Egypt: A new constitution first?
A group of Egyptian NGOs, echoing calls from various political parties and youth groups, have issued a statement backing the Tunisian model of transition, namely that a new constitution should be drafted before parliamentary and presidential elections take place. This is a position that is gaining traction among a lot of people, reflecting in part a lack of trust in the Supreme Council of the Armed Forces and in part the fear of Islamist-dominated parliament in the next elections.
Although it might still me a minority opinion, I think this activism on the question of when a constitution should come is gaining momentum, and the reasons provided below make a persuasive case. What remains to be argued and fleshed out is how this new constitution would be formed. By an elected or an appointed constituent assembly? By a panel of jurists and selected (presumably by the SCAF) politicians? By representatives of all political parties (legal or not?) and youth groups? These are questions that need answering.
But, just like yesterday's postponement of the elections for a constituent assembly in Tunisia from July 24 to October 23, it shows that best laid plans can change quickly if deemed necessary. As I've argued before, I don't think the issue of when to have elections is as important as how transparent they are. The Tunisians are delaying theirs to do a proper clearing of the electoral roll. The Egyptians, whether they have elections for parliament or for a constituent assembly, should do the same.
June 9, 2011
In the footsteps of the Tunisian revolution: A Constitution first
The undersigned human rights organizations call on the Supreme Council of the Armed Forces (SCAF) to engage constructively with demands from revolutionary forces to reconsider the agenda of the transitional phase and to give priority to the drafting of a new constitution for the country whose provisions will govern the institutions of a democratic regime. The constitution should be followed by presidential and parliamentary elections conducted in accordance with the regulations elaborated by this constitution.
The undersigned organizations believe that turning to the constitution first is a logical step given the armed forces’ public recognition of the legitimacy of the revolution, the fall of the old regime, and the collapse of its constitutional foundations. A new regime must take its place, and its institutions and the relationships between them must be based on a new constitution. This constitution must be drafted first, rather than building the institutions of the new order in accordance with the constitutional rules of the old regime. Now that the 1971 constitution has been given a new life, this would be tantamount to reviving the old regime.
It may appear that the current declared course is more in keeping with the desire of the armed forces—and the majority of Egyptians as well—to have the army return to the barracks as soon as possible and to turn over the country to an elected civilian authority, thus fostering the return of political stability and renewed production and development. Nevertheless, we believe that the current course and its timetable threaten to lead the country into a longer period of instability, will delay the army’s return to the barracks, and will have negative consequences for the Egyptian economy.
The insistence on putting the cart before the horse—that is, electing a parliament based on the rules of the old regime’s constitution before preparing a constitution for the new order—will allow parties that win parliamentary and presidential elections to manage the drafting of the constitution in accordance with their own narrow interests. The elected president can be expected to exert pressure to maintain the lion’s share of the imperial powers granted to him by the old constitution and, implicitly, the constitutional declaration. By the same token, elected members of the Shura Council, who will be part of the body drafting the constitution, will certainly resist any attempts by a constituent assembly to abolish the upper house in the new constitution, as they would be mandating the dissolution of the same house that they were elected to only a few weeks before, Similarly, new MPs who will be part of the constituent assembly and were elected to worker or farmer seats will resist proposals to abolish the worker and farmer’s quota in the new constitution.
If we assume for the sake of argument that the constituent assembly will be immune to such pressures from electoral victors, the referendum on the constitution will still entail new parliamentary and presidential elections if the new constitution, for example, adopts a parliamentary rather than presidential system, abolishes the worker's and farmer’s quotas in the parliament, or abolishes the Shura Council and establishes a single-house parliament.
It may be argued that the demand for a constitution first violates the will of Egyptians, a majority of whom (77.2 percent) voted in the referendum on the constitutional amendments for the transitional agenda contained in those amendments. But the undersigned organizations would like to note that the subject of the referendum was limited to nine articles of the 1971 constitution, after which the SCAF surprised both supporters and opponents of the amendments by abolishing the 1971 constitution altogether—the same constitution whose amendments had just been put before a referendum—and merging the amendments into a constitutional declaration composed of 63 articles, which was issued without a popular referendum or even a public discussion of any sort. According to many legalists, this rendered the outcome of the referendum moot. Moreover, the constitutional declaration itself did not adhere to the text of the amendments put before the popular referendum, introducing a fundamental change to Article 189, included as Article 60 in the constitutional declaration.
Those currently administering the country’s affairs have in many cases abandoned transparency and eschewed participation in managing this highly sensitive transitional phase. This is especially apparent in the lack of any genuine social debate on pressing issues for democratization, particularly legislation issued in the transitional period. The political parties' law, the law on the exercise of political rights, and the law criminalizing strikes were all issued without the slightest consultation with society, political parties, and civil society, and these laws are still subject to broad criticism given their negative impact on the transitional period and democratization.
Finally, the undersigned organizations stress that the demand for a constitution first will correct the political course and put the democratic transition back on its logical, natural path. It is the constitution; after all, that establishes the foundations for constitutional institutions, their electoral systems, and the relationship among them—not the other way around. The Tunisian revolution, in fact, has pursued this natural course, starting by forming a constituent assembly to write a constitution that embodies the goals and aspirations of the revolution and which will regulate and organize the new system of governance and its institutions. The same course was recently adopted by revolutionary forces in Yemen as well. Tunisians and Yemenis have put the horse in its proper place, before the cart.
- Cairo Institute for Human Rights Studies
- Andalus Institute for Tolerance and Anti-Violence Studies
- Arab Penal Reform Organization
- Center for Trade Union and Workers’ Services
- Egyptian Association for Community Participation Enhancement
- Egyptian Center for Economic and Social Rights
- Human Rights Association for the Assistance of Prisoners
New Woman Foundation