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How to author a constitution

The writing of Egypt’s new permanent constitution is not something that should be controlled by one group, even if it wins all the seats in parliament

Emad Gad , Tuesday 31 May 2011
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Numerous political forces and elements participated in the national accord conference that began on Saturday, 21 May, to reach agreement on the general principles that should be points of convergence when penning Egypt’s new constitution. Yehia El-Gamal, coordinator of the dialogue, emphasised that whatever is agreed upon will not be binding for the committee that will write the new constitution, but these principles will be submitted to the committee for consideration to pick and choose what it sees fit without any obligation.

This position raised the ire of constitutional law experts participating in the dialogue, who described El-Gamal’s statements as depreciating the work they are doing. If it were merely an issue of principles for the new committee to consider adopting or to ignore altogether, what is the point of holding a dialogue and gauging the opinion of experts and specialists? Meanwhile, the Muslim Brotherhood boycotted the conference and responded by questioning the need for it. Parliamentary elections are at hand and the Brotherhood will win the majority of seats, and after that it will choose the committee that will draft the new constitution.

Quite honestly, the Muslim Brotherhood’s rejection of the mission of the national accord conference is understandable and explainable. The constitutional amendments, the laws and decisions that followed stated that elections will take place in September, and all petitions to postpone elections were turned down by the Supreme Council of the Armed Forces (SCAF). The Brotherhood is planning to win half the seats in parliament, and if we add to that the number of seats that will go to political parties of similar ideology and doctrine, the number will be much greater. Accordingly, Brotherhood members in the new parliament will have the right to include MPs and non-parliamentarians in the committee that will draft the constitution. This means that the new constitution will comply with the group’s ideology and pave the way for the Muslim Brotherhood to control Egypt’s future for the coming decades.

Meanwhile, the Brotherhood’s Supreme Guide Mohamed Badie has been calling on all Egyptian political parties and forces to return to “the mother fold”, namely the Muslim Brotherhood, since it is the origin movement of all political forces. A few days later, lawyer Sobhi Saleh — a Brotherhood leader and member of the constitutional amendment committee appointed by SCAF — urged supporters of all political forces to renounce and reverse the path they have chosen. Saleh asserted that the Muslim Brotherhood rejects “liberal Muslims”, “leftist Muslims” and “secular Muslims”; there is only “Muslim” and nothing else, he said.

The Brotherhood believes that drafting Egypt’s new constitution is its grand prize since it is the only organised group in Egypt after the 25 January Revolution. Accordingly, the Muslim Brotherhood is unwilling to squander this trophy that it has been promised.

Various civic forces have held dozens of conferences and seminars to discuss what is taking place in Egypt today. They ponder what should come first, the rules regulating elections or the institution that will put these rules in place later? Also, is it appropriate for the constitution to be penned by a political power just because it won the majority in elections — an advantage it might lose later in new elections?

Herein lies the problem with this line of thought: the power that will win a majority in the next parliamentary elections will play a decisive role in drafting Egypt’s new constitution that will determine Egypt’s future in the coming years. If this power is the Muslim Brotherhood, will it write a constitution for a state based on religion at the expense of diversity and plurality, which are characteristics of Egyptian life? And what if this power loses the next elections? Would it accept this result? And if it does accept it, does the next power that has a majority in the new parliament have the right to rewrite Egypt’s constitution? Would it accept all this, or will there be bloodbaths and a civil war because the new power would be seen as violating Islam and changing the Islamic character of the constitution?

Countries draft their constitutions based on accords reached through national dialogue that includes all political forces, without the hegemony or pomposity of any one group. Constitutions are penned through agreement between powers to reassure all groups, especially those who are not a majority, of their intrinsic needs and rights. They are based on the values of citizenship, equality and the rule of law; that the state is the goal, not the nation. The nation, on the other hand is founded on divisions within the state on one or multiple issues, such as religion or race, to the expense of citizenship.

Authoring the country’s constitution is not a prize to be awarded to a winner, or the one with more seats in parliament. It is a document of collective work to regulate and rule collective lives; it regulates the relationship between the ruler and his subjects, the liaison between the various powers, the extent of freedoms, and rights. Writing the constitution is not a trophy to be given to one team, but a collective composition by partners in a nation. It should be an article of accord, to lead the country into the future based on a mutual vision.

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