The Constituent Assembly tasked with drafting Egypt's new constitution plans to hold a meeting today to decide the fate of the Shura Council, the upper house of Egypt's Parliament. This event, however, calls for a discussion of the role and importance of this upper house.
The extremely low turnout in the recent elections for the Shura Council, and the dim role that the house has played since its establishment in 1980 are generating a heated debate over the need for a second chamber in the new constitution. Instead of focusing on the discouraging past record of the Shura Council, I argue that the choice should be based on the functions that a second chamber can perform, and on that basis design the future council’s composition and powers. If none of the possible functions of second chambers is regarded as desirable, then the bicameral experience should be terminated.
Second chambers — comparative experiences teach us — limit the operation of the democratic principle, and they do so either by entrenching cleavage privileges or by compensating for undesired effects of equal representation. Both sub-functions are utterly undemocratic, but let us not shy away from this consideration; the purpose of a constitution is precisely to limit the power of majorities and provide for effective accountability. Is this what we want? Democracy is always at risk of turning into tyranny, and needs to be restrained — as both Plato and Aristotle warned us many centuries ago. Second chambers can be either designed to avoid that risk or, conversely, to void the participation of people in government — as the record of the dissolved Shura Council has proved.
Does Egypt need a second chamber? We are left with two preliminary questions. First, if we believe that parliamentary majorities need to be limited, should that limitation (as stipulated in the constitution) be enforced by a specialized court (with all state powers appointing members that fulfill the requirements of kafâ’ah), or a more “political” body like a second chamber? Or both? The issue of the legitimacy deficit resurfaces here, and with no convincing solution. Democratic legitimacy seems to be the only reasonable foundation. Modern democracy, however, is representative democracy. Hence the second preliminary question.
Do we identify structural failures in the way representatives are elected? Flaws in the representation process can be chiefly ascribed to the electoral and/or the party systems. Flaws in the electoral system can be addressed in the legislation regulating it, but one could argue that there are only a limited number of possible categories whose representation can be guaranteed by working on the electoral system alone. If we think of quotas, for instance, how many sets of different quotas can we have? One for women, one for workers, one for peasants, for instance? The current system shows that when two groups are combined in a complex zebra system, it still cannot guarantee that one group will not prevail over the other (workers over peasants, or vice versa). If a third element is added to the equation — women, in our case — that third element is almost invariably sidelined. Flaws in the party system that affect the representation of all groups in society are harder to address, especially in a context of an impoverished party life as the one Egypt has experienced for decades. The inability of parties to establish platforms and mobilize voters within a limited time frame seem to have favored political entities that could use pre-existing, established networks to mobilize voters in support of their (and other groups’) candidates. Is the current party system unable or unwilling to adequately file candidates from all sectors of society and successfully support them?
If we indeed believe that there are structural failures in the way representatives are currently (s)elected, could a second chamber fill in the gap and guarantee the effectiveness of representative democracy? If so, how? And, what powers should be such a chamber wield? These seem to be the questions that the Constituent Assembly will need to address. First, by identifying what groups in society are effectively underrepresented or not represented at all in the existing chamber. Second, by identifying a proper method of assuring representation of such groups — which might and should vary from group to group (the method applied to women cannot be the one applied to peasants, which in turn cannot be the one applied to workers, or to ethnic or religious minorities). Methods of selecting members can vary from direct election with reserved seats, membership ex officio (based on a certain position held by an individual, as in the case of heads of unions or syndicates), or through selection within the identified vocational or corporate groupings.
Needless to say, unless well designed, these methods can lend themselves to abuses, as was the case with the peasants and workers list. Presidential appointments should be limited to a minimum, or ruled out entirely. If the function of such a second chamber is to complement the representation of the first chamber, then powers should be commensurate with the degree of perceived complementarity of the second chamber.
A second chamber can be a useless replica of the first chamber, instrumental to full representative democracy, or a deceitful way of the executive to reign in the legislative (and the national press). It will all depend on the answers given to the key questions raised above. Answers that should have been discussed in a public debate before reaching the Constituent Assembly.
Gianluca P. Parolin is an assistant professor of law at the American University in Cairo.
This article first appeared in Midan Masr.