What role for the army in Egypt's next constitution?

Bassem Sabry has gotten hold of the text of the "constitutional principles document" that is supposed to inform the drafting of the new Egyptian constitution next year. From his notes and my reading of it, we are heading towards a real political, constitutional and legal disaster.

The document has been midwifed by Deputy Prime Minister for Political Affairs Ali al-Selmi, a member of the Wafd Party, although there has been much controversy as to whether such a document is needed at all. Islamists have generally refused to take part in recent meetings, arguing that the whole thing is moot since parliament must write the new text, while secularists (who backed the principles idea as a way of guaranteeing a focus on human rights and ensuring that, in terms of Islam's role, the next constitution is not worse that the last one.

Some secularists walked out of recent meetings after it was unveiled that the SCAF was pushing to put the military budget outside the scope of parliamentary oversight, as was reported several days ago. But the text is apparently even worse than I thought, according to Bassem:

A few interesting notes on the army. Only SCAF will be allowed to analyse and debate any matters pertaining the army or the details of the military budget, and the military budget as a whole would be submitted as one single figure to the parliament for the annual State budget debate & voting. Also, war can only be declared by the President after the approval of both Parliament & SCAF. Oddly, this ignores the fact that the Parliament may choose a Parliamentary System without a strong President to begin with.

Under Mubarak, one of the reasons the regime had an interest in maintaining a two-thirds majority was that this was the quorum needed to give the president waiver power to approve military sales deals without asking parliament. That power was systematically given, meaning there was little MPs could know about what amounts of money were spent on arms sales, to which countries, etc. Of course this also meant independent investigation of these transactions (i.e. whether they added up, how much was paid to consultants and so on). The principle that SCAF is trying to maintain here is that the military should be above civilian oversight.

What I was not prepared for is the second part of that paragraph, which states that "war can only be approved after the approval of both parliament and SCAF. What's significant here to me is that this wording would suggest that SCAF would continue to exist even after a president is elected. It's hugely telling of how the military seems to conceive the transfer of power back to civilian rule: they're not going to disband themselves, but are turning themselves into a fourth power alongside, not beneath, the executive branch.

Now, SCAF seems to argue that the constitutional principles will be binding, but there is nothing legal about that (unless they make them so by decree, which could be challenged.) The idea of such principles was that they would represent a political consensus between Islamists and secularists over the basic outline of the new constitution. It is now being turned into a document the SCAF will try to impose. Bassem also notes the following:

 

5- If the proposed constitution is seen by SCAF to contain articles that defy the basic rights and principles as stated in the Constitutional Principles Document & "All [Previous] successive Egyptian Constitutions", SCAF will ask the Constitutional Assembly to revise the texts within 15 days. If the Assembly fails to adjust the texts or refuses to comply with the initial request itself, the Supreme Constitutional Court would then revise the proposed texts & issue a binding judgement that even SCAF cannot refuse.
6- If no draft for a constitution is prepared within 6 months, SCAF may dissolve this committee and create a new one that has to draft a constitution within 3 months, which would then be subjected to a referendum.

 

Point five is a legal and constitutional mess — if the constituent assembly is tasked with writing the constitution, the Supreme Constitutional Court should have nothing to do with defining its texts. Its job is to defend the text no matter what it is.

Point six is truly worrying: it basically suggests that in case of political deadlock (possibly one created by SCAF by invoking point five) the SCAF will have the power to dissolve the constituent assembly and impose its own one, and then ram the whole thing through a referendum.

Things have kept getting worse in Egypt for the last several months, but this promises an even more severe downturn next year. That this is being unveiled as parties are preparing to compete in elections will of course make a cross-partisan reaction more difficult. But Egypt's democratically-minded political parties (a label I would only applies to some, both Islamist and secular) should realize that they should not be chiefly running against each other, they need to be running against the SCAF.

Update: There have been some minor changes made to the composition of the constituent assembly and the body with oversight of the military's budget. Bassem updated his post.