Tuesday, 5 July 2011

"Normal" Constitutional Procedure for Egypt

Saad Al Katatni

Lorianne Updike Toler

In the face of a planned massive constitution-first protest in Cairo this Friday, July 8, there are reports that the Supreme Council of the Armed Forces may postpone Egypt's planned elections in September 1-3 months.

The Muslim Brotherhood will likely gain a majority of the seats in parliament which would thereafter chose the majority of the members of the constitutional council.  According to Gamal Essam El-din, these Islamists "insist that parliamentary elections are held ahead of drafting a constitution," apparently referring to some normative procedure for drafting constitutions.  Indeed, the Wall Street Journal reports Saad Al Katatni, the general secretary of the Muslim Brotherhood's Freedom and Justice party as saying, "if the constitution is first that would create a lot of problems for us."

Predictably, those who are primarily responsible for the toppling of Mubarak in February and who back creating a constitution before elections claim such a procedure is more in alignment with normative standards.

"It is only normal to draft a constitution first," The Eygptian Gazette reports judicial expert Mohamed Nour Farahat as saying.

So what is truly "normal" for constitutional procedure?  This begs the question of whether norms have been adopted or recognized by any international body.  To date, none has.  Rather, history here is the best guide in establishing normative procedure for constitution-making.

The procedure adopted in the country that set the normative standard of having a written constitution saw a constitution adopted first before general elections.  This is a tough comparison, however, because the U.S. constitutional convention met concurrent to rather than at the request of the national legislature. Localities--states--elected both the congressional delegations and called forth the convention and selected the delegates to that convention.  

If this experience can be paralleled, perhaps the powers which can call forth a parliament--the people--can also call forth a constitutional convention.  If some type of selection procedure can be identified to systematically select and send representatives to a national constitutional convention, according to normative standards established by history, such a constituted body would have power to draft a constitution, so long as it was thereafter ratified by a supermajority of the people.

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