Critics of the constitutional amendments approved two months ago are now campaigning against the changes. Amira Howeidy explores the likely consequences It's not quite clear what triggered the "constitution first" campaign. Columns and stories on the need to postpone legislative elections until a new constitution is drafted now feature daily in the print media and evening talk shows -- by far the most popular TV entertainment since the revolution -- have been quick to follow the trend. The increasingly vocal chorus has emerged two months after the 19 March referendum on the amendments during which 77.2 per cent of voters said yes to changes easing the restrictions on presidential nominees and obliging the coming parliament to elect a 100-member assembly to draft a new constitution within six months of the parliamentary poll. According to the amendments any new constitution must, then, be written after, and not before, the elections. Opponents of this schedule fear that writing the new constitution will be monopolised by whoever wins a parliamentary majority, most probably the Muslim Brotherhood and other Islamic groups. At the time of the referendum a powerful media campaign against the amendments was in full swing. Many also argued that parliamentary elections must also be delayed so as to allow post- revolution political forces to compete on a more equal footing with the Muslim Brotherhood, currently the most organised political force in Egypt. The frenzy came to an end with the overwhelming "yes" vote. On 30 March the Higher Council of the Armed Forces (HCAF), de facto ruler of the country since the ouster of Hosni Mubarak, issued a constitutional declaration including the nine new amendments and an additional 53 articles from the 1971 constitution. These now serve as the legal reference for Egypt until a new constitution is drafted. The declaration also allocated the legislative and executive powers of parliament and the president to the HCAF until both are elected. While HCAF spokesmen have been quoted saying that the parliamentary elections will be held in September, no official statement has been issued setting the date, leaving disgruntled "unready" political forces hopeful that they can force a delay. Now calls to write the constitution before the elections seem to be gaining momentum, and they are coming not only from those who always opposed the constitutional amendments, but also from some official quarters. In a telephone call aired live on the privately owned Tahrir TV satellite channel on 21 May, Prime Minister Essam Sharaf said that he was in favour of a new constitution being in force ahead of elections. A week later, Minister of Justice Mohamed Abdel-Aziz was quoted as saying he would like the elections to be postponed for a year. In the same vein, Abdel-Aziz Hegazi, the man in charge of the government-sponsored national dialogue which opened last week, stated bluntly that the constitution should be drafted before elections are held. On Sunday the premiere's deputy, Yehia El-Gamal, issued press statements supporting Hegazi. Similarly the government- appointed National Council for Human Rights said this week that it supports the drafting of the constitution ahead of any parliamentary poll. Except for brief statements to Al-Masry Al-Youm on Sunday, in which HCAF member Mamdouh Shahin repeated the line that elections will be held in September, the military council has been conspicuously silent on the issue. And while the constitutional amendments clearly set the order of the process of transferring power to an elected civilian government, the time frame remains vague. If elections are held in September, how long will the vote -- which will be held over several stages followed by runoffs -- take? And when, exactly, will the new parliament elect the assembly that will draft the new constitution? How long will this process take? More importantly, when will the presidential elections be held: during or after the drafting of the constitution, which could take months? Then there is perhaps the biggest question of all. What happens after a new constitution is written? Will it -- after being put to a public referendum -- be followed by the dissolution of parliament and new elections that comply with the new constitution? These so far unanswered questions prompted "No" camp party Al-Masry Al-Youm to publish an infograph in its 27 May issue outlining a possible election timeline. The chronology might seem abrupt, even at times incoherent. Its conclusion, though, was stark: "Egypt will remain without a president till 2013". Given the HCAF's deafening silence on the matter many now wonder if the council is indeed open to the idea of writing the constitution first. The very idea begs compelling questions: why would the HCAF go against the constitutional amendments it presented to the public and which 77.2 per cent of voters approved? More importantly: what are the legal and political consequences of such a decision? Kamal Abul-Magd, former deputy head of the National Council for Human Rights, favours the constitution first scenario. There's "nothing sacred" about the referendum, he says. "Legally, there is no harm in overriding the results," he told Al-Ahram Weekly. The military council, which enjoys the powers of the president and the parliament since the overthrow of Mubarak, has the right to change its course after consulting with the government. But Tarek El-Beshri, the ex-judge who headed the committee which drafted the constitutional amendments, says this is dangerous. The results of the referendum reflect the people's voice, he told the Weekly. This voice, El-Beshri explained, "creates a binding legitimacy which no authority can contest or undermine", including the military council. The constitutional amendments, El-Beshri argues, are legally binding on the military council precisely because they were put to a public referendum and the public supported them. But critics of El-Beshri's position point out that the constitutional declaration announced on 30 March was not put to a public referendum, rendering any argument in support of the declaration less than watertight. Some have even called for a second referendum on the constitutional declaration. According to El-Beshri, the declaration comprised three parts: the nine articles put to referendum, articles that defined the legislative and executive powers of the military council and a series of articles from the 1971 constitution to serve as a legal reference during the interim period. When Mubarak was ousted and the HCAF took over on 11 February, the moves were, says El-Beshri, unconstitutional. "Nothing in the 1971 constitution allowed this," he says. Rather, in such exceptional circumstances, "revolutionary legitimacy" overrode "constitutional legitimacy". Given the circumstances, El-Beshri argues, the HCAF has the authority to issue, annul laws and write a constitutional declaration but it cannot cancel the people's vote. It is unclear what path the council will navigate through such choppy waters. Amr El-Shobaki, a senior analyst at Al-Ahram Centre for Political and Strategic Studies, believes that despite persistent calls from the no camp -- which he supports -- the military council is unlikely to cancel the referendum results. "There is no emergency situation to justify such a grave step and waste of Egypt's first test with democracy." The only reasonable exit from the "crisis", he says, is to push for "guarantees" to ensure that the new constitution reflects national interests rather than those of the next parliamentary majority.
