The writing of a permanent constitution for Egypt will be a test of the capacity of varied political forces to cooperate. In this, there is no choice, writes Eman Ragab* The 25 January Revolution was the first step in a process of political change in Egypt. It is a process that could prove quite long, or at least not as short as some had hoped. It is also one that is filled with dangers and pitfalls, some natural, others fabricated; some mines planted by influential remnants of the old regime; other obstacles created by the ruling military council's mismanagement of the interim period or by the determination of some political forces to further their own narrow interests at the expense of the demands of the revolution. The success of this process will be contingent, above all, on the stamina of the forces that are pressing for change and on their strategies for persistence and sustaining the momentum of change over the long haul. Thomas Friedman echoed this idea last week, in Davos. He did this visually, by means of a long line that stretched between the years 1991 and 2011 with various peaks and dips. He said that the fruits of change, whether in the international order as epitomised by the end of the Cold War in 1991 or in Arab states, as expressed by the Arab revolutions in 2011, only manifest themselves clearly after the passage of an entire generation. So, it is rather premature to suggest that the revolution has ushered in comprehensive change in Egypt. What matters is continuing to work for comprehensive change and this task compels us to focus on all the little steps and partial changes that take place during the interim period because of their cumulative impact on the process of change. The People's Assembly, Shura Council and presidential elections are only preliminary steps and, in fact, the easiest steps. The much harder step will be drafting the constitution. The difficulty here is not fabricated. It stems from the very nature the constitution as the backbone of the state and its political system. It is also connected to certain procedural considerations or principles, each of which poses a challenge in its own right and that could prolong the process of drafting the constitution beyond the six-month timeframe stipulated by the Constitutional Declaration of March 2011. The first hurdle we will encounter is establishing the criteria for forming the assembly charged with drafting the new constitution. Already this question has been one of the issues that have contributed to political polarisation in society. Shortly before the People's Assembly elections, the Muslim Brotherhood vehemently objected to points in the so-called El-Selmi Document concerning the composition of that constitutional assembly. The document called for a 100-member commission consisting of 80 members to be elected from outside the People's Assembly and Shura Council so as to provide for the representation of all political forces, institutions and interest groups, and another 20 members that would be selected by the two houses of the legislature in a manner that would ensure that each party had at least one and no more than five members on the commission (the actual number of members per party to be determined by their respective numerical weight in parliament). More recently, the Advisory Council of the Supreme Council of the Armed Forces (SCAF) submitted a new proposal. It states that each party with 30 or more seats in both houses of parliament combined would have at least two and a maximum of 10 members in the commission, and that each party with less than 30 seats would have one representative on the commission. In light of the current configuration of the People's Assembly, this means that parliament would have 40 members on the constitutional commission, leaving room for 60 non-parliamentarians who would be representatives of civil society organisations and labour unions. The question of representation on the constitutional commission is extremely crucial. It is the mechanism that ensures the sustainable legitimacy of the constitution after it is promulgated. A constitution cannot be created by the majority alone; it cannot be contingent on the current balance of powers. This is why it needs to reflect the numerous outlooks in society as a whole. The current composition of the People's Assembly favours the Islamist forces, as represented by the Muslim Brotherhood's Freedom and Justice Party (FJP) and the Salafist Nour Party, while youth, women and Christians are barely represented. In drawing up the constitution, these parliamentary minorities must be given the opportunity to have an effective input, because they are important components of Egyptian society. This means that they should have a weight on the constitutional commission that is, perhaps, greater than their political weight. After all, a true democracy is not just about majority rule; it is also about the respect for minorities and the protection of their fundamental civil and human rights. The second challenge will be the extent to which the constitutional commission will disengage from the 1971 Constitution. Will this commission create a new constitution for the country, or will it just amend a few articles of the old and keep the rest intact? The FJP seems inclined to the latter course, and it has honed in on Article 5 of the 1971 Constitution, which addresses the system of government. This extreme selectivity in defining the work of the commission, even before an agreement is reached on its composition, will spark a tangential battle between political forces, with the Muslim Brothers pushing for a mixed parliamentary/presidential system against the other political forces who want to retain the presidential system with provisions for effective checks and balances between government authorities. This controversy could divert attention from what is more crucial at this stage which, according to an American expert on drafting constitutions, is the need to draw up all the guarantees for the true separation of powers so as to prevent the intrusion of the executive into the competencies of the other authorities and to ensure that they have effective monitoring and oversight powers. The third hurdle will be to determine the percentage of votes that will be needed in order to ratify the constitution by popular referendum. The Constitutional Declaration made no mention of the type of majority that will be needed. Nor has the question been discussed yet, although it is certainly not a minor one. A broad popular consensus over the constitution is another guarantee for its sustained legitimacy. It therefore is reasonable to stipulate a two-thirds majority instead of a mere simple majority (50 per cent + 1) for the constitutional referendum. The fourth challenge will be the length of time it will take to draft the constitution. This will probably be relatively long, in view of the complexities and slowness of the interim process. Already we have seen considerable flexibility with regard to the deadlines set out in the Constitutional Declaration. None were adhered to, whether in respect to parliamentary elections or the date for presidential elections, even though these steps are easy compared to the process of drafting a constitution. I predict that this process will take considerably longer than the six months stipulated in the Constitutional Declaration. Ultimately, the length of this process is contingent upon the ability of the political forces and groups involved in drafting the constitution to reach a consensus on the substance of the constitution itself. Judging by the divisions we have already seen over the past year, such a consensus does not appear as forthcoming soon. As soon after the revolution as March last year, tensions arose over whether the promulgation of a constitution or legislative elections should be held first, and over the secular character of the state, the role of Islamic law and the identity of the state. The divisions worked to obstruct and delay the process of transition and change. Nor does the situation appear to look up in this regard. The Salafist Calling has just approved five versions of what it calls an "Islamic constitution," which it plans to present to parliament. The Muslim Brotherhood has drawn up the contours of the type of constitution it envisions. Before this, Al-Azhar produced a document outlining a set of general constitutional principles to be used as a guideline for drafting the constitution, but although the Muslim Brothers and Salafis said they supported this document, each group then proceeded to produce another of their own. Still, this plethora of documents on the new constitution is not negative phenomenon in and of itself. What is important is that every party has the opportunity to present its own view. More importantly yet, they must all engage in serious in-depth discussions the chief aim of which is to forge a consensus on the articles of a constitution that is appropriate to the nature of Egyptian society as a whole, in all its diversity, as opposed to a constitution tailored to the current majority. The longer it takes them to achieve such a consensus, the longer it will take them to draft a constitution. This brings us to another question, which is: Who will steer the process of forging the national consensus in the constitutional commission? There is no magical formula for this; all depends on the diverse parties' abilities and sincerity of their determination to establish common ground. Perhaps a main means towards this end is for them to collectively resolve not to be drawn into contentious side issues and to focus on discussions of the main issues that will be incorporated into the constitution. After all, change is a continuing process, and there will be time to resolve differences over details after the general constitutional principles are determined. * The writer is a researcher at Al-Ahram Centre for Political and Strategic Studies.
