Wednesday, 16 November 2011

A Few Options For Ending Egypt's Constitutional Document Deadlock

There remains a film-noir political impasse and standoff with regards to the infamous (Supra) Constitutional Principles Document, the CPD.

The genesis of the idea for the Document took place after many had called for a Civil Rights And Liberties Charter right after the Egyptian revolution. The call came both as a reflection of the ensuing euphoric feelings of victory and reinvigorated national identity, as well as a hope for a safeguarding mechanism against any conservative forces who may hold political power in Egypt, in the case that such political forces may carry a possible vision towards limiting personal or group freedoms, or devise a theocratic or quasi-theocratic state.

Following the referendum on the constitutional amendments, and the resounding defeat of those who wanted a new constitution before parliamentary elections, a compromise was suggested. A document containing the basic principles of the coming constitution, whether in general guidelines or in the actual verbatim phrasing in which they are supposed to be incorporated within the actual constitution, would be drafted. This document would be undersigned by all/most political forces in Egypt as a binding commitment by them towards these principles and articles, in an effort to diffuse any volcanic future debates on the issue, and severe polarisation. In addition to liberals essentially pushing for the idea, certain conservatives saw in it a chance to block any movements towards a fully secular constitution, though its appeal was much lesser for the conservatives who were confident of their parliamentary majority.

Mohammed ElBaradei picked up the idea, and developed the first integral draft of such a document. Other political forces, including Mamdouh Hamza's National Council, followed suit, and the government and SCAF themselves developed interest. The SCAF & cabinet then took over the initiative, eventually spearheading deputy PM & deputy head of Al Wafd Dr. Ali ElSelmi to coordinate the project. Once more, at this phase, the idea was to develop a document focusing on the "Civil & Democratic" nature of the state, and outline the basic Civil, Economic and Political rights of Egyptian Citizens.

Things took a quick turn to the severe at first when certain Salafi groups objected to the document, between those who objected to the idea in the first place, and those who objected to the system of government & state it proposed, hoping for a more traditional Islamist government. Certain factions within the Muslim Brotherhood as well expressed their condemnation of the document, though mostly regarding the possibility of it being legally binding in some capacity. After a while, compromises appeared to have been struck towards the end of Ramadan, and it seemed the document was on a set path towards adoption.

But then the SCAF decided to add articles and clauses that were not popular from the first moments they were initially suggested. SCAF suggested articles granting it constitutional powers, setting it as the "Guarantor of Constitutional Legitimacy", allowing it to veto warfare, handle 'alone" all legislation related to the armed forced, and have the sole right of seeing & debating the military budget. Even more, it added clauses on the make up of the Constitutional Assembly, rather than leaving that to the elected parliament as expected. What became the final straw was the idea that SCAF would then adopt the document as a binding Constitutional Declaration on everyone as a charter of "Entrenched Constitutional Clauses", rather than a document of voluntary association among political forces. That was when the document turned into "dictation from above" as some had put it, a phenomenon whose continuation was not exactly the point of the January Revolution.

Liberals were slightly less furious than the Islamists to be sure, as they agreed with most of the principles, some even liked the idea of the army as "saviour of last resort", but eventually they came on board the opposition's side. Islamists (both the MB and, more adamantly, the Salafis) threatened a mass million-man protest on November 18th unless the document is withdrawn and Ali El Selmi resigns. A process of haggling then started between the Cabinet, SCAF and the myriad of political forces out there, particularly the Islamists of course.

The idea of having "Entrenched Constitutional Clauses" is not unheard of. In Bosnia, for example, there are non-amendable articles that attach to the constitution a human rights charter (of the European Convention On Human Rights), while stipulating that no law could be enacted if it contradicted the principles of the charter. In the French Constitution, the article on the Republican Form of government cannot be amended. The German Constitution also bans changes to the Länder (Federal) system, while also outlining a series of non-amendable civil, social and political rights to which all laws must adhere and not contradict. Even the US Constitution has an Entrenched Clause that makes it almost impossible for a constitutional amendment that would modify the equal representation of all states in the US Senate. Turkey, of course, is the most famous case. The process of drafting these clauses varied between popular enactment via elected representation and council, usually after massive political upheaval (e.g. WWII) or a more top-down approach by a political elite who found themselves at a historic crossroads. But Egypt's situation is sensitive given an uprising of the country in revolution against top-down authoritarianism (among others), the lack of any single group or person capable of presenting itself as the legitimate face of the revolution and carrier of its legitimacy, as well as the general pervading feeling on the streets that "the revolution is being hijacked by the current regime."

Various sources are reporting that the SCAF/Cabinet removed and/or amended (most of) the controversial articles and clauses (almost the 18th round of amendments up to this point), and that what rather remains right now as a point of contention is the debate over whether or not the document takes the form of a binding constitutional declaration or just a document of voluntary or "guiding" nature, as the Muslim Brotherhood's FJP Party has put it. The debate, of course, will most likely be settled tomorrow to avoid a mass protest on Friday.

There are a number of ideas out there that could end the gridlock, assuming the current path fully fails. These ideas could either be used separately, or in a complementary.

1- The Document could remain as binding-only for signatories.
2- The Document could become, after sufficient national consensus, a binding constitutional declaration whose power expires as soon as the new constitution is enacted, or within 5-10 years for example.
3- If the Document gets an extended lifespan, certain articles and clauses from it could become not exactly "impossible to amend", but rather more difficult to amend, requiring greater majorities in both the parliament and the ensuing referendum.
4- A separate Egyptian Charter for Human Rights could be drafted, to be enshrined by the constitution.
5- A mechanism for the "Immediate Expiration" of the document could be stipulated. For example, parliament can call (if it wishes to do so), no more than once a year, for a referendum on the expiration of the document, after a 60% majority approval for such motion in parliament (the 60% majority is just an example).

These are all very rough ideas, essentially aimed at opening new axes of thinking, and are not meant as solid and concrete proposals. I do believe that a National Consensus Document on constitutional principles should exist at this point, to avoid extreme polarisation in the parliament, and to avoid an even more toxic debate on the issues within the Egyptian Street. It would also allow a more early and direly shift of some political effort and resources towards actual national policy debates on matters such as Healthcare, Education, Subsidies and more, rather than putting the entire national thinking capacity on hold or on a monorail until a constitution is finally enacted, while leaving some space for multipartisan cooperation on these matters.

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