The Arabist

The Arabist

By Issandr El Amrani and friends.

Posts tagged constitution
In Translation: Egypt's president reads the constitution, sees a problem

 

Egyptian President Abdel-Fattah El-Sisi recently dismissed the country's constitution as founded on unrealistic "good intentions" (this same constitution was celebrated, when it was approved in January 2014, as basically the best in the world). In the latest installment of our In Translation series, brought to you as always by the translation professionals of Industry Arabic, Shereef Azer imagines what might have led the president -- now that a parliament that will share some of the powers he has monopolized for the last two years is finally on the horizon -- to change his evaluation. 

Shereef Azer writes: I’ll Show You “Tinkering with the Constitution”!

Online magazine 18+, Wednesday, September 16, 2015

Long ago, we were told that “constitution” is a Persian word that means “father of the law.” Yet it appears as though its current meaning in the corridors of the Egyptian government is “to hell with the law.” The regime’s approach is obvious, as it manipulates the law and the legislative process as it pleases, in the absence of a working parliament. Even so, to now hint at amending the constitution is both extremely provocative and unacceptable.

In his speech at the opening ceremony of University Youth Week, President Abdel Fattah al-Sisi stated that “the constitution granted broad powers to parliament, and with good intentions, but the country cannot run on good intentions alone.” Of course, these words represent a great insult to the Committee of Fifty that drafted the constitution. They presume that this committee had no idea what it was doing and that its members merely wrote, with good intentions, what was in their hearts. This is not something that a proper president of the republic should be saying.

The problem is that when you get to thinking about this statement, you necessarily arrive at the conclusion that the president fears something in this constitution and that he wishes he could change it in order to serve some goal. It becomes clear that the president wants to run the country according to his whims and without anything standing in his way. Well then, let’s see what in the constitution might be angering our president and getting his knickers in a twist.

First off, it’s clear that the president has gotten into a jam with all this parliament nonsense – even though he had tried to avoid it for quite some time – and he has finally been forced to take a look at the constitution and its meaning. If there’s going to be a parliament one way or another, he figured, then at least he should see what it’s all about. He opened the constitution and (Oh God, please let it be good!)…there right in front of his face was an absolute disaster. This upcoming parliament has the power to remove the president. Now, I’m not claiming to be a mind-reader, but I’m certain that the president reacted to this particular article of the constitution with a certain four-letter word. Surely, certain thoughts began to cross his mind, but thank goodness he said “good intentions” instead – otherwise, he would already have had the Committee of Fifty arrested and tried on charges of planning to overthrow the government.

Of course, a military ruler who has no interest in democracy, in legislative branches, in the rule of law or in any such talk cannot quite swallow this. “After all, we’re doing fine without a parliament. The people are happy. This measly little constitution would only cause me a headache, or possibly even put me out on the curb – when we are only just getting started!”

Then the president took another look at the constitution and found another stab in the back. What sort of constitution is this? It allows the parliament to be involved in the formation of the government alongside the president of the republic, and even allows it to review the president’s selection for prime minister and to withdraw its confidence from the prime minister as well. You mean to say that after the president has worked tirelessly to find ministers that he can actually put up with, the parliament can simply come along and send them packing? I’m afraid not!

The third thing that the president had no desire to hear is that the constitution states that the parliament must review all laws issued by the president of the republic, even those which were issued when there was no working parliament. What’s more, they must approve these laws or else they become null and void retroactively. Meaning that after all the effort of issuing these lovely laws, like the anti-protest law, the counter-terrorism law and the terrorist entities law, some amateurs can come along and amend them! It’s positively scandalous.

Since one way or another we’ll end up amending the constitution in order to extend the presidential term or to make it open-ended altogether, then why not fine-tune it from the get-go? This way we won’t have to keep making small amendments and we can just put out a whole new package at once.

Unfortunately, no one seems to learn from history. The more the president plays with the constitution, the faster his time will come to an end. In this regard, Sadat’s “extensions” and Mubarak’s amendments of 2007 offer a lesson: In matters such as these, tinkering with things leads to disaster. So I ask, please, that no one mess around with the constitution. Whoever does tamper with it is bound to get seriously screwed.

 

The misgovernment of Iraq

In April, Iraqi lawyer Zaid Al-Ali wrote a remarkably prophetic article arguing that Nouri al-Maliki, who had convinced many Iraqi voters in the just-concluded elections that he was a strong man, was actually presiding over a rapidly weakening state. The armed forces were a "paper tiger," he argued, sapped by corruption and politicization and unwilling to fight. Six weeks later the Islamic State struck and proved Al-Ali right, as Maliki's forces in the north melted away.

The full details of just how badly Maliki governed Iraq can be found in Al-Ali's book, The Struggle for Iraq's Future, an account of misrule in the country since 2003. One particularly cutting anecdote, in which Maliki kept in use a demonstrably fraudulent bomb detector, apparently to save face, at the cost of hundreds of lives, is excerpted on The Arabist here. Read in light of the fall of Mosul, the accounts dramatize how the same instincts that propel a political leader to extend control over all the institutions of state leave those very institutions fragile, led by opportunists and functionaries. That a ruthless leader does not make for a strong state is a lesson that the Arab world should have had ample opportunity to learn, yet many here still keep falling into the same trap.

Pressure is building on Maliki to go, with some even within his own party saying a new leader is needed. This will obviously not in itself roll back the Islamic State and its allies from its newly won conquests, but is probably a minimal prerequisite for building a more professional army and, more importantly, a signal to Sunnis that the new government won't repeat Maliki's vindictive policies against them.

But if Maliki is removed, the question of who will replace him, and whether they can forge a more effective army and a more effective state, will remain. For Al-Ali, Maliki is just part of a much larger problem - the political class, mostly exiles, that came to power in 2003-2005. Al-Ali goes looking for the original sin of Iraq's fragility in the hurried push to get an Iraqi government in place. When the Coalition first selected a governing council, he says, they opted primarily for exiles who imagined that Iraqis' sense of political identity was one-dimensional, determined entirely by their sect, and thus chose people who they imagined would be considered sectarian advocates: "The more extreme their position, the more likely that they would be seated at the head of the table." A second error was the rush to get a constitution approved by all the existing sectarian blocs, leaving it rife with loopholes that Maliki later exploited to stack ministries with loyalists, subordinate the military for his personal control, and, like other politicians, to buy votes with the expenditures of public funds. The occupation chose opportunists who cast themselves in sectarian terms, he argues, and the constitution neglected to take away the tricks they would need to maintain their hold on power.

Very few general historical overviews have been written on the Iraq war, and particularly not from an Iraqi perspective. Al-Ali was involved in the transition, and it's extremely valuable to have his insider view of what went wrong. Most of Al-Ali's observations ring true, and all of the reforms he recommends would probably be a step forward. But indicting opportunism, clientalist politics and the advantages of incumbency does not suggest a solution; what is really indicted is politics - dysfunctional and disheartening, but not uniquely to Iraq. Contemporary India, to take one example, has equally dismal horror stories of corruption, opportunism, playing with sectarian fire, and other forms of political misbehavior, yet still has held together as a democratic state. He's right that the 2005 constitution was a rush job: but Iraq in 2005 was already on the verge of a civil war, plagued with bombs and death squads, and given the mutual suspicion, it is remarkable that all the major factions agreed on any document at all.

By focusing on political dysfunction, Al-Ali seems eager to rescue Iraq from the charge of being haunted by eternal sectarian divisions. Much of what has been written about those divisions is a caricature, but Al-Ali sometimes takes his argument too far. Take for example that opening anecdote of Maliki and the fake bomb detectors: “a perfect illustration of how Iraqis' problems were caused not by religion or race, but by misgovernment." The failure to prevent bombs was deadly incompetence, but the bombs themselves were what killed people. They did not plant themselves, and it is hard to attribute them to misgovernment – the radicals who would later be the Islamic State started to plant them only four months into the occupation, when an Iraqi government even began, and almost immediately began hitting Shiite religious targets, not the occupiers. Car bombs are not unique to Iraq, but as far as I am aware, a decade-long offensive involving scores of bombs are year trying to kill as many civilians as possible is unprecedented in history, and it is the foundation of Iraq’s subsequent civil war. And it is difficult to maintain that this has nothing to do with “religion,” or at least with religious identity. Although most people in Sunni communities did not support the bombs, they were willing to turn enough of a blind eye to them to welcome the radicals as potential allies against the Americans and later, against the Shia-led government.

Al-Ali is right to point out that Iraq’s record of sectarian bloodletting is comparatively recent, that most people react with horror to the idea of dividing the country along sectarian lines, and that there are plenty of instances of cross-sectarian solidarity. But the country he describes – a population wanting to rise above the sectarian identity imposed on them by their leaders – is not the country I recognize from my years in Iraq. My young Shia friends, mostly secularists with many Sunni friends, were eager for "our chance" to rule the country, even if that meant voting for reactionary clerics. Sunnis, although they were friends with Shia, often found Shiite clergy and religious rituals to be horrifying and alien, almost a form of penetration by archenemy Iran. A country cannot emerge from decades of dictatorship without deep polarization, particularly not when you’re emerging into the uncertainty of the power vacuum brought by foreign invasion. The Iran-Iraq war in particular left deep wounds - many Shia had experienced persecution on account of religious or family ties with Iran, whereas many Sunnis still considered Iran an existential foe. Both Sunni and Shia may have in theory felt a sense of kinship with ordinary citizens from the other sect, but they felt threatened by leaders they considered to be “Iranians” vs “Baathists” or “Wahhabis.” Yet often enough they turned to their equally sectarian leaders, largely because they felt they would be the most likely to defend their interests.

Al-Ali has written in the Washington Post that the current crisis requires a “new idea” that must “break out of the ethno-sectarian paradigm.” He suggests appointing ministers outside the “current crop of corrupt political elites who have been running the country into the ground since 2005.” It is unquestionable the Islamic State is rolled back, Iraq cannot return to the status quo before the fall of Mosul, reinserting Baghdad's incompetent and brutal security forces back into the communities from which they were routed. A new political arrangement, either informal or formalized through an amended constitution, will need to be agreed upon.

But we cannot simply cannot wish into place a leadership that is infused with civic spirit. Iraq has a parliament, elected only two months ago. These politicians – many of whom are from the old sectarian elites – cannot be simply told to go home. They are currently scrambling to form a government that may or may not include Maliki, perhaps as early as Tuesday. While it may be an improvement on past Cabinets, it is difficult to imagine that they will put aside the instincts of a lifetime and stock it with competent technocrats.

It may be that the Islamic State's onslaught is the shock that transforms Iraq's political culture. But, just as much as new blood in government, what is needed are safeguards that prevent these politicians from considering each other to be threats, to prevent whichever bloc holds power in Baghdad from using the security forces and judiciary to target other groups. Such safeguards may well involve extending federalism to Sunni areas. This need not be seen as a reinforcement of the principal that Iraq's sectarian groups were destined to live apart, rather an acknowledgement that sometimes history causes rifts that, once they've emerged, take on lives of their own.

Egyptian constitutions galore

Courtesy of the International Institute for Democracy and Electoral Assistance (IDEA), a handy chart of Egypt's recent experiments with constitutions, including a partial draft of the current work-in-progress. Thanks to Zaid al-Ali for compiling.


 

English

Arabic

Commentary

Draft Constitution by the 50 member committee (C50)

 10 November 2013

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The 50 member committee (C50)'s rules of procedure
 
12 September 2013

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The presidential decree establishing a 50 member committee (C50) to prepare a final version of the draft constitution
  
1 September 2013

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The proposed changes to the 2012 Constitution by the 10 member expert committee (C10)
  
20 August 2013

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The Constitutional Declaration suspending the 2012 constitution and establishing a new road map for the country
 
8 July 2013

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The 2012 Constitution 

  25 December 2012

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The March 2011 Constitutional Declaration
  
30 March 2011

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Constitutional Disorder

In my latest column for the New York Times' Latitude blog I look at the writing of Egypt's new new constitution -- a process that despite offering some promise of improvement, is rather dispiritingly familiar.   

The last assembly was drawn overwhelmingly from Islamist parties that had just performed well at the polls. Non-Islamists didn’t have the numbers to exercise veto power and complained about their marginalization; eventually almost all of them withdrew. The new drafting committee looks like a photo negative of the old one: It contains a single delegate from an Islamist party, and he has already walked out in protest over being ignored.

The Islamist assembly pointedly excluded prominent feminist, activist and secularist voices. It’s unclear to whom the current committee — appointed by an interim president, backed by the army, packed with the heads of official institutions — is accountable to beside the state itself. Organizations such as the Journalists’ Syndicate have already complained that their recommendations on press law and freedoms of speech have been overlooked.

 

Mrs. Lincoln’s Egyptian Constitution

Nathan Brown, in FP, asks: 

Can a constitution written in 2012 largely by people now decried as terrorists really be amended to serve Egypt in 2013? Isn't the new regime's "road map" to restore constitutional rule and elections superseded by recent events? 

No it is not. The process is likely to continue and the political logic behind the road map remains quite robust. The reason is that it offers a way to concretize and institutionalize the current political arrangements. Worrisome as they might be, those arrangements remain ones that the dominant military, security, and civilian actors have every interest in entrenching. Egypt will have a constitution again, to be sure -- but it is one that will be a codification of the will of the current regime, like all of Egypt's past constitutions. And Egypt's international partners are therefore likely to be confronted soon with a regime that looks very much like the present one but can present a formal democratic face.

We translated some of the measures proposed for the new constitution recently, here and here. Some of what has been announced largely reverses Islamist provisions in the 2012 constitution, but some surprising elements have also been introduced, such as a return to the Mubarak-era individual seat electoral system.

Ahmed Maher speaks out against army's role

April 6 founder Ahmed Maher in the Washington Post :

Our support for the transitional road map to new elections was predicated on the military’s pledge that it would not interfere in Egypt’s political life. The expanding role of the military in the political process that we are nonetheless witnessing is disconcerting.

...

Despite my support for the June 30 revolutionary wave, and despite the fact that it was a people’s movement before it was a military intervention, I now see much to fear. I fear the insurrection against the principles of the Jan. 25 revolution, the continued trampling of human rights and the expansion of restrictive measures in the name of the war on terror — lest any opponent of the authorities be branded a terrorist.

Unsurprisingly Maher has been vociferously attacked, including by some self-styled "revolutionaries", for his position. 

In Translation: How Egypt's constitution will be amended 2/2

This is the second of two translated articles selected from the Egyptian press on the process of amending Egypt's 2012 constitution, which according to Interim President Adly Mansour's Constitutional Declaration (CD) of July 8 will be amended and put to a referendum before new elections are held. This first article is an interview with Mansour's constitutional advisor, the second article contains possible amendments being considered. Both are translated by our long-standing partner, the most excellent Industry Arabic. Please give them translation jobs, you won't be sorry and you'll help them help us continue to provide this free service.

As explained, a committee of 10 scholars and judicial figures is now tasked with drafting amendments to Egypt's 2012 constitution. The dominant group backing the July 3 coup, composed of secular political forces, is likely to push for the reversal of the Islamization of the country's constitution carried out in 2012 by an alliance of Muslim Brothers and Salafists that dominated the Constituent Assembly then in charge of the process of drafting a new constitution. The lack of agreement between Islamists and secularists on a constitution, indeed, was a major catalyst for the current crisis. The tricky part is that the only major Islamist force that backed the coup, the Nour Party, was even more attached to the Islamist provisions in the constitution than the Brotherhood. Its rejection of the new amendments could undermine its support for Morsi's overthrow, and more generally push Islamists of all stripes into the Brotherhood camp in the name of saving Islam's role in the constitution.

This is why the article below – only a speculation, mind you, into what is being envisaged, published in the rather taboid and anti-Islamist Youm 7 newspaper – is interesting. As might be expected from a judicial source (in Egypt the judiciary, while conservative, has generally defended the modernist idea of judicial review and much leeway for judicial interpretation of Sharia, rather than its strict codification as  the 2012 constitution tended to lean towards, with a major role for theologians to, in effect, veto legislation)  it tends towards the stripping of many of the parts of the 2012 constitution Islamists were most attached to. Most notably those that introduced notions such as formal oversight by theologians, notions that Salafis embrace such as the "enjoining of good and prevention of vice", and stress on the state's role in regulating public morality. If it is representative of the changes to come, one can expect a major Islamist backlash in the weeks ahead.

Full text ahead.

 


We are publishing the text of controversial articles in the 2012 Constitution: the article on Islamic Sharia, the formation and powers of "senior religious scholars," texts on the state protecting [public] morals and the character of the Egyptian family, "constitutionality," exclusion and practicing religious rites.

The editors, Youm 7, 21 July 2013

A Youm7 exclusive: Egypt's interim president Adly Mansour has issued a presidential decree to form a committee of experts to revise the 2012 constitution, which will commence work starting Sunday [21 July] at the Shura Council headquarters and conclude its task within 30 days from the date the decree was issued [i.e. by 19 August].

Constitutional advisor to the president Counselor Awad Saleh has said that the decree stipulates the formation of a general technical secretariat for the committee to assist the committee's ten members, and that the committee's rapporteur shall be the president's constitutional advisor. This means that the committee does not have a chairman, but rather that all its members are peers working on the basis of consensus and complete cooperation.

A source in the judiciary said that one of the committee's most important priorities is amending controversial articles, particularly:

Article 4: "Al-Azhar's Council of Senior Scholars shall be consulted on issues related to Islamic Sharia." This was one of the most controversial articles, since according to critics, the text of the draft constitution with regards to consulting Al-Azhar’s Council of Senior Scholars on issues related to Islamic Sharia is reminiscent of Vilayet-e Faqih in Iran. It also takes away some of the parliament's legislative powers and the judiciary's power to apply the law. This view is backed by constitutional jurist Yahya al-Gamal, who believes that this article "creates a clerical authority."

Article 10: "Family is the basis of society and is founded on religion, ethics and patriotism. The state and society shall maintain the authentic character of the Egyptian family, and to work on its cohesion, stability and protection of its traditions and moral values, as regulated by law." The main cause for opposition is that the article opens the doors for religious currents and organizations for the promotion virtue and prevention of vice to interfere at the heart of society.

Article 11: " The State shall safeguard ethics, public morality and public order, and foster a high level of education and of religious and patriotic values, scientific thinking, Arab culture, and the historical and cultural heritage of the people, as shall be regulated by law." Critics maintain that this article's stipulation that the state safeguard ethics will most likely cause personal freedoms to be violated and it provides the constitutional basis for a law that deprives citizens of certain rights on the pretext of public morality. They also criticize this article because it takes an ambiguous doctrinal ruling and turns it into a requirement or basis for legislation.

Article 43: "Freedom of belief is an inviolable right. The State shall guarantee the freedom to practice religious rites and to establish places of worship for the divine religions, as regulated by law." The controversy over this article arises from its exclusionary character that is inconsistent with the principle of religious freedom, since it only guarantees freedom for what are known in Egypt as the three divine religious – Judaism, Christianity and Islam – and does not allow Egyptian legal precedent and the prevailing interpretation of legislation to categorize other religious groups as "divine." Small minorities such as the Baha'i remain deprived of legal protection.

Article 44: "Insult or abuse of all religious messengers and prophets shall be prohibited." The reason here is that some believe that this new article is ambiguous and may lead to freedoms being curtailed. They say that it is unclear what exactly constitutes "insult" or "abuse," what institution or individuals will be responsible for deciding this matter, and how incidents of abuse will be prevented. 

Articles relating to the President of the Republic: Various articles in the constitution lay out the powers of the president. The president is the head of the executive branch (Article 132), he shall choose the prime minister (139), he shall set the general policy of the state (140), he is the one responsible for defense, national security and foreign policy, he shall preside over the government meetings that he attends (143), he shall conclude international treaties (145), he is the commander-in-chief of the armed forces (146), he shall appoint and dismiss civilian and military employees (147), he has the power to declare states of emergency (148), pardon and commute sentences (149), and place a referendum before the people (150), he appoints 10% of the members of the Shura Council (129), appoints the members of the Supreme Constitutional Court (176) and appoints the heads of oversight bodies after approval by the Shura Council, and he presides over the National Security Council (193).

Critics claim that these articles constitute a foundation for authoritarian rule, as the president gets to "keep all the powers of the president in the 1971 Constitution and is furthermore given the power to appoint the heads of the oversight bodies and agencies that are overseeing him." This is the view of constitutional law professor Jaber Nassar, who withdrew from the Constituent Assembly, as he believes that the powers of the president were expanded to an unnatural degree in the draft constitution, swelling to 22 articles with the addition of 10 articles that include new powers not granted in previous constitutions.

Article 219: "The principles of Islamic Sharia include its holistic evidence, fundamental doctrines, Islamic jurisprudence doctrines, and acknowledged sources accepted within the schools of the people of al-Sunna and Jamaa.” This article is meant to interpret Article 2, which stipulated that Islam is the religion of the state. The objection here is that never in the history of constitutions in the world has an article been placed in a constitution to interpret another article.

One of the most prominent opponents of this article, Dr. Jaber Nassar, explained that this article would lead to severe crises, since the Egyptian legal system borrows from different legal systems, and it opens up the door for many Islamic sects.

Articles on freedom of the press: Several objections were made to articles pertaining to the press, especially Article 48, which stipulates that "Freedom of the press, printing, publication and mass media shall be guaranteed. The media shall be free and independent to serve the community and to express the different trends in public opinion, and contribute to shaping and directing it in accordance with the basic principles of the state and society, and to maintain rights, freedoms and public duties, respecting the sanctity of the private lives of citizens and the requirements of national security. The closure or confiscation of media outlets is prohibited except through a court order. Censorship of the media is prohibited, with the exception of specific censorship that may be imposed in times of war or public mobilization."

One of the main reasons for objections to articles on the freedom of the press is that there is no text that bans imprisonment for crimes of publication, and because "requirements of national security" is undefined.

Article 35: "Except in cases of flagrante delicto, no person may be arrested, searched, detained, prevented from free movement or suffer any other restriction of freedom except by a court order necessitated by investigation. Any person arrested or detained must be informed of the reasons in writing within 12 hours, be presented to the investigating authority within 24 hours from the time of arrest, be interrogated only in the presence of a lawyer, and be provided with a lawyer when needed. The person arrested or detained, and others, have the right to appeal before the judiciary against the measure. If a decision is not provided within a week, the person must be released. The law regulates the rules, duration and grounds for preventive detention, and cases of entitlement to compensation, whether for preventive detention or for execution of sentence that a court's final ruling has overturned." [The Arabic original contains no description of arguments regarding this article.]

Articles pertaining to the Armed Forces: Articles pertaining to the Armed Forces have faced several objections, in particular Article 198, which stipulated that "Civilians shall not stand trial before military courts except for crimes that harm the Armed Forces. The law shall define such crimes and determine the other competencies of the Military Judiciary." The objection here is that this contradicts Article 75, which stipulates that "No person shall be tried except before their natural judge." Many parties and movements are opposed to these articles, including the Strong Egypt Party.

Articles pertaining to the Constitutional Court: The Democratic Front Party believes that constitution articles 176, 177 and 178 reduce the powers of the Constitutional Court, especially Article 176, which stipulates that "The Supreme Constitutional Court is made up of a president and ten members. The law shall indicate the judicial or other bodies that shall nominate them and regulates the manner of their appointment and the requirements to be met. Appointments shall take place by a decree from the President of the Republic." The number of members of the Supreme Constitutional Court is thereby reduced from 18 to 11, and they are appointed by the president. According to critics of the articles, this constitutes an assault on the general assembly of the court and eliminates the independence of the highest level of the judicial branch.

Article 70: "Child labor is prohibited before the age of compulsory education is passed, in jobs that are not fit for a child’s age, or that prevent the child from continuing education." It is claimed that this article violates the International Conventions of the Rights of the Child. Among the most prominent opponents of this article are the Egyptian Association for the Assistance of Juveniles and Human Rights and the Democratic Front Party, as the party calls for child labor to be banned outright.

 

In Translation: How Egypt's constitution will be amended 1/2

This is the first of two translated articles selected from the Egyptian press on the process of amending Egypt's 2012 constitution, which according to Interim President Adly Mansour's Constitutional Declaration (CD) of July 8 will be amended and put to a referendum before new elections are held. This first article is an interview with Mansour's constitutional advisor, the second article contains possible amendments being considered. Both are translated by our long-standing partner, the most excellent Industry Arabic. Please give them translation jobs, you won't be sorry and you'll help them help us continue to provide this free service.

The July 8 CD calls for the formation of a committee of 10 constitutional scholars and judges tasked with preparing the amendments to the controversial 2012 text, which has approved hastily last December by an Islamist-dominated Constituent Assembly. These proposals will be then put to a second committee of 50 figures drawn from public life. While the committee of 10 (let's call it C10 for short) is appointed by the interim president, the committee of 50 (C50) is supposed to represent major corporate interests in Egypt, as per Article 29 of the CD which stipulates it represent:

...  all segments, sects and demographic diversities of society, especially parties, intelligentsia, labourers, peasants, members of trade unions, specialized federations, national councils, al-Azhar, the Egyptian Churches, Armed Forces, the police and public figures, provided that ten members at least be young people and women. Each institution shall nominate their representatives, and the Cabinet shall nominate the public figures.

There is a lot of confusion as to how this process might work as it was suggested the C10 would be the only body that can draft the text of amendments, which would mean the C50 is a talking shop with little power. The interview below, if reliable (because everything can change very quickly in Egypt), provides some clarification and at least an indication of the intentions behind this process, which has been criticized by many.

The amendment of the constitution is a key battleground for Egypt's transition, with differences not only between Islamists and non-Islamists but also within the secular camp that broadly backed the July 3 coup. There is of course whether the Islamists of the Nour Party will get to keep the conservative language of the original (the balance of power in the current pro-coup coalition makes that unlikely, unless they decide they need Nour too much in order to break Islamist unity, since the Muslim Brotherhood and some others reject the validity of this entire post-coup process). But then there are questions of the military's privileges, personal liberties and reining in the interior ministry, and much more. 

This interview provides some clarity, notably the surprise that the procedure laid out in the July 8 CD is not necessarily final. Some backers of the coup were disappointed that the CD called for presidential elections after parliamentary ones, and here it is indicated the order could still be reversed. It goes to show how so much is still at play, even beyond the immediate political crisis and assuming the coup and CD holds. 

 


Mansour's Constitutional Advisor: committee to amend constitution will operate free from any constraints

Interview by Samar al-Gamal, al-Shorouk, 22 July 2013

Constitutional and legal advisor to the president, Ali Awad Saleh, stated that the "Committee of Experts" tasked with amending the country’s constitution, which was formed yesterday by a decree from President Adly Mansour, will operate free from all constraints, and that the constitutional declaration recently put out by the president does not immunize any of the articles that appeared therein from amendment.

In an interview with al-Shorouk conducted by Samar al-Gamal, Saleh – who was recently appointed rapporteur of the Committee of Experts – added that the Committee of Fifty will have the power to add additional amendments to the constitution after the Committee of Experts. The Committee of Fifty will also be allowed to rearrange Egypt’s transitional stage if it feels it is necessary to hold presidential elections before parliamentary elections. Such a scenario will be proposed within the draft constitution and will be carried out if approved in a popular referendum.

In his first press interview, Saleh stated that the president will only exercise legislative authority within narrow limits and with the participation of the cabinet. He emphasized the fact that those currently administering the country are determined not to let the transitional period drag on.

He added that the parliamentary elections law and the dividing up of electoral districts have been put on hold until the constitution is done being amended. According to him, so far no amendments have been made to the constitutional declaration, adding also that no supplementary declaration has been released. He stated that for now it would be best to work and focus on amending the constitution, and that any objections to the constitutional declaration should be put before the Committee of Experts. The transcript of the interview is as follows:

Q: A decree has been issued to form a Committee of Experts for the purpose of amending the constitution. However, some details of its work have been left out. For example, who is its chairman? What is its work method? How does it receive proposals?

A: The Committee, as formed by the constitutional declaration, was not required to appoint a chairman. However, according to a decree recently issued by the president, a technical secretariat was formed comprising an administrative, clerical and technical official, along with a supporting team, for the purpose of aiding the Committee in its work. This will include receiving suggestions for proposed amendments to the constitution. The Committee itself will determine the mechanisms through which it conducts its work.

Q: And who is to determine the scope of the amendments and the articles of the constitution which are to be changed?

A: The Committee's mission will be to review the text of the 2012 constitution, while at the same time receiving suggestions and ideas put forth by various actors, political forces and popular movements. The Committee will be open to all those who seek to contribute to the process of amending the constitution. At the end of the day, it will give shape to these proposals in the form of a draft amendment that will then be presented to the Committee of Fifty.

Q: If disagreements arise, how will they be solved?

A: The Committee is supposed to be a collegial entity, and as is our custom in the judiciary, will make decisions based on the majority rule of its members. However, it will be members of the Committee themselves who will determine the means by which they will conduct their work, as opposed to it being imposed on them from outside the Committee.

Q: What if the Committee receives a suggestion from outside its ranks which does not make it into the final amendments draft?

A: When the Committee of Experts presents its work to the Committee of Fifty, it will record either in its minutes or in an explanatory brief all of the proposals it has received and its reasons for rejecting any of them.

Q: So what is the role of the Committee of Fifty if the draft amendments will be referred to it ready-made?

A: The Committee of Fifty, in so far as it represents all sectors of society according to the constitutional declaration, will determine whether or not the draft amendments it receives are complete and satisfy the will of the people, or if the constitution needs additional amendments. Then in the end it will put them forward for national dialogue.

Q: So you’re saying that the Committee of Fifty could ask for additional amendments? If so, would the text of the draft amendment then be sent back to the Committee of Experts?

A: Yes, the Committee of Fifty has the right to insert additional amendments. Most likely the Committee of Experts and the Committee of Fifty will work together in order to better achieve integration and avoid wasting time.

Q: Wouldn’t it be better then to just start with the Committee of Fifty?

A: This is one point of view. However, we feel that the Committee of Fifty already has its work cut out for it due to the time constraints. Otherwise, the Committee of Fifty would need to form various committees, similar to what happened with the country’s previous Constituent Assembly, such as the system of government committee, the executive branch committee, the drafting committee, etc. All this would require more than the two months allotted.

Q: Simply adding amendments to the Muslim Brotherhood’s constitution does not satisfy people's aspirations. Is it possible to devise a brand new constitution all together?

A: The Committee of Experts is bound by the constitutional declaration and the decree issued regarding the committee’s formation to insert amendments into the suspended constitution. It is true that on the street and in the media it appears that there is a genuine desire for a new constitution. However, this matter is up to the Committee of Fifty, in so far as it represents society.

Q: What about those articles included in the constitutional declaration? Does their inclusion in the declaration protect them from being amended?

A: No, it does not protect them at all. The Committee of Experts has complete freedom to consider all the articles in the constitution. The constitutional declaration only governs Egypt’s transitional period, and the articles in it do not place any restrictions on the Committee of Experts or the Committee of Fifty.

Q: There exist fears related to freedoms, particularly with regards to the status of the military establishment and oversight of it, in addition to the articles dealing with religion. Do you envision that the Committee of Experts will amend these controversial articles?

A: The Committee will operate free from any restrictions.

Q: Will the Office of the Presidency offer up any ideas regarding specific amendments?

A: The Office of the Presidency is keen on leaving such issues to specialists, and does not seek to play any role or offer any guidance in this process.

Q: What about guidance from the military establishment regarding amendments?

A: We so far haven’t received anything from them. If the military establishment has any ideas regarding amendments they can forward those ideas to the Committee of Experts.

Q: We know that there exists an interplay of forces which may perhaps cast its shadow over the process of amending the constitution. So what guarantees do we have?

A: The guarantee is that the people want a constitution that can bring about a national consensus and help the country achieve progress. We do not want to take a step backwards. Therefore, the Committee of Experts was created to include those with a great deal of experience, who do not have any partisan affiliation, and who are united by a single goal: to put out a good product. For this reason as well we do not want to restrict their work.

Q: At the end of the day these are appointed committees. If the Committee of Experts understands things so well, does this not also apply to the Committee of Fifty?

A: The Committee of Fifty will be appointed, but according to nominations, criteria and specific rules to be determined during the work of the Committee of Experts.

Q: Why was it not decided that the Committee of Fifty should be elected?

A: We do not want to repeat the previous experiences and drag out the transitional period – which we've laid out very precisely. What we want at the end of the transitional period is for state institutions to be restored. Elections may not necessarily produce the ideal body, to say nothing of the high cost of running elections and other details involved. For example, will such elections be direct elections, or will they take place in two stages, with the people choosing a group of representatives who then select the Committee? Doing it this way would require more time, while those who are currently overseeing the country’s transitional period do not want to drag it out. Rather, what they want is a satisfactory constitution, in addition to functioning executive and legislative branches.

Q: Wouldn't it be possible to lodge an appeal against the constitutionality of such a formation? Similar to what took place with the previous Constituent Assemblies?

A: This grounds of this formation were made clear in the constitutional declaration, and there does not currently exist any appeal against the constitutionality of any text in the declaration. Rather, the challenge comes from the un-constitutional nature of legislative texts, and so it is not possible to appeal against the Committee's formation.

Q: What if the Committee of Experts disagrees with the Committee of Fifty regarding an article, who will decide the issue?

A: In my personal opinion the final say would lie with the Committee of Fifty. Such criteria and the mode of coordination between the two committees will soon be drawn up. Right now our focus is on the Committee of Experts and granting it the opportunity to begin its work.

Q: The constitutional declaration talks about societal dialogue – how do you envision that this will be conducted?

A: This dialogue will serve to gauge the people's orientation, in so far as they are the ultimate source of power. What I mean of course is not a dialogue with all 90 million Egyptian citizens, but rather surveying the views of various actors,and an exchange of perspectives between them and the Committee. This will take place during the Committee's work. Then, after the the constitution has been drafted, a whole month will be given to the people to read the draft constitution.

Q: In response to objections by a number of Egyptians – particularly the country’s youth – to the constitutional declaration, the Office of the Presidency promised to release a supplementary declaration or a series of decrees with legal force to amend the original declaration. Will such an amendment process actually take place?

A: As of now there has not been any amendment or supplemental declaration. I think what is best now is to move past the issue of the constitutional declaration, and begin the process of working on and thinking about the amendments to the constitution itself, and to submit such suggestions to the Committee of Experts.

Q: Of course you have heard the objections being made about the country’s road map and the powers of the president – what is your opinion regarding these issues?

A: I think the primary concern regarding the powers of the president has to do with the legislative powers he possesses. The constitutional declaration states that the president can only exercise legislative power after consulting the cabinet. As a close confidant of the president, I am saying that he will only exercise legislative authority within a narrow scope.
Usually legislation is made through a draft law prepared by one of the country’s various ministries and proposed to the cabinet. From there it will make its way to the parliament and then on to the president. Another way for legislation to be made is for parliament to propose a law.
However, at the moment there currently is no parliament, which leaves us with just the first option. If the president receives a proposal, he will then forward it to the government. In any case, the cabinet will also participate in this process.

Q: Is there a vision for the upcoming legislative agenda?

A: A law was passed having to do with Military Medical Academies which the Shura Council had approved before it was dissolved. Now we are trying to grant cabinet the power to take up legislation before it is presented to the president.

Q: The most prominent point brought up among the various objections made to the constitutional declaration has to do with the order of the road map, as the main call made within the declaration was to conduct presidential elections first.

A: Early presidential elections was one of the demands when the previous president was around, so that he would have to run for election again against other candidates. However after the events of June 30, we feel that it is more appropriate to start with the constitution and then for a parliament to speedily take over legislative authority. Presidential elections would then be conducted based on an elections law passed by parliament.

Q: However, the constitutional declaration states that presidential elections should be called just one week after parliament convenes.

A: I know that it is a short period of time. However, if the constitutional amendment committee believes that that arrangement is inappropriate for the country's current conditions and that the best thing to do is to hold presidential elections before parliamentary elections, it could propose this scenario and a referendum would then be held based on provisional regulations, and a date for presidential elections would be set for after the referendum held on the constitution. Either way, the matter will be left up to the committees.

Q: Does this not violate the constitutional declaration?

A: The declaration governs the transitional period. However, when the people – who are the source of power – take part in the referendum on the draft, the constitutional declaration will expire and the country will begin to be governed by the new constitution that the people will have approved.

Morsi regrets constitutional declaration - kinda

From the Guardian's interview with Mohamed Morsi:  

In a rare moment of contrition, Morsi admitted for the first time in the English-language media that he regretted using unilateral powers to force through Egypt's controversial new constitution – a move that the opposition saw as dictatorial. This was the pivotal moment of his first year, sowing the seeds for widespread dissent against his administration.

"It contributed to some kind of misconception in society," Morsi said, distancing himself from one of the most divisive clauses in the new Islamist-slanted constitution, which allows for greater religious input into Egyptian legislation. "It's not me who changed this article. I didn't interfere in this constitutional committee's work. Absolutely not."

The president added that once MPs were finally elected to Egypt's currently empty lower house of parliamentary, he would personally submit constitutional amendments for debate in the house's very first session.

But Morsi's contrition only went so far. Amid opposition claims that the failure to achieve consensus had led to Egypt's current polarisation, Morsi blamed the refusal of secular politicians to participate in the political process for the impasse. He denied that his government was unduly loaded with Islamists. He went on to list numerous offers he claimed he had made to bring non-Islamists on board, while simultaneously defending the right of a popularly-elected president to promote his allies. "This is the concept of real democracy," he said.

Solving the Rubik's Cube of Egypt's court verdicts
Image by Glennz (click for link)

Image by Glennz (click for link)

Nathan Brown has read the recent, controversial verdicts of Egypt's Supreme Constitutional Court (official text here) and has kindly sent this initial take — helping us common mortals make sense of the world's most constitutionally complicated political transition. My own basic take is this: legal victory for the Brotherhood and its allies, but much to use for the opposition for its campaign of delegitimization.  

On 2 June, the Supreme Constitutional Court (SCC) issued three rulings—one on the constitutionality of the Maglis al-Shura election law; one on the Constituent Assembly law; and one on a provision of the Emergency Law. It struck down all three, but the implications confused many observers. That is not urprising--the legal questions are so complicated (with constitutions, constitutional declarations flying through the air, cancelling, contradicting, and clarifying each other) that the Court had to spend a lot of time figuring out what the relevant constitutional text was and how to apply its rulings.  The judgment on the Constituent Assembly in particular reads a bit like a Rubik’s Cube. 

What follows are some brief notes based on an initial reading of the verdicts. This is a very quick set of reactions based on a first reading of the decisions.  I hope readers will forgive any resulting errors of emphasis or interpretation.

The overall impact of the rulings is clear:

1. The 2012 constitution is the law of the land. Khalas. It was approved and there's nothing that the SCC can do about it. The SCC had been treating the document as authoritative in past rulings, so this was no surprise.  But the Court made  explicit what was already very clearly implicit in its rulings.

But the tone of these rulings was new.  In the earlier rulings, it simply applied the 2012 text without comment. This time it is not silent. Yes, the constitution is in effect. But the SCC seems—well, unhappy.  Its attitude sometimes comes off as institutional modesty (what are we judges supposed to do in the face of the will of the voters?), sometimes as resignation (the 2012 constitution is there; what can we do about it?), and sometimes as barely muffled outrage (this constitution is like something the cat dragged in: ugly and mangled, but something we have to deal with.)

2. The law by which the Maglis al-Shura law was elected is unconstitutional.  But because the current Maglis was specifically named by the 2012 constitution as having legislative authority in the absence of the Maglis al-Nuwwab (the lower house of parliament), it is protected—or at least gets a stay of execution until the first meeting of the Maglis al-Nuwwab after which its protection expires and the judgment against its constitutional legitimacy can be carried out.  

This ruling has frustrated people as contradictory. Perhaps I've been working on this too long. It makes sense to me.

The implications of this:

  • One of the first things the Maglis al-Nuwwab will have to do is write a new Maglis al-Shura election law.  Egypt's transition goes on and on.  And that will have to be submitted to the SCC which may then find fault with it… and so on.  It’s quite likely Egyptians will be trudging back to the polls until late 2014 before all their constitutional structures are in place.
  • The early speculation that the SCC was explicitly saying that the Maglis al-Shura could no longer legislate is just plain wrong.  
  • In fact, just the opposite: there seems to be a clear if implicit endorsement of the claim that the Maglis al-Shura DOES have the authority to pass laws. (There is a separate argument about whether the Maglis al-Shura can set its own agenda or only discuss laws submitted to it by authorized bodies. The tenor but not the text of the ruling seems to point against restricting the Maglis al-Shura's legislative role).

3. The Constituent Assembly law was unconstitutional. But so what?  The legal effect will be to allow legal challenges to proceed against a body that doesn't exist anymore. 

That much is clear. But  now things get complicated, though with no real effect on the bottom line. The law struck down was written after the Constituent Assembly was elected. So striking down the law would not have dissolved the Assembly even if the Assembly were still there. It would have just tossed the matter back to the administrative court to consider the challenge to the Assembly. The reasoning of the ruling  is that the law unconstitutionally tried to immunize the Constituent Assembly from the Courts.  So again, all this ruling does is allow the administrative courts to consider the cases against the Assembly. Given point number 1 above, I don't think that will lead anywhere.  

But the SCC also took a swipe by seeming to endorse the reasoning by which the administrative court dissolved the first Constituent Assembly and may have dissolved the second had it been able. The legal objection was that the Assembly contained elected parliamentarians. Not only does the SCC accept this, the way the court states the objection suggests that the fact that Assembly no longer contained sitting parliamentarians after the parliament was dissolved (and the Maglis al-Shura members offered their resignation) would have made no difference. In other words, the Assembly would have been a goner had any court been able to rule in time. The SCC endorses the argument (a bit of a stretch, I think) that the constitutional declaration's silence on allowing MPs to be in the CA *required* that the CA exclude them.

4. The final ruling on the emergency law does not matter that much right now. The state of emergency is not in effect.  But this is an area the SCC did not dare to tread in the Mubarak years.  Some justices wanted to, I think, but they thought it would be the end of the SCC if they did so.  Now the emergency law is fair game for the SCC.  Let’s see where this moves—especially since some lingering effects of past states of emergency are still in effect (with some in prison and others being tried for alleged offenses during the emergency)

5. One other interesting sub-theme: the SCC has treated the various constitutional declarations with some discomfort. It has cited them in past decisions but often tried to avoid relying on them.  I read these decisions differently: there is explicit reference to the "revolution" – I could be wrong, but I don't remember the SCC using that term before. The implication is that the irregular constitutional changes from February 2011 forward have revolutionary legitimacy… or at least some of them. There is respectful reference to the March 2011 amendments and the SCAF-issued constitutional declarations. But there is a deliberate if ineffectual cloud placed squarely over Morsi's constitutional declarations—the SCC explicitly withholds judgment on whether those were legitimate or not.

Should the Egyptian army and police get to vote?

That is the question that has riled Egypt over the past week, as the Supreme Constitutional Court (SCC), in its latest bout of judicial jujitsu, has decreed that – in accordance with the new constitution – since the electoral franchise is supposed to be universal, the previous ban on uniformed services from voting should be lifted. This has triggered howls of outrage by Islamists, who see the judiciary giving the police and army the right to vote as tantamount to vote-rigging, and has been welcomed (to various degrees, and not by all means unanimously) by their opponents.

The recommendation came as part of the SCC's review of a new elections law and a law on parliament – a review that itself is mandated by the new constitution. The SCC's ruling appears correct: since the new constitution guarantees equal rights for all citizens, and makes no mention of an exemption from voting for employees for conscripts, officers, and/or policemen, it stands to reason that they should not be denied the right to vote. Of course, there were no provisions preventing the military and police from voting under the previous constitution, so the SCC appears to have, in this case, made a recommendation that went against longstanding practice – or perhaps more simply it had never had the occasion to rule on this issue before, since it did not get to review legislation under the previous constitution.

A first take to this decision is that it shows, yet again, how foolish the Muslim Brotherhood and other Islamists were to rush ahead with a constitution that has already come back to bite them in many respects. And their reaction is proving yet more foolish, notably in the shape of calls for the SCC to be abolished altogether because it is seen (despite having been purged by the new constitution of many of its most anti-Islamist components) that are escalating the crisis between the government and the judiciary (judges are now threatening a national strike in response to a draft judicial reform law).

Secondly, it does raise the question of whether – in free and fair elections – giving policemen and soldiers the right to vote would make any difference. Their numbers, including conscripts, amount to nearly two million, enough to make a difference in the last presidential elections, when it is assumed many would have preferred to vote for candidate Ahmed Shafiq.

But whatever their voting preferences, the question may be more whether these institutions would direct their members to vote a certain way – or even lead to the spreading of the hyper-partisanship that characterizes Egyptian politics into the military, an institution that is most keen on maintaining its internal coherence, chain of command, and remaining "above" politics. Thus the striking quote from a retired general in this Washington Post article:

“This is a threat to national security. Divisions in the streets will be reflected in the military — the sectarianism, the partisanship,” said Hossam Sweilam, a retired general who served in the military for more than 30 years. “We are different from other countries. We have political problems. ... This (ruling) would be in the interest of the Muslim Brotherhood and could be a problem for the cohesion of the military.”

The objections by the Brothers and other Islamists have not been particularly reasonable – they argue that this would bring politics "into the barracks" and ask whether the list of conscripts, soldiers and officers would be released to political parties, or whether the people who guard voting stations will then choose this or that candidate. All of this is moot, since barracks can still be made politics-free, the only list political parties should have access to is the national register, and it's easy enough for army and police people to go vote when they are off-duty and out of uniform. After all, as Mohamed ElBaradei points out, most democracies grant a universal right to vote. (See a wider range of reactions by political leaders here.) There is little reason, in principle, to deny the military and police the right to vote ordinary citizens have. It is the logic of a praetorian state, where somehow these stand apart (or actually above) ordinary society, that considers such people "special".

The better argument is that granting a universal right to vote is that these institutions are not ready to implement the safeguards against abuse that exists in democracies. The police is clearly still mostly hostile to the Brotherhood in particular and many of the revolutionary parties. The army, with the backing of the Islamists, has placed itself above oversight in the new constitution. There is very little trust between any political actors, and between these institutions and the political class at the moment. This is not the time to experiment with a major change in regulation – it would be better to actually get elections organized at all, around a formula that is politically consensual. As Egypt continues to pay for the mistakes of the SCAF-led transition and the Brotherhood's go-it-alone style of politics (and their almost comically poorly written constitution), it limps from crisis to crisis with still no horizon for a normalization of politics – one in which the reforms that would, among many other things, enable everyone to vote could be carried out. 

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.

Is Egypt’s new parliamentary election law constitutional?

The following post was contributed by Nathan Brown of GWU and Carnegie — see Brown's previous posts on Egyptian constitutional matters here and here. (Updated with further commentary after the jump.)

The short answer is: Maybe. We’ll have to wait and see.

The quick retort: Not again?

The quick answer: Yes, it could be déjà vu all over again. But it might not.

Here’s the story. The country’s Supreme Constitutional Court (SCC) has struck down the country’s parliamentary election law four times. Three of these times that led directly to a dissolution of the parliament. On the other occasion, the parliament had already been dissolved.

And each time that led to all kinds of problems: how to write a new election law with parliament dissolved; whether the new law would be constitutional; what happened with the actions taken by the old parliament; and so on. Those questions could be answered, but the turmoil was real—even with the Mubarak regime’s pseudo-parliaments. When parliament is something to be taken far more seriously, the effects of a dissolution by court order are farther reaching. Egypt is still reeling from the effects of the 2012 dissolution.

So the constitution drafters knew what to do: they availed themselves of a tool sometimes spoken of but never used in Egypt before (with one exception): prior review. The parliamentary election law would be drafted and then sent to the SCC for review. That would immunize it from later attempts to challenge it on constitutional grounds. Egypt’s SCC, like most specialized constitutional courts, does not try concrete cases (though concrete cases are the genesis of most of its work). In a sense it tries laws instead. Its job in constitutional matters is to say if a law is constitutional or not. If it says a law is constitutional one day, it is hard for it to change its mind later on. (For that reason, many justices of the SCC dislike prior review and regard it as an attempt to tie the SCC’s hands—and indeed, in Mubarak’s times some unsuccessfully argued for prior review with precisely that motivation).

OK, but what if the SCC found the draft unconstitutional? Well, then changes could be made to bring it in to line. And in Egypt’s one prior experiment with prior review, that is just what it did. In the country’s March 2011 constitutional declaration, the SCC was required to review only the presidential election law in advance, precisely to avoid thel vacuum that would occur if a president were elected and then had the legal scaffolding knocked out under him. The SCC found Egypt’s January 2012 draft decree-law (rushed through by the SCAF right before the parliament met) flawed on a large number of generally minor grounds. The SCAF fixed the errors and promulgated the law.

And that is what has happened this time—the upper house of the parliament (the only part left standing) used its interim legislative authority to draft a law. The SCC found a number of problems and the upper house fixed them.

So how could déjà vu happen all over again? Well, the upper house did not send back the law to the SCC a second time. (Neither did the SCAF when it fixed the presidential election law last year.) It was not required to do so; it was in suomethng of a rush; and it was not clear if the SCC would feel empowered to rule again.

So who is to know if the amended law is constitutional? Only the SCC judges can say for sure—and since the law has not been submitted to them, they’re not saying anything.

On some issues there may be no cause for concern. Some of the glitches were minor. But there is at least one problematic area: the apportionment of seats. Egypt’s current electoral map is skewed (generally to discriminate against big urban areas). The SCC found that problematic and seemed to be on very solid ground in the ruling. But its judgment was terse on this point and it was not clear what standard it used or would use in the future. The parliament, anxious to get the electoral show on the road, made some quick adjustments. A full and fair redrawing of Egypt’s electoral map may be a good idea. In fact it is desperately needed. But it’s not clear there is the time do that or any body that has the credibility to undertake the effort. There was a sound political reason for the upper house to have acted with an incomplete fix as it did. But is the new law constitutionally sound?

We’ll have to wait and see.

So Egyptians will start voting according the leisurely schedule required by the system of judicial monitoring. And somebody will lose a seat and go to the courts to challenge the law. The SCC might reject the challenge, sit on it for years, or issue a ruling within hours of receiving the case. My own sense—based on an inexpert reading between the lines of recent judgments—is that few of the justices are spoiling for a fight with the emerging regime. I would guess they will take their time. And in the mean while, the sword of dissolution—the same one that drove President Morsi to lose his cool in November last year—will hang over the parliament.

Update: Nathan Brown writes in response to Zaid al-Ali's comments:

I just looked at it on the website and saw Zaid al-`Ali's comment. I think he is right on both counts 

First, he says article 177 prevents subsequent challenge before the SCC.  I had first read article 177 as something the SCC could get around by claiming that it had not reviewed the law, only a previous draft.  But when I go back to the text, I am convinced Zaid is right--that path would be very difficult.

But the second speculation that Zaid reports--that the matter could go to the administrative courts--is one that I would think would be a very solid possibility indeed for two reasons. 

First, the argument that the Shura Council has not respected the ruling of the SCC is powerful, especially on districting.  I think full compliance would have been next to impossible, in part because the system is so badly confused and time is so short.  But it's also because the SCC gave no guidance on what such compliance would look like--it simply said the first draft was unconstitutional but it gave no standard on how to fix it.  So an administrative court could easily say that the law was promulgated in contravention of a judicial ruling.

Second, article 177 says that the SCC's "exclusive jurisdiction" over constitutionality does not operate over such an election law.  So an administrative court could say "Normally we'd have to transfer the case to the SCC because it has exclusive jurisdiction. But now we don't; we can rule on constitutionality ourselves."  It was partly to prevent the administrative courts from exercising a claimed right to consider constitutionality that the Supreme Court (the predecessor to the SCC) was created back in 1969.

Would an administrative court do so?  Well, it could certainly find an easy way to deny its own jurisdiction (the dreaded doctrine of "acts of sovereignty" could easily rear its head here).  But it might not.  I have speculated on the inclination of the SCC to avoid full frontal confrontation, but the administrative courts are a much more diverse lot and much harder for me to read from afar.

Unlike the SCC, the administrative courts have two levels, so a lower level court might rule one way and then be reversed on appeal.   

In short, this could drag out even longer.

So rather than deja vu all over again, it may be more like deja vu that nobody has seen before.  

That Yasser Borhami video

As I'm clearing old tabs I didn't get around to reading/posting in December when I was traveling, this Jadaliyya piece on Salafi Sheikh Yasser Borhami's take on the constitution — and his explanation of why the text of Article 219 in particular is a triumph for hardliners — is worth reading. They've also translated a video that made the rounds last month and earned a rebuke from al-Azhar itself. Worth watching to catch up on this issue, and read this and this for context on al-Azhar.

The most dangerous 18 minutes that Borhami said about the Eg from nahdaproject1 on Vimeo.

Note also that Borhami uses the word "Nasareen" — "Nazarinthians" — to refer to Christians, which in Egypt is considered quite rude.