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Egypt's Constitutional Chaos

The process of drafting a new constitution is a train wreck. But there’s a way to get it back on track.

BY MARA REVKIN, YUSSUF AUF | JUNE 14, 2012

Today Egypt's Supreme Constitutional Court issued a game-changing ruling that dissolves both houses of Parliament, effectively handing legislative authority to the ruling Supreme Council of the Armed Forces (SCAF). Egypt's political landscape is in complete disarray, transformed by a military power grab that bears all the hallmarks of a full-blown coup. But perhaps the most devastating effect of the court's decision is the impact it will have on the process of drafting a new constitution.

It's understandable that much of the media attention is focusing on the final round of Egypt's presidential race, which is, after all, the most competitive and polarizing election in its history. But there is much more at stake right now than the country's highest office. Egypt's democratic transition cannot be completed without the drafting of a new constitution to institutionalize and protect the freedoms demanded by the protesters in Tahrir Square, and also restrain the powers of a military establishment and executive branch that have held civil society hostage for the past 30 years.

The stakes could not be higher, yet the outcome appears increasingly uncertain. Parliament is perilously close to scuttling its second attempt at forming the Constituent Assembly that will write Egypt's post-revolutionary constitution.

The first attempt at forming a body to draft the new constitution was made in March. But the 100-member assembly was dominated by Islamists, and political and religious minorities assailed it as unrepresentative. Liberals and leftists resigned en masse, leaving a third of the seats vacant. The dysfunctional assembly was dissolved by a court ruling on April 10, sending the constitutional process back to square one.

Then, after months of gridlock, the ruling Supreme Council of the Armed Forces (SCAF) issued a June 5 ultimatum that gave political forces 48 hours to agree on new criteria for selecting the members of the constituent assembly. Otherwise, the council warned, it would unilaterally intervene to expedite the process with a new constitutional declaration of its own. Under intense pressure from the SCAF, Islamists led by the Brotherhood's Freedom and Justice Party (FJP) reluctantly reached an agreement with minority liberal and leftist political parties on June 7, requiring a 50-50 ratio of Islamist to non-Islamist members. The agreement also reduced the number of assembly seats reserved for sitting MPs to 39 from 50, a concession to non-Islamists seeking to curb the Islamist-dominated Parliament's influence over the assembly.

The compromise was initially hailed as a breakthrough. But then it quickly broke down in a dispute over how the vague conditions negotiated in the unwritten agreement would be implemented in practice, leaving Islamists and non-Islamists to argue fiercely over the gray areas. For example, was the 50-50 ratio meant to apply only to the 39 elected MPs on the assembly, or to all 100 members? More importantly, neither the agreement nor the law specified how institutional representatives with an Islamist or partisan affiliation would be counted. For example, would a union representative belonging to the Muslim Brotherhood count toward the Islamists' 50-seat quota? If not, it would be entirely possible for Islamists to obtain a majority in the assembly simply by padding the 61 seats reserved for professionals, youth, public figures, and representatives of state institutions with salafis and members of the Brotherhood.

Daniel Berehulak /Getty Images

 

Mara Revkin is the editor of EgyptSource, a project of the Atlantic Council's Rafik Hariri Center for the Middle East. Yussef Auf is a sitting judge in the Egyptian judiciary and a 2012 Humphrey Fellow at American University's Washington College of Law. He holds degrees in Law and Islamic Studies from Cairo University, where he is currently pursuing a PhD in Constitutional Law and Political Systems.

Yussef Auf is a sitting judge in the Egyptian judiciary and a 2012 Humphrey Fellow at American University's Washington College of Law. He holds degrees in Law and Islamic Studies from Cairo University, where he is currently pursuing a PhD in Constitutional Law and Political Systems.