Concerning a new constitution, which is more important, the process or the content? In Egypt, that most secularists and the Coptic Christian representatives walked out of the assembly working on a document suggests that the final product would not have legitimacy for all of Egypt. To be sure, it is possible for a partisan group to design a system of basic law that is not overtly self-serving at others’ expense. The document emerging from the assembly weakens the presidency and strengthens the parliament in line with the popular protest in “the Arab Spring.” However, the assembly left in place a “longstanding article” grounding Egyptian law in the principles of one religion. Furthermore, a provision on women’s equality was left out, and the military generals would keep their existing power. Moreover, anticipating dissolution from Mubarak-appointed judges, the assembly began its work from the last Egyptian constitution.
Do the members of the constitutional assembly look liberal or conservative? Reuters
Basing deliberations on the status quo works against the process needed to arrive at a new constitution, especially if the last constitution had been constructed in a very different time. The Wall Street Journal reports legal experts as indicating that the assembly’s final document is “almost identical to the 1971 constitution written by former President Anwar Sadat”—hardly a democratic standpoint.
The construction of a new constitution from scratch has particular value in allowing a political system to “catch up” to the contemporary context, even if ancient political theories are drawn on. The default in a constitutional assembly’s deliberations should not be based in the status quo. This point is easily missed, particularly when the other weakness of a partisan group dominating the assembly is also the case.
In the best of all possible worlds (Leibniz’s expression), delegates from all of the principal segments of society should be included in a constitutional assembly, with no group having a majority. Where such a majority is the case, a certain percentage of the minority should be required for an article to be adopted. Second, rather than being based on the last constitution, the starting point could be based on a new blue-print formulated in very basic terms by a committee (composed of delegates from the major segments of society). In the case of Egypt, delegates favoring particular major religions as well as secular society should have been on such a committee, and, moreover, active in the deliberations of the committee of the whole—the assembly itself.
A constitutional assembly should be a microcosm of the macro society, and thus inclusive of the powers and the non-so-powerful. Ideally, Rawls’ “veil of ignorance” should apply, wherein no delegate knows which segment he or she is in. Hence, no segment is apt to be left out or expunged. The veil would apply as well to the existing or prior constitution, so ever its assumptions would not serve as the default for deliberation. In short, a constitutional assembly should “reinvent the wheel” in the context of where a society is, rather than was. This does not mean that the resulting document would necessarily be progressive, particularly if a given society is traditionally-oriented.
In the case of Egypt, the “new” constitution drafted by the assembly, unlike the constitution that had been written by Anwar Sadat, includes a reference to the laws of a particular religion. In fact, both the state and “society” are given the authority to “ensure public morality.” Lest it be supposed that Egyptian society had become more traditionalist and religious in terms of a particular religion since 1971, the changes from the status quo document could simply be a reflection of the partisan make-up of the assembly. The point is that it is impossible to know unless it is the living—representing all of society rather than one party or segment—rather than the already-dead as the force behind the construction of the edifice by which public governance is to run its course.
Accordingly, all major segments of society must ratify a proposed document of basic law for it to have legitimacy operationally. Absent such approval of a super-majority or of all of the major elements of society, a proposal should be read as partial or incomplete. Rather than returning to it, a new assembly of delegates should “start from scratch” so a document can be crafted with presuppositions freed from the tyranny of the status quo and any major faction.
David Kirkpatrick, “Islamists Rush Through Egyptian Constitution and Prepare to Vote on It,” The New York Times, November 30, 2012.
Sam Dagher and Matt Bradley, “Egypt Adds Islamic Influence to Constitution,” The Wall Street Journal, November 30, 2012.