As the Supreme Military Council appointed a new committee to change the constitution, a wide debate started on the path towards a new constitution for Egypt. There is a consensus that the current constitution needs to be completely revamped, rather than amended. It is inconsistent, incoherent, authoritarian, and lacks the basic guarantees for individual rights, checks and balances, and democratic institutions. The question is how to get there?
When we examine our constitution (Egypt’s Constitution) we find a total mess. It is part socialist, part liberal, part Islamic, part secular, part authoritarian, part democratic, part abstract, part detailed. It was written to serve the ruler rather than his people. And it was patched several times with custom-made articles to serve specific individuals at specific points in time. A new and free Egypt needs and deserves a completely new constitution.
Before we talk about the specific process and time line to draft a new constitution, we need to consider some basic questions – what is a constitution? Who should write it? and how? I’m not a constitutional scholar or even a lawyer, but I also believe that questions like these should not be limited to legal experts.
Constitutions in general provide a number of purposes. First, they define the identity of the State (هوية الدولة). Second, they define the institutions and governance system of the state, at a high-level. Third, they provide the processes that govern the creation of, powers, and relationships among these institutions. And last and most important, they define the citizen’s rights and responsibilities towards the state and its institutions. Constitutions are typically short, abstract, and define very general principals rather than specifics, which are usually left to the laws. They are meant to be stable and lasting over generations, regimes and historical circumstances.
Who writes a constitution? The current (and previous) committee to amend the constitution consists of constitutional scholars and legal experts. This might be acceptable if the goal is to amend few articles of the constitution to allow for a free election and smooth transition of power from the military to a new president and parliament. However, if we are considering drafting a completely new constitution, the committee should include public intellectuals, historians and philosophers representing the full political and ideological spectrum in Egypt, rather than legal experts. We need to have people like Mohamed Hassanein Heikal representing Nasserists, Selim Al-awa or Hassan Hanafi representing moderate Islamists, Tarek Heggy or El-Baradei representing secular liberals, Milad Hanna representing Christian Copts, etc… We also need to include younger intellectuals who carry the aspirations of a younger generation, such as Amr Hamzawy or Amr Khaled, as well as Egyptians in the diaspora. (I’m not endorsing any of these individuals, just mentioning some examples that come to mind). After we have covered all the mainstreams of the Egyptian, we can add few legal experts who would guide the process of phrasing the constitutional articles. This committee should hold public hearings, discussions and debate within the society to guide a national conversation on the type of state that we want, and how that state can be manifested in the different institutions. I strongly believe the job of writing a new constitution for Egypt should not be left to legal experts, but rather be based on a national dialogue led by a broad and diverse group of public intellectuals, historians and philosophers. This is a long and tough process that may take a year or two or even longer.
If we agree on the above, then we face two choices. One choice is to amend the current constitution (or create a transitional constitution), and then allow the newly elected parliament and president to oversee the process of writing a new constitution. A second choice is to start the process of drafting a new constitution immediately and elect the new president and parliament once that task is completed. The supreme military council seems to have chosen the first path, which I believe is a wise decision. We need to transition back to a civilian rule immediately. Having a state of no president, no constitution, no parliament, and a military rule is extremely dangerous for obvious reasons. Some in the military may get comfortable ruling, and some people may get comfortable being ruled by the military (yes!). There is an extreme sense of urgency to return to a civilian rule, and the supreme military counsel seems to realize this urgency.
If things go as planned, we should have the needed constitutional amendments within 10 days, a referendum on a (transitional?) constitution soon after (as promised within 60 days), and a date for parliamentary and presidential elections soon after (as promised within 6 months). This is all great, and I hope that nothing derails this time line.
One important consideration for the constitution amendment committee: they should embed in this constitution an article that mentions that this is a “transitional” constitution that should be replaced within two years. This should ensure that the new president and parliament immediately engage in a process to create a new constitution, rather than delay or completely scratch this project as they face a number of other pressing priorities. This is a critical guarantee that we hope to see in the current amendments.
Another consideration for the coming process is that we should hold both the presidential and parliamentary elections in one day! This seems like a huge challenge on many fronts, but I believe that we should move as soon as possible towards a transition of power to a new elected government. It will be awkward to have an elected parliament, starting a legislative agenda (and possible forming a new government from the majority party or coalition of parties), in the absence of a president. It will also be awkward having a new president, who cannot appoint a new government, in the absence of a parliament. We need to do both elections at the same time. It will be a logistical nightmare, but I trust that the current mood among the youth and people at large, as well as the military, will allow for a free and orderly elections.
Once the new president and parliament and government are in place, we should immediately commence the process of drafting a new constitution. It may take one or two years, but it is worth it. It is important to note that once a new constitution is drafted and approved, this implies conducting another presidential and parliamentary election based on the new constitution! So the new president and parliament may serve only for a short 1-2 year term!
All in all, it may take us up to three years to go through the constitutional and legal transition to a democratic state with a new modern constitution. It is important to understand the process, time line and set the right expectations now, otherwise many will feel that we are getting into a period of chaos and yearn for the old days of stability. Freedom is messy, but it is worth it.
Amin El-Masry. 17 February 2011.