04/12/2012

Writing Constitutions: Geneva, the United States and Egypt

No one can deny the importance of constitutions; they are the documents which establish how an organization functions. They are, in essence, the backbone of the rule of law. For both civil society and governments on all levels, constitutions certify how organizations carry out their functions no matter who is in charge.

How are constitutions written? Who writes them? Recently in Geneva, a long process took place to write and have approved a new Constitution for the Republic and Canton. The Constitution that was replaced dated to 1847. The Assembly of 80 who wrote the Constitution was elected from 527 candidates and represented 11 groups who worked for 4 years. The Constitution was approved by the citizens of Geneva. Think of the number of democratic processes that took place: The members of the Assembly were elected, different parties participated, hearings were held, information sessions took place, a website and film kept the population informed, a final version was voted on, there is an additional five years to put all the changes in place.


 

The writing of the United States Constitution was also a long and democratic process. The United States had no central government after independence on July 4, 1776. By 1780, all thirteen states had adopted written constitutions. In June 1776, the Continental Congress began to work on a plan for a central government. It took five years for it to be approved, first by members of Congress and then by the states. The first attempt at a constitution for the United States was called the Articles of Confederation. The Constitutional Convention convened in response to dissatisfaction with the original Articles of Confederation. The elected members of the Constitutional Convention signed the Constitution on September 17, 1787 in Philadelphia. After four months of secret debate and many compromises, the proposed Constitution was submitted to the states for approval. Although the vote was close in some states, the Constitution was eventually ratified and the new Federal government came into existence in 1789. The Constitution established the U.S. government as it exists today with only 27 amendments.

In the early 1990’s, I sometimes found myself uncomfortably in backrooms in the capitals of newly independent countries typing out how the governments should be structured. Constitutions were written quickly, and mostly by outside experts. This is not what happened in Geneva. The process of writing a new Geneva Constitution reflected a democratic base.

 These two examples show how democratic processes are really part and parcel of Constitution writing. In Geneva, there was a previous document; there was no civil tension at the time of the writing. In the United States, the same situation prevailed. What is happening in Egypt now reflects a difficulty in the writing process in the midst of radical change. Geneva had a Constitution; it could always refuse the new one and hold on to the past. The United States was well protected by oceans from a dramatic failure of the new Constitution. The members who were writing the Articles of Confederation and the Constitution were familiar with British law although there was and is no formal British constitution; there was precedent. But, for Egypt, there is little breathing space. There is radical change taking place; there is no real precedent for democracy.

This is not to justify the confusion going on in Egypt. Declarations by the President must be scrutinized; the role of the judiciary as a balance of power is crucial. Rather, we can only imagine the difficulties in organizing a democratic process to write a new Constitution in the midst of change and rising expectations by all sides. In Nepal, for example, for the last five years there continues to be disagreement about elections for a constituent assembly to write the constitution. Five years to decide who will be members of the assembly to write the constitution!

Although the writing of the Geneva Constitution, as with the American, was not always harmonious, we should be grateful for the democratic process it followed. And we should also recognize the enormous challenges facing Egypt.

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