Fury engulfed Egypt once the names of the 100-member constituent assembly tasked with drafting the constitution were announced last weekend.
The list of names included some 60 Islamists, among them 37 MPs, all of whom were selected the previous day by Parliament during a joint session of both its houses. The other members included public figures, also selected by Parliament. Only six Copts were chosen; among them Rafiq Samuel Habib who is the second man in the Muslim Brotherhood’s political arm, the Freedom and Justice Party
What legitimacy
To ensure fair representation of all sectors during the drafting of Egypt’s new constitution, the constitutional declaration issued in March 2011 stipulated that 50 per cent of the assembly should be nominated by various communal institutions. Yet the selection was monopolised by the Islamist-majority Parliament; the candidates chosen are known for their Islamist leanings.
In retaliation, the majority of non-Islamist candidates chose to withdraw. The Supreme Constitutional Court announced it was withdrawing its representative Ali Awad in protest against Islamist allegations that the courts’ ruling were politicised to accord with wishes of the Military Council. The liberals and leftists left, and they called for a boycott of the constituent assembly in order to strip it of legitimacy. The Islamists attempted to contain the crisis and persuade the liberals to go back, as did the Military Council. The liberal forces, however, did not trust any promises of goodwill, and threatened to hold demonstrations and marches to protest the Islamist hegemony. It was circulated among young people and university students, however, that the Islamists were distributing fliers calling for a million-person demonstration on Friday to counter the liberal move, and to make a show of their might and their influence on the street.
Obstinate
The constituent assembly held its first session on Wednesday with only 75 members participating. According to Hamdy al-Assiuty, a lawyer with the Court of Cassation, this level of participation effectively robs the assembly of legitimacy. Yet the session went ahead, and Speaker of Parliament Saad al-Katani was elected, uncontested, head of the assembly. According to Mr Assiuty, this reflects obdurate obstinacy on the part of the Islamists, and reveals their insistence on saddling the nation with an Islamist constitution, no matter what. As to consideration of the needs and interests of other partners in the nation, he says, the Islamists are obviously throwing that to the wind.
Constitutional expert Mohamed Nur Farahat, told Watani that the majority of the members of the constituent assembly are no constitutional or legal experts, stressing that most of them represent Islamic streams. It is being circulated, he said, that the FJP and al-Nur Salafi party have already drafted their version of a new constitution.
Dr Farahat pointed out that the ruling of the Constitutional Court on a case that has called for the annulment of Parliament’s decision to form the constituent assembly of 50 MPs and 50 non-MPs was crucial to the issue. The ruling, however, will not be out till 10 April.
“Not drafted by the majority”
“Regular constitutional fundamentals stipulate that constitutions are not drafted by majorities,” Judge Tahani al-Gibali told Watani. “A parliamentary majority is but a single political force that warrants representation as such, not as the ‘people force’. In federal States alone, constitutions are drafted by parliaments, but this is not the case with single, unified States such as Egypt.”
“Constituents assigned with drafting constitutions should not be founded on any kind of dominion; whether political, religious, cultural or intellectual. The constitution is a social contract between different partners, and should express their various interests and attitudes,” Judge Gibali says.
The battle now taking place in Egypt over the constituent assembly, according to Judge Gibali, reflects a flagrant attempt at political hegemony by the majority party in Parliament. “This,” she warns, “is by all means a calamity, since it is the constitution which is at stake.”
National consensus rather than political hegemony should govern transitional phases in the lives of populations, and should also work to arm nations with balanced constitutions, Judge Gibali says, explaining that this should reflect the responsibility of the majority vis-à-vis minorities.
Loose foundation
Since 50 per cent of the constituent assembly panel were elected from within Parliament, Ms Gibali says, it is tantamount to the religious stream—which commands the majority in Parliament—having elected itself. “Self-election,” she says, “is the worst electoral system ever.”
“Early on,” Judge Gibali told Watani, “I had called for the drafting of the constitution before parliamentary elections would have taken place. The constitution is the foundation of any State; it shapes its rules, institutions and authorities. Entrusting Parliament with drafting the constitution creates a series of open-ended conflicts among the various political forces.”
“The constitution,” Judge Gibali insists should be the outcome of national dialogue between all political streams. It should reflect diversity; venerate human rights; assert accountability, democracy and transparency; and rectify the flaws of the political process. Any deviation from the constitutional path will pave the road for a new revolution.”
