There is still hope for constitutional consensus

Waheed Abdel-Meguid , Thursday 6 Dec 2012

Although it seems too late to reach consensus on the draft constitution, there is a slim last chance left so long as the referendum is postponed and wisdom prevails

It is difficult to seek stability in light of sharp divisions on the constitution; therefore we must make one last pitch to reach the consensus necessary for stability. Even though a date has been set for the referendum, the date can be postponed if there is a chance for consensus.  

Egypt does not deserve what we are putting it through because of the exacerbated political divide and polarity that threatens unprecedented dangers in our modern history. If we do not overcome the repercussions of this polarisation quickly we may subject our homeland to unimaginable woes.

Did anyone imagine a few weeks ago that three martyrs would fall in the centre of Cairo and Damanhour in one week? Or that political division would manifest itself on the streets in such an extraordinary way?

What was unimaginable has happened, and what most cannot imagine could happen if we do not stop the surge towards the precipice resulting from disputes that primarily evolve around a contentious constitution that cannot be issued under these circumstances.

The fear is that insisting on a constitution that is not based on consensus could be the start of more tension and turmoil, not an end to growing polarity. No constitution issued under these conditions could achieve the aspired stability because there is no social or political consensus on it, and not only because of suspected legal flaws.

On the legal level, the Constituent Assembly (CA) will remain a point of contention even when its job is done because a quarter of its principal members, who represent key elements in society, withdrew.

Since 1923, no constitution has been issued in the absence of these elements on a drafting committee or despite their objections.

Attempts to give immunity to the CA through the constitutional declaration issued 22 November will not prevent appeals to overturn it in the future, because the declaration itself thrust the constitutional situation into more turmoil

Not only did it sharpen differences, it also poses a vital question about whether it is proper for the president to undertake the functions of constituent powers, although that power exists in the form of the controversial CA. There can never be two constituent powers at the same time, just as there can never be two cabinets at the same time.

To find an end to this dilemma, we must come up with creative ideas through serious and constructive dialogue, without exchanging accusations, because everyone will lose if we do not cooperate to protect the homeland from dangers that surpass anything we can imagine right now.

Since protecting the homeland from such dangers begins with resolving the constitutional crisis, so that it is part of the solution not the problem, we should consider another, and perhaps last, attempt at consensus that has so far been impossible to achieve.

Those who withdrew left the CA because those in charge insisted on imposing certain views on a number of key issues on which there should be consensus. They were not given a chance to continue their efforts to achieve consensus, and there was not enough time allowed to finalise the draft constitution.

They were not allowed to participate in the smaller drafting committee that was forcibly created even though it was not mentioned in the by-laws. Therefore, they believe any draft issued by the CA under these conditions only expresses the views of one current and its multitude of factions.

This was also a concern of most members of the CA’s technical advisory committee once their suggestions, ideas and amendments were disregarded, even though they were impartially professional and not part of any political or ideological dispute. Thus, eight out of 10 members of this committee withdrew and announced they will continue the work they began as part of the CA to draft a comprehensive constitution that is worthy of Egypt.

CA members who withdrew had, before they left, submitted a comprehensive outline, including amendments and additions they wanted to the last draft at the time, on 5 November. Thus, we have three drafts of the new constitution.

Since differences between these drafts are focused on key and vital issues and not all clauses, then perhaps it would not be difficult to reconcile them and arrive at one comprehensive draft bridging the three through an impartial and purely professional committee that is not party to the ongoing disputes.

In such a case, the referendum can be postponed a few days so that the said committee can draft a consensus constitution based on the three drafts.

The idea here is that all three drafts by the CA and its technical advisory committee will be submitted to this committee of professionals that can be formed along these lines: about six to 10 most senior law professors; another six to 10 deans of law schools at Egypt’s oldest universities; and about four to six heads of political science departments at these universities.

This committee would not be allowed to add any more clauses to the three drafts but only be tasked with reconciling these documents by discussing issues of contention and adopting the best proposals in each after comparing them. It would also professionally fine-tune the final language in order for the new constitution to be on a par with previous constitutions.

The writer is vice president of Al-Ahram Centre for Political and Strategic Studies. He was a member and spokesperson of the Contituent Assembly before resigning.

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