… constitution first, elections laws, military tribunals, lack of security, or attacks on peaceful demonstrators. All those ‘liberals’ are idiots (or losers, or disconnected) that they are not working in the street to prepare for the elections, while the MB and others are.” I would argue that this is a dead wrong argument, and is going to get us deeper into a bigger mess. It maybe too late to go through the “constitution first” path, but it is necessary to agree on some ground rules before the upcoming parliamentary elections.
Let’s start from the beginning: why do we hold parliamentary elections??
Societies have differences on making decisions (how much taxes should we charge? and how to spend them? how much should the state interfere in private life? what countries should we befriend or go to war with? etc). Making these decisions is a societal choice, and is rarely done by consensus. So there are two other ways to decide: coercion or bargaining. Coercion means that one side (a certain segment of the society or a small ruling elite or a military government or a dictatorship) ends up making the decision and forcing it down the throat of the rest of the society using force. These are authoritarian states with strong security forces, just like the one that we thought that we just dismantled. The second way is to bargain: representatives of the different groups sit and cut deals; we let go of this one, and you let go of the other. For example: business groups may concede more regulations, and in exchange labor unions accept restrictions on demonstrations, and so on.
Parliaments are the mechanisms to make these bargains, rather than having all the parties fight for dominance and coercion. Great! So what do we need to have these elections and parliaments work? First, of course, is a “free and fair elections” – no vote rigging. That’s obvious, but by far not the only prerequisites for this system to work. Specifically, there are three areas that need to be very clear before any elections: (i) limitations on the “winners’ powers” (tyranny of the majority); (ii) guarantees to protect the “losers’ rights” (minority rights); and (iii) guarantees that the elections are “repeatable”.
First, the need for limitations on the “winners’” powers: the winners of the elections have the right to set forth economic and social policies based on the public mandate; however, they should not have the right to alter the whole political system or establish another authoritarian regime. For example, the winners can raise (or reduce) the taxes, and change the way that we spend them; but do they have the right to nationalize private property? Is this part of the electoral mandate? It is the constitution that sets the boundaries of the policies that can be implemented by the winners, by protecting private property rights in this case. The constitution defines the policy space that winners can change/control, and the rights that protect the minorities (not religious minorities, but typically the losing side in an election).
Additionally, the winners’ powers should be limited when it comes to changing the nature of the state. For example, they may not change the constitution without proper process; they may not overtake the security organizations or government bureaucracy to establish their own “regime”, which becomes impossible to remove through the following elections!
Winners in an election have a mandate to set and change government policies, but any major change that alters the nature of the state or the society/economy needs to be through a broader consensus process. To safe guard against this, we need a constitution that defines the powers and the scope of changes that an elected government has. For example, many countries design the process for changing the constitution to be very cumbersome and slow, extending over many years and several election cycles to reflect broad societal agreement or consensus. Also, the security organizations (military, police, or national security) should be professionally run, limiting the ability of any government to use them as a tool of coercion or intimidation for political opponents.
Second, the need for guarantees for the “losers’” rights (protecting minority rights): the losers in a parliamentary election can be up to 49% (or even more in the cases of minority governments). For almost half the population to consent to be rules by the other half, they need to guarantee their based rights and ensure that the types of policies that they would be subjected to are tolerable, albeit not preferable. This is where a constitutional bill of rights comes in, especially in the areas of property rights, personal rights and political freedoms. For an islamist to accept to be ruled by a liberal, s/he needs to ensure that their religious rights are protected (not to revert back to Mubarak-era torture for islamists). Similarly, for a liberal to accept to be ruled by an Islamist, s/he needs to ensure that their basic human rights are also protected (rather than reverting to an Iran or Saudi-style theocracy that regulates social behaviors and morality).
Third, the need for guarantees of a “repeatable” elections process: if the different actors believe that the elections is a “one-time” process, it will become a matter of life and death, and it is likely that the elections will not take place, or that we get back to the game of coercion. Each actor will have the incentive to eliminate the other using force or any means, because if they don’t do, they will be eliminated themselves. Algeria is the prime example. After a reasonably fair and free election in 1991, islamists won, with a clear message that this is a one-time elections that they do not intend to repeat if/when they win. They clearly and honestly stated that they do not believe in electoral democracy but are just playing along to gain power. The Algerian army cancelled the elections after the first round, and a 10-year civil war started, leaving 150-200 thousands killed and a decade of terror and destruction. Most of the Arab countries witnessed a version of this situation: a coup, a revolution or an election, results in a new group coming to power and clinging to power for decades. It’s a winner-takes-all culture, with the losers ending up persecuted.
The lesson learned is that we need to have very powerful guarantees to ensure that the elections are repeatable, and there is a peaceful rotation of power. This also means that the ex-president or ministers need to feel safe, with no fear retribution against them or their families. It also means that the parties that lose an election have the right to continue to advocate their program and ideas under the new regime and continue for the following elections (it’s interesting to observe how the winners of the April referendum made an argument that those who lost should “shut up” because they lost!).
It is unlikely that we will have a free election with respected results if we can’t guarantee a repeatable elections process and rotation of power. That’s why we need a constitution that clearly articulates the rules for elections, and sets institutional guarantees to prevent parties that do not believe in democracy from abusing the electoral process to hijack the system in a one-time election.
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In absence of clear “rules of the game” that provide guarantees for the three points above, it is unlikely that we will have a free and fair elections because everyone will be afraid that if they lose, they will end up persecuted under a new authoritarian regime. If islamists are acting as the de facto winners and are not interested in these guarantees, then they are missing a historical moment. They may believe that they will win and establish a new Islamic regime a la Saudi or Iran (rather than a new government); however, they should not forget the Algerian example (or what happened in Nasser’s era and Mubarak’s era).
This brings us back to the issue of the “elections first” vs. “constitution first”. The above rules-of-the-game are often codified in the constitution. It maybe too late to go through the “constitution first” path now, however, it is necessary to agree on some ground rules before the upcoming parliamentary elections, regardless of what document captures these points (constitution, declaration, national unity pact, etc.), we need to have clarity and agreement on them BEFORE any elections; otherwise, we may not end up having an election altogether, or we may end up in deep problems right after the elections.
Amin Elmasry. 24 August 2011.