While the debate over whether the Constitution should be written before or after the parliamentary elections continues to capture national attention, the question of who gets to write the Constitution remains little discussed.
In the March referendum, over 70 percent of Egyptians accepted amendments to the 1971 Constitution to require that the new Constitution be drafted by a 100-member constituent assembly elected by parliament.
But non-Islamist political forces, including liberals, social democrats and leftists have called for postponing the elections until after a constitution is drafted; they fear that a potentially Muslim Brotherhood dominated-parliament could hijack the process. The group, which has existed for 83 years, is believed to be the best prepared political force for coming elections.
“Parliamentary elections next September will mean that a certain party will gain a majority of the seats, and so it will not be representative of the whole ideological and political forces in the country to draft a constitution,” said Mahmoud Hetta, an organizer in the ‘Constitution First’ campaign launched by the National Association for Change.
Presidential hopeful Mohamed ElBaradei and the National Accord Conference, which brings together a host of political players to discuss proceedings during the interim period, supports the constitution coming first.
Eight civil society organizations echoed the same concerns in a letter sent to the ruling Supreme Council of the Armed Forces, urging it to follow the example of the Tunisian revolution in drafting the new constitution.
The Tunisian population will elect a constituent assembly in October to draft a new constitution followed by parliamentary and presidential elections.
The idea of setting up a constituent assembly has various precedents in history, notably India’s 1950 Constitution, which was prepared over several years. The 217 members of the constituent assembly were elected indirectly by members of individual provincial legislative assemblies.
Similarly, France’s first charter, drafted in 1789, was put together by a similarly elected body. The French elected the National Assembly, whose members represented the clergy, the nobility, and commoners, to draft a constitution.
Ahmad Mekky, vice-president of the Court of Cassation, suggests that in order to solve the impasse, political forces should accept the roadmap put forth by the SCAF but take advantage of the fact that the constitutional declaration, put forth by the military rulers in late March to act as an interim constitution, fails to specify who should be included in the constituent assembly. The groups should work on creating guarantees that it won’t be dominated by a single political force.
“Let the elections happen first but the different political and social forces have to agree on a set of regulations for choosing the constituent assembly to make sure it represents the different political and social forces,” said Mekky.
However, Mekky is in favor of postponing parliamentary elections to give time for groups to be able to have a say in influencing the constitution.
“The elections should happen not earlier than November after labor and student unions are formed and elected because they will make sure a big part of the society is represented,” said Meky.
While SCAF remained largely mum on the issue, the two camps debating whether to write the constitution before or after parliamentary elections have overlooked the more important question of how to draft a representative document that ensures genuine participation of the country’s disparate groups.
“I am watching a failing democracy where the two camps agreed that citizens’ role stops at the ballot box, wrongfully thinking that when the political forces meet and agree, that means the whole population is represented, which is not the case,” said Alaa Abdel Fattah, a leftist blogger and activist.
Abdel Fattah added that drafting the new constitution has to guarantee popular participation to produce principles that people largely agree on.
“A constitution that doesn’t represent the hopes of the people will lead to a nothing more than a useless legal piece of paper rather than being true social contract that everybody abides by,” said Abdel Fattah.
Abdel Fattah, along with other grassroots organizations, is working on an initiative called “Let's Write Our Constitution," which aims at enabling a broader segment of the Egyptian people to participate in drafting the new document. The initiative takes South Africa’s so-called Freedom Charter as a model.
In 1955, three thousand delegates gathered in a South African town to attend the Congress of People for completing the Freedom Charter. The event produced a vision of freedom for a united, non-racial and democratic South Africa.
The meeting was preceded by months of preparation as 50 thousand volunteers interviewed the population. They asked one simple question: What is South Africa that you dream of?
The answers were compiled and sent to elected committees in each district which were then sent to other committees at the provincial level. The committees put the answers in the form of a list of demands and gave them to constitutional experts who drafted the actual charter.
“Through Let’s Write Our Constitution initiative, we aim at writing a popular constitution from the bottom up without including any of the political parties’ elite,” said Ahmed Ragheb, director of the Hisham Mubarak Law Center.
Ragheb explained that his group would organize open meetings in all of Egypt’s governorates in order to discuss issues of concern to ordinary Egyptians.
“These meetings should produce a citizen bill of rights and a vision for the Constitution,” added Ragheb.
Another initiative was announced by ElBaradei last week, where he said that he would work with political forces as well as human right activists in order to draft a human rights document that would be presented to the public for debate. The convention would be based on the Universal Declaration of Human Rights. It would write a preamble for the Constitution and would never be modified or changed once it was approved by the people. The preamble would embody the spirit of the constitution’s clauses.
ElBaradei and others are deliberating how to allow the Egyptian people a greater say in how the Constitution is drafted. Political divides and SCAF’s vision for the transition will determine whether such efforts succeed.