Published on Arab Voices

As Egypt drafts its new Constitution, no room for error

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Kim Eun Yeul | 2011In Egypt, we have a tendency to do things in reverse order.  For example, a red traffic light can actually mean go depending on the time of day, or we can chose to elect a Parliament before we have a viable constitution that defines their executive powers.  The plebiscite held last fall, for which a majority of Egyptians voted yes, gave the ruling military body (SCAF as they are known) the OK to proceed with Parliamentary elections before the post revolution constitution was rewritten.  But, the vote on proceeding with Parliamentary elections before the rewriting of the constitution also had a few hidden clauses.  For example, if you voted yes in the plebiscite, you also voted to ban any person from running for President in the forthcoming elections if they had a non-Egyptian spouse, parent, or grandparent, a clause meant to eliminate the possibility of one prominent candidate for the Presidency from qualifying.  Instead, this clause has now come back to bite a completely different candidate whose mother turns out to be an American citizen.  Oh, how the World turns.

Also, if you voted yes in the plebiscite, you voted to limit the powers of Parliament in specific areas like dismissing the Cabinet if they fail to perform.  That authority was effectively given to the SCAF and only they can appoint or dismiss the Prime Minister and members of his Cabinet.  During  testimony  in front of  Parliament last week by a prominent Minister, he reminded all in attendance that only the SCAF could fire him and he simply proceeded to walk out on the proceedings when he felt offended by the line of questioning.

However, Parliament was given the lead role in writing the post revolution constitution and everyone who voted yes understood clearly that they were ceding this role.  And, most people voted yes in the plebiscite because an array of prominent religious groups told the general public to do so.  In fact, a few leading theologists went as far as to say voting no in the plebiscite was an act of blasphemy.  The yes vote was overwhelming and the general public gave the go ahead for Parliamentary elections to proceed.  Those elections were of course won in the majority by two prominent Islamic groups.

The Parliament, known as the People’s Assembly, is now hard at work drafting a new post revolution constitution that is supposed to usher into Egypt a new and more rigorous legal system where all Egyptians will finally be given the universal rights and freedoms that so many people died to achieve.  Initially, the People’s Assembly decided that 50 percent of the people entrusted with drafting the new constitution would be prominent Egyptians from all walks of life and the other 50 percent Parliamentarians.  The non-Parliamentarians would be Egypt’s finest thinkers, lawyers, Judges, Doctors, theologists,  even prominent Egyptians from the diaspora.  But, as the committee began its work many of the non-Parliamentarians quickly began to resign one by one.  Most fell afoul with the Parliamentarians on the drafting committee who clearly were trying to push their thinking ahead of everyone else.  As more people dropped out, and many other prominent Egyptians refused to participate in the work of the constitutional drafting committee, the People’s Assembly decided to drop the number of non-Parliamentarians on the committee from 50 to 30 percent.  There is now talk of further reducing the number of non-Parliamentarians serving on the constitutional drafting committee to even a lower number effectively meaning that the Parliament with its theological leanings will define for all of us the contents of Egypt’s new constitution.  And, is this something we need to fear?  Well, that depends. 

What does it depend on?  First and foremost, does the constitutional drafting committee have the technical competence to do the job?   One can likely rightly presume that the technical competence of members of the constitutional drafting committee will define whether we get it right, or run afoul with a document meant to give all Egyptians their rights and fulfill their aspirations.  One of the key players in the drafting process, if not the key player is a botanist.  Yes, a botanist.    True, he is a Doctor of Science, a plant specialist, but at the end of the day he is a botanist.

And, there may be some logic to that selection. Of course, you want a constitution that will smell like roses, a document that will bear fruit for years to come, that will plant the seeds of Egypt’s future, and create fertile ground for all that follows.  But, leaving botany behind there are a number of other concerns as to how the drafting of the new constitution is unfolding.

For example, who is going to vet the draft of the constitution when the committee is finished preparing it?  To my understanding that would be Parliament.  But, the constitution is also being prepared by Parliamentarians in the majority who will effectively ratify their own work.  That would be like a student in college taking final exams and then correcting it himself.  And, on top of it all, the student would have also prepared the exam and drafted all the questions that he/she would later grade as an “A”.  If only everything in life were that easy.

What most Egyptians are now fearful of is a constitution that is inept and doesn’t give citizens what we all hoped democracy would bring.  This is because what Egypt is lacking most is rule of law.  During the tenure of our last President, anything was plausible if you had the right connections and the correct political support.  Egypt became beholden to the few and no longer belonged to the majority. That bred a culture of nepotism, partiality and corruption.  Virtually every process from getting a land title to getting your kid in a school nearby became both fraudulent and non transparent.  You could build anywhere even if zoning laws prohibited construction, and you could take what wasn’t yours if you knew the right people.  The rule of law became a mockery and it served the more powerful and disenfranchised everyone else.  The new constitution in a democratic Egypt was meant to change all this and this really is a process with no room for error. 

But, the way the process seems to be unfolding is making most Egyptians very uncomfortable.  In the US for, for example, the constitutional drafters were giants like Jefferson, Hancock, and Adams, people who remain admired many generations after their passing.  In Egypt’s case, such figures may well eventually emerge, and they may end up being botanists after all.  However, as it looks now, and if the final analysis mirrors the process to date, Egyptians may end up referring to their new constitution generations later by using the famous phrase “Four score and seven years ago we missed a golden opportunity to bring justice and freedom to all.”


Khaled Sherif

Chief Administrative Officer

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