Those who specialize in European constitutional thought have often talked about the pouvoir constituant in a manner that often makes others' eyelids droop -- it leads to deeply abstract discussions, drawing heavily from dusty tomes that pepper discussions with French and Latin phrases, about where ultimate authority lies for issuing a constitution. But if journalists covering Egypt had taken a course in European constitutional thought -- and managed to stay awake -- they may have been a bit more hesitant before rushing out stories suggesting that Egypt is about to issue a "complementary constitutional declaration." Yes, there were efforts to fill in some of the holes left when the military surprised the country with an interim constitutional declaration a year ago. Yes, the Egyptian press was full of (often un-sourced) trial balloons suggesting the generals were just about to spring another surprise on the nation. And yes, the March 2011 "constitutional declaration" governing the transition is full of gaps and ambiguities and certainly leaves plenty of room for improvement. But it is going to be very hard to make changes to it, precisely because it is not clear where, what, or who the pouvoir constituant is in Egypt today.
Let us try to restrain our most of our philosophizing impulses (and temptation to insert erudite foreign phrases) and get practical by trying to answer three pressing questions: Does Egypt need a complementary constitutional declaration? If so, what should it say? Who could issue it?
The first of this question is easy to answer: No, Egypt does not need one. But it sure could use one.
Here is why some people think Egypt needs a complementary constitutional declaration: the country is about to hold presidential elections. It would be very good to tell people what, precisely, they are voting for. And the constitutional declaration does not do a particularly good job. Some Egyptians go farther, claiming that the permanent constitution should have been written by now but since the process of designating the assembly to write the constitution is in gridlock, the constitutional declaration has to be fleshed out.
There is some logic to the first claim but none to the second. The March 2011 constitutional declaration is indeed vague and leaves plenty of ambiguity. The authors of the declaration plucked some clauses out of the 1971 constitution but not others, leaving some doubts, especially about the degree of parliamentary oversight over the cabinet. Why did they make the choices they did and what did they intend? Those are very logical questions, but it is not even clear whom to ask, since the identity of the drafters has never been revealed.
Thus the gaps are real. But there is no vacuum. There still is a legal and constitutional framework -- skeletal, untested, and makeshift as it might be -- for presidential authority. The claim that Egyptians do not know what they are voting for is greatly exaggerated; Egyptian law and the constitutional declaration do define the office of the presidency and its powers. Even a much more detailed set of texts would leave inevitable gaps and ambiguities. Indeed, there is probably no area of constitutional design that is more dependent on actual practice and resistant to precise textual definition than executive-legislative relations.
And so from the day it was elected, the parliament has been trying to discover what it can and cannot do. In a country undergoing an economic crisis, leaving lines of accountability and responsibility unclear can lead to conflict and gridlock when decisive actions and new policy directions are needed.
But why did this suddenly become a problem filling headlines in Egypt this week -- when parliament is not even meeting? The gaps and ambiguities were staring any reader of the document in the face from the day it was issued over a year ago. The claim that the constitution was supposed to have been completed by the time of the presidential election is not supported by any authoritative document. Since the constitutional declaration has provisions for presidential elections, it is quite clear that it was designed to be in use for those elections.
What is creating this sense of urgency is the impending presidential elections. Those who hope to win want to increase the president's power. Those who fear losing want to cut it down. Those who don't know what to expect don't know what to do - -so they go back and forth. And Egypt's interim military rulers have realized that when presidential elections are held, they will lose their constitutional position and many of the levers by which they have managed (if that term can be used) Egypt's transition process.
Thus the interest in a complementary constitutional declaration is not all high-minded. It is deeply partisan. The high-minded case for a complementary document can be made, but it is not what lies behind most of the discussion of the last week. Thus my conclusion: a complementary constitutional declaration would be helpful if it filled some of the gaps. But it is not necessary. And this leads to the second question: What should it say?
The main thing that could bear more detail would be the extent of parliamentary oversight over the executive. Let us take one major area of ambiguity: Do ministers need the confidence of the parliament to serve? The constitutional declaration surgically removed any detail on this matter, but does allow the president -- who will assume the Supreme Council of the Armed Forces' (SCAF) authority immediately upon taking office -- to appoint the cabinet. That would seem to suggest little parliamentary role. But the constitutional declaration does allow the parliament to oversee (in unspecified ways) the executive. And because all laws that do not contradict the constitutional declaration remain in full force, the parliament can claim quite plausibly that legislation allowing it to question and bring down ministers is valid. The SCAF and the parliament have been tussling over this issue for months; a clear resolution in textual form would be helpful.
And there are clearly things a complementary declaration should not say. Any matter that gives a protected role for the military or that prejudges issues that should be resolved in the permanent constitution would likely be regarded as illegitimate by most political players. The constitutional declaration is clear: the president assumes full authority on taking office. The SCAF loses its position as acting president. There is to be a "National Defense Council," but it is headed by the president. Of course, the military is likely to continue to enjoy considerable autonomy for some time. But enshrining that into constitutional text is likely to add an element of controversy and instability that Egypt does not need.
So that finally brings us to the question of who might issue a complementary constitutional declaration. And that leads in turn to the pouvoir constituant. Lest such a discussion provoke concern that we will have to drop our practical focus and lapse into foreign languages: au contraire. We can do this largely in English.
This issue has been a mess from the beginning. The military claimed the authority to suspend the 1971 constitution, citing that the text described the armed forces as belonging to the people (and thus above politics) and as having the task of defending the country. Because of the political crisis and the collapse of political authority, the generals explained they had to step in and assume control. To cite the 1971 constitution as the basis of the SCAF's authority to abolish it was odd, but it was an arguably correct description of the situation. And it was accepted -- while there was some pressure to appoint a presidential council and some consensual but nonpartisan transitional authority (likely a wiser path, and the one followed in Tunisia), the SCAF essentially became the pouvoir constituant on an interim basis.
And then it seemed to hand it to the nation by submitting a set of amendments to the 1971 constitution to a referendum, implying that the people as a whole, expressing themselves in a yes-or-no vote, had become the ultimate authority. But when the people said yes, the SCAF then took back what it had briefly granted. The generals claimed the authority on their own to issue a full constitutional declaration, muddying the waters of political authority. And on a couple occasions since the original declaration (but before the popularly-elected parliament was seated), it has tweaked the document, again simply claiming to be the de facto (second to last foreign phrase, I promise) authority.
But the SCAF's claim to such a position can now be challenged by a popularly-elected parliament. The SCAF's authority stems from its own say-so, an abolished 1971 text, an interim document it issued on its own (and that makes no provisions for its own amendment), and its effective control of the country. Those are slim reeds to issue a document now that the people have chosen their own representatives. It would be an act of chutzpah (to move away from French and Latin) for the SCAF to issue a complementary declaration on its own authority. And all indications are that it would not do so in the face of strong opposition. Every trial balloon suggesting a different idea to date has been burst and revealed to contain only hot air.
So how about the parliament? Could it issue a complementary declaration? A group of parliamentarians have been trying to draft one. But they encounter three problems. First, the constitutional declaration that gives them authority allows them only the ability to pass laws to submit to the SCAF (or, after his election, the president) for approval or rejection. It would not make sense that parliament could amend the constitution on its own when it cannot pass a law on its own. Second, the parliament is a badly divided body and has trouble developing consensus positions. Third, the various parties within the parliament show unmistakable signs of taking positions on the complementary declaration with an eye to the presidential race. Since the presidential election outcome is unknown, key actors are hedging their bets: they want to know who the president will be before they decide what his powers are.
So the parliament cannot do it on its own and indeed, the deputies seem to have suspended their efforts this week.
Will Egypt get a complementary constitutional declaration? As long as the pouvoir constituant is such a murky question, it is likely to get one only if there is broad consensus among most leading political forces and the SCAF.
And so while it has taken a long time to get there, the fundamental result may be sound. In Egypt for the time being, basic questions of political authority are to be decided not by narrow majority or by force of arms but by discussion and agreement among diverse parties. That is a healthy development in the absence of a legitimate permanent governing structure. If only Egypt had taken this path last February, things would have been much easier.