The makeup of the Constituent Assembly, as Egyptians are now calling the body that will draft the country’s new constitution, has been at the center of controversy in recent weeks because there are no clear rules to guide the parliament in the formation of that body. The constitutional declaration issued by the Supreme Council of the Armed Forces in March 2011 only states that the two chambers of the new parliament will jointly elect a 100-member commission to write the constitution. An attempt by the SCAF in November 2011 to specify the composition of the constitutional commission, contained in the Selmy document on supraconstitutional principles, was abandoned in the storm of protests that greeted the proposal.

From a purely legal point of view, thus, the process is clear: it is up to the two chambers of parliament to jointly decide on the composition of the Constituent Assembly. Politically, however, there is strong resistance by secular parties to allow the parliament to exercise the power given to it by the constitutional declaration. Secular parties and independents did poorly in the elections, collectively receiving less than 25 percent of the seats. Thus they are demanding that the Constituent Assembly be composed primarily of representatives of organizations outside the parliament—such as religious institutions, universities, and professional syndicates—which in their view represent the Egyptian people better than the elected parliament. Allowing the parliament to elect the Constituent Assembly as it sees fit, many argue, would allow Islamists to dominate the writing of the constitution.

The debate is remarkable for two reasons. First, it shows that Egypt has made no progress on the issue of how and by whom the constitution will be written. The current debates are a reiteration of earlier discussions that place, without coming to a conclusion, since the overthrow of Mubarak. Such debates hampered agreement on a clear transition process early on.

Second, the debates do not touch on the content of the constitution even at this late date. Rather, secular parties seem to assume that Islamists would impose a sharia-based constitution on the country. The Muslim Brotherhood’s Freedom and Justice Party (FJP) denies that this is the case, pointing out that it wants the constitution to embody the idea of a civic state with an Islamist reference. That idea is already part of the 1971 constitution, which declares Islam to be the religion of the state and sharia the source of legislation.

Indeed, the clearest difference between the FJP and other parties when it comes to the constitution concerns not religion but the relationship between executive and legislative power. The FJP wants to make the prime minister responsible to the parliament, with the elected president controlling above all security and foreign policy. Secular parties such as al-Wafd, the Free Egyptians Party, and al-Ghad seem to prefer a strong president, apparently assuming that he will not be an Islamist.

There are three basic trends among the political forces with regard to the makeup of the Constituent Assembly:

  • The Muslim Brotherhood’s Freedom and Justice Party argues that 40 members of the assembly should be MPs, and that those positions should be allocated to parties proportionately to their share of parliamentary seats. An additional 30 members 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—it is not clear at this point how many representatives each of the different institutions would receive and how they would be selected. (Corporate representation for such institutions was one of the ideas contained in the rejected Selmy document, it should be noted.)

    As the largest party in the parliament, the FJP would benefit from an approach that gives a major role to the parliament and would be well placed to influence the writing of the constitution. Concerns that the Islamists would be in a position to dictate the content of the constitution appear exaggerated, however.
     
  • The Salafi al-Nour Party is also pushing for a strong parliamentary role in writing the constitution. The party affirms that the majority has the right to draft the constitution, but it has provided no details about what this means in practice. Al-Nour also argues that the constitution must affirm Egypt’s Islamic identity and the central role of Islamic law.
     
  • Secular parties and personalities, who only control 25 percent of the People’s Assembly’s seats and 15 percent of those in the Shura Council, unsurprisingly seek to limit the role of members of parliament in the Constituent Assembly, emphasizing instead the roles of professional associations, the judiciary, labor unions, and others.

    The most conciliatory proposal was set forth by two members of parliament, liberal independent Amr Hamzawy and Mostafa Naggar of the al-Adl Party, who argue that the Constituent Assembly should include 35 members of parliament, allocated among parties on the basis of their electoral strength, and 65 people from extra-parliamentary groups. Under Hamzawy and Naggar’s proposal, the FJP would have 15 members, the al-Nour Party 7 members, and the al-Wafd Party 3 members in the Constituent Assembly. The Egyptian Social Democratic, Free Egyptians, Building and Development, al-Wasat, and Reform and Development parties would have 1 member each, while independents would be represented by 2 members. Hamzawy has also argued that Copts should have 10 of the 100 seats in the Constituent Assembly—also the demand of Coptic activists—and has noted that women should have fair representation.

    Other proposals further restrict the presence of members of parliament in the Constituent Assembly. The Democratic Front Party, which won no seats in the parliamentary elections, wants the parliament to control only 30 seats in the assembly. The liberal Free Egyptians Party’s and Socialist Popular Alliance Party’s proposals each call for only 20 of the 100 members of the Constituent Assembly to come from parliament, with the remaining 80 elected from extra-parliamentary groups. Nasserite Party president Sameh Ashour goes further, arguing that most members of the Constituent Assembly should not be chosen directly by the parliament to prevent a single party from monopolizing the writing of the constitution.

    The most extreme proposal—it would require all members of the constitutional commission to be chosen from outside the parliament—was submitted by two SCAF appointees, Sherif Zahran and Marian Malek, and a member of the Tagammu Party. In fact, this proposal is so similar to that contained in the Selmy document that it raises the question of whether they were appointed to push that idea.

    Essentially, secular proposals are all variations on the same theme: that the elected parliament should have an extremely limited role in the writing of the constitution and a highly restricted ability to elect the Constituent Assembly’s members. And they all completely disregard the constitutional declaration, which serves as a temporary constitution for Egypt and clearly states that the parliament shall elect the members of the Constituent Assembly.

The debate over the makeup of the Constituent Assembly taking place now largely mirrors debates that have been taking place since the overthrow of Mubarak. Secular forces have sought to ensure that the constitution would not be written by an elected body, or that at least the drafters of the constitution should be constrained in their choices by an agreement on a set of previously accepted supraconstitutional principles. That debate raged, inconclusively, in the early summer of 2011 before dying down for a period.

It revived in November after the SCAF-appointed government issued the Selmy document, which included detailed prescriptions for the composition of the Constituent Assembly. It stated that 80 of the 100 members would be chosen by the parliament from outside of the institution. Those members would come from all segments of Egyptian society, including 15 from judicial bodies, 15 from the faculty of universities, 15 from professional syndicates, 5 from labor unions, 5 from farmers’ organizations, 5 from NGOs, and 1 each from the Chamber of Commerce, Federation of Industries, business associations, the National Council for Human Rights, the armed forces, the police, sports federations, the federation of university students, al-Azhar, the Egyptian churches, and the Council of Ministers. According to this proposal, each one of these extra-parliamentary groups should nominate twice the number of representatives allocated to it so that the parliament could then choose from among them. The remaining 20 members of the Constituent Assembly were to be chosen from among the representatives of the parties and independents according to the percentage of the vote they obtained in the parliamentary elections.

With the debate on the formation of the Constituent Assembly still unresolved and the debate on the content of the constitution not even started, quick progress toward a new constitution is extremely unlikely. Most probably, presidential elections, scheduled for May 23 and 24, will be held before the new constitution has been drafted and approved first by the parliament and then by a popular referendum. This raises the possibility that after the president is elected for a five-year term, a new charter will modify his powers, most likely reducing them. This is a situation designed to create a new crisis.