The developments in Egypt over the past few days have thrown what had been a confused set of institutional arrangements into even greater disarray. The Supreme Constitutional Court (SCC) declared the parliamentary elections unconstitutional, and the Supreme Council of the Armed Forces (SCAF) announced a supplementary constitutional declaration with no apparent public input. On top of that, the first presidential election since the fall of Mubarak was held.
To make things a bit more confusing, statements have been attributed to military leaders that are at variance with the text of their own declaration. For instance, in a news conference, SCAF members reportedly promised the incoming president that he would have the authority to appoint a defense minister, even though that authority was explicitly removed by the supplementary constitutional declaration.The original constitutional declaration from March 2011 had all kinds of loopholes and ambiguities to begin with; the decision to tinker with its provisions this month has widened those loopholes considerably. Many of the gaps are likely to be filled in political practice—often unilaterally by the SCAF according to its needs of the moment. Indeed, the overriding effect of events of the past week has been to contain and sideline the role of elected institutions in Egypt’s transition.
Only the presidency remains (assuming the victor is allowed to take office) a democratic structure, and its authority has been clipped. The current Constituent Assembly was chosen by an elected parliament and thus also has some democratic legitimacy, but its existence is threatened, and, even if it survives, it will have to operate under the watchful eyes of other actors.
What follows is an attempt to clarify where matters stand today—and where gaps still remain.
The SCAF has strengthened its position in a number of ways. First, it has ensured that it will continue its political role after the inauguration of the president. There will be no return to the barracks at the end of this month, despite the promise of a symbolic ceremony in which the military leadership will hand power over to the president. Most important, the SCAF’s legislative role—in abeyance since the parliament began to meet in January—has been restored.
Second, it has declared itself completely autonomous from civilian oversight and given itself free rein in military affairs.
Third, it has granted itself a new, strong voice in the constitution-writing process.
And finally, the SCAF has augmented its positions through institutionalizing an internal security role as well as granting itself a veto over any declaration of war. The first step is likely to be far more important; the second is striking and unusual but also likely primarily of symbolic importance for now.
The military’s internal security role amounts to a standing authorization to the president and the SCAF to invoke martial law. And the SCAF has coupled its supplementary constitutional declaration with a provision for a defense council—a preexisting body—that, while headed by the president, will give the military the dominant voice.
The full extent of the SCAF’s authority is not always clear. Its executive authority is strong but not absolute under the emerging system, and it will turn over some significant authority to the president, especially in administrative and domestic affairs. It is likely that true clarity will come only in practice. If the past week is any indication, ambiguities will be resolved in accordance with the SCAF’s shifting preferences and political will. For instance, its budgetary role is ambiguous—while the non-military budget is not one of those areas of authority explicitly retained by the SCAF, the SCAF has asserted a legislative role, and the budget is, in fact, a law. This would seem to give the SCAF a platform to claim budgetary authority, but there are no preliminary indications yet of any inclination to use it.
The SCAF issued the supplementary constitutional declaration as a decree, not allowing the elected president or the Egyptian people to have a voice in the changes. That suggests the generals are not comfortable with the democratic process.
When the new president is sworn in, he will have considerable authority over domestic politics and administration on paper. But exercising authority in practice in most areas will likely require him to negotiate with the SCAF—especially since the SCAF has just granted the new president the gift of a general to oversee fiscal and administrative affairs for the presidency. Complicating his life still further, the president might also have to negotiate with other important actors, such as the security services.
The president will appoint the cabinet with the exception of the minister of defense. While the position of minister of defense is reserved for the current head of the SCAF, there are no apparent legal or constitutional restrictions on the new president’s choice for all other positions. In the absence of a parliament, the president will be able to make these appointments without any parliamentary oversight—giving him an even freer hand on paper.
But there will be significant political pressures connected with cabinet formation. For instance, in recent years the minister of justice has generally been a judge and the minister of interior has long come out of the security apparatus. It might be possible to violate the first tradition, though it might seem wiser for the new president to placate what has been a fairly active and somewhat aggrieved judiciary. It would be extremely daring and politically risky to violate the second tradition by appointing a civilian interior minister, a step many political reformers have insisted is necessary to begin the overhaul of the abusive and unaccountable state security apparatus.
More generally, with the SCAF always lurking in the background, the president is unlikely to feel free to select a cabinet of his own choosing. The cabinet and individual ministers have considerable authority to make policy as well as issue regulations and decisions. Without any parliamentary oversight or accountability, the only way to challenge any act by a minister or the cabinet may be to file a suit in the administrative courts (which act with varying speed) or to appeal to the SCAF to issue legislation reversing the action.
In the past, the president’s assent has been necessary for parliamentary legislation to become law. That requirement seems to carry over to the new system, but there is some tension in the various provisions on this issue. In one clause, the SCAF seems to have grabbed all legislative authority for itself, but another requires presidential assent for legislation and a third allows the cabinet to draft legislation (whether to forward to the SCAF or the president for further consideration is unclear). In comments to the press, SCAF members did suggest that the generals themselves would be forwarding legislation to the president for approval.
Egypt has been dominated by the presidency for so long that there are a whole myriad of structures, commissions, and procedures that run through the presidency and give the president a strong potential role. These are still part of the legal order.
The term of the presidency is fixed in the March 2011 constitutional declaration at four years (renewable once). Logically, if the president is taking office under a temporary constitution, it might be appropriate to hold new elections once a new constitution is in place. The SCAF has hinted that the new president will only be a transitional figure. But such an arrangement is hardly inevitable, and if that was what the SCAF intended last year, it is not clear why it allowed a four-year term limit in the text of the constitutional declaration.
The only plausible explanation is that the SCAF changed its mind—or is now reserving the right to change its mind depending on what it thinks of the president. There is no clear way of resolving the issue. The permanent constitution could address it, though the SCAF’s newfound assertiveness may lead it to insist on its own answer.
Before the parliament was found unconstitutional, it had elected a Constituent Assembly as required by the constitutional declaration. Actually, it had done so twice—the first body was struck down in March by an administrative court and a new one was formed just days before the presidential election. The parliament had also passed a law governing formation of the body, but that law was never approved by the SCAF.
The second assembly has met once. In an environment in which judges have played an active role, the body took the astute step of electing the most senior judge in the country (one reputed to have some Islamist inclinations) as its president. Yet its days could well be numbered.
Previously, the assembly was expected to submit its work directly to the people with no other review or oversight stipulated. Now a variety of actors—the president, the head of the SCAF, the prime minister, the Supreme Council of Judicial Organizations, or one-fifth of the members of the Constituent Assembly itself—can ask for any provision of the assembly’s draft constitution to be reconsidered before submission to the people. If the Constituent Assembly does not change its mind, the objecting party can resort to the Supreme Constitutional Court for final and binding determination of whether the challenged provision is consistent with the goals of the revolution, the higher interests of the country, or the basic principles of past constitutions. In an earlier piece, I used the phrase “constitutional obscenity” to refer to the extreme vagueness of these standards, the absurdity of holding a new constitution accountable to older ones, and the assignment of final and absolute interpretive authority to an unelected judicial body formed under the old regime.
Now the SCAF has taken the audacious step of allowing itself to form a new Constituent Assembly. If the operations of the current assembly are obstructed and the body is unable to fulfill its duties, the SCAF will form a new assembly within one week—all on its own. In such a case, the new body will have only three months to complete its work, rather than the six months that the current assembly has. This is a period of time that would virtually bar serious public debate.
An obstacle in the path of the current assembly is possible and even likely to emerge. A lawsuit has been filed against the sitting assembly on grounds that members of the parliament voted some of their own members into the body. Although that might sound normal and innocuous, the first assembly was disbanded on the basis of a similar argument.
In all these ways, the constitutional process has been modified in order to make it more accountable to the institutions and principles of the old order than to the Egyptian people.
I have analyzed the argument over whether the parliament has been dissolved in an earlier piece. While those who claim the court has no right to dissolve the parliament do have plausible (if hardly overwhelming) arguments, they have virtually no political chance of success.
The justices of the Constitutional Court gave conflicting signals about how their ruling on the parliamentary election law applies to the upper house of the Egyptian parliament, and that body appears to still be viable. But a legal challenge has been entered against it, so its future is still uncertain.
The supplementary constitutional declaration states that the next set of parliamentary elections will take place one month after the new constitution is approved, effectively suspending parliament until after the transition is complete and oddly suggesting that the current temporary document rather than the final constitution defines when elections are to be held. The amended declaration also allows for a new law to be promulgated now (presumably by the SCAF with presidential assent) to govern those elections, again extending the legal effects of the SCAF’s authority into the operation of the new constitutional order.
The Supreme Constitutional Court
The Supreme Constitutional Court has been placed in a powerful position as guardian, final arbiter, and effective definer of the vaguely defined principles the new constitution must embody.
The justices of the SCC have been referred to in press accounts as “Mubarak appointees,” something that is accurate but sometimes misleading. There is no doubt that the current court was fully formed under the old regime, but its autonomy varied considerably over time and it was never a direct creature of the president. It is true that its reputation and record for independent action has declined over the past decade. I generally share Tamir Moustafa’s views that the court has become politically weaker in recent years.
The current composition of the court is a bit mixed. The SCC chief justice was a direct presidential appointee, although he actually recused himself from the case concerning the disputed candidacy of Ahmed Shafiq, the last prime minister appointed by Hosni Mubarak. He thus can hardly be held responsible for the ruling that allowed Shafiq to run for president despite former ties to the Mubarak regime. The other justices were generally nominated by the court itself and then approved by the president. That has made for some variety and independence in the past. My general impression is that the current court is actually a very diverse body.
The law governing the SCC was changed by the SCAF last summer to allow the court to select its own president from among the three most senior current members. The effect was to insulate the SCC from all other actors though also perhaps to inculcate however subtly a sense that the SCAF (and not the parliament) was the best protector of the judiciary. The new chief justice—a judge on the SCC since 1991—will take over next month.
What justices on the SCC tend to share, despite diverse orientations, is a strong sense of mission to the law and abstract constitutional principles. In a sense, their attitude is analogous to that of the SCAF, though the comparison might offend some of them: senior judges, like senior generals, see themselves as guardians of the public interest and the interests of the state, and therefore as above politics, democratic mechanisms, and accountability. The parliament that was seated in January had offended the SCC’s sensibilities quite deeply by criticizing the chief justice and by proposing legislation that would have deprived the court of some of its authority and autonomy.
It is not quite clear how the court will interpret the vague principles placed in its care for the constitution-drafting process. While many Egyptian judicial authorities work to hew closely to formalistic interpretations of legal texts, the SCC, given its mandate, has shown some comfort departing from narrow textualism and undertaking expansive readings of general constitutional principles. However, the task here is so novel that there is no sure indication of how it would use its authority if called upon.