The Muslim Brotherhood's Mohamed Morsi was announced Egypt's new president Sunday, amidst much speculation that he assumes office with significantly reduced presidential powers.
Many have argued that the recently announced, contentious constitutional addendum issued by the Supreme Council of the Armed Forces (SCAF) on 19 June revealed that the ruling military council will not be handing over full authority by the end of June 2012 as promised.
Constitutional Referendum - 19 March 2011
After the ouster of Hosni Mubarak on 11 February 2011, Egypt's military council declared itself the protector of the revolution and promised to lead the country's democratic transition.
On 13 February the SCAF issued its first constitutional declaration in which it suspended Egypt's 1971 constitution, declared it will be managing Egypt's transition period until a parliament and a president are elected, dissolved Mubarak’s parliament and gave itself the mandate to issue laws.
The SCAF also announced it would establish a committee tasked with amending several articles of the 1971 Constitution, subject to approval via a national referendum.
On 15 February the SCAF appointed the committee that would draft the constitutional amendments outlining the roadmap for Egypt's transition.
The committee was headed by prominent Judge Tarek El-Bishry, known to be close to the Muslim Brotherhood, and composed of seven other legal experts including Brotherhood member Sobhi Saleh and the current Supreme Presidential Electoral Commission (SPEC) General Secretariat Hatem Bagato.
The amended articles outlined how the presidential and parliamentary elections would take place post-revolution.
Article 75 of the amendments explicitly stated that to qualify for the presidency the contender’s parents should not only be Egyptian but should never have obtained the nationality of any other country, a criteria which later disqualified popular Islamist candidate, the Salafist leader Hazem Salah Abu-Ismail.
It also indicated that the president should not be married to a non-Egyptian, disqualifying figures that were expected to pursue the presidential race such as Nobel Prize winning chemist Ahmed Zweil whose wife is Syrian.
The amendments also altered Article 76 of the 1971 Constitution which outlined the criteria for the formation of the SPEC.
Previously the electoral commission was formed of five public figures, voted in by the lower and upper houses of parliament, as well as five heads of Egypt’s major courts.
The referendum dictated that the SPEC would only be composed of the heads of the major courts, bringing to an end parliament's mandate to choose representatives to a commission tasked with supervising parliamentary and other elections.
The referendum also saw the removal of the breakdown of the SPEC decision making process. As outlined by the 1971 Constitution, seven members or more had to agree for the commission to take a particular action – meaning that the five parliamentary-elected public figures could effectively have the power to veto what the heads of courts decided.
Without enshrining this decision-making process in the Constitutional Declaration and by removing the five public figures, it could be argued that parliament lost its veto power over the SPEC, whose decisions, as they were in the 1971 Constitution, continued to be immune to appeal.
Key actions made by the commission, such as banning presidential contenders Khairat Al-Shater and former vice-president Omar Suleiman from running for the presidency, significantly altered Egypt's political landscape.
The articles put to the referendum included the revilled Emergency Law, but stipulated that it would be implemented for six months, after which it could only be extended by popular referendum – widely seen as a positive step after Mubarak had reigned under the abusive law for thirty years.
The most important and contentious contribution of the amendments was that they set the transitional time-table: the parliament and president would be elected first and then parliament would choose the constituent assembly tasked with drawing up Egypt's post-revolution constitution.
According to Article 189, upon his election the president would request the parliament – after the approval of Cabinet and half of parliament – to form the constitution-making body. It would be made up of 100 members chosen by parliament.
One of the main objections to the amendments from those who voted “no” in the referendum, was that Egypt’s new constitution should be drafted first and that parliament should not be the body responsible for overseeing the creation of the constituent assembly.
Yet by the time the 30 March Constitutional Declaration was issued, the SCAF, rather than an elected president, was mandated to call for formation of the constituent assembly. As such SCAF had taken upon itself the task allocated to the elected president in the amendments, which had been approved by a popular referendum, changing the transition time-table by putting the formation of the constituent assembly ahead of presidential elections.
Constitutional Declaration - 30 March 2011
Just three weeks after the announcement of the results of the referendum, the 1971 Constitution was finally abrogated and a SCAF-authored Constitutional Declaration issued in its place. This significantly truncated document, unlike the amendments to the 1971 Constitution, was never put to the popular vote. The team who had drafted the referendum document did not write the declaration.
In the absence of parliament and president, the Constitutional Declaration stated that the SCAF “manages the country” and so effectively granted the ruling military council full legislative and executive powers.
Constitutional Declaration – parliament’s powers
Parliamentary elections took place between November 2011 and January 2011 and finally held their first session on 23 January 2012. The Muslim Brotherhood and Salafist parities won the majority of parliamentary seats.
The newly elected legislative body assumed standard parliamentary authorities laid out in Article 33 of the declaration, which included “legislative authority”, managing the public budget and public policy.
However, the ruling military council retained the “authority to legislate ”, meaning it could act as a parliament and issue laws as well as being able to veto and promulgate legislation (Article 56), as a president would.
In addition, the SCAF retained full executive authority.
Many critics of the declaration pointed out that the parliamentary powers were significantly reduced. A number of key articles enshrined the 1971 Constitution were missing.
In the Mubarak-era constitution, the People’s assembly was allowed to withdraw confidence from the appointed ministers and hold the prime minister accountable (Articles 126 -127). These powers were omitted in the declaration.
In practice this meant that the parliament was unable to change the cabinet or Mubarak-era prime minister Kamal El-Ganzouri, who was reappointed to the position by the military council on 23 November 2011.
To the dismay of many revolutionaries, El-Ganzouri’s cabinet retained old regime officials like international cooperation minister Fayza Abul-Naga, who was responsible for the recent controversial crackdown on NGOs.
As relations soured between the People’s Assembly and the government, the lower house warned on 29 April 2012 that it would suspend its activities in protest of the continuance of the Ganzouri government. SCAF ignored the threat, and parliament bowed down.
In the declaration, to pass a law Parliament had to secure the approval of the SCAF, as acting president. The SCAF, in line with the presidential powers of 1971 Constitution, could also veto those laws (Article 56).
However the 1971 constitution had previously allowed the parliament to respond: pre-revolution, if two thirds of the People’s Assembly rejected the presidential veto, the law would be pushed through (Article 113).
This was removed in the Constitutional Declaration, reducing parliament’s powers to drafting and amending legislation.
Parliament’s role in foreign affairs was also written out. In the 1971 Constitution, all peace treaties, alliance pacts and treaties related to sovereignty rights required the approval of the People’s Assembly.
In the Constitutional Declaration the SCAF represented “the state domestically and abroad, signed international treaties and agreements”: parliament ratification had gone.
As tensions escalated between the revolutionary movement and the armed forces, with bloody crackdowns by the military on protests at the end of 2011 and beginning of 2012, activists proposed bringing back Article 82 of the now-defunct 1971 Constitution.
This stated that in the absence of a president; the speaker of the People’s Assembly, or the Head of the High Constitutional Court would take over presidential powers, until such a time as either the sitting president is able to resume his presidential authority or new elections are held.
This parliamentary privilege had been written out of the Constitutional Declaration, and so it was never enforced.
The People’s Assembly Law – September/October 2011
Before the elections, SCAF approved changes to parliamentary law. The People’s Assembly law regulates the relationship between parliament and the government, defines the duties and responsibilities of elected deputies, and describes the way in which elections are held.
On 20 September 2011, the SCAF amended the law. Fifty per cent of the seats would be elected through the single-candidacy system and fifty per cent through the party list, proportional representation system. The new SCAF amendment also abolished the women’s quota introduced under Mubarak in 2010, and instead stipulated that all party lists must include at least one woman.
After much pressure from political forces, on 25 September the SCAF amended the People’s Assembly law once more, reducing the number of seats elected through single-seat candidacy from 50 per cent to 33.3 per cent.
The SCAF in an earlier draft of the law barred political party members from contesting individual candidacy seats.
However, after much pressure from political parties, who would later be represented in the parliament, the SCAF on 8 October amended this article to allow political parties to file their candidates on individual candidacy seats, whilst warning that such a decision might be found unconstitutional.
As SCAF predicted, this particular article of law became the very reason the law was found to be constitutional and the legislative body was ordered dissolved.
Parliament Dissolved – 20 February 2012
On 20 February 2012, just over a month after the People’s Assembly was sworn in, as the SCAF predicted, the electoral commission referred the Parliamentary Electoral Law to the High Constitutional Court.
On the 14 June 2012, just two days before the second round of the presidential elections was due to take place, the HCC declared the law unconstitutional, on the grounds that political party candidates had been permitted to contest one-third of the parliamentary seats reserved for individual, non-partisan candidates. Though the ruling could be interpreted as ordering the reelection of only one third of the seats reserved for individual non-party candidates, the SCAF dissolved the entire lower house of parliament.
This sparked a public uproar - parliamentary figures like the People Assembly’s speaker Saad El-Katatni called the SCAF’s action unconstitutional, saying that the decision to dissolve parliament should be put to referendum for the people to decide.
With Egypt’s parliament disbanded, the SCAF assumed its legislative functions outlined in Article 33.
“The declaration is so badly drafted you can interpret it in many ways,” explained American University in Cairo law professor, Amr Shalakany, “There are huge legal debates going on right now: whether the SCAF has the legislative authority now the parliament is dissolved. Whether the amendment requires a referendum, in fact, whether the parliament is actually dissolved. We can’t say for certain.”
Former head of the State Council Mohamed Hamed El-Gamal, on the other hand, confirmed to Ahram Online that the dissolution of parliament automatically means the SCAF becomes acting parliament.
"As the legislative, revolutionary, constitutional authority since the January 25 revolution, the SCAF automatically fills any vacuum left by unassigned authorities" stated El-Gamal.
Such a statement would however be debated by other legal experts who believe the SCAF can only take over authorities explicitly outlined by the constitutional declaration.
Head of the committee which drafted the March amendments Tarek El-Bishry stated repeatedly that the SCAF did not have the authority to take over parliamentary powers and that the dissolution of parliament has left a legislative vacuum.
Presidential powers: the struggle against the SCAF
The presidential elections continued as planned.
All eyes were on the mandate of the upcoming president, particularly as the parliamentary buffer between the SCAF and the president, had now been removed.
Article 25 of Constitutional Declaration assigned all the powers the SCAF had enjoyed in Article 56 to the president, minus sub-point one and two: “legislation” and “Issuing public policy for the state and the public budget and ensuring its implementation.”
Much like the 1971 Constitution, the president was able to appoint ministers and promulgate and veto laws.
Nevertheless the legislative authorities of the president had been significantly reduced.
In the 1971 Constitution, the president was able to issue laws “under exceptional circumstances” (Article 108), to propose legislation (Article 109) and should the parliament be dissolved, create legislation in their absence (Article 147).
None of these had appeared in the declaration.
Another key change was the removal of 1971 Constitution’s Article 150, which stated that the president is the Supreme Commander of the Armed Forces. This vacancy would later be clarified in a serious of amendments to the Constitutional Declaration released on 18 June, when the ruling military council placed itself as the head of the armed forces.
The president is also no longer the supreme commander of the police force (Article 184), it remains unclear who will assume this role.
Although El-Gamal asserts the president should automatically assume this authority as head of the executive, it is unclear why this particular authority was omitted from the March declaration.
In the 1971 document, the president was also able to dissolve lower or upper houses of parliament when “necessary” (Article 136, 204). In the declaration, no one is specifically assigned this power, although the SCAF had allowed itself to exercise this right already.
Nevertheless, the president still represented “the state domestically and abroad” and will be able to appoint ministers (Article 56), although the ruling military council later omitted the defense minister in its 18 June amendments.
The SCAF has also recently overseen key appointments ahead of the president assuming power on 1 July 2012.
The first was the appointment of the all-important head of the High Constitutional Court.
The constitutional court is the only body that can interpret constitutional articles. As the articles of the Constitutional Declaration are notoriously vague, in the interim before Egypt has a full constitution, the court will play a major role in determining presidential and military powers.
In addition, the court retains the sole responsibility of refusing or accepting contested draft constitutional articles.
One of the key legislative changes the SCAF made after the ouster of Mubarak, Shalakany explains, was that the heads of courts were appointed by the General Assembly of Judges, on the grounds of seniority, not by the president as was the case before.
This allowed the SCAF to confirm the appointment of the constitutional court’s new head, Judge Maher El-Beheiry.
El-Beheiry will start his new role on 1 July; the day after the president is sworn in.
The president will not be able to change El-Beheiry, as according to Article 57 of the Constitutional Declaration, “judges… are not subject to removal.” This also means the majority of Egypt’s judges, including El-Beheiry, are Mubarak-appointees.
“Mubark raised the number of judges over the last 12 years,” explains Shalakany, “this has ensured that the court is stacked in favour of the former regime; particularly as you can’t fire judges. Nothing has changed.”
It could be argued, therefore, that the SCAF appointed the head of the crucial court, ahead of the president assuming power, in order to guarantee its preferred candidate.
In addition members of the National Defense Council, which is mandated with deciding on the manners of ensuring the safety and security of the country, have also already been appointed. The ruling military council also altered its make-up by ensuring SCAF members are now included in the body.
Finally the 2012/13 annual state budget, which was drafted by the military-appointed cabinet, will kick into action on the first day of the new presidency.
Although it is in parliament’s mandate to amend and approve the budget, the SCAF dissolved the People’s Assembly before they were able to fully comment on it. The budget had also been submitted two months late.
This has led MPs such as Freedom and Justice Party’s Ashraf Badreddin to call SCAF actions a “conspiracy” to make the next “government fail.”
Badreddin told Ahram Online on 21 June that "[Parliament] had planned to have an in-depth discussion of the budget and adjust it to fit revolutionary objectives, such as social justice” adding that he believed that the draft budget is full of ambiguities and loopholes.
"It contains extravagant state spending, and unexplained cuts in subsidies," he complained.
The content of the budget is also an indicator of the ruling military council’s plans for the coming year.
One of the fears, raised by activists, is that constitutionally there will have to be presidential re-elections upon the creation of a new constitution.
In the 2012/13 state budget, LE13 million are allocated to the electoral commission, implying, before the parliament was dissolved, SCAF’s government was preparing for both presidential and parliamentary elections within the year.
Selmi Document – 9 November 2011
Early November 2011, the then deputy prime minister for political affairs Ali El-Selmi proposed a 22-principale document outlining several supra-constitutional principles, for approval by the different political parties. The document was seen as an indicator of how the SCAF seeks to expand its authority over the constitution as well.
The document however was completely rejected and its proposal triggered mass demonstrations. The various Islamists parties who constituted the majority of parliament considered the document to be an infringement on parliament’s right to freely choose the constituent assembly.
The document dictates the various rights and freedoms, as well as the main pillars upon which the Egyptian state should stand.
The most controversial point referred to the role of the armed forces, stating that the SCAF would be “the protector of the constitutional legitimacy”, putting the military council as a guardian of the constitution to come (Article 9).
The same point also maintained the secrecy of the breakdown of the military’s budget.
The SCAF was declared the sole authority over the armed forces, its budget and legislation. The document did however maintain the elected president as the Supreme Commander of the Armed Forces, a presidential authority that was trimmed months later by a SCAF issued addendum constitutional declaration.
The Selmi document also outlined criteria for the formation of the constituent assembly well as the process of drafting, including adding that the SCAF could object to any article it sees as conflicting with previous constitutions or conflicting with the state’s main pillars and principles or general freedoms and rights. If the constituent assembly disapproves of the SCAF’s objection the article would be referred to the High Constitutional Court (HCC), the court’s decisions were binding and not subject to appeal.
“The only way to appeal the constitutional court decision is to amend the constitution or to appeal to the court to overrule itself,” explains law professor Shalakany, “essentially you’re asking the court to reconsider its decision. Historically, the court has never done this.”
The SCAF further granted itself the right to dissolve and form its own assembly if the parliament-elected assembly failed to draft a constitution within 6 months of its formation.
The controversial Selmi document however was never accepted and thus never applied.
Nevertheless, the amended constitutional declaration addendum that was announced on 18 June 2012 included the document’s last two stipulations, which gave the SCAF authorities over the constitution and the constituent assembly.
A Military coup? Constitutional amendments – 18 June
The constitutional addendum announced by the SCAF on 18 June, as the presidential runoff polling stations closed, assigned yet more authorities to the SCAF.
The controversial document triggered mass protests across Egypt. Eliminated presidential contender Abdel-Moneim Abul-Fotouh called the move a “military coup” whereas opposition figure Mohamed ElBaradei described the interim charter as a serious “set back for democracy and revolution.”
Thousands continue to demonstrate against the document in Tahrir.
Similar to the Selmi document previously rejected by Egypt’s political parties, the addendum gave the head of the SCAF, currently Field Marshal Hussein Tantawi, the authority to object to any article drafted in the new constitution, provided that he believes it to conflict with the revolution’s main goals or with all previous constitutions, in which case he would then refer it back to the constituent assembly for revision.
Should the constituent assembly object to revising the contentious article, it would be referred to the High Constitutional Court, headed up by the military-approved El-Beheiry, whose verdict will be binding.
The president, the prime minister, the Supreme Council of the Judiciary were also given the same authority – In contrast to the 1971 constitution, where only the People’s Assembly and the president were given these powers.
The addendum further grants the SCAF the authority to dissolve the constituent assembly and form a new one if the current constituent assembly should encounter an obstacle that would prevent it from completing its work.
The SCAF would be responsible for deciding on all issues related to the armed forces including appointing its commanders and extending the terms in office of the aforesaid commanders, effectively making the military council immune.
The president cannot declare war without the approval of the SCAF. In addition, should there be domestic unrest within the country the president would have to ask permission of the military council for assistance.
Now that the president is no longer head of the police, effectively the president has absolutely no control over weaponry or an armed force.