Wednesday, 29 June 2011

Lessons from History: Who Should Write Egypt's Constitution?

Ahmed al-Tayyeb, photographed by Mohamed Al Garnousy
Lorianne Updike Toler

Monday's release of a new constitution proposal by top Muslim University Al-Azhar's grand sheikh, Ahmed al-Tayyeb, in addition to last week's proposal by democracy-agitator Mohamed Albaradei call to question who should write Egypt's new constitution, and how.

Regardless of whether a constitution is written before or after elections, there is little clarity on who should draft the country's new founding document.  

As Issandr El Amrani opines in Almasryalyoum: 

Whether the constitution or elections come first, the process by which they are conducted must be irreproachable. In the (unlikely) case a constitution is worked out first, those in favor of this scenario have still not explained who would write it and how they would be selected - appointment or election - and how they would reconcile this with the amendments passed in March.  
Even the current constitutional declaration (which assumes elections will take place first) leaves some doubt as to whether the constituent assembly, which is supposed to be appointed by parliament, will consist of elected officials, other persons, or both. Another unanswered question is whether the completion of its mandate - i.e. the promulgation of a new constitution, presumably by another referendum - will entail the dissolution of parliament and/or the presidency and new general elections.

Who should write a constitution, and how should they be selected?  History provides some insight here.
From the moment the Revolutionary War ended with the Treaty of Paris in 1783, and possibly as early as its drafting in 1776-77, the need for a federal convention to revise the Articles of Confederation was discussed--at least by a minority--in Congress.  Yet congressional impotence and complacency once peace was achieved at the national level led the issue to be taken up by the states in 1785. Virginia, based on John Tyler's bill, was the first to propose a federal convention to address economic issues in the wake of a national depression.  Five states selected commissioners to convene in Annapolis September 11-14, 1786.  Instead of proposing broad reforms because so few states were represented, the 12 commissioners, in the pen of Alexander Hamilton, recommended the convening of a federal convention to amend the Articles in May of 1787.  

Each state considered this proposal independently, and all but Rhode Island selected delegates to attend the Federal  Convention the summer of 1787.  The states selected their delegations through votes by the state legislatures.  One state sent two delegates (New Hampshire), others three (New York and Connecticut), four (Georgia, Massachusetts, South Carolina) and five (Delaware, Maryland, New Jersey, North Carolina), and still others seven (Virginia) and eight (Pennsylvania).  Each delegation, similar to the system under the Articles of Confederation, had one vote, determined by the vote of the majority of the states' delegates present.  Equally divided votes for state delegations would cancel their vote out.

The lesson history provides here is that those chosen to write constitutions should be selected by various constituencies.  Constituencies identified to select delegates may be determined by either geography as in the U.S.'s case, or where stratified, horizontal governmental structures are missing, perhaps from vertical political structures, such as political parties.  The important aspect here is that all identified groups who wish to send delegates may do so, selecting them in the manner they wish, and that all have an equal voice in the strictures of the new plan.  In this way, the new constitution will be shaped by the voice of consensus through representation rather than through a mere majority.   

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