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In a post-authoritarian country undergoing tremendous change, who should write its constitution, and who decides who should write it?
These questions have been part of a nation-wide debate, which hit a high point last Tuesday when Egypt’s Supreme Administrative Court suspended the 100-member Constituent Assembly—tasked with drafting a new national charter—for being unconstitutional, i.e. for not representing a plurality of voices.
Al-Ahram reported comments made by Judge Ahmed Mekky, former vice-president of Egypt’s Court of Appeal. “The main reason for writing a new constitution is to guarantee the rights of those who are powerless and reorganizing the functioning of state institutions.”
The March 2011 constitutional declaration issued by the Supreme Council of the Armed Forces (SCAF) stipulates that Egypt’s two chambers of parliament are to jointly decide on the composition of the Constituent Assembly, but does not specify where assembly members should be drawn from.
Naturally, the absence of detail in this declaration has resulted in the delay of producing a constitution that can take Egypt into a more certain future. With the presidential election scheduled for May, it is unlikely that there will be any progress on the formation of the Constituent Assembly and the writing of the constitution, which Marina Ottaway of the Carnegie Endowment for International Peace, has warned will only create a new crisis, if, as she suggests, a new charter is passed in order to reduce the powers of the president, while at the same time strengthening the powers of the Islamist-dominated parliament.
Initially, the Speaker of Parliament, Saad Al-Katatny, was asked to appoint the Constituent Assembly, but his decision to nominate 50 MPs from his own Freedom and Justice Party (FJP), the Salafist Nour Party, and known Islamist sympathizers, did not go over well with secular and liberal parties, some members of the Muslim Brotherhood and the Nour Party, as well as civil society groups and some religious institutions, namely, Al-Azhar University and the Coptic Church.
So, who in society should write a country’s constitution, and who decides who writes the constitution?
To ensure that a constitution is “democratic with universal adult suffrage, secular with strong protections for religious minorities, egalitarian to the point of preserving a portion of national and local legislative positions for women, and a divided government, with a strongly independent judiciary and legislature acting as checks on the relatively weak chief executive,” as History professor, Jonathan Dresner, writes in “Constitution Writing 100,” I would not, as Egypt has tried to do, leave it to the politicians to decide.
This should be the job of civil society leaders, business people, educators and judges, whose selection should be approved by the public at large in a referendum.
Egyptians need to slow down. Parliament should be given, for example, a month’s time to work out their differences and form a constituent assembly, one that is smaller in size.
One idea is for each of the 27 governorates to elect assembly members, with each governorate allocated a number of delegates proportional to its population.
If they do not meet their deadline, then the deal is that SCAF appoints the assembly members—which would sufficiently motivate them to come to a compromise, because no one wants SCAF to make any decisions affecting the future of the country.
Dr. Dresner made a good point in an email exchange with me over the weekend. He wrote: “The outcome may not be as we would wish it, but a substantially democratic result would mean that it could change over time.”
That said, with the suspension of the Constituent Assembly, Egyptians have a window of time to try to get this right, certainly with the expectation that, whatever the outcome, it would have to evolve over time.
