Organized Interests in Constitutional Assemblies

Theory and Introduction

How does the method of organized interests’ inclusion in constitution-drafting processes effect their capacity? This paper argues that reserved seats on a constitutional assembly are not a guarantee of a more labor-friendly constitution, and that in fact, not having reserved seats can paradoxically benefit trade unions by forcing them to engage other political actors, as happened in Egypt and Tunisia, respectively. The outcome is surprising. If anything, the reserved seats for “organized interests” should have biased the constitutional process toward unions according to most strains of liberal constitutional thought (Ackerman 1994; Brown 2008). These findings also shed light on the relative value of elected versus appointed constitutional assemblies, and the potential emergence of second-track constitutional negotiations. This topic speaks to three intersecting sets of scholarly agendas: constitutional components of democratization, labor in critical junctures, and the political economy of the Arab Uprisings. I hope to push forward an expanded research agenda on mechanisms within constitution making, which continues to be understudied (Elster 1995).

The last decade has seen thirty-six new national constitutions written, while over a hundred new constitutions have been crafted since the fall of the Soviet Union. While social scientists have worked diligently to understand organized and class interests in these new regimes, their constitution-making processes remain opaque. Constitutional tenure and the impact of constitutions on democratization remain open questions. Recent evidence suggests that organized interests, ranging from labor to indigenous communities, can shape the context and content of new constitutions (Andolina 2003). ¹ Organized interests’ exclusion from constitutional assemblies can also have long-lasting consequences (Bajpai 2000). Constitutional assemblies are an important feature of transitioning and consolidating regimes. Constitutions have trended toward increasing length and complexity, potentially affecting organized interests more than their predecessor documents. Political scientists are increasingly aware of the importance of constitutions in setting the rules of the political game, giving constitutional assemblies long shadows (Schleiter and Morgan-Jones 2009).

Social scientists have identified different types of constitutional assemblies in post-colonial states, established democracies, and post-revolutionary states (Bajpai 2000; Fafard and Reid 1991; Rapaczynski 1991). Direct-election assemblies, appointed committees, and parliamentary committees have all taken part in constitutional design in various countries. Constitutional assemblies are generally given a limited mandate, making a new constitution and then disbanding. They reflect a snapshot of politics at the time of their existence, and are unlikely to be given extended mandates (Negretto 2009). Despite this, the documents they produce can last centuries, and often delineate the realms of “normal legislation” and “constitutional matters,” carving out some political actions as requiring more complicated actions of popular sovereignty to take (Lutz 1994). Similarly, historical institutionalists have identified the importance of trade unions in the emergence and consolidation of democratic regimes; however, relatively less attention has been paid to how these entities relate to constitutional design (Huber, Rueschemeyer, and Stephens 1997). When this has been done successfully, it has often been in East European and Latin American contexts (Payne 1991).

This article explicitly takes up the charge of expanding research on constitutional design and constitutionalization, which has long suffered from over-focus on a limited number of cases. Existing literature argues that the inclusion of more actors in constitutional assemblies produces more bargaining, less cohesion, and the possible collapse of the constitutional process (Ginsburg, Elkins, and Blount 2009). Both Egypt and Tunisia saw the breakdown of the constitutional process, and this article provides mechanisms for the method of inclusion in addition to the presence or absence of “democratic” forces. Furthermore, it is widely accepted that constitutional assemblies “learn” either formally or informally from previous constitutional efforts (Lijphart 1998). Tunisia is being touted as a case in which international institutions played a successful role in bringing about a new constitutional order and a potential model for future transitions (“Managing Power-Sharing: Dealing with Challenges in Consociational Political Settlements” 2016; “Tunisia, Foreign Leaders Hail New ‘Model’ Constitution” 2014).

This article specifically looks at two cases of labor in the constitution-drafting process. In Egypt and Tunisia, authoritarian parties had been banned, leaving labor some room for maneuver, while in other contexts, labor was linked to a legacy authoritarian party. This was the case with Latin American cases explored by Collier and Collier in their seminal work on labor and critical junctures (Collier and Collier 1991). Recent scholarship has focused on the legacies of authoritarianism, especially with regard to labor and the working classes. Egypt and Tunisia are also of interest to scholars of labor in transition in post-socialist societies for several reasons. Tunisian unionists explicitly cited Poland’s Solidarity movement as an example to be both emulated and avoided, in terms of organization and decision to formally enter government, respectively. Both Egypt and Tunisia formerly utilized centrally planned economic models making them an interesting case of late-transitioning former socialist economies. Existing literature from Caraway draws our attention to mobilization, legacy, partisan links, and competition to understand the fate of unions, while this article focuses on a specific venue and constitutional assemblies, and provides potentially portable mechanisms of competition and partisanship in transitions (Caraway 2008). Such a focus on constitutional studies could add to an existing rich literature on labor in regime, economic, and cultural transitions (Levitsky 2003; Teitelbaum 2010). Labor’s role in constitutional assemblies is underexplored and offers just as many opportunities for incorporation, restraint, or militancy as party affiliations and other institutional arrangements. Furthermore, constitutional assemblies may lay the groundwork for rules that allow parties and unions to operate freely and coordinate at all. The concepts proposed are portable to other organized interests. Egypt formally included not just labor but groups as diverse as “intellectuals,” “youth,” and Coptic Christians. Labor remains an important group that bridges area-specific peculiarities.

Finally, the constitutional processes are important factors in the wave of recent transitions in the Arab Middle East. Labor is a vital and sometimes underexplored topic in these transitions, and attention to it can help explain both the breakdown of earlier regimes and the consolidation of new ones (Bishara 2015). Existing literature makes the case that labor seized the opportunities presented by the Arab uprisings, particularly from positions within government, to win concessions (Buehler 2015). The findings here extends this literature into the constitutional assembly, while lending credence to long-standing analysis of the anti-democratic impacts of social forces being “too close” to regimes (Bellin 2002). As even countries that have not experienced full revolutionary mobilization consider tweaks to their constitutional orders (Algeria, Morocco, and Jordan all undertook amendments or reforms since 2011), a close focus on Egypt and Tunisia will be instructive.

Egypt and Tunisia have much to offer as a paired comparison. The two states constitute a most-similar systems design on the dimensions of colonial legacy, corporatist bargaining, regime-affiliated trade unions, and revolutionary movements. This, however, is not a reason to dismiss the comparison, but an opportunity for context-rich exploration and process-tracing. The research presented here is based on more than 150 interviews conducted with political and trade union leadership stretching from 2011 to 2014 in Egypt and 2012 to 2016 in Tunisia. Representatives of each major political party and trade union confederation were included. The countries each saw socialist economic thinking rise and fall in the 1960s and 1970s, followed by a turn to open markets. ² Both underwent sudden regime transitions that swept leaders into power in the 1980s. Both countries entered structural adjustment at the same time, with similar impacts on similar workers. Socialist legacy, free-market transition, structural adjustment, top-down corporatism, trade union density, and the relationship between trade unions and politics all show that Egypt and Tunisia have more similarities than differences on the issues at hand. The differences include size and economic makeup; however, at the moment of constitutional drafting, the figures provided by trade union leaders on their members show similar densities in each country (“Data| The World Bank” 2016). ³

For the last sixty years, trade union federations with close ties to the government have dominated Egyptian and Tunisian workers. Founded in 1957, The Egyptian Trade Union Federation (ETUF) was the exclusive, hierarchical, peak federation in Egypt, and all other union organizing was effectively banned (Beinin 2009). This organization evolved to be an arm of state policy with its leadership originally tied to President Nasser’s ruling clique, and later selected by President Sadat in the period of economic opening, and finally associated with President Mubarak’s National Democratic Party (NDP). Trade union organizations were a key component of the Tunisian independence movement, serving as the street-presence of liberation hero Habib Bourgiba’s movement. The Union Générale Tunisienne du Travail’s (UGTT) first leader, Farhat Hached (whose face still adorns every trade union office in the country) was an independence leader without equal outside of Bourgiba himself. Like its analogue in Egypt, the UGTT is an exclusive, hierarchical, peak institution in labor in the country.

Successive regimes compensated for this iron grip on union organizing by providing benefits to certain sectors of the labor force. Perks included guaranteed government jobs, free higher education, and rigid labor laws that protected workers from lay-offs. Publicly run enterprises in light and heavy manufacturing, in addition to an expansive bureaucracy “sopped-up” the excess labor in the market. During the rule of Habib Bourgiba, the UGTT walked a fine line of resisting and accommodating itself to the regime. During the early years of independence, Tunisia maintained a centrally planned, socialist-influenced economy (Hopkins 1981). An increase in the industrial sector included expanded unionization rates, as did the growth of the bureaucracy established to manage a planned economy. The UGTT established a mixed structure, containing both region-based and sectoral unions. The ETUF focused more on a pyramidal sectoral structure.

The 1970s brought opening up to international trade to both countries as well as an embrace of private enterprise and a reduction in subsidies. In Tunisia, economic success can be attributed to increased oil and phosphate prices, and relatively less of the benefits reached the laboring classes (Alexander 2010). Labor unrest increased dramatically in the middle of the decade, at first consisting mostly of wildcat (unauthorized) strikes. By 1978, these frustrations boiled over into national strikes and protests, eventually winning support from the leadership of the UGTT (Disney 1978). This protest wave constituted the largest threat to the Bourgiba regime since independence. This pattern was repeated in the 1984 Bread Riots. The Tunisian government cut subsidies on basic foodstuffs, resulting in major protests across the country. Rank-and-file unionists organized and joined protests, dragging their leadership along with them. The regime ejected the leadership, in this instance arresting and imprisoning more than a hundred. The leadership was replaced with regime loyalists (Paul 1984). Egypt saw its own unrest in the 1970s and early 1980s; however, this unrest was more concentrated in the security sector, barring a crippling rail and steel strike in the late 1980s.

These pivots to economic openings failed to correct long-term inefficiencies in the Egyptian and Tunisian economies, and by the late 1980s, both countries faced severe balance of payments problem (African Development Bank Group 2000). Egypt and Tunisia adopted programs of structural adjustment at the behest of the international financial institutions (IFIs; Pratt 2000). These programs had mixed results. A palace coup in Tunisia by Zine El Abidine Ben Ali, a former military officer and Prime Minister, brought in new leadership later in the decade. The regime transition in 1987 brought an increased commitment to neoliberal reforms and structural adjustment. The UGTT adopted a position of support for the government officially, despite increased agitation for democracy among working class members. Like his predecessor, President Ben Ali replaced union leadership with his own cronies. The unique sectoral and regional organization of the union preserved rank-and file militancy despite continued elite cooptation. In Egypt, the structural adjustment program languished for many years with mixed results; a renewed push in the early to mid-2000s saw the introduction of a labor flexibilization law (i.e., easier hiring and firing), the sale of state owned enterprises, and the curtailing of organized labor’s traditional input on economic policy.

The turn toward neoliberal economics and away from the regimes’ traditional partners in stability precipitated an upturn in labor militancy. Wildcat (unauthorized) strikes took off dramatically in the mid-2000s in both countries. Throughout the 2000s, independent labor organizations became increasingly vocal, calling for both local and general strikes. These efforts culminated in the emergence of an independent union movement under international tutelage (Beinin 2009). Workers organized successful long-term sit-ins around government offices in downtown Cairo (Abbas 2012). They forged linkages with other political movements, including Islamists that had not been utilized before. The revolutionary movement of 2011, which involved a large number of worker activists and a general strike, adopted many of these techniques.

Like in Egypt, the late 2000s saw an increasingly sclerotic regime in Tunisia. Labor agitation in Tunisia was regionally based, with a concentration in the southern mining region of Gafsa. While local union offices supported a general strike of phosphate workers in 2008, the union leadership maintained its quiescence. Regional offices of the UGTT became the main site of contestation, a place of organizing and resistance, not only on economic and workplace issues but also for protests over the war in Iraq and other political issues. While the regime maintained tight control of the upper echelons of the UGTT, activism flourished at the more base levels.

The labor-focused protests in Egypt and Tunisia foreshadowed the 2011 Revolutions in many ways. In addition to the widespread working class discontent, attempts were made at ground-up change in trade union structures. Unlike their peers in Egypt, workers did not break from the UGTT and form their own union, instead turning on their leadership and forcing them to adopt a more militant line. In turn, the regime sacked the union leadership but was unable to penetrate the organization downward, into the rank-and-file members.

Divided Federations

Egyptian and Tunisian trade unions diverged sharply following the revolutions. Independent unionists formed multiple confederations in Egypt, challenging the hegemony of the ETUF. While independent unions also formed in Tunisia, the UGTT was better able to withstand their threat by focusing on internal reform. These differences became important in how labor entered the constitution-making process.

In Egypt, independent unionists had called for a general strike during protests to oust Mubarak. Just two days later, the military removed the President. As a key constituency of the revolutionary movement, workers were hopeful for a better deal under a new regime. Egypt’s military rulers in the Supreme Council of the Armed Forces (SCAF) occupied a unique space in Egyptian political economy. In addition to more conventional military-industrial interests in advanced weapons systems and munitions, the Egyptian military produces consumer goods stretching from bottled water to poor quality home appliances. These military production factories employ a mix of conscripted labor and civilians. Unsurprisingly, trade union organizing within production factories was severely curtailed. As such, the military was an unlikely ally for the emergent labor movement, casting something of a shadow over labor organizers’ hopes for more favorable conditions after the revolution.

In Tunisia, when protests over the self-immolation of Mohammed Bouazizi emerged in December 2010, they quickly spread to UGTT offices. Regional offices supplied both an organizational backbone and “cover” from security services. While the regional offices were certainly not sacrosanct, searches by security forces remained a politically sensitive activity. Leadership of the UGTT not only resisted the protest movement but also took up the role of “loyal opposition” helping to form a transitional government with remnants of Ben Ali’s regime. Once again, rank-and-file members resisted this development, and the transitional government fell. In the turmoil of early 2011, the UGTT’s role in the transition expanded. They consulted on the appointment of new governors throughout the country. Later, they joined the Haute instance pour la réalisation des objectifs de la révolution, de la réforme politique et de la transition démocratique (High commission for the realization of the goals of the revolution, political reform, and democratic transition), an umbrella group that helped to guide the early transition process.

The UGTT focused on solving internal divisions and building power in the streets. Activists took the opportunity provided by the liberalized atmosphere to launch strikes. While many were concentrated in the impoverished interior regions, they reached even prestigious businesses like the national airline and government employees, including customs officials. Several workplaces were successful in converting loathed short-term contracts to permanent contracts with more security for workers. The new energy also affected the UGTT leadership.

Egyptian unions on the other hand fell into infighting. The independent unions’ coalition collapsed and broke into two competing federations, with more local and regional federations sprouting up to challenge those. Some independent unionists defected back to the ETUF, which managed to keep their right to withdraw dues directly as well as their control of buildings, training centers, and conference facilities. Several attempts to broker a united front failed.

The December 2011 UGTT congress saw the election of a new leadership team, tipping the balance toward more activist trade unionists. They also faced down an internal revolt led by some Islamist members frustrated with their long marginalization with the movement. A coalition of centrist and leftist blocs within the UGTT shut out the Islamist members, many of whom went on to form an independent confederation, but only after being stripped of most of their influence. While Egyptian unions were fighting, Tunisian unions were coalescing.

Exclusion versus Reserved Seats

Constitutions reflect the prevailing power structure of their time, and the new constitutions in Egypt and Tunisia are no different. Even with this fact, the constitutions may not have reflected the unified union power in Tunisia and fractured union power in Egypt were it not for a key difference in constitutional assembly design: elected versus reserved seats.

In Egypt, the constitutional process laid out by the SCAF was opaque from the beginning, and beset by problems. SCAF began by issuing a constitutional decree. They appointed an eight-man committee to propose revisions to the constitution. Included in this review committee were legal scholars who represented liberal and Islamist strands of jurisprudence (Stilt 2012). The committee proposed several changes to the suspended constitution and recommended a new constitution be drafted following the election of parliament. A popular referendum was held in support of this document in March 2011. This document stated that the to-be-elected parliament would draft a new constitution within sixty days of being seated. Debate over the referendum centered on whether to hold elections for the parliament or write the constitution first. Despite this debate, the referendum passed easily. The constitutional draft maintained a Nasser-era clause that 50 percent of parliamentary seats be held by “workers and farmers,” a condition that had become widely ridiculed, as members of Mubarak’s NDP from the upper classes or with entrenched financial interests ran as “workers and farmers” (Dunne and Revkin 2011). In addition to being a strong rhetorical commitment to the lower classes of society, the clause was a boon to the ETUF. As the only organization that could determine whether someone was legitimately a “worker,” the organization was responsible for approving the candidacy of many potential parliamentary candidates. While most often this ability was used at the behest of the regime to deny participation to Mubarak critics, it was another tool available to the ETUF to influence policy or at least communicate with potential MPs. The loss of this parliamentary quota system was another blow to the influence of unions.

As predicted by the new constitution’s detractors, Islamist parties dominated the new parliament in 2012. The constitutional decree failed to specify the makeup of a constitutional committee, leaving the decision to the Islamist-dominated new parliament. It was decided that sitting parliamentarians would hold fifty seats of the proposed hundred-member constitutional assembly, ensuring an Islamist foothold. The Muslim Brotherhood’s Freedom and Justice Party secured the largest number of votes, with the more conservative Salafi parties securing an unexpected number of seats. These Islamist victories led to the selection of a largely Islamist constitutional assembly. This first constitutional assembly produced almost nothing before being annulled by a court order in April. A new constitutional assembly was called for with a more diverse representation of Egyptian society. Unions were explicitly mentioned as one group that needed a voice on the assembly; however, this turned out to be damaging rather than beneficial.

The new constitutional assembly was announced in June 2012. Nine seats were given to “syndicates” or “unions” broadly defined. Sameh Ashour, from the Lawyer’s Syndicate, was joined by Mamdouh El-Wali of the Journalist’s Syndicate and Ashraf Abdel Ghafour of the Actor’s Syndicate. These leaders all represented elite professional associations not affiliated with working-class trade union movements in the country. Two more representatives from elite professional associations, Dr. Mohamed Abdel Gowad of the Pharmacists’ Syndicate and Mohamed Khalosy of the Engineer’s Syndicate were also members of the Muslim Brotherhood. Two seats were given to trade union activists, Khaled Al-Azhari and Abdel Fatah Khatab. Khaled Al-Azhari was a leader within the Brotherhood and would later be appointed Minister of Labor. Abdel Fatah Khatab represented the Tourism Union that itself was undergoing major divisions between his ETUF-affiliated union, and competitors associated with the new independent unions. Trade unionists in Egypt looked at the constitutional assembly and saw almost no representation of their interests, while those who sought to bolster the idea of an “inclusive” assembly could claim nearly a tenth of members were drawn from “syndicates.”

Most of the political parties with platforms more amenable to labor, including the Social Democratic Party and the Socialist Alliance Party, withdrew from the assembly entirely. The Nasserist Karama Party, of which independent labor leader Kamal Abu-Eita was a founder, withdrew as well. Islamists dominated with sixty-six of one hundred seats. Liberal and leftist parties soon withdrew from what was seen as an Islamist takeover of the constitutional process.

The automatic inclusion for worker’s representatives in the constitutional assembly seems, at first blush, to be a victory for unionists. If anything, it was a detriment. Besides not speaking for a unified trade union movement, workers representatives became bogged down in constitutional infighting. With no electoral process behind them, the constitutional assembly had problems of legitimacy, with frequent withdrawals and protests by members. Unions, which had influenced and directed street politics throughout the country since the strike wave started in 2006, were left without an organizing structure to mobilize protests, or effective connections to political parties to press their advantage. The problem becomes more pronounced when contrasted with Tunisia.

The transitional Tunisian government called for swift elections for a constitutional assembly. Unlike in Egypt, where infighting gripped the political elite over whether to appoint or elect some or all of the assembly, consensus emerged quickly in Tunisia. Those who sought to appoint a constitutional commission were closely associated with proposed plans to simply amend the existing constitution. Those who sought an entirely new document were associated with the demand to elect new representatives. Those in favor of a dramatic break won the day.

Despite a delay from July to October 2011, the elections were considered largely free and fair. They took place in October 2011, and resulted in an impressive victory for the Islamist Ennahda Movement. The constitutional assembly was invested with broad powers of governance during the transition, and a deal was struck between Ennahda and two smaller parties, Congrès pour la République (CPR) and Ettakatol, both representing the center-left secular population. The three parties divided the Tunisian Presidency, Leadership of the Assembly, and Prime Ministerial roles (Ben Jaffar 2015). The importance of the decision to form an electorally legitimate constitutional assembly cannot be overstated. While Egypt’s constitutional assembly was beset by questions of legitimacy, even at its most challenged, Tunisia’s had a more secure mandate. When asked about the perception of legitimacy, even in the absence of reserved seats for different elements of society, Mustapha Ben Jaffar, President of the National Constituent Assembly (NCA) and leader of the Ettakatol party stated that the elections to the NCA “. . . created a new situation of electoral legitimacy . . . balanced with developments in the street that focused on consensual legitimacy” (Ben Jaffar 2015). Tunisia’s UGTT was able to build power in the streets and claim its “consensual legitimacy” in part because of its distance from the NCA.

The first two constitutional assemblies in post-revolutionary Egypt failed to represent the interests of the independent trade unions who took part in the revolution. Instead, to the extent it functioned at all, it represented the interests of liberal political parties and Islamist parties, both of whom shared a generally neoliberal economic orientation (Al-Tohami 2012; Gouda 2012). The military leadership that oversaw the process was also hostile to labor actions, having banned “illegal” strikes as one of their first actions during the first week of their rule.

Egypt’s supposedly more “balanced” second assembly collapsed before its work was complete. Islamist members, who still enjoyed a majority, pushed for more explicitly Islamic elements in the constitution. In reaction, liberal, leftist, and religious minority representatives variously froze, suspended, quit, or failed to show up to the meetings of the assembly. Independent trade unionists announced an unwillingness to work with the Brotherhood until the constitutional assembly was dissolved (Al-Arabi 2012). Eventually, an organized boycott emerged that encompassed almost all politically active non-Islamist members. While this anti-Islamist movement had different visions for the country, the possibility of an overtly religious constitution united them (Shokr 2012). Fearing another intervention by Egypt’s activist court system, in November of 2012, President Mohammed Morsi issued a “temporary” constitutional declaration that immunized his previous decisions, appointed a new prosecutor-general, extended the timeline for the assembly to work, and prevented the courts from dissolving the assembly. One of Morsi’s first steps following his new constitutional powers was to change the age of retirement for trade unionists, which threatened to leave hundreds of senior union positions empty. The responsibility for filling these roles would fall to the Minister of Manpower, one of only five ministries held by a Muslim Brother. While most directly a threat to the ETUF, independent unionists were also intimidated by the perceived attempt at a union power-grab. In the following week, the constitutional assembly, shorn of the Islamists’ most bitter critics, finished a draft constitution in a marathon session. The constitutional referendum was held in two rounds in December 2012 and passed despite losing in Cairo governorate. The Muslim Brotherhood’s Freedom and Justice Party supported the constitution, while all other major political parties opposed it as being too favorable to Islamists (Shokr 2012).

Tunisia was not immune from the simmering regional conflict between Islamists and secularists; however, the fate of trade unionists in this fight was different outside the constitutional assembly. Despite not having a presence in the constitutional assembly, the UGTT began to act more like an opposition party than a labor union. In addition to protesting articles of the constitution that addressed labor issues, the UGTT became a vocal critic of an article of the draft constitution perceived as describing womens’ roles as “complementary” to men’s. The UGTT took to the streets and media threatening a general strike if the article was not removed. While the strike weapon was ultimately not used at this time, it represented a serious break with convention by the UGTT. In this instance, the UGTT threatened to use a strike in defense of social rights, extending their purview beyond economic issues. By using the threat of strikes and social protest, the union was able to push not only its economic interest but also a broader slate of liberal and leftist ideas. Outside of the ruling troika, political parties began to organize themselves more consistently, and smaller parties began to merge to form a left-labor block outside the government. This new alignment would eventually emerge as Nidaa Tounes, a center-left political party. Much of Nidaa’s leadership had long-standing affiliations with the UGTT, but the union was resolute in refusing to enter politics directly, building their power base in the streets.

Two major political assassinations brought the work of both the government and the constitutional assembly to a halt in 2013. In February, Chokri Belaid, a leftist activist, was assassinated outside his home. Left and liberal parties, as well as the UGTT blamed Islamist groups for the attack. The UGTT called for a general strike and the dismissal of the government. The strike was canceled at the last minute when the Ennahda Prime Minister stepped down, and a caretaker government was formed (BBC 2013). UGTT Deputy Secretary General Sami Tahri reflects on this period, saying that the UGTT’s constitutional priorities can be divided into a period before and after the assassination, stating, “the first obligation was constitutional, drafting a constitution with consensus” (Tahri 2015).

While a tragedy for leftist politics in the country, Belaid’s assassination galvanized support for a secular alliance, including members of the former regime. The UGTT used its position outside the government and the constitutional assembly to call for a broad “National Dialogue.” The national dialogue emerged as a second track to the formal constitutional negotiations, where UGTT mediators could shape the legislation from the outside. Despite the assertion that the final draft of the constitution was complete in the spring of 2013, the UGTT had found a way to reopen key issues for more debate, including the legality of strikes. Samir Taieb, leader of the Al-Masar Party and a member of the NCA stated, “They wanted us to accept this constitution . . . it was a crazy constitution, can see in the 2013 draft. At a press conference Ben Jaffar said it was one of the best in the world, but we refused it” (Taieb 2015).

In July 2013, Mohamed Brahmi was assassinated. A leftist leader, he was seen as more moderate than Belaid but had criticized Ennahda vociferously. Police reports have stated that he was murdered with the same gun as Belaid, in what many have taken as a clear sign of intimidation. Spontaneous demonstrations broke out on Habib Bourgiba Avenue in downtown Tunis. In addition to calls for the fall of the regime, protesters called for the elimination of “Brotherhood Government,” a reference to Ennahda’s ties to the Muslim Brotherhood. Others called for an end to “rule by terrorists” putting the blame for the recent political assassinations squarely on Ennahda (Tunis Protestors, personal communication, July 25, 2013). Political gridlock stopped the work of the national dialogue, the government, and constitutional assembly. The UGTT carried out a two-day national strike, which saw wide adherence in Tunis, including estimates of more than 50 percent of unionized workers (UGTT Staff, personal communication, July 25, 2013). The government called for a national day of mourning, and a sit-in commenced outside the constitutional assembly calling for the fall of the government. At the same time, Nidaa Tounes, a political party comprised of the secular center-left with several members of the former regime, captured the political momentum. Eighty-six-year-old Beji Caid Essebsi, a former minister under Habib Bourgiba, and Taieb Baccouche, a former leader of the UGTT, headed the party. Through defections, mergers, and declared alliances, it grew to the second largest block in the constitutional assembly.

Despite the shifting power balance within the constitutional assembly, the UGTT continued to build consensus outside its structure. New political parties remained weak and lacked the infrastructure for street protests or mobilizations. They relied on the UGTT to carry these out, and the UGTT’s influence over the constitutional process grew. Together with the national employers association, the bar association, and the association for human rights, the union drafted a “road map” out of the ongoing political impasse that included a new government and new elections (“Facts on Tunisia Roadmap to End Crisis” 2013). Ennahda reluctantly agreed to the road map to move the work of the constitutional assembly forward.

While Tunisia’s constitutional process was ushered to a successful completion by a nominally “outside” trade union movement, Egypt’s trade unions were ignored despite having “reserved seats.” The overarching opposition group, called the National Salvation Front, boycotted elections, and enjoyed widespread support among both independent and ETUF-affiliated unionists. In April 2013, a new political group calling itself Tamarod (Rebellion) organized a signature-gathering campaign calling on Morsi to hold early Presidential elections. The organization aimed to gather fifteen million signatures, exceeding the thirteen million votes Morsi obtained in the previous presidential election. Independent and ETUF unionists aided in gathering signatures. Tamarod ultimately claimed over twenty-two million signatures, and while certainly an inflated number, it did enjoy a broad swath of support. Instead of directing or controlling street politics, trade unionists joined on to an emerging movement. With their focus directed on fighting for a small number of “reserved” seats on the constituent assembly, the movement failed to build the type of street power seen in the UGTT. Unions’ corporatized nature and supposed place in each successive assembly left them with weak linkages to parties, causing both weaker parties and a weaker trade union movement.

On July 3, 2013, following street protests and growing conflict between the Muslim Brotherhood and the state’s security establishment, President Morsi was removed in a coup d’état that also saw the suspension of the constitution. Once again, Egypt was under military rule. Much like SCAF’s interregnum after the January 25 revolution, a vague constitutional process was outlined. A new constitutional assembly largely comprised of the leftist, secular, and liberal activists, who had been so frustrated by the leadership of the Muslim Brotherhood and flocked to the military coup, was convened. Two seats went to unionists, one of the head of the legacy ETUF, Gebaly El Maraghy, and one to Ahmed Khairy, listed as head of the “Egypt Worker’s National Union.” Confusingly, Ahmed Khairy had previously not been associated with trade union politics. The Center for Trade Union and Worker Services (CTUWS), one of the main independent trade union organizations, put out a press release decrying the selections, and Khairy’s inclusion has a trade unionist. They noted, “We are advising those who have selected him to review the federation papers submitted to the Ministry of Manpower, they will then make sure that members of the so-called federation do not exceed tens of labor[ers] [sic].” Khairy’s page on the constitutional assembly website was later changed to state his role as leader of the Council of Nile Basin Countries (لإعداد |احمد خيري إمام عمر عفيفى/ الدكتور” المشروع النهائي للتعديلات الدستورية الموقع الرسمي للجنة الخمسين” 2015; CTUWS 2013). Like in the previous assembly, several seats went to professional syndicates outside the structure of the ETUF, including again, lawyers, journalists, artists, farmers, doctors, engineers, and students. This final constitutional assembly drafted a new constitution under a harsh crackdown that saw even the repression of strikes and union activities. The ETUF was willing to relinquish much in the interest of bolstering the post-coup government. Their formal presence in the constitutional committee did little to bolster workers’ issues in the final draft.

Results in the Constitutions and Laws

Despite the setbacks in organizing and infighting, workers have achieved some of their goals in Egypt. Under the Morsi administration, a new minimum wage was set in accordance with a nearly decade-old court settlement. The ETUF has been challenged as the de facto, if not de jure, sole voice for workers. The post-coup government appointed Kamal Abu-Eita as Minister of Labor, though his early comments discouraging strikes were viewed as a betrayal by other unionists, and his time in office did not last. A weakly enforced maximum and minimum wage were set, but none of these issues were codified in the constitution. Despite some victories at the administrative level, no true movement took place in the realms with the most lasting impact: the constitution and national laws. The country remains under a trade union law called Law 35 of 1976, which sets up a hierarchical and exclusionary trade union structure that precludes pluralism. No competitor unions can gain a strong foothold without revision of this law.

Tunisia’s constitutional assembly produced a draft of the new constitution in August 2012. It included constitutional rights to the formation of unions, and the right to strike, limiting the latter to strikes that do not endanger the “life, health, or security of people” (“English Translation of the Tunisian Draft Constitution” 2013). This matches the concessions already granted by the UGTT in the 1994 Tunisian labor code. The UGTT, however, had grown more militant and powerful through the revolution, and were now better able to dictate terms to a weaker government. The UGTT found this to be an unacceptable limitation and protested vigorously over it in both 2012 and 2013. The language was eventually dropped constituting a major development for workers.

The constitution was ratified on January 26, 2014 and was signed into law by the President. In addition to the pre-existing right to strike, the UGTT successfully resisted efforts to limit strikes in critical sectors. The organization focused on including a broader slate of left-liberal ideas, showing in part that core labor topics were effectively beyond negotiation. The appearance of the Secretary General of the UGTT bringing together disparate political parties to sign a document that led to the creation of the first post-revolutionary constitution was a public relations dream for the union. At no point in Tunisian post-independence history had the trade union movement enjoyed such a clear influence over policy.

The Tunisian Constitution of 2014 and the Egyptian Constitution of 2014 position core labor rights quite differently. The Egyptian constitution states that unions (called syndicates in the official English translation) must work on a “democratic basis” and shall practice their activities freely. It says the state will guarantee their “independence” and precludes their establishment in the security services. It states that “peaceful” strikes are “regulated by law.” Each union-related article and clause works to check union ambitions and has been used in the months since ratification to check unions’ ability to organize. The question of formation on a “democratic basis” is currently being fought out in the courts with the ETUF and independent unions debating its definition. Strikes against new labor flexibilization law have been restricted on grounds that they may not be “peaceful” as well as potentially violating a protest law.

The Tunisian constitution on the other hand guarantees the right to both establish and join unions. The right to strike is guaranteed without restriction. The constitution enjoins unions to “reject violence,” which so far has been a less fraught definition than Egypt’s demand of “peaceful” protest. The UGTT has grown in stature since the ratification of the constitution, and while internal struggles continue between it and several small competitor confederations, these disputes take place more in the realm of organizing workers than in the courts. Workers in Tunisia have successfully formed new unions since the constitution was passed, the UGTT has grown in membership, and strikes have been deployed effectively to improve working conditions and raise wages.

The 2014 Egyptian constitution eliminated the 50 percent quota for workers and farmers, a clause that trade union activists had hoped to reform to be more inclusive of the working classes as opposed to removing it from the document. No explicit mentions of trade union pluralism were included in the document, leaving official recognition exclusive to the ETUF. The Tunisian constitution on the other hand explicates the right to form and join trade unions and the right to strike, the latter of which was a new addition. These sections are labeled “organic laws” in the French constitutional tradition, and are of “higher importance” than ordinary laws listed above, which include the labor laws passed in the period of structural adjustment. Here again, trade unions were given effectively all of their desires, namely, a high level of protection of their right to form and strike, with relatively less protection for previous labor laws, which they worked against. The inclusion of the right to strike, and its protection as an organic law, also seems to abrogate the 1994 labor code, which restricted strikes to “non-vital” areas of the economy. Despite this, as of 2015, the UGTT remained committed not to overturning the labor code on constitutional grounds but to rewriting the document from the ground up.

The Tunisian and Egyptian paths to transition are, of course, not the same. The authoritarian turn in Egyptian politics is due to long-standing structural forces, the relative strength of competing organizations, and the position of the security services within the regime. Tunisia’s continuing democratic consolidation, far from permanently assured in its own right, has depended on its own history, political economy, and balance of internal forces. Further research on trade union linkages to political parties, social movements, and ideologies are welcome future grounds for research. That being said, on the dimension of union strength and influence, the stories of Egypt and Tunisia diverged sharply, and the incorporation into the constitutional process and the resulting constitutions that emerged is a key to understanding these relative differences.

What accounts for the differing fates of constitutional politics of the UGTT and the trade union movement in Egypt following the revolutions in Tunisia? Both entered the post-revolutionary period in similar positions. While the Egyptian trade union movement was divided into three federations (CTUWS-affiliated, ETUF, and Egyptian Federation of Independent Trade Unions [EFITU]), all shared common goals and common enemies, as well as back-channel communications. At the same time, the UGTT had internal divisions between regime remnants and rank-and-file members. Unionists in both countries lacked strong ties to any specific political party and political agendas at odds with the ascendant Islamist movements. Yet, in Egypt, workers’ issues have been largely sidelined, and worker activism has been prey to opportunistic manipulation by stronger societal forces. In Tunisia, the UGTT has emerged intact, with powerful political allies, and sits above the political fray, hosting a national dialogue that has at times enjoyed the power to dictate terms to both the government and the constitutional assembly.

The nature of the constitutional process varied greatly in Egypt and Tunisia. In Egypt, the assumption was that a constitutional committee would be made up of “notables” from a variety of pre-ordained bodies of civil society. These included youth, revolutionaries, unions, farmers, religious groups, and minorities. The constriction of these identities, the legitimacy of their ties to the institutions that purported to speak for them and their flexibility are all topics that could fill articles in their own right. In the case of unions, it is evident that there was a lingering assumption that a pre-revolutionary institution, the ETUF, would continue to represent effectively their constituents. This of course suggests that there was a perception of some kind of legitimacy in the ETUF, along with the Coptic Church, the various revolutionary groups, or any of the other semi-corporate bodies from which the constitutional assembly was drawn. The very idea that parliamentarians would take up half of the assembly was seen as tawdry in some way, the incorporation of corrupt politicians into a process that was to be better than politics. Some of this may be a legacy aversion to parliamentary politics that predates Mubarak, and reaches back to Egypt’s royal era. Constitutional assemblies, most notably those that formed the 1923 and 1971 Constitutions were also insulated from politics, answering to a King in the first instance, and a nearly all-powerful President in the second. This tradition appears to have carried over to the current era of constitution writing. The constitutional assemblies in Egypt have had no role in actually governing the country in any regard; their task has exclusively been to work on the document at hand, leaving day-to-day operations of the state to the military or the elected politicians, depending on the time period.

While exclusion from the constitutional process brought strength to Tunisian unions, nominal inclusion without real power brought weakness to Egyptian unions. This was because unions in Egypt were supposedly represented in the body, despite their actual demands being sidelined and their “representation” consisting of undemocratic interlocutors. The independent unionists in Egypt were in a double bind. They were perceived as being part of the constitutional process, limiting their ability to serve as an external and independent actor like the UGTT could, but not actually in the assembly and able to work on issues within it. ⁴ The deep divisions within the trade union movement further cemented the weakness of labor in the constitutional process.

In almost every way, the constitutional project in Tunisia differed. To begin with, the constitutional assembly was drawn directly from a popular election, and while the election was held soon after the revolution, it reflected a real diversity in opinion. Seats were held by a variety of political factions, representing the right, center, and left with both secular and Islamist elements. No representative was drawn from any pre-ordered corporate body, and instead all relied on electoral legitimacy. While both countries had fights over the role of Islamists in the constitutional assembly, Tunisia had less fighting over quotas and percentages to each national subgroup, benefiting perhaps from a higher degree of religious homogeneity. With no role for organized institutions, the question for the UGTT became whether to form a political party. In retrospect, it seems wise to have not. With no official representatives in the assembly, the union was able to project itself as above and outside the political fray. The constitutional assembly also had real constituent power, setting the terms for the government, and dividing governmental positions according to electoral realities.

When Tunisia’s constitutional assembly reached a crisis in 2013-2014, the fact that the UGTT was outside of its structure empowered the organization. The National Dialogue was conceived of and hosted by the UGTT, and eventually helped the constitution be ratified. The UGTT was pivotal to its operation. Samir Taieb, the Secretary General of al-Masar Party recalls, “The principle role was played by the UGTT . . . they were leading a lot of the commissions, and on the inside was (UGTT General Secretary) Houcine Abbassi” (Taieb 2015). The UGTT broadened its legitimacy by working together with the national employer’s association, the national bar association, and the country’s largest human rights organization. The so-called “Quartet” was able to guide second-track constitutional negotiations to a successful conclusion. In conversations about the difficult clauses of the constitution, stretching from issues of religiosity to debates over how the parliament would operate, the decisive role of UGTT leaders was noted. When the constitutional assembly broke down, the National Dialogue both supported negotiation, and threatened a return to street protests if it failed.

Conclusion

Egypt and Tunisia present evidence for a paradoxical finding of organized interests in constitutional assemblies: reserved seats may do more harm than good. The models of Egyptian and Tunisian constitutional assembly design are likely to affect the Arab Middle East first. It should be stated at the outset that many of the constitutional reforms in the region since 2011 should be considered authoritarian liberalizations rather than real experiments with democracy. Early work on the new wave of constitutionalism has focused on polarization and inclusion, arguing that inclusive processes result in more government-constraining documents (Cross and Sorens 2016). ⁵ Despite that, some evidence points to the idea that exclusion on the Tunisian model, where workers are forced to take to the streets and forge ties to political parties, may trump inclusion on the Egyptian model, of reserved seats for weak and quiescent unionists.

Jordan’s constitutional reform commission was made up of ten former ministers. It was unelected and not designed to either represent segments of society, nor to reflect any democratic will. Despite ongoing struggles in the labor sector in Jordan and the existence of a newly declared independent trade union with international support, the constitutional reforms did not address the labor sector (“Jordanian Unions Establish Independent Federation” 2013). With independent labor both illegal and ignored, little progress would be expected in Jordan.

Morocco’s constitutional commission was similarly appointed by royal fiat. Unlike Jordan, it was charged with consulting with social actors and parties. The constitutional reforms focused primarily on separation of powers and personal rights. The only clause directly related to union issues was one establishing an Economic, Social, and Environmental Council that would advise the government on these issues. The commission’s work has been stalled by ongoing labor strife in the country. It remains to be seen if labor’s inclusion here will harm their interests as it did in Egypt. Signs of a return to the streets and militancy, including general strikes in 2014 and 2016, suggest that Morocco may be following a labor path more akin to Tunisia’s. Buehler has argued persuasively that labor’s power in Morocco is linked to the tendency of labor strikes to expand into urban unrest, which peaked in 2011 and 2012 (Buehler 2015). Which model Morocco will follow will depend both on the power of the Economic, Social, and Environmental Council to influence policy, and the extent to which Moroccan trade unions can spur urban unrest or secure linkages to other political actors.

The experiences of Tunisian and Egyptian trade unions provide ample ground for theory generation and point to future paths of research. Inclusion and exclusion in constitutional assemblies expands existing literature on trade unions in transitioning regimes. Trade union cohesion has already been cited as important to the success of transitioning unions by scholars like Caraway (Caraway 2008). The extension to Egypt and Tunisia gives us leverage over commonalities in cases that are experiencing both transitions to democracy and authoritarian reconsolidations. Centralizing the focus on an understudied site of contestation, the constitutional process, allows both a narrow setting to gain rich information, and the benefit of long periods, as constitutions often have multi-year legacies as opposed to other, temporary components of revolutionary transitions. Evidence that organized interests outside elected assemblies have more influence than those with reserved seats extends beyond the Arab context and beyond labor as a sector of society. Ecuadorian constituent assemblies in 1998 and especially 2008 were influenced by indigenous and agrarian movements engaged in public protest, despite members selected by popular vote for political parties rather than utilizing reserved seats (Andolina 2003; The Carter Center 2016). South Africa’s multi-step constitutional process similarly saw a role for the country’s main trade union confederation, the Congress of South African Trade Unions (COSATU), outside the democratically elected constituent assembly, but pushing for collective bargaining rights via the existent constitutional court, a unique venue that conforms to the broader trend described here (“Certification of New Constitutional Text” 1996).

Future research can look at the role of trade unions in constitutional processes to determine what factors are supportive rather than necessary to trade union success. Elected constituent assemblies, unsurprisingly, appear more sensitive to outside pressure than appointed assemblies do, even if the appointments reflect political parties in the country. Street politics are vital, though outliers like South Africa show that trade unions can take other paths to influence constituent assemblies. By focusing on the constitutional process itself as a key variable, the analysis provided adds to the sparse literature on constitutional assembly design, and provides weight to the idea that organized interests can have a great impact on constitutional outcomes even when formally outside the process.

While much of the literature on the Arab Uprisings focuses on elite level bargaining, this analysis has endeavored to explore institutions that supposedly link popular will to political leadership. Both constitutional assemblies and trade unions claim to speak for large swaths of society, and their interaction is instructive to broad questions of democratization. This analysis finds that all is not what it seems when constitutional assemblies are formed, and organized interests should be wary of the promise of greater influence through participation. External organizing and pressure, while a daunting task, may better reflect the interests of society in the end than a pre-determined allocation of assembly seats.