Who Will Write the Egyptian Constitution?

There are no clear rules to guide the parliament in the formation of that body, writes Marina Ottoway, senior associate Middle East Programe at the Carnegie Endowment Foundation.

 She notes that an attempt by the Supreme Armed Forces Council (SCAF) issued a constitutional order that the  two chambers of the new parliament would  jointly elect a 100-member commission to write the constitution. An attempt by SCAF to specify the constitution of the commission caused popular protests and was withdrawn.

It is clear fom a legal point of view that it is up to the two Parliamentary chambers  to jointly decide the membership of the  Constituent Assembly. However secularists who did poorly in the elections fear that leaving the decisions to an islamic led parliament  and prefer that religious institutions  and professional bodies outside parliament would better represent the Egyptian people. An attitude which undermines the principles of democracy but expresses the fears of the secularist population. Similar fears have been expressed in Tunisia but Salafists who were repressed by the previous regime also have a right of free expression which an islamic goverment cannot ignore.

Egypt has made no progress on the issue of how and by whom the constitution will be written nor even at this late stage what it should contain.There is no agreement on a clear transition process. Egypt, Tunisia and Libya all face the hurdle of creating a new consitution.However the Muslim Brotherhood FJP party has made clear that it wants a civic state with an islamic reference. The 1971 consitiution  already declares Islam to be the religion of the state and sharia the source of legislation, so there is no radical departure from precedent.

The main cause for concern between the FJP and other parties is not religion but the relationship between executive and legislative power . The FJP wants power vested in the Prime Minister  who would be answerable to parliament, secular parties prefer a strong president provided he is not an islamist.

Theer are three trends in opinion on the make up of the assembly. The Freedom and Justice Party prefers that 40 members of parliament should be MPs the rest made up of an additional 30 members who  would be chosen by the parliament but would not be MPs. The remaining 30 members should be chosen directly by professional associations, universities, the police, the armed forces, Egyptian diplomats, the judiciary, professional syndicates, labor unions, al-Azhar, and the Coptic Church exact numbers for representation of these bodies is still unclear. The FJP and the islamist salafist al Nour party are insisting for a major role for parliament in the Constituent Assembly as they are the largest parties.

However secular parties  very much in a minority in the two chambers of Parliament emphasise the role of professional associations, the judiciary, labor unions, and others in the Assembly. Two liberal members propose  35 members of parliament, allocated among parties on the basis of their electoral strength, and 65 people from extra-parliamentary groups.  It is all about getting the balance right between the different groups.The most extreme proposal—it would require all members of the constitutional commission to be chosen from outside the parliamentas submitted by two SCAF appointees.

Arguments about the composition of the Assembly have gone on since the fall of the Mubarak regime. With the membership of the constitunet assembly still unresolved and its work not begun the election for the office of President takes place on 23 and 24 May without presidential powers being defined and approved by parliamment and a referendum. If the President is elected for a five year term it raises the possibility of a conflict between Parliament and the President if they try to restrict his powers leading to yet another crisis.