Majority voting allows the winning candidate or list in a constituency to take all the seats available. Uninominal or plurinominal, with one or two rounds, majority voting comes down to the same thing: The winner takes it all. It was this that the political powers in all three countries rejected. As well as being tarred by the way it had been used in the past, a majority system is also unpredictable. With fraudulent practices having been eliminated, there was a risk that the freely expressed will of the electorate might return a majority that ought not to be over-represented; the social contract that was being renewed through the establishment of a constitution could not countenance that. Haunted by the specter of Islamism, but also by the fear of returning to the symbols of the old regimes, the electoral debates in all three countries rejected the option of majority voting, which was the system that had applied in Tunisia and in Egypt before the wave of revolution had swept over them.

(p. 437) 1.  Tunisia

In Tunisia, ISROR, the architect of transition, was a new authority that included twelve political parties, nineteen trade unions, civil society, or professional associations, and personalities from across the political spectrum (moderate Islamist, socialist, nationalist, Baʿthist, Trotskyist, and Maoist), as well as representatives of the regions and of the families of martyrs of the Revolution. Greatly criticized, it had not really translated the balance of political power after the Revolution.⁶⁷ ISROR’s legitimacy was called into question too, given that it had not come from the ballot box. And yet it worked. Despite its purely consultative role, the dynamic of the body shows that it functioned like a parliamentary assembly. It was the main deliberative forum of transition, where the new political rules of the game were negotiated. The electoral law particularly stirred up debate, due to the nature of representation and the means of decision making within ISROR, which favored consensus.⁶⁸ This is what paved the way to the quest for compromise: The intermingling of diverse political movements, represented equally within ISROR in a distortion of their true weight on the political chessboard, was not without influence in the definitive choice of a system capable of representing the various political actors, and thus of avoiding the hegemony of any one political group in the future assembly.

In truth, the starting point was to avoid the resounding failures of list-based majority voting, as a result of the hegemonic past of the party in power, in order to avoid a repetition of history.

However, the nature of the constitutional mandate was well suited to uninominal majority voting, which explains why this option was set out in one of the two drafts presented by the committee of experts, which proposed two-round, uninominal majority voting. This draft⁶⁹ was favored by eminent Tunisian academics who saw in it a break from the bitter experience of list-based majority voting. However, the advantages presented were not sufficient to convince the majority of ISROR members, notably among the representatives of political parties.⁷⁰ A two-round uninominal voting system can result in contests between individuals, rather than competing ideas and programs. The parties and candidates standing may effectively have been encouraged to base their election campaigns on tribal and regional ideas, which might have favored local notables, and the return of the symbols of the old regime.⁷¹ Another complaint leveled against uninominal majority voting is that it does not allow the application of a gender-based approach and the representation of women, something to which many members of ISROR attached importance.⁷² In the end, this draft was quickly eliminated, largely because it would have penalized the political parties.

In reality, the official line within ISROR was to talk about the quest for a diverse assembly that represented all parties and ethnic sensitivities, whilst allowing the political parties (p. 438) to be represented in the future assembly. The challenge was a difficult one, but meant rejecting majority voting in favor of proportional representation.

2.  Egypt

In Egypt, the deal was different. SCAF had sealed the transition period and had to work with the various actors already in place, which goes some way in explaining its decision to revive an electoral law that the opposition had long vilified, by making some amendments to it. The law in question was Act No. 38 of 1972 relating to proportional representation, which already embodied a vacillating electoral policy. It had in fact undergone a torrent of amendments. Uninominal proportional representation in 1972, a party-list voting system with proportional representation in 1983, a mixed voting system in 1987, and back to the uninominal system in 1990—it would be difficult to explain all this to-ing and fro-ing between uninominal and party list proportional representation without relating it to a policy of deliberate disassociation with “the partisan fate of the electoral competition in the conquest and exercise of political power”.⁷³

The elections in Egypt were thus affected by this instability in the rules of the game, which changed from one election to the next. After the blow delivered to the Mubārak regime by the Revolution of February 25, 2011, this electoral jockeying no longer made sense: It was time to clean up the legal framework. Yet SCAF chose instead to tinker with the legal framework once again, by opting for a mixed system, creating yet again instability in the rules of the game.

In fact, over the course of four months various formulas for the mix were outlined: majority voting for two-thirds of the People’s Assembly on May 30, 2011, equal cohabitation with proportional representation on July 20, 2011, before deciding on September 25, 2011, to concede one-third to independent candidates. This provoked violent reactions from various political groups, who feared the return of the caciques of the old regime. How can these vacillations by SCAF be explained, after it had brought about such a strong mobilization on the Taḥrīr Square and the organization of demonstrations in which Islamists and revolutionaries took part?

In fact, the results of the elections were determinative in making SCAF’s control over the transition process lasting. These “concerns […] seem to have fluctuated during this time between a ceiling—using the electoral law to prevent the emergence of an independent political power capable of creating a power counterbalance to the military—and a floor—ensuring at all costs the organization of free elections in order to fulfill the promise that formed the basis of its legitimacy, within Egyptian society and in the international community”.⁷⁴ In abandoning the strong majoritarian dose, the military opted, under pressure from the various political actors, for the least contested solution. Although the Islamists were not strongly in favor of uninominal majority voting, which did not benefit identity voting, it was above all the non-Islamists who criticized uninominal majority voting.⁷⁵

Yet the resistance to uninominal majority voting is surprising given that it is a system more beneficial to smaller parties, because it is thought to allow them to stand for election in smaller constituencies. Yet paradoxically the liberal coalition strongly rejected this system, not only because it was associated with the cronyism of old and would have allowed the return of the caciques from the old regime but also because a strong majority dose was judged to be too favorable to the Muslim Brotherhood. After all, it was uninominal majority voting that had allowed them to win 20% of seats in 2005. Well-structured, and taking (p. 439) advantage of the social anchorage that the Muslim Brotherhood enjoyed as a result of its long-standing social, sanitary, and religious works,⁷⁶ the Islamist political movement which had always been the exception in the murky picture of the Egyptian party system was by all accounts expected to be the favorite in this electoral consultation⁷⁷.

3.  Libya

Unlike the designers of the new electoral systems in Egypt and Tunisia, the Libyan NTC did not have the option of putting right the perverse effects of a previous voting system: Everything had to be built from scratch. Developing a voting system without an electoral reference point left the National Transitional Council facing countless difficulties: In a fundamentalist, tribal country with leanings toward the East, and with multiple political parties with no practical experience, it was a Herculean task.

That being said, the NTC had to contend with an impressive plethora of voting systems and an infinite number of possible combinations, but with one big advantage, namely, the very recent experience of its immediate neighbors, Tunisia and Egypt, where the Islamists had triumphed at the ballot boxes. Initially, the NTC had expected to adopt uninominal majority voting, which was judged to be the pragmatic choice in a tribal society that, after decades in which any form of intermediary body was prohibited, had no political institutions nor any real civil society.⁷⁸ Except that adopting majority voting alone would have worried the political groups that were starting to take shape. They weighed in with all their might in the debates of the National Transitional Council, a heterogeneous college comprised of dissidents from the old regime, tribal representatives, and representatives of civil society and of course the Islamists,⁷⁹ who, in spite of having been persecuted under the al-Qadhdhāfī regime they did not enjoy the socio-political anchorage characteristic of the Muslim Brotherhood in Egypt, were an important component of the political offer in post-revolutionary Libya. These members had to come to an agreement in order to develop the new electoral law, the main function of which was to avoid producing a hegemonic majority. The weight of historical baggage and the peculiarities of the post-revolutionary political power balance led the electoral legislatures in all three countries to reject the straightforward majority option in favor of systems that would ensure greater representativeness. This prompted them to turn to a proportional solution, in various forms.

Arend Lijphart considered proportional representation to be the system best suited to new democracies, which are by definition fragile. The advantages of this method include respect for representation, protection of the interests of minorities, and encouragement of voter participation.⁸⁰ It is moreover not surprising that it was this method that was preferred by (p. 440) the electoral legislatures in the three countries, albeit in different ways. Entirely proportional in Tunisia, the system was mixed in Libya and Egypt, but with the stated goal of proportionality.

1.  Tunisia

In Tunisia, the watchword of the electoral debates was representation—of various political sensitivities, of women, and of the regions. After rejecting two-round uninominal majority voting, ISROR voted, in Art. 32 of Legislative Decree No. 35, op. cit., quasi-unanimously for party-list proportional representation using the largest remainder method.⁸¹ In opting for limited proportional representation,⁸² which presupposes a plurality of constituencies, the problem of the remaining votes and seats, which is unavoidable in proportional systems, was resolved using the largest remainder method, which is beneficial to small political parties. The method was intended to be representative. First, with regard to women, the lists had to be gender equal and moreover, under threat of rejection, were required to list male and female candidates in alternate order.⁸³ Second, with regard to the regions—although large constituencies were retained—corresponding to the governorates, there was positive discrimination in favor of governorates that had a low population density or were economically marginalized, with these being allocated additional seats in order to reduce the distortion of representation that would have been created by an equal distribution of seats.⁸⁴ This pursuit of representativeness prompted ISROR to ratify a voting system that, despite the bold measures that went alongside it, ran the risk of voter abstention due to the complexity of the party lists, of which, when the legislative decree was adopted, there were a great many.

In fact, this system is just a revised version of one of the two drafts submitted by the committee of experts to ISROR, which instead of the greatest remainder system had proposed the highest average method,⁸⁵ as that is the most proportional way of redistributing the remainders. Another change was in the composition of the lists, as the draft had proposed short, gender-equal lists of just two or four names, which would have been closer to the uninominal majority voting system and would simultaneously have enabled women’s representation and simplified the choice open to the electorate. So, given that the constituent body was mandated to invest and control a government, why were these changes, that have only served to amplify the risks inherent with proportional representation (namely, the multiplication of parties within the assembly and therefore the risk of governmental instability), made to the draft?

(p. 441) This last method of seat redistribution was presented as being the only method capable of combining justice and efficacy, representativeness of the small political parties, and a comfortable presence by the big parties. What lay behind this change was the hopes of the parties of the left and center-left represented within ISROR of being able to obtain a large enough number of seats to act as a counterweight to the al-Nahḍah Party,⁸⁶ which at the time was “leading in the polls”.⁸⁷ The al-Nahḍah Party, although it would have preferred the highest average method,⁸⁸ was obliged to concede due to the balance of power within ISROR, and also in order to reassure public opinion, domestically and internationally.⁸⁹ It also did not put up any resistance to parity,⁹⁰ as a means of attesting to its unconditional adherence to the Tunisian social contract, based largely on the status of women.

2.  Egypt

In Egypt too, it was proportional representation using the greatest remainder method that was chosen—for two-thirds of seats. The other third, as we have already discussed, was reserved for uninominal two-round majority voting. A compromise solution that made it possible to satisfy the various political actors, Islamist and non-Islamist, who all preferred proportional representation, and a large section of the electorate who preferred there to be a direct relationship with the elected representatives⁹¹—not, it has to be said, without risk of cronyism. The mix turned out to be beneficial for the political parties, due in part to the strong proportional representation component of two-thirds of seats, but also to the bonus afforded to them by the compromise, which allowed party candidates to stand in the one-third of seats reserved for uninominal majority voting. It was to that end that Act No. 38 on the People’s Assembly was amended.

As well as reverting to a mixed voting system, the amendments to the Act also maintained the quota for workers’ and farmers’ representation at 50% of members of the People’s Assembly,⁹² with a different arrangement for the quota of women: 46 constituencies were assigned to list-based proportional voting to contest 322 seats (two-thirds of the 49 elected seats).⁹³ Every list must include at least one woman, and half of the candidates must be workers or farmers.⁹⁴ A threshold of 0.5% of votes cast was required in order to be able to aspire to parliamentary representation.⁹⁵ The remaining one-third of seats, amounting (p. 442) to 166 seats, was filled by two-round uninominal majority voting, in 83 constituencies,⁹⁶ whilst respecting the 50% rule for workers and farmers.

SCAF seemed to want to adapt the voting system to a new political reality characterized by a complex mesh of parties, by giving the parties that were standing a free hand to form coalitions and develop strategies, by putting forward independent candidates for uninominal voting and lists for the proportional representation seats. Although purportedly beneficial to the most structured political groups, in this case the Islamists and what was left of National Democratic Party, the system chosen presented opportunities for smaller political groupings forged in the excitement of the revolution, by means of the greatest remainder method. Moreover, the electoral divisions affirm this intention, in retaining fairly small constituencies that did not penalize the smaller political parties.⁹⁷ It was in this way that compromise was reached between SCAF and the various electoral powers.

The representativeness of political sensitivities was not all that was at stake in the choice of voting system; other categories needed to be represented too. Thus, the non-Islamists defended proportional representation because it would have enabled the representation of women and minorities.⁹⁸ Paradoxically, it was another kind of representativeness that was given priority, namely, that of the workers and farmers. Moreover, the system that was chosen unfortunately reduced the potential for proportional representation to represent women and minorities. In abandoning the women’s quota that had been reintroduced into the Egyptian system in 2007 and making do with the minimal requirement of having at least one woman on each list, the system that was chosen was incapable of ensuring a gender-balanced approach and was in all events far inferior to the Tunisian and Libyan models, which required lists to have gender parity, and for men and women to be listed in alternating order. As for the tendency for proportional representation to favor the representation of minorities, in this instance the Copts—that depended on parties feeling inclined to put them in a strong position on their lists. Since their sphere of influence is limited to Cairo and Alexandria, the Copts had little chance of winning seats elsewhere.⁹⁹

Tangled up in a difficult transition process, SCAF opted to adapt a legislative provision charged with negative connotations. True, the provision was purged of the prominent elements of electoral manipulation, by re-establishing judicial control, but in terms of the voting system, the amendments did preserve some vestiges of the past, namely, the representation of workers and farmers, condemned as artificial, as well as ten appointed members of the People’s Assembly. As for the mixed system, this was a high-risk option, adopted by SCAF under the sword of Damocles of a ruling of unconstitutionality by the Supreme Constitutional Court, which had already dissolved the People’s Assembly twice, and, as we shall see, would indeed dissolve the People’s Assembly again in 2012.¹⁰⁰

(p. 443) 3.  Libya

A mixed model was adopted in Libya too, under Art. 5 of the Libyan Electoral Act, but using a different formula: single-round majority voting for 120 seats and party-list proportional representation using the greatest remainder method to distribute the other 80 seats. For the proportional representation seats, Art. 15 requires that the lists must, under threat of being ruled void, respect the rule of vertical and horizontal alternation of candidates by gender.¹⁰¹ This was a revolutionary measure by the NTC, having abandoned a draft quota for women set at 10% of seats. In relation to the elections, electoral divisions on a geographical and demographic basis were adopted under Art. 4 of the Electoral Act.¹⁰² To remedy demographic disparities between the regions, 100 seats were allocated to Tripolitania (West), the most populous region, 60 to Cyrenaica (East), and 40 to Fazzān (South). This division was condemned by federalists in the east who perceived a flagrant inequality that brought back bad memories of the old regime’s centralist policy. In an attempt to appease the anger in this rebel region of Libya, which hinted at independence and had threatened to boycott the elections, the National Transitional Council announced—two days before the elections, on July 5, 2012—an amendment to Art. 30 of the Constitutional Declaration. From then on, the members of the constituent commission that was to appoint the members of Congress would be elected, and the 60 seats envisaged for that commission would be distributed equally between the three regions.¹⁰³

In the end, the Libyan solution turned out to be a limited proportional system, bringing together proportional representation with the greatest remainder method for 80 seats, and majority voting using a single nontransferable vote. This system, classed as being a proportional system designed to represent minorities, is considered to be a majority vote with proportional effects.¹⁰⁴ It has to be said, however, that the system can appear complicated.

Art. 6 of the Electoral Act stipulates that for the 120 seats allocated to majority voting, the candidate that has won the majority of votes shall be declared to have won in the uninominal constituencies. Although in some constituencies there are several seats to be filled, it will be a single nontransferable vote that will be used to separate the candidates. Under this system, each elector has a single vote regardless of how many seats there are to fill in a constituency. The winning candidates are elected on a pro-rata basis in relation to the number of these seats.¹⁰⁵ The system is undeniably complex, but it is simple for voters, who need only vote for one candidate. The complexity of the system did not put candidates off from standing, nor the electorate from turning out to vote: Turnout was recorded at (p. 444) 62%, to choose between 2,501 independent candidates and 1,206 candidates standing in the list-based ballots.¹⁰⁶

Between satisfaction and surprise, combing over the elections did reveal some flaws: wastage of votes, particularly under the Tunisian electoral system that encouraged the multiplication of lists¹⁰⁷ and inequality between voters in the counting of the votes but also in the electoral weighting¹⁰⁸ under the Libyan and Egyptian systems. But that observation aside, there is one question that needs answering: Are the three systems truly representative, as those that created them seem to claim?

A quick glance over the results of the parliamentary elections is enough to see that the electoral systems did meet the challenge, but to varying degrees. If we look at the first winners in each country, we can see that in Tunisia, proportional representation using the greatest remainder method allowed the Islamist movement al-Nahḍah to take home 41.02% of seats for 37.02% of votes, the Congress for the Republic 13.36% of seats for 8.69% of the votes, and the Democratic Forum for Labor and Liberties 9.22% of seats for 7.03% of votes. In Egypt, across the whole election (uninominal and plurinominal), the Freedom and Justice Party took 47.02% of seats for 37.5% of votes, the al-Nūr Party 24.6% of seats for 27.8% of votes, and the New Wafd Party 7.6% of seats for 9.2% of votes. In Libya, for the 80 seats filled by proportional representation, the National Forces Alliance was able to take 49% of the seats for 68% of the votes and the Justice and Construction Party, 21.3% of seats for 12% of votes.¹⁰⁹

Truth be told, the disproportionality that can be seen between the number of votes and the number of seats is due, among other things, to the greatest remainder method adopted in all three countries. But was that battle not led by the small parties, like in Tunisia? Moreover, the “mathematical paradoxes”¹¹⁰ that characterize the greatest remainder method allowed some small parties, like Congress for the Republic (CPR), to win seats and join the government coalition. The whims of the greatest remainder method therefore shaped the Tunisian political regime during the transition period, having allowed CPR to become the second political force of the country with 352,825 votes. As well, only 7,000 votes allowed the Libyan coalition Wādī al-Ḥayāh to win two seats. Still in the context of Libya, there were other paradoxes and amplifications that could be seen: Due to the adoption of the single transferable vote for the 120 seats allocated for majority voting, it took 40,207 votes to win (p. 445) a seat in Benghāzī, whereas in the constituency of Ajdābiyā, a seat could be won with only 276 votes. This distortion was due to the high number of candidates and to poor turnout in that constituency.¹¹¹

Reasonably fair and representative, what else would one want of a voting system? A “proportionalist” would want to see representation of a variety of political leanings, even at the expense of some distortion of opinion. But in any case, some degree of mismatch between the percentage of votes and the percentage of seats is inevitable, not just given the small dose of majority voting in Egypt and Libya but especially due to the rather “impure” proportional representation methods that were adopted: the division of constituencies and the method for redistributing the remainder.¹¹² In the end, although proportional representation “is not such a true snapshot of opinion as its proponents claim”,¹¹³ it is certainly a truer representation than produced by majoritarian systems, which cause even bigger mismatches between the proportion of votes cast and the proportion of seats won.

So if the will of the electorate was accurately reflected, why the rhetoric of electoral surprise that characterized analysis of the results in all three countries? It was really the “divine surprise”.¹¹⁴ Whereas the electoral debate in the three countries had centered on the search for the magic formula that would make it possible to avoid an electoral landslide, and the potential for hegemony that went with that, this was paradoxically exactly what happened in Egypt, in favor of the Islamists. In Tunisia, the Islamist movement, with 41% of the seats in the NCA, was able to take the reins of the political game after the elections. In Libya, the “Libyan exception” that broke the rule needs to be put into context.¹¹⁵ Although out of the total of 80 seats allocated for voting by party list, the National Forces Alliance, the liberal coalition headed by Maḥmūd Jibrīl, was able to take 39 seats compared to only 17 for the Islamist Justice and Construction Party; it would seem that 80% of the (120) uninominal seats went to Islamist candidates among the conservative personalities and preachers of the mosques.¹¹⁶

In fact, by releasing fairly clear Islamist majorities in Tunisia and Egypt, and creating in Libya a confused landscape, with a rather liberal majority, the elections resulted in a strong bipolarization of political life: conservatives versus moderates. The resulting fission makes the last test that a fragile democracy must overcome even more complicated: the exercise of power.

The functions of the elected assemblies varied in scope. The Egyptian parliament was primarily restricted to selecting the members of the Constituent Assembly,¹¹⁷ but the Tunisian and Libyan assemblies were elected to appoint and oversee a cabinet as well as draft the new constitution. With an omnipotent assembly, enjoying electoral legitimacy and superior to the government that came from it, the Tunisian NCA and the Libyan GNC embodied “the principle of government by assembly (namely) that the government and the parliament cannot, and consequently should not, be equal authorities, either in law nor in fact”.¹¹⁸ This is what explains why the instruments regulating the transitional authority do not include the power to dissolve the assembly normally afforded to the executive.

In addition to the constituent mandate, the electoral systems were designed to elect assemblies that were representative, so as to ensure the investiture of a governing elite that would, until the end of the transition period, embody electoral legitimacy, and ensure a stable transition toward democracy. The voting systems that were adopted, left open the option of a consensus deal, and were intended to pave the way not for competition and rivalry, but for collaboration, especially given the fragile context of transition.¹¹⁹ So the first few months in which authority was exercised by the majorities chosen at the ballot box were rather a mixed bag, with government crises in Tunisia, institutional paralysis in Libya, and an institutional quarrel in Egypt.

1.  Tunisia

In Tunisia, the camps organized themselves ready to govern as soon as the results of the elections were declared. In this respect, the need to weave government coalitions after elections by proportional representation is a “pons asinorum” of political regimes. But in Tunisia it is in the management of the coalition that the shoe pinches. The relative majority won by the al-Nahḍah Party, insufficient for it to be able to govern alone, prompted it to forge a coalition with the two parties that followed it. A tripartite coalition, or what the Tunisians liked to call the “Troïka”, emerged. Decried as an unnatural alliance (a social-democrat party, a party of the center-left, and an Islamist party), the coalition was also described as a fallacious alliance, in the light of the legal regime that had established it.

(p. 447) This is indeed the prototype of an “unequal alliance”,¹²⁰ with the al-Nahḍah Party dominating and the other parties revolving around it. The heated debates that animated public opinion during the discussions on the bill that established provisional organization of the authorities who would determine the rules of the game during the transition period show, however, the battle the two allies fought in order to bring the scales back into balance. Last, the “little constitution”,¹²¹ established an unstable three-legged authority, and the bribes for power that had been let out, drop by drop, by the party with the relative majority were nothing but feeble concessions to its allies. The three-legged power is embodied by three presidencies, shared between the leaders of the three parties: President of the Republic from CPR, President of the National Constituent Assembly from the Forum, and as head of government, none other than the secretary general of the al-Nahḍah Party. The powers of the president of the National Constituent Assembly are limited to the exercise of certain constitutional prerogatives,¹²² the President of the Republic is reduced to an honorary role,¹²³ and the head of government becomes the axis of the political system during the transition period,¹²⁴ leaving open the specter of the concentration of powers thought gone. True, the law does provide for mechanisms of government control by the National Constituent Assembly, the repository of constituent power and the sole holder of the legislative function and the function of control over the government that it established, which it has the power to sack by means of an absolute majority. However, the majority has arranged matters so that it is able to pull the strings, by requiring the President of the Republic, under Art. 15, to task the candidate of the party that has won the highest number of seats in the National Constituent Assembly with forming the government.

In sealing a union between parties of very different allegiances, the coalition fell victim to several crises, revealing the fragility of the compromise and the flaws in its coordination. The Gordian knot of the crisis was the attempt by the party with the relative majority to get its hands on the machinery of the state (departments, public enterprises …). This hegemony, having been condemned by the opposition, eventually made the other parties of the coalition unhappy, who threatened more than once to break it up. During the months of January and February 2013 a profound political crisis swept the country, and the (p. 448) compromise of a ministerial reshuffle to break up the majority party’s grip on power over the state seemed impossible. The three parties entered into interminable talks,¹²⁵ before convening a new coalition government, once again presided over by the al-Nahḍah Party, but with neutralization of the ministries of sovereignty (defense, interior, foreign affairs, and justice).

It must be said that the coalition could have averted both the crisis that it went through and the virulence of the opposition, which was accused of practicing a policy of obstruction. The coalition remains nonetheless fragile and the hegemony of the Islamist party is still blown out of proportion. The parties of CPR and the Forum, allied to the party with the relative majority, are subject to internal crises and disputes, constantly accused of betraying the secular thinking they claim to support by having entered into an absurd coalition. Yet in the eyes of its defenders, this kind of conservative/moderate coalition is unavoidable and is the only way of responding to the post-revolutionary political offer and creating a barrier against authoritarian drift.

2.  Libya

Rather than a governmental crisis, what Libya went through after the establishment of the General National Congress was a true institutional crisis, typical of multiparty parliamentary regimes. The problem was that according to the institutional design outlined in the Constitutional Declaration and the interior regulations developed by the General National Congress, the government was supposed to come out of the General National Congress. The resulting organization of powers in fact created a confusion of powers, borrowing from assembly regimes the superiority of Congress, which, according to Art. 1 of the internal regulations, embodied “the supreme power in Libya, tasked with exercising the prerogatives of supreme sovereignty, including legislative power, control, and the elaboration of the general policy of the state and is the only representative of the Libya people”. Congress is therefore the driving force, whose dominance is also visible in its power of control over the executive, the members of which it appoints and repeals by absolute majority of the members.¹²⁶ Moreover, the executive is single-headed, having only the head of government above it. There is no counterbalance to the GNC’s powers by way of a power of dissolution. That makes it “a parliamentary regime minus the dissolution” that has been established, in a model not unlike the one in Tunisia.

The internal dynamic within Congress, which includes a well-organized Islamic movement¹²⁷ under the leadership of the Justice and Construction Party, means that every decision is subject to the law of compromise, unavoidable in proportionalist regimes, which is how the Libyan regime can, with reservations, be characterized. The first challenge of appointing a head of government after the elections proved monumental. It reveals that the head of the liberal coalition, despite being majoritarian, was unable to become elected by the GNC in order to form the first government. We should also clarify that the reason this was so difficult is not just tensions with the Islamists but also the need for it to be composed (p. 449) of the various interest groups in Libya and to appease the centrifugal tendencies of certain regions. These considerations were omnipresent in the negotiations and explain the difficulty in forming the first government. In fact, the independent technocrat Abū Shāqūr, who was elected head of government on September 12, with the support of the Justice and Construction Party, ended up being ousted after an unexpected rapprochement between the National Forces Alliance and the Islamist Party. This unexpected rapprochement between two blocks determined to lead a government of national unity that represented all the regions and the various political leanings motivated the rejection of two government lists proposed by Abū Shāqūr.¹²⁸ Ministerial portfolios consequently had to be distributed, not so much on the basis of political affiliation as was the case in Tunisia, but on the basis of regional considerations.

In other words, the conservative/moderate split produced by the ballot boxes in Libya was not enough to enlighten the dynamic of the exercise of power in Libya. This split was grafted on top of other fault lines, regionalist ones as it happens. The Libyan example demonstrates the difficulties inherent with governments of national unity under proportionalist systems. Moreover, some months after the establishment of the new government headed by ʿAlī Zaydān, the Justice and Construction Party, having obtained only 5 of 33 ministerial portfolios, condemned the hegemony of the liberal movement in the government, and brandishing a map for retreat.¹²⁹

3.  Egypt

In the test of the exercise of power, the majorities in Tunisia as well as in Libya, for different reasons, seem to have been forced to seek a compromise. In Egypt, a completely different scenario has come about, casting the Egyptian political system into an institutional quagmire after the election of the People’s Assembly. The Egyptian paradox is that the challenge to power is increasing exponentially with every successive electoral consultation.¹³⁰

It is true that it was the Islamist/liberal rift that created the tidal wave that destroyed the elected People’s Assembly. The People’s Assembly was embroiled in a battle between the Muslim Brotherhood and SCAF. In the course of their open conflict, exacerbated by the presidential elections, it was the People’s Assembly that was dissolved, hugely muddying the political waters. That is where we found ourselves in December 2012, with a referendum on the text of a constitution developed by a flawed constituent, among other things because its members had been elected by a People’s Assembly that the Supreme Constitutional Court had ruled unconstitutional. Indeed, the Supreme Constitutional Court found itself at the center of the institutional conflict¹³¹ that pitted the Islamists against SCAF, when it was their alliance that would have made it possible to map out the transition with the referendum of March 11, 2011, and the adoption of the voting system. Yet the strong majority won by the Islamists led them to put forward a candidate to the presidential elections, repudiating the original agreement set out in the Constitutional Declaration of March 30, 2011. (p. 450) Shady deals between the Islamists and SCAF, reported by several other analyses,¹³² go some way toward explaining SCAF’s U-turn the day before the second round of the presidential elections. In any event, its position in the open dispute with the Islamists was supported by the ruling handed down by the Supreme Constitutional Court on June 14, 2012, which rendered a third of the People’s Assembly invalid.¹³³

In fact, following referral by the Council of State, the Supreme Constitutional Court was faced with a prejudicial question as to the constitutionality of the electoral law, that allowed political parties to compete in the elections by list for up to the maximum of two-thirds of the seats of the People’s Assembly, and also to put forward candidates for the uninominal voting, for the remaining one-third of seats, where they could compete through individual candidates. In affirming this to be discriminatory against independents, who could not compete in the uninominal elections and did not enjoy the same financial and moral support as was provided to party candidates, the Supreme Constitutional Court not only declared the provisions of the electoral law to be unconstitutional in this regard but also declared invalid the composition of the entire People’s Assembly, since it had been elected on the basis of a law that was unconstitutional. The court took the view that the organization of the party lists for the two-thirds would have been different if the electoral law had not allowed members of the parties to put forward candidates for the one-third of seats allocated for uninominal voting. Since the flaw of unconstitutionality affected the electoral law as a whole, the court ruled for the complete dissolution of the People’s Assembly and without the need for a specific measure, as the ruling of unconstitutionality had the force of res judicata and was binding on the state authorities.

The invalidation of the elections of the People’s Assembly by the Supreme Constitutional Court was not without precedent. In fact, the court was merely upholding its own jurisprudence, having in 1987¹³⁴ and again in 1990¹³⁵ struck down the Electoral Act as unconstitutional on the same grounds of inequality of opportunity between party and independent candidates. The court was therefore merely reinforcing its earlier jurisprudence and confirming the “juridification”¹³⁶ of the electoral debate that it had initiated with its 1987 decision. That being so, its decision aggravated the climate of suspicion between the Muslim Brotherhood and the judicial body, accused of collusion with SCAF—suspicions that were stirred up again by another decision by the Supreme Constitutional Court declaring the law on political ostracism unconstitutional, making it possible to validate the candidacy of Aḥmad Shafīq.¹³⁷

By dissolving the People’s Assembly, the Supreme Constitutional Court had crossed the Rubicon, jeopardizing its own authority. The decision was indeed followed by a stream of forceful protests by the newly elected president, Muḥammad Mursī. On July 8, 2012, he initially annulled the decree adopted by SCAF annulling the People’s Assembly. The General Assembly of the Supreme Constitutional Court therefore convened as a matter of urgency and decided to stop the execution of the presidential decision, on the grounds that (p. 451) it constituted a material obstacle to implementation of the court’s ruling on the invalidity of the entire People’s Assembly, a decision confirmed on July 17, 2012, by the Council of State that heard appeals against the presidential decree.¹³⁸ Of course, in the end President Mursī did comply by declaring that the Assembly would indeed be dissolved out of respect for the Rule of Law. Yet the People’s Assembly survived, de facto, after its dissolution, as it had contributed to the appointment of the members of the Constituent.

In the end, although the various actors in Tunisia and Libya did manage, after a fashion, to achieve compromise, this seems impossible in Egypt, where there are very strong tensions between the majority and the opposition, by means of a proxy. Displays of strength by one side and the other have continued regardless, with the chief consequence of disrupting the institutional game, and very often the instrumentalization of, even disregard for, the law.

“The constitution is not about the majority”, could be read on placards held aloft by Egyptian protestors during one of the periods of dissent in Egypt. The phrase is so simple and sums up so well the misgivings that are felt with equal force in Tunisia. It is the Gordian knot of the constituent process, which has been generally permeated by the results of the elections. True, the speed of the process was not the same in all three countries. At the time of writing, the Egyptian Constitution is already promulgated, the Tunisian Constitution is in the third draft stage,¹³⁹ and the Libyan Constitution is still far off on the horizon. But a constitutional debate has been launched, allowing us to consider what the majorities produced by the ballot boxes have, in the grip of the hubris of power, made of the process of elaborating constitutions (Sub-section 1) and their substance (Sub-section 2).

1.  The Elaboration of Constitutions: A Process “Peppered” with Uncertainties

In Tunisia, which was blessed with the least turbulent transition process, the majority set out to reproduce the balance of political power in the composition of the permanent legislative and constituent commissions tasked with redrafting the constitution.¹⁴⁰ Of the 22 members of each commission, 9 belonged to the al-Nahḍah Party, which had the relative majority. Given the composition of the commissions and of the mode of decision making,¹⁴¹ we understand that the majority party was able to weigh in heavily in the preparation of the draft constitution, although resistance by the opposition and the mobilization of civil society did prompt them to give way on several issues.

The question about the method of taking decisions is most frequently asked about the method of adopting the constitution. In this respect, the majority initially proposed that the constitution be adopted by absolute majority, article by article, and by a two-thirds majority for the draft constitution as a whole—a proposal strongly criticized by an opposition that perceived this to be an attempt by the majority party to dominate the constituent process. The heated debate on this issue, during the negotiations on the bill on the provisional organization of powers, resulted in a compromise that consisted of recourse to a referendum, but only as a third hypothesis: The project had first to be adopted, article by article, by an absolute majority of members of the National Constituent Assembly; the (p. 452) text adopted in this way then had to be adopted as a whole, by a two-thirds majority; if that did not happen, a second reading of the draft was required within a month, in order that it might be adopted by the same majority. If the draft still did not pass, it would be put to popular referendum for adoption by the majority of the electorate.¹⁴²

In Libya, the method of appointing the constituent committee was determined in an atmosphere that was a long way from consensus. Art. 30 of the Constitutional Declaration, which set out the road map for transition and the political nature of the transitional authority, was revised several times in line with political contingencies. Having initially provided in paragraph 6 for a Constituent Committee to be chosen by the General National Congress to prepare a draft constitution that it must approve, before being put to a referendum, this article was first revised on March 13, 2012, by the National Transitional Council to strip Congress of its constituent prerogative,¹⁴³ with Art. 30 (6) henceforth providing for the appointment by the General National Congress, from outside its membership, of a Constituent Committee composed of 60 members following the model of the Committee of 60 that had been created to draw up the 1951 Constitution.¹⁴⁴ On the eve of the elections of July 7, 2012, the Transitional Council had to revise Art. 30 once again, in order to appease complaints by the Federalists of Barqah, who had brought the oil terminals to a standstill and were threatening to disrupt the electoral process if their main demand was not met, namely, equal representation of the three regions of the country.

The newly elected Congress went back to look at the question again, and after having tasked a special committee with leading a national dialogue on the method of appointing the Constituent Committee, it then interrupted that consultation process and decided on February 6, 2013, by a majority of 87 of the 97 members present, to ratify direct election, thus endorsing Constitutional Act No. 3 adopted by the National Transitional Council and retaining for itself the right to accept or reject the draft developed by the Constituent Committee.¹⁴⁵ The constitutional difficulties and controversies continued with an appeal against that act before the Constitutional Chamber of the Libyan Supreme Court. The court declared itself competent to control constitutional laws and judged that the revision had been adopted by a majority of two-thirds of those present in violation of Art. 36 of the Constitutional Declaration that required a majority of two-thirds of members.¹⁴⁶

In declaring the decision by Congress invalid, the court thwarted the National Transitional Council’s announcement of the indirect election of the 60 members of the Constituent Committee. This enterprise would without a doubt have been strewn with obstacles and would have exacerbated the wind of discontent blowing from the south and the east. The Federalists had always expressed their fears that indirect selection by Congress would disadvantage the regions of Fazzān and Barqah, and enshrine once again the hegemony of Tripoli,¹⁴⁷ which (as already mentioned) kept for itself 100 out of the 200 seats in Congress.

(p. 453) It therefore seems strange that the 1951 Federal Constitution should be at the heart of an impassioned debate between those who favored it as the starting point for a legal framework and those who rejected it. The first camp is represented by the alliance of liberal forces that were victorious in the elections, the second by the Supreme Council of Revolutionaries, who claimed in the name of revolutionary legitimacy a right to influence in political life and the perennialization of the state of revolution.¹⁴⁸ The crisis over the method of appointment has emphasized the fault lines that fracture Congress. As well as a degree of bipolarization between the Islamists and the Liberals, regional, tribal, and military interest groups weighed in heavily on the political chess board, as already revealed by the negotiations about the composition of the government. The balancing act seemed difficult and choosing a method of appointment for the Constituent Committee proved intractable; eventually Congress gave in and endorsed direct election.¹⁴⁹

In Egypt, the only trace that remains of the dissolved People’s Assembly is the Constituent Assembly that had developed the draft constitution that was put to a referendum. The long ups and downs that punctuated its short history speak volumes about the lack of consensus. Under Art. 60 of the Constitutional Declaration of March 30, 2011, the 100 members of the Constituent had to be chosen by the elected members of the two chambers of parliament. The silence of the Constitutional Declaration on the criteria for selection opened up a dispute between the military and the Muslim Brotherhood, jostling to control its composition, resulting in a web of court appeals, legal documents and political compromises that was difficult to untangle. In their session of March 17, 2012, the two assemblies decided to choose half the members of the Constituent from within parliament,¹⁵⁰ clearly subverting the wording of the Declaration and opening the way for the hegemony of the Islamist parties, who had a clear majority within the Parliamentary Assembly and the Senate. This maneuver was decried by the liberal parties and the parties of the left who had not taken part in the vote. A claim was filed before the Council of State by a coalition of lawyers and liberal political parties asserting that the composition of the Constituent was unconstitutional. In a decision handed down on April 10, 2012, Cairo’s Administrative Judicial Court of the Council of State decided to suspend the Constituent, as the Constitutional Declaration had mandated parliament to elect the members of the Constituent, not to choose them from within its own members.¹⁵¹

The crisis thus apparently averted, a new composition for the Constituent had to be agreed upon. An agreement was reached between the representatives of the political parties, notably the Islamists, and SCAF, on a composition more representative of the various sensitivities.¹⁵² It was also agreed that decisions within the Constituent would be adopted by a majority of 67% of its members, probably to prevent the hegemony of the Islamists. The general terms of this agreement were set down in a bill adopted by the People’s Assembly (p. 454) on June 12, 2012, and its members were indeed elected at a joint meeting of the People’s Assembly and the Senate on June 13, 2012. Except that SCAF did not promulgate the law in accordance with Art. 56 (5) of the Constitutional Declaration of March 30, 2011,¹⁵³ preferring to publish an addendum to the Constitutional Declaration establishing the right to form a new Constituent if the current body is prevented from completing its work. In the escalation of the battle with SCAF, President Mursī promulgated Act No. 79 on the selection criteria for members of the Constituent,¹⁵⁴ adopted by a People’s Assembly that had just been declared to be unconstitutional! A jurisdictional battle ensued and an appeal was lodged with the Council of State against the decision on the composition of the Constituent Assembly adopted by the People’s Assembly and the Senate on the grounds that it violated the ruling by the Council of State handed down April 10, 2012, prohibiting parliamentarians from belonging to the Constituent, whereas the second Constituent included members of the Senate and of the dissolved People’s Assembly. The Administrative Judiciary Court of the Council of State was obliged in its judgment of October 23, 2012, to defer its ruling and refer the constitutional question to the Supreme Constitutional Court.¹⁵⁵

The withdrawal of representatives of the opposition and of the church from November 13, 2012, refusing to endorse a draft Islamist constitution, in effect amounted to a new appeal against the Constituent. The president therefore had to adopt a new Constitutional Declaration on November 21, 2012, in which he, among other things, immunized the Senate and the Constituent Assembly against any jurisdictional claim attempting to dissolve them. That Declaration strengthening the prerogatives of the president, which also put all presidential decrees beyond all judicial recourse,¹⁵⁶ opened a new round of very violent disputes. In the whirl of bloody confrontations between supporters and opponents of President Mursī, the opposition called for the referendum process to be interrupted. To appease the toxic atmosphere, President Mursī was obliged to annul the Declaration of November 2012, whilst maintaining its effects,¹⁵⁷ and the constitution was put to a referendum.

With a poor turnout (32.9%), the draft constitution put to a referendum on December 15 and 22, 2012, was approved by 63.8% of voters.¹⁵⁸ The Egyptian referendum had not appeased the simmering conflicts in Egypt and the losing minority discredited the process.¹⁵⁹ The legitimacy of the popular verdict was not enough to achieve compromise,¹⁶⁰ which laid the foundations for subsequent conflicts in the country.

(p. 455) The main point of convergence between the three countries is the constant challenging of the legitimacy of the elected assemblies, despite the “original regularity”¹⁶¹ drawn from the election. The reasons are manifold: failure to respect the preexisting schedule in Tunisia, the vacillations of the General National Congress under pressure from the various actors of transition in Libya, and the insistence by the Islamists—who had been victorious in the legislative elections in Egypt—that the composition of the Constituent should reflect the composition of the parliament that had been elected by universal suffrage. Nonetheless, all this brings us back to the ontological question of democracy: Can one rely on the legality of instruments in order to do whatever one wants? That would be, as Pasquale Pasquino puts it, a “suicide pact of total alienation in favor of the majority”,¹⁶² who must not be allowed to “decide everything about everything”,¹⁶³ especially when it comes to establishing a constitution.

2.  Constitutional Debates Characterized by Points of Tension

One tension point in the constitutional debate in Egypt and Tunisia, and less so in Libya, seemed to be the question of the constitution as a secular instrument, with Islamist parties being well placed to impose a constitution permeated by religiosity. In Tunisia, this was about the Sharīʿah as the source of law, about male/female equality, and freedom of expression versus respect for that which is sacred. The same tension points could be detected in the Egyptian constitutional debate, which resulted in an instrument elaborated by a Constituent that was boycotted by the liberals, and there are indications of a similar preoccupation in Libya, although the rhythm of the constituent process there is working at a different speed.

On the first point of tension, namely, the Sharīʿah as the source of the law, Tunisian public opinion was animated by a very passionate debate on this issue, on the basis of a draft constitution that clearly emanated from the party with the relative majority, al-Nahḍah, presented around March 2012, Art. 10 of which provided that the Sharīʿah would be one of the main sources of legislation and for the creation of a “High Sharīʿah Council” to verify the conformity of laws with Sharīʿah. A large protest held on March 20, 2012, voiced participants’ visceral rejection of the rampant Islamization of society, which eventually dissuaded the majority party, who announced the withdrawal of the Sharīʿah draft on March 25. In the end, Art. 1 of the former 1959 Constitution was preserved, being judged sufficient to affirm the presence of Islam in the constitution.¹⁶⁴ That article provides that “Tunisia shall be a free, independent and sovereign state, its religion shall be Islam, its language Arabic and its regime a republic”.

Interpreted as being a formulation of identity with no normative value,¹⁶⁵ Art. 1 constitutes a compromise that satisfies “all the contradictory demands and leaves the real sticking points unresolved, thanks to its ambiguous wording”.¹⁶⁶ Although a decision on the (p. 456) religious anchoring of the Tunisian state has been suspended for more than 50 years, a rigid interpretation cannot now be excluded. Especially as, unlike the 1959 Constitution, which was only weakly religious in tone,¹⁶⁷ the third draft makes reference to Islam not only in the preamble, talking of “constants of Islam” but also by prohibiting in Art. 136 any constitutional revision attacking “Islam as religion of the State”. The wording contains worrying ambiguities, and the redundant reference to the civic nature of the state¹⁶⁸ does little to dispel this.¹⁶⁹ And just what are the “constants of Islam”? The reference to “its values characterized by openness and tolerance”, although pointing toward a final reading that is contrary to a rigid interpretation of Islam, seems misplaced, given that these constants are not specified. Moreover, the writers of the third draft were at pains to confirm that the preamble is an integral part of the constitution and “has the same value as (its) other provisions” in terms of Art. 138, which could, gradually, reduce everything to these “constants of Islam”. Moreover, whereas the second draft of the preamble made reference only to the principles of human rights, the “universality of human rights” was in the end included in the third draft, but “in conformity with the cultural specificities of the Tunisian people [sic!]”. This formula sounds like an oxymoron. It is for the least ambivalent and threatens to block the improvement of women’s legal status in Tunisia. As it stands, cultural relativism could be invoked to oppose the reception of international instruments related to women’s rights.¹⁷⁰

The Egyptian Constitution went much further than this in its religious anchoring of the state. Indeed, Art. 2 provides not only that “Islam shall be the religion of the State”,¹⁷¹ but adds, without equivocation that “the principles of Islamic Sharīʿah shall be the main source of legislation”, principles comprising according to Art. 219 “its global evidence, fundamentalist and jurisprudential basis, as well as the significant sources, in the legal schools of the people in the tradition of the prophet and of the community”. A reference that could lead to a rigid interpretation of Islam. The text also makes reference to Al-Azhar, the prestigious Islamic authority, which “proceeds to the propagation of the Islamic predication, theological sciences, the Arabic language in Egypt and in the world. The opinion of the authority of the great ʿulamāʾ (Islamic scholars) of the Al-Azhar University in Cairo shall be taken in matters relating to Islamic Sharīʿah” (Art. 4). A reading of Arts. 2 and 4 taken together makes this religious authority the ultimate source of the law, accelerating fast toward the institution of a theocratic state. Whilst on the one hand being long-winded in listing rights and freedoms, with the other, the constitution established a hierarchy of rights, by, under Art. 81, making the exercise of those rights subject to respect for the principles set out in the chapter “the State and Society”, which covered among other things the reference to Sharīʿah.

In Libya, the question of Sharīʿah seems to have been resolved immediately after Libya’s declaration of independence. Indeed, on October 23, 2011, Muṣṭafā ʿAbd al-Jalīl, then president of the NTC, declared that the Sharīʿah would be the source of the law. Furthermore, (p. 457) the issue seems to be a matter of consensus among the political powers represented in the GNC.

In the same spirit, the status of women is a second point of tension in the constitutional debate. This is true even in Tunisia, although it had led the way on the emancipation of women, thanks among other things to the Code on the Status of the Individual adopted by Bourguiba (Būrqība). The fear that those rights might be rescinded was aroused by Art. 28 in the first draft, which rendered women “an authentic partner, with man, in the construction of the country and through their complementary roles within the family”. This complimentary notion, putting women back into an inferior status, was virulently rejected by civil society, and was in the end abandoned¹⁷² and replaced with a more satisfactory wording, by the provision in Art. 11 of the third draft, that “woman and man shall be partners in the construction of society and the State”. Male/female equality is not perfect however. Although it is true that equality before the law is enshrined in Art. 6 and that the state guarantees, under Art. 41 (1), “the protection of women’s rights and the strengthening of the acquis”, Art. 41 (2) adds that “the State shall guarantee equality of opportunity between women and men to assume various responsibilities” and paragraph 3 added that “the State guarantees the elimination of all forms of violence against women”. With a sense that it has been deliberately left unfinished, the drafters do not mention the elimination of all forms of discrimination against women. It is only clear that the equality of men and women will be appreciated in terms of the “constants of Islam”, and the universal standards of human rights shaped by cultural relativism. And moreover, parity was not written into the third draft of the constitution, despite strong mobilization in support of this.

Male/female equality seems to have been further undermined in the Egyptian Constitution. Even though Art. 33 does provide that “citizens shall be equal before the law” and that they “have the same rights and the same general responsibilities, without distinction between them”. Nonetheless, this equality is often threatened, not only by Art. 2 that makes the Sharīʿah the main source of the law but also by Art. 10 (3), which tasks the state with “reconciliation of the responsibilities of a woman towards her family and her public activity”. Women are purely and simply under the guardianship of the state and the laws that will decide the manner in which she must manage her private life. In Libya, too, there is a risk that a lower status for women will be enshrined, given the Constitutional Declaration that, despite declaring equality before the law in Art. 6, associates this in Art. 5 with children, elderly people, and other vulnerable categories. Regardless of what becomes of this, the future status of women under the constitution remains uncertain, and given a recent judgment by the Constitutional Chamber of the Supreme Court lifting the restrictions on polygamy that had been introduced by al-Qadhdhāfī,¹⁷³ one might legitimately fear a regression in women’s rights.

Last, let’s consider the third point of tension in the constitutional debates, namely, the place of “that which is sacred”. The criminalization of attacks on that which is sacred found its way into the first draft of the Tunisian Constitution in an article that provided “the State shall guarantee freedom of religious belief and practice and punish any attack against the sacred values of religion. In the end, the article was abandoned, but protection of the sacred retained a strong position in Art. 5 of the third draft, which provides that “the State shall protect religion; it shall be the guarantor of freedom of religion and the exercise of worship, protector of the sacred and guarantor of the neutrality of places of worship from party propaganda”. This leaves wide open the potential for curtailing freedom of expression. In Egypt, (p. 458) in addition to a rigid interpretation of Art. 11 that tasks the state with watching over “the mores, morality, public order, […] religious values”, Art. 44 prohibits “any denigration or defamation of any of the messengers and the prophets”.

The issues mentioned above are not the only points of tension in the constitutional debate. At the time of writing, Tunisia is still locked in negotiations between the majority party and the other political powers represented within its National Constituent Assembly as to the nature of the political regime. As for Libya, it is on the breach of engaging a vivid debate on the State form. In Egypt, the jury is still out, in spite of the promulgation of a constitution which seems unable to carry out the democratic transition. Completed in 2013, this comparative study of the electoral systems in Tunisia, Egypt, and Libya has been conducted in the context of bewildering—sometimes striking—political and legal developments. However, in Tunisia, the constituents have managed to consensually adopt a new constitution,¹⁷⁴ and the shift of power in the parliamentary elections of October 26, 2014, has seen a democratic and peaceful transition of government in Tunisia from the formerly ruling, moderate Islamist al-Nahḍah Party to the secularist Nidāʾ Tūnis Party.¹⁷⁵ As the transition of government and political authority from one party to another, can be seen as one of the most crucial tests and milestones in the establishment of viable democracies, the results have sealed Tunisians fortunate and successful leading role in the democratic process that started with the Arab spring. A mere month later, Tunisia conducted the first free presidential election ever since its independence in 1956. After the first round of elections yielded no definite majority for any one candidate, the second round showed that the candidate of the Nidāʾ Tūnis Party, Aa-Bājī Qāʾid al-Sabsī, had won a majority over the incumbent al-Munṣif al-Marzūqī.¹⁷⁶ In a period just shy of three months, Tunisia thus faced a democratic and peaceful transition of power in both parliament and the office of the president. Unfortunately, the other countries researched in this article faced a more tumultuous and dramatic interruption of their democratic development.

Libya from the start faced huge security challenges and the need to consolidate its still embryonic institutions; the task was much more difficult, with political decisions often adopted in a Congress besieged by militia.¹⁷⁷ While, after a months’ long struggle, a cabinet could be reached under Prime Minister ʿAlī Zaydān, public unrest and discontentment with his administration grew, ultimately leading to him being replaced by ʿAbdullāh al-Thānī. The election for the Council of Deputies on June 25, 2014—which was to replace the General National Congress as the new legislative authority—brought a disappointing outcome to Islamist candidates and instead saw nationalist and liberal candidates garner the majority of the seats. As the election was marred by violence and generally produced a low turnout, the losing political fractions declared the continuation of their mandates in the new General National Congress and thus ignored the election results and the authority of the newly established Council of Deputies. The representatives of the Council of Deputies viewed (p. 459) this as a coup d’etat and shifted their seat to the city of Ṭubruq, away from the outbreak of even more sectarian violence and street fighting which broke out in the streets of the capital of Tripoli.¹⁷⁸ The subsequent event brought almost all the achievements of the previous months to naught. While the Islamist-led General National Congress managed to reassert its control over the capital and large parts of the region of Tripolitana, several cities of the area (including Darnah and Sirt) fell to the onslaught of jihādī groups, such as the Islamic State and Anṣār al-Sharīʿah. An additional uprising by Touareg groups in the Southwest, removed also the region of Fazzān largely from central authority. The internationally recognized government around the Council of Deputies with its seat in Ṭubruq, thus exercised effective control over little more than the Eastern part with violent uprising and sectarianism prevalent in most areas of the country. The foreseeable future of Libya’s democratic process can therefore only be called discouraging.

In Egypt, the situation had become increasingly volatile following the draft Constitution of 2012, which was seen by many as giving too much power to the presidency. Finally, a mere year after the election of President Mursī on the June 30, 2013, people took to the streets in unprecedented numbers to express their discontentment with the economic and political development of the country and with what they perceived as a clandestine Islamization of both political and public life in Egypt. As the death toll and the number of protesters rose over the following day, the Egyptian Army gave the president a 48-hour ultimatum to restore order.¹⁷⁹ As on July 3, the widespread protests showed no sign of abating, the head of the armed forces, ʿAbd al-Fattāḥ al-Sīsī, declared the deposition of President Mursī and the suspension of the constitution. The interim-government, under the former Chief Justice of the Supreme Constitutional Court, ʿAdlī Maḥmūd Manṣūr, was charged with drafting a new constitution, which was approved by a majority of 98.1% in a referendum on January 14 and 15, 2014, which was also raised concerns about the low turnout of just 38.6% and various irregularities.¹⁸⁰ The head of the armed forces, General ʿAbd al-Fattāḥ al-Sīsī, subsequently declared his decision to lay down his military command and run as a candidate for the presidential elections. In spite of the landslide victory he managed to garner, the low turnout of 46% and the call for boycott of the elections by various political and social groups proved yet another disconcerting factor in Egypt’s recent development.¹⁸¹

In spite of the similarities the countries have shown in the beginning of their struggle for a democratic state under the rule of the law and the similar obstacles they faced along the way, the outcome of the process could hardly be more different. With Libya being torn apart by sectarian violence, jihādī and tribal uprisings, and two separate national governments which show no signs of will to compromise; with Egypt on the one hand stabilized from month-long protests and public unrest and rid of a government which was seen as a threat to its secular society, but on the other hand at least on the road of an authoritarian, army-backed, presidential regime, not entirely unlike the Mubārak era; and finally Tunisia, which proved its position as a role model for democratization and peaceful transition in the Arab world by not only integrating Islamist groups in its political makeup, but also managing a peaceful, democratic transition of power in two subsequent elections.(p. 460)