These days, one of the most important questions for Egypt’s transition is apparently being settled between the Supreme Council of the Armed Forces (SCAF) and the political parties: how exactly should parliament elect the constituent assembly that will draft a new constitution? The importance of the issue cannot be overstated. The constituent assembly will be tasked with re-designing the Egyptian state to respond to demands for democracy. If successful, the assembly will lay the foundations for a new Egypt, the same way that South Africa’s constitution-making process hailed a new dawn for the country. The constituent assembly will be the real prize of the parliamentary elections that are scheduled to begin at the end of November. Yet until now it has not been clear precisely how parliament should elect the seminal body.
The SCAF's constitutional declaration (Article 60) indicates that the elected members of parliament should elect the 100 members of the constituent assembly, but does not address the crucial details. Which electoral system should be used for this purpose? Should there be a requirement for a super-majority, for example that constituent assembly candidates would need the backing of at least two-thirds of MPs? Should the members of the constituent assembly represent different segments of society?
There are demands for the constituent assembly to have a broad composition, including a minimum allotment for women, Copts, and those from other religious groups and specific occupations. Indeed, such stipulations can be found in many constitution-making processes over the last decade. Yet, while this is an important means to achieve a broad-based body, in terms of political outlook of the constituent assembly this is not the decisive question. Women, minorities, farmers, workers and other groups do not have a uniform political orientations. They are as pluralistic in their views as any other group of the population. One can find Salafi, Islamist, liberal or leftist women, workers or farmers. In other words, a constituent assembly that includes these groups may be broad-based, but this is no guarantee that it is pluralistic.
For political pluralism the key question is how the constituent assembly will be elected. Article 60 implies that parliament will elect members by a majority vote. That would mean that a parliamentary majority of 50 percent plus one could potentially determine the entire composition of the constituent assembly. In that case parliament would essentially become a filter through which the expression of newfound pluralism in the parliamentary elections would be reduced.
The law is also short on details. There are many ways in which the members of parliament can vote for the 100 members of the Assembly. Each MP can have one vote or up to 100 votes, each "seat" of the constituent assembly can be filled individually, or there can be a vote for all 100 in one go. Some of these models would reduce the risk of a one-sided assembly, but they would be complex and make the electoral process highly unpredictable.
The easiest way to prevent the emergence of a partisan constituent assembly would be the requirement of super-majority selection. Indeed, in recent months civil society organizations and parties have demanded that the constituent assembly be elected by a super-majority of two-thirds or three-fourths of all MPs. The cabinet drafted such plans but never officially put them on the table. A super-majority requirement is worth considering for several reasons. If elected by a super-majority the assembly would be more likely to reflect the political pluralism of parliament. The election of middle-ground candidates, who are acceptable to a broad majority, would be encouraged. Such a composition would be more conducive to reaching consensus on an eventual draft constitution. The work of the assembly would be less in risk of being marred by controversy over its composition.
A super-majority requirement would make it likely that constituent assembly membership would essentially be negotiated and agreed upon among a large majority of MPs. The vote would then merely "ratify" the outcome of such negotiations, making the voting process less antagonistic. Carrying the logic of consensus a step further, it could already be agreed that the constituent assembly will have to adopt its draft of a constitution by supermajority. The time for such agreements is now, when no party yet knows for certain its electoral support.
A consensual process of forming the constitution-drafting body would create a constructive environment contributing to wide acceptance of its results. It would have the additional benefit of reducing the stakes of the upcoming parliamentary elections. Losing them would not amount to a complete loss of influence on the composition of the constituent assembly. Lowering the stakes would be welcome for an electoral process already concerned about possible violence. Opinion polls show that Egyptians desire a democratic state but they fear the instability and deep divisions that democratic transitions can create. Writing rules that favour consensus is one way to respond to the desire for a democratic and stable new Egypt.
Michael Meyer-Resende is the Executive Director of Democracy Reporting International, a Berlin-based not-for-profit NGO promoting political participation.
