In Translation: Egypt's constitutional crisis of consensus

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As many readers know, the selection process for Egypt’s constituent assembly — which will write the country’s next constitution by next March at the latest — was decided a week ago. After weeks of debate, the Islamist majority in parliament (the Muslim Brothers and the Salafists) decided to keep 50 of the 100 seats for MPs. Secular forces have long advocated that the constituent assembly should be diverse, and there are more worrying indications that the Salafists want to blackball any figures they consider too secular. There is a growing movement to deny both parliament and the assembly legitimacy, either on constitutional grounds (the parliament may be declared unconstitutional in a case that has moved from the Appeals Court to the Supreme Constitutional Court) or simply because many feel the assembly should be as representative as possible — if it looks like parliament, it will include few minorities or women, for instance.

This is a serious issue, and not just for liberals and leftists. If there is a sizeable number of people who think the constitution is illegitimate and the consensus around is weak, there is a risk down the line that this would make a coup (soft or hard) easier. Egypt will be naturally coup-prone in the next few years, and while the Brothers say they want consensus, the Salafists have a more winner-takes-all approach and want to nominate figures such as Sheikh Mohammed Hassan, a popular preacher, who will push for a very strict interpretation of Sharia.

The commentary below is by Ziad Bahaa-Eldin, a lawyer and former head of the Stock Exchange and Investment Authority who was elected to parliament in Asiut, on the Social Democratic Party list (part of the Egyptian Bloc). Bahaa-Eldin is a widely respected technocrat, someone with extensive legislative experience (he wrote several laws over past decade governing investment, and during his tenure at the investment authority won much applaud for cutting red tape). His article is important in that it reflects the potential for rejection of the future constitution by a significant part of the political spectrum, rather than a document that has wide consensus, and the increasing polarisation of politics.

Update: Liberal parties have abandoned the nomination of the constituent assembly in protest.

The Constituent Assembly and the Crisis of Consensus

By Ziad Bahaa-Eldin, al-Shorouk, 20 March 2012

Last Saturday afternoon, the plan designed to achieve consensus among the political forces hit a setback, at least in regards to drafting a new constitution for Egypt in which all of society’s forces participate. The setback occurred when the major parties in Parliament limited deliberation and discussion, and in a few, brief minutes made use of the majority they enjoy as they rushed to finalize the formation of an assembly to draft the constitution. They decided that half the members of the Constituent Assembly will be drawn from the ranks of MPs, and the other half from outside of Parliament. It is true that it may be said the decision to form the Constituent Assembly was reached in a democratic manner, and through a peaceful, legal vote that expresses the right of the majority to impose its opinion when it likes. This is true under normal circumstances. However, this description does not apply to what happened with the formation of the constituent assembly, because it involves an unnecessary maneuver, and because it concerns the pressing issue on the scene that is most in need of consensus right now – that is, drafting the constitution and forming the Constituent Assembly tasked to do so.

The unnecessary maneuver was that two weeks ago, the majority party announced its position that only 40% of the Constituent Assembly should be drawn from MPs. We imagined that this left room for reflection, deliberation and discussion to reach the required consensus. Then suddenly, mere minutes before voting was to take place, the leader of the party’s parliamentary block announced that this percentage had been increased to 50%, and the issue ended with the agreement of the two main parties, as if no other parties or points of view existed, and as if they had no interest in allowing any type of deliberation or discussion. I know well that these other parties only represent a minority, and that their opinion might not have an impact on the final result, but how can we talk about consensus if matters are decided without a discussion and exchange of views? This is a dangerous indication that consensus will be a slogan invoked for secondary issues, while in important issues, it will be enough to rely on their guaranteed majority to snuff out any real debate or discussion, or attempt to bring different perspectives together. Consensus does not mean that the majority has to abandon its views or yield to the minority’s opinion; however, it does mean that there should at least be deliberation before major decisions are taken, that an attempt should be made to reconcile different perspectives and concessions should be made on some demands out of consideration for preserving unified ranks. But none of this took place on Saturday.

The difference between 40% and 50% may seem trivial, such that this reaction is undeserved. However, the reality is that the issue does not only concern the numbers, but also the logic of forming the Constituent Assembly and its relation to Parliament. This Parliament was elected to carry out its legislative and supervisory role, and to select the members of the Constituent Assembly – not to arrogate unto itself half the seats in the Constituent Assembly. The result is that all of Egypt – including all its legal, constitutional and academic experts, labor leaders, NGOS, judges, intellectuals, and writers, men and women, Muslims and Christians, people young and old – all of them will be represented in the Constituent Assembly by 50 people, while the MPs alone have reserved the remaining half for themselves. This means that we have lost the historic opportunity for the Constituent Assembly to express the diversity, wealth, expertise and capabilities that Egyptian society contains, because we have decided to limit ourselves to this narrow field out of concern for their party majority and from fear of losing control of what this would bring about. Egypt deserves a constitution in keeping with her legal history and her standing in the Arab nation, and she deserves to have her constitution written by her best and most expert sons. However, the MPs have decided to undertake themselves a task for which they are not necessarily the most qualified.

On the other hand, last Saturday the parliamentary majority unfortunately ignored all the proposals put forward by the minority parties about guaranteeing a quota for the representation of women, Christians and other sectors and currents of society. This forebodes that the formation of the Constituent Assembly will hold the same flaw as that which tarnished the formation of the Parliament itself, where the representation of women and Christians does not exceed 2%, something that is shameful by every measure. Although this was indeed the election result, there was at least the opportunity to correct this situation in the Constituent Assembly in order to express a wider spectrum of opinion within Egyptian society and to move beyond clear-cut party lines. It would also have been a chance to express the consensus necessary to draft a constitution and construct a nation for all Egyptians, of whatever creed, conviction, personal interest or party affiliation. But for the Parliament to replicate itself in a miniature assembly governed by party affiliation alone is a great loss and an irreplaceable opportunity.

The plan to achieve consensus faltered on Saturday, and the experience of this day will cast its shadow on the entire next stage, and on a number of decisions the Parliament and the Constituent Assembly are expected to make. In these circumstances, the political and social forces that have been excluded from the decision-making process will have to make up their minds quickly. They can either be active participants – within the bounds of their fair share of society – or they will find no choice but to withdraw from a scene that does not recognize them, and does not give them a chance for true, equal participation in the decision-making process.