The Arabist

The Arabist

By Issandr El Amrani and friends.

In Translation: How the Constitutional Declaration came to be

Much of the mayhem currently taking place in Egypt is a direct result of the Constitutional Declaration President Mohammed Morsi announced on 22 November 2012 and the political upheaval it caused. There has been much speculation as to why the declaration was made when it was (just after the end of the Gaza crisis), who had planned it and who was out of the loop and what its purpose was. Mohamed Basal, a reporter for al-Shorouk newspaper, has the inside story of how the Declaration came to be, shedding some light on some of these questions. We bring it to you in English thanks to the upstanding folks at Industry Arabic who make our In Translation series possible.

Basal's article is meticulously — though anonymously — sourced and provides a plausible narrative of how the Constitutional Declaration came to be. Some key points:

  • It was largely drafted by the Legal Affairs Committee of the Freedom and Justice Party, in consultation with Brotherhood leaders, but only with late input from presidential advisors.
  • Key judicial figures were only consulted late and opposed some of its provisions.
  • It was initially intended to include bringing the retirement age of judges down to 60 years old. Such a provision could still be implemented later this year to purge a large number of senior judges. The Vice-President threatened to resign over this.
  • The Minister of Justice and the Vice-President, both judges, fought against several of its provisions and did not think it was necessary — or legal — to "protect" the Constituent Assembly from a Supreme Constitutional Court decision.
  • Morsi and the Brothers believed a conspiracy was afoot (this much we know from their cryptic statements) for the Supreme Constitutional Court to launch impeachment proceedings against President Morsi — even though there are no constitutional means for this. They were also receiving information of a destabilization campaign from "sovereign bodies", meaning intelligence agencies.
  • The Constitutional Declaration was originally intended mostly to deal with the replacement of the Public Prosecutor and the extension of the Constituent Assembly, which by late November was far from finishing its work. It was the FJP's legal committee that added other provisions, backed by Morsi notably on the question of protecting the Constituent Assembly from dissolution and giving himself extraordinary powers (intended to deal with a perceived threat of unrest caused by the opposition).

Here's the quite long and detailed article for Egypt-watchers who want to understand the steps that led to the Morsi administration's biggest mistake to date.

Freedom and Justice Party drafts the declaration’s articles. President agrees without consulting the Vice President. Al-Shorouk provides a behind-the-scenes look at the November 21 declaration.

Mohamed Basal, al-Shorouk, 5 March 2013

The constitutional declaration, issued by President Morsi on November 21 of last year, remains the most dangerous and pivotal event of the Morsi administration thus far. The declaration became a land mine, exploding in the faces of the President, the Brotherhood, and the opposition. It helped to divide Egypt as never before, and resulted in the bloodshed that continues to this day.

The declaration was a serious one, as it the dismissed former Prosecutor General Abdel Meguid Mahmoud, protected the Shura Council and Constituent Assembly against being declared invalid and dissolved, and canceled all legal suits brought against them in either the Supreme Constitutional Court or the Administrative Judiciary. It also placed all decisions and constitutional declarations made by the President of the Republic above review and granted him the power to take extraordinary measures to protect the revolution, without specifying the nature of these measures.

The constitutional declaration (which was partially revoked on December 8) was followed by the demonstrations outside the Presidential Palace, which resulted in the deaths of 12 people of various political orientations. The situation deteriorated still further after that, and the scene become one of complete polarization, pitting the Muslim Brotherhood against the National Salvation Front.

The full, behind-the-scenes truth of the declaration has remained a secret, known only to those who were present as it was drafted and issued, and a large part will still be unknown even after the coverage by Al-Shorouk. This article is not intended to represent a journalistic ‘scoop’ so much as an effort by the newspaper to document this sensitive period in the history of the revolution. It is based on conversations and the testimony of six individuals who lived through the circumstances surrounding the issuance of the declaration, and the scenes at the Presidential Palace which immediately preceded it. At the request of these six sources, Al-Shorouk has not revealed their names.

Some of these six, who for various reasons have refused to reveal their identity, are close to the group of decision makers at the Palace, while the rest belong to higher judicial bodies.

The most important and surprising detail upon which these sources agreed was that the declaration was a brainchild of the Legal Committee of the Freedom and Justice Party, and not the President's advisors. As such, it is unlike the decision to reinstate the People’s Assembly, as well as the August 11 declaration that abolished the Supplementary Declaration. They also revealed that the first draft of the declaration lowered the retirement age of judges to 65, thus going beyond just dismissing the Prosecutor General, who was 66 at the time.

Here are the details:

Act 1: The Palace Committee

It was interesting that for several days in October and November of last year, several members of the Legal Committee of the Freedom and Justice Party met at the Presidential Palace, without anyone knowing the reason. Of particular interest was the presence, at these meetings, of the President’s legal advisor, Mohamed Fouad Gadallah.

The members, who met personally with both the President and his Chief of Staff Dr. Ahmed Abdel Ati, did not disclose the purpose of their meetings to anyone inside the palace.

Some members of the Legal Committee of the Brotherhood Party spoke of a conspiracy, whereby certain judges within the Constitutional Court were said to be trying to impeach the President. There was and still is an outstanding legal dispute between the Court and two Legal Committee members who accused the Court of rigging the ruling to dissolve the People’s Assembly, despite the results of an investigation conducted by office of the Prosecutor General.

This talk of conspiracy was communicated to the Brotherhood's lawyers by individuals who had had several friendly meetings with a member of the Constitutional Court, during which he spoke recklessly of “our ability to impeach President Muhammad Morsi, ” saying: “Just as we appointed him, so we can impeach him. ” This is according to the narrative related by the Brotherhood's lawyers, who conveyed the same version to the President.

The President then relayed this information to several members of what was then his presidential team. Even though judges at the Constitutional Court denied the possibility of impeachment, chief among them their president, Counselor Maher al-Beheiri, the Brotherhood took the matter seriously, and it became a major factor in the countermeasures taken against the Court, both from within the Constituent Assembly and otherwise.

Meanwhile, talk of conspiracy and concerns over the Constituent Assembly began to dominate the atmosphere in the Presidential Palace, especially when the Court, in its November 7 meeting, scheduled a session on December 2 to review both the dissolution of the People’s Assembly and striking down the law to immunize the Constituent Assembly. This latter issue was promoted as if it would result in a dissolution of the Assembly, even though this was legally impossible according to high-level sources in the Court.

The decision only increased apprehension within the Brotherhood, especially in the wake of the fragmentation and resignations which were then taking place within the Constituent Assembly. At that point, the Assembly was not even close to completing a first draft of the Articles, a task that would certainly require stability within its ranks, not additional disruptions.

Thus, during the second week of November, the Legal Committee of the Freedom and Justice Party began to seriously think of clearing the Constitutional Court, or at least preventing it from examining the issues that awaited on December 2.

Morsi and the Judges

President Morsi has maintained a cautious attitude towards the judges since the day he took office, and his choice of Counsellor Mahmoud Mekki as Vice President was in no way intended to satisfy or flatter the judges, as some have tried to portray it.

At the first meeting to which the President invited the heads of the various judicial bodies, and before Mekki was appointed to his position, the President explicitly stated that there was no intention to undermine the judges. This announcement came amid rumors of a law that would lower the retirement age for judges.

Two weeks after Mekki’s appointment on August 12, the President put a proposal before him to lower the retirement age of acting judges to 60. This would legally dispose of former Prosecutor General Abdel Meguid Mahmoud, as well as a large number of judges on the Constitutional Court. This includes a number of judges known for their opposition to the Islamist movement, chief among them former Counselor Tahani al-Gabali.

The Vice President strongly objected to this proposal, and indicated that he would resign if it was put into effect. Before this, Counsellor Mekki had personally assured the senior judges that they would not be affected, at least until the end of the judicial year on June 30, 2013. This marked the end of the issue between the President and his deputy.

Following the formation of the presidential team, the matter was again proposed by advisors to the President, at meetings attended by both the President and the Vice President. The President agreed to the idea, while the Vice President rejected it, and warned that it would potentially shock the legal community, as well as cause general agitation among the people.

Amid increasing demands for the Prosecutor General’s dismissal, there was a plan to transfer the Prosecutor to the Vatican as ambassador, but then they backpedaled away from this decision. The Freedom and Justice Party still persisted in its desire to lower the retirement age of judges.

Act 2: The Revolutionary Prosecution

During the second week of November, the Presidential Palace began to move towards issuing a new constitutional declaration. At that time, the declaration would only “extend the work of the Constituent Assembly by two months, ” by amending Article 60 of the then-in-force constitutional declaration.

This action received strong support from the President’s legal advisor, as well as from the Legal Committee of the Freedom and Justice party. For them, the legal basis for the right of the President to amend the article, despite the March 11 referendum, came from the fact that the referendum concerned other articles, not ones which had been effectively included by the constitutional declaration. Furthermore, the deadline mentioned in the text was by way of organization, and was not binding.

It was also agreed within the presidential circle that a special prosecutor be set up to protect the revolution, and to retry the cases of demonstrators killed in the revolution. The President tasked his legal counselor with drafting a law to organize the office of this special prosecutor and its judicial business.

This was how it appeared on the surface. Behind the scenes, the Legal Committee of the Freedom and Justice Party was busily engaged in drafting other articles to be included in the new constitutional declaration, one of which was originally devoted to extending the activities of the Constituent Assembly.

In the matter of the Prosecutor General, the administration had already prepared to cooperate with the Vice President, Mahmoud Mekki, and his brother, the Minister of Justice, Ahmed Mekki, following the dismissal of the Prosecutor General and his transfer to the Vatican. They had called for the résumés of a number of counselors, including several living abroad, as well as associate justices of the Court of Cassation, and the President of the Court of Appeals in Cairo. However, at the last moment, the Prosecutor General backed down from his agreement to move to the Vatican, which held back both the final step in his overthrow, and the announcement of his replacement, who the President had decided would be Talaat Abdullah.

The name Talaat Abdullah, however, was still in contention for Presidential appointments, and remained the strongest candidate for the post of Prosecutor General, as soon as the first opportunity arose to dismiss Abdel Meguid Mahmoud.

Act 3: Behind the Curtain

The Legal Committee of the Freedom and Justice Party prepared the complete constitutional declaration, whose first article provided for a special prosecutor to defend the revolution, as well as the agreed-upon retrials. The fourth article stipulated an extension of the work period of the Constituent Assembly, another matter that had been agreed to within the Presidential Palace.

However, the other articles would come as big surprises to members of the presidential team, as well as those non-Brotherhood members close to the President.

The second article placed all presidential decisions and declarations above scrutiny, meaning that cases against the declaration could not be brought before the Administrative Judiciary.

The third article was the most dangerous, as it lowered the retirement age for judges to 65, meaning that the Prosecutor General would be gotten rid of along with the heads of all judicial bodies, chief among them the Supreme Constitutional Court, as well as five associate justices of the Court, Tahani al-Jabali not among them.

This article would also mean that no review could take place, or ruling be issued, against the Constituent Assembly or the Shura Council, as might have occurred in the December 2 session of the Constitutional Court. However, leaving nothing to chance, the committee also drafted Article 5, which banned any judicial authority from dissolving the Constituent Assembly or the Shura Council.

The President was presented with the draft of the constitutional declaration within days of the Israeli bombing of Gaza, and he agreed to it in principle. However, he ordered that it be shown to both his legal advisor and to the Minister of Justice, in order to get their opinion concerning the judges.

On November 21, President Morsi was able to score a strategic and political victory when acting under the patronage and blessing of the U.S., he oversaw the truce between Israel and Hamas. This cleared the way for the bomb that was the constitutional declaration to explode upon the Egyptian political scene.

That evening, the President apologized that he was unable to travel to Pakistan for an Islamic summit, and sent his deputy Mahmoud Mekki in his stead. He was preparing to detonate the constitutional bomb.

Mekki knew that something was happing without him, but did not know what exactly. On November 7, he had left his resignation at the discretion of the President, after having been assured that the judges’ retirement age would not be lowered, and that no other move would be made to dismiss the Prosecutor General.

Act 4: The Bomb Goes Off

The Legal Committee of the Freedom and Justice Party had finished drafting the declaration and several of its members had been at the Presidential Palace since the morning of November 22. Some committee members specifically informed Brotherhood leaders of several of the declaration’s clauses, in particular the lowering of the judges’ retirement age. Clearly, they considered the matter “over and done with,” and not subject to change.

As a matter of fact, Brotherhood leaders began informing their headquarters of the need for a demonstration at the Supreme Court building in support of important presidential decisions concerning the judges. In their words: “A popular demonstration in support of these decisions is strongly needed. ”

At noon, the president summoned Ahmed Mekki, the Minister of Justice, and Doctor Mohamed Mahsoub, the Minister of State for Parliamentary Affairs, asking them to come quickly. A meeting was held, involving them as well as members of the Legal Committee of the Freedom and Justice Party and the President’s legal advisor, Mohamed Fouad Gadallah.

Mekki and Gadallah strongly opposed lowering the retirement age, and warned of a violent reaction from the judges. They suggested that this step be postponed, and that it be implemented in phases, beginning gradually after the end of the judicial year. Such a step, according to them, should absolutely not be taken at the present time.

The discussion, which lasted almost two hours, ended in a compromise. Article 3, concerning the appointment of the new Prosecutor General, would provide for a four year term, and a new clause would be added: “This provision applies to the one currently holding the position with immediate effect.” Mekki and Gadallah supported this course of action, given that the dismissal of the Prosecutor General was one of the central demands of the Revolution.

The new Prosecutor General, Counselor Talaat Abdullah, was immediately summoned so that he might take the oath of office prior to the official announcement of the Prosecutor General’s dismissal. They were eager to maintain secrecy and not repeat the Vatican incident. As for immunizing the Shura Council and Constituent Assembly and stopping litigation on all legal actions calling for their dissolution, some of those at the meeting argued that this was not needed, and that it was not legal to prevent the Constitutional Court from reviewing a case. However, a majority of Freedom and Justice Party members considered immunization to be necessary if the retirement age was not lowered. They argued that the Shura Council and Constituent Assembly would be left exposed, and subject to dissolution at the December 2 session.

Some replied that the Constituent Assembly case that was currently before the court would under no circumstances result in its dissolution. It was merely a dispute with regard to implementing the ruling that dissolved the People’s Assembly. The most that could happen was that it could allow a new case to be brought before the Administrative Court to invalidate the Constituent Assembly. However, the President, wanting to prepare for all contingencies, supported the article.

Article 6 expanded the powers of the President to include extraordinary measures to protect the revolution, and was also insisted upon by the President. He based his decision on reports, which stressed that the chaotic atmosphere on the streets demanded that he take measures against forces hostile to the revolution.

This was almost 10 days after the President received reports from sovereign bodies that businessmen, some belonging to the former regime, were holding meetings in a major hotel to coordinate efforts to destabilize his government. The declaration was issued in a routine manner, and marked with the previous day’s date -- November 21 -- in order to facilitate immediate implementation.

Act 5: No to Extending the Constituent Assembly

After the declaration was issued, a controversy arose among members of the Technical Secretariat of the Constituent Assembly and Counselor Hossam al-Gheriany, concerning the extension granted to the Constituent Assembly. Al-Gheriany contacted the President, and emphasized his support of the declaration, despite one reservation concerning the extension. This was that a change had been made to an article that had already been approved by a referendum of the people.

Article 60 of the constitutional declaration sets a period of six months for the work of the Constituent Assembly. This deadline is binding, not merely a guideline, and as such cannot be interfered with. Therefore, this article of the declaration was ultimately disregarded. In the end, the Constituent Assembly finished its work two days before the scheduled December 2 meeting of the Constitutional Court.

The declaration then became like a ball of fire, burning everyone it touched. It continues to enflame the political street, and no one knows how it will end.