The Egyptian parliament has formally elected for the second time the Constituent Assembly that is supposed to write a new charter to replace the Constitutional Declaration issued in March 2011 by the Supreme Council of the Armed Forces. The chances that the Constituent Assembly will be able to do so, however, appear slim since it already faces both political and legal challenges. Despite an agreement reached on June 7 among political parties on the composition of the new body, when the list of names was approved by the parliament on June 12, 57 MPs walked out, refusing to participate in the process.

Participating in the walkout were members of Egypt’s major political parties, including those in the Egypt Bloc and the Revolution Continues Alliance, some in the Wafd party, the Hurriyah Party, the Socialist Popular Alliance Party, the Egyptian-Arabic Union Party, and the Egyptian Citizen Party as well as several independent candidates. Their withdrawal is not sufficient to invalidate the formation of the Constituent Assembly, although many of the parties are already arguing that the Constituent Assembly lacks the legitimacy to write a constitution. Furthermore, the walkout may well be the prelude to the resignation of newly appointed Constituent Assembly members. Resignations among members doomed the first Constituent Assembly: in early April non-Islamist members withdrew one by one alleging the body was dominated by Islamists and shortly thereafter the courts officially disbanded the body. One Constitutional Court judge appointed to the second Constituent Assembly withdrew immediately, arguing that he did not want to embroil the court in political fights, even though representation for judges, among other professional groups, had been one of the demands of those advocating a diverse Constituent Assembly. The next day, the SCAF also withdrew its representative, citing the absence of a “national consensus” about its composition.

Marina Ottaway
Before joining the Endowment, Ottaway carried out research in Africa and in the Middle East for many years and taught at the University of Addis Ababa, the University of Zambia, the American University in Cairo, and the University of the Witwatersrand in South Africa.
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Now as in April, Islamists are accused of trying to dominate the Constituent Assembly and reneging on the agreement that stipulated seats should be divided equally between Islamist and non-Islamist candidates. Not so, argue Islamists, it is their opponents that try to undermine the agreement by imposing their own definition of who should be considered an Islamist for the purpose of implementing the agreement. The Muslim Brotherhood wants to limit the definition strictly to members of its Freedom and Justice Party and of the Salafi Al-Nour Party. The other side wants to include all parties and organizations with any kind of Islamic reference, such as the moderate al-Wasat Party, al-Gama’a al-Islamiyya’s Building and Development Party, other Salafi groups, and even al-Azhar University.

Paradoxically, the day before the agreement on the formation of the Constituent Assembly started unraveling the parliament had managed to adopt a long-overdue law defining the rules to be followed by the Constituent Assembly. The short law is a simple, rather technical document that bravely pretends the assembly will work in a harmonious manner and will enjoy legitimacy and support. Under the present circumstances, the law seems somewhat irrelevant because the Constituent Assembly may never be able to function—at least not the Constituent Assembly envisaged by the Constitutional Declaration, about which the parties are unable, and probably increasingly unwilling, to agree.

The SCAF is now threatening to take things into its own hands and to dispense of the parliament’s role in forming the Constituent Assembly by either issuing a second Constitutional Declaration to replace the March 2011 version or by reviving the 1971 constitution, which the SCAF itself abrogated after the fall of Mubarak. This threat was the reason behind the intense flurry of meetings and consultations among parties that led to the short-lived June 7 agreement on a new formula for the formation of the Constituent Assembly.

The speed with which the agreement started unraveling, indeed even before the list of proposed members was published, strongly suggests that at least some of the parties would in fact prefer it if the SCAF rewrote the constitution or revived the 1971 document.  A SCAF intervention would be the best way to minimize the Islamist parties’ role in the writing of the constitution. No matter how much parties haggle, the Muslim Brothers and the Salafis, who control 70 percent of the parliament, are bound to influence a constitution written by an elected body. A failure of the second Constituent Assembly thus well serves the interests of some non-Islamist parties, although others are opposed to another SCAF intervention in the drafting of the constitution.

To be sure, sooner or later Egypt will have to adopt a real constitution rather than relying on a Constitutional Declaration issued imperiously by the military, but a delay could be all important. A case is pending in front of the Supreme Constitutional Court that seeks to invalidate the constitutionality of the election law used in the 2011–12 parliamentary elections. If the court declares the law unconstitutional, the parliament could be disbanded, and this would be the death blow for the already fragile Constituent Assembly. Whether new elections under an amended election law would produce a parliament in which Islamists play a smaller role is impossible to predict, but from the point of view of the Islamists’ adversaries, there are good reasons to postpone the formation of a Constituent Assembly in the hope that the balance of power will shift.

The battle over the new constitution, like many political battles in Egypt today, is moving fast from the electoral arena, dominated by the better-organized Islamists, to the realm of non-electoral politics, where the military and the courts, and thus the elements of the old regime, still hold sway. It looks increasingly likely that the constitution will not be written by a Constituent Assembly formed by the elected parliament, at least not the present one.

No matter what happens in the end, the hope that the constitution will be written through a democratic process is dwindling rapidly, if it has not vanished altogether. Far from being a process to develop consensus on a way forward, the writing of the constitution is at the center of the struggle for power between Islamists and secular political parties that, as in the days of Mubarak, are now openly counting on the military to thwart Islamists and allow secular parties to dominate despite their dismal electoral performance.

The maneuvering surrounding the formation of the Constituent Assembly may indeed reduce the influence of Islamists in the process, but it will do so by curbing democratic practices. The question about who will write the constitution may have to be replaced by a question about whose authoritarianism will prevail.