CAIRO - When Egyptians voted in a referendum for constitutional changes on March 19, they tacitly allowed the military rulers to move to parliamentary elections. Many did not agree and said “no” to the changes, but they then conformed with the majority who said they were seeking stability, raising hopes for more democracy in the future. All of a sudden, a little more than three months later, the row people thought was over, concerning whether to design a constitution first or to hold elections first, has resurfaced anew. The March referendum was supposed to have embodied the will of the people, approving a roadmap for rebuilding the political scene in a country that aspires for reform after a corrupt, long-serving regime was ousted. “We hope the Constitution will be drafted first, as it will 'set the foundations' for the parliamentary and presidential elections [due later this year], according to certain rules,” Tahani el-Gebali, deputy head of Egypt's Supreme Constitutional Court, told the weekly magazine Sabah el-Kheir. She explained that, according to the March referendum, a founding association should be elected by Parliament. The amendments could have revived the former Constitution that was scrapped by the ruling military when Mubarak stepped down. But this did not happen. Instead, the Army announced a constitutional declaration, comprising articles that were included in the referendum and others that weren't. Thus, the Constitutional Declaration has come to replace the former Constitution. According to Tahani, the Constitutional Declaration offers a chance to review the method set by the panel entrusted with drafting a new Constitution. “Fresh views have therefore emerged, with many people calling for the 'Constitution first', something I staunchly support,” she said. Tahani warns that, if elections are held before the drafting of the Constitution, the would-be Parliament, to be elected in September, could violate it and go on to complete its five-year session. “In addition, a new party majority might have power in the new Parliament,” she said, noting that the Constitution should be free of any 'majority or minority', while there should be a consensus among all parties. “It is only normal to draft a new constitution first, since the 1971 Constitution fell when the former Mubarak regime fell,” said Mohamed Nour Farahat, a judicial expert. A state cannot be built if you don't define the basis on which to build, he added, explaining that the Constitution will define whether the State will be a parliamentary or a presidential one. “If we are willing to build up a new modern state, we should draft the Constitution,” he argued, citing calls to erase some articles in the old Constitution, such as an article providing for 50 per cent of MPs to be farmers and workers. “We will face a real problem if the would-be Constitution cancels this 50 per cent and we are also forced to dissolve the Shura Council [Upper House of Parliament], if the new Constitution cancels it too,” Farahat told the same magazine. If the Constitution is drafted first in a country that has no parliament, who will elect the constitutional assembly to undertake this task? “Parliamentary elections could therefore be held prior to drafting the Constitution, that would comprise an article defining the length of Parliament whose main task would be to select the constitutional assembly,” he added. Professor of Constitutional Law at el-Menoufia University Fouad Abdel-Nabi adopts the view that a new constitution should be drafted first. He explains that the Constitutional Declaration that was announced on March 28 and came into effect the following day was not a constitution in the legal sense of the word, but rather “a political document drawn up by the ruling military to implement public demands until conditions stabilise, when State affairs can be handed over to a civilian ruler”. “Thus, neither the ruling military nor the Prime Minister has the power to issue a constitution as they are 'interim',” he explains. For Abdel-Nabi, holding parliamentary elections before issuing a constitution would be “a huge disaster”, since neither the new parties nor the young revolutionaries would be represented in the new Parliament. “It is for the good of the people to draft the Constitution first, since it is the basis on which a democratic state can be built.” On the other hand, constitutional jurist Atef el-Banna slams the controversy over the Constitution as improper. “Those seeking to provoke controversy will lead us to a regime worse than [Mubarak's]. The violation of the Constitution was one of its main characteristics,” he told the weekly magazine Sabah el-Kheir . Professor of Constitutional Law Ragab Hassan Abdel-Karim is of the view that the March referendum on constitutional amendments has settled the controversy, since the relevant provisions have defined “the mechanism through which constitutional institutions are handled in Egypt, namely the People's Assembly [Lower House of Parliament], the Shura Council], the Constitution and then the presidential elections”. Abdel-Karim brushed aside fears that the Muslim Brotherhood or remnants of the former National Democratic Party would control the would-be Parliament, since elections in most governorates are based on 'tribalism', a matter that needs long years to change. “The new Parliament will not be about [personal interests], but it will build up the State institutions and Egyptian society will never allow corruption to prevail again.”
