Now that the results of Egypt’s presidential elections have been declared, it is left to be seen exactly how much power the ruling junta will relinquish.
With the proclamation of the complementary constitution just hours before the end of presidential elections and the dissolution of parliament, which for the first time in the history of Egypt came through free and fair elections, the Supreme Council of the Armed Forces (SCAF) has sent a clear signal of its intent; that it is determined to preserve its political dominance, through these arbitrary measures, in a manner that betrays its disregard for democracy and the country’s constitution.
Before assessing the Egyptian constitutional issue, it should be noted that constitutions in the West are revered, which makes it very difficult to manipulate them for the interests of powerful politicians. If there is a prominent feature that differentiates between the mentality of the Arab world and that of the Western world from a political and legal point of view, it is respect for laws in general, and constitutional law in particular.
In the United States, for example, a constitutional amendment requires approval by two thirds of the Senate and House of Representatives, as well as ratification by the President; this is no easy feat in the political life of the United States. Furthermore, no constitutional amendment in the United States is expected to invalidate the foundations or principles upon which the American nation was built. Evidence for this is the fact that the American Constitution has witnessed only 27 amendments during the course of more than 225 years. None of these have affected the foundations of the Constitution.
On the other hand, we find that the Egyptian Constitution, which was first adopted in 1882 during the reign of Khedive Tawfiq, was abrogated in its entirety shortly thereafter. A new constitution was then issued in 1923 which bore the name of the year in which it was issued. It too was revoked seven years later in 1930.
In February 1953, a Constitutional Declaration containing the provisions for the interim period was issued in order to govern during the transition from monarchical rule. It was cancelled in June of the same year when the monarchical system was finally abolished and the republic was declared. In 1956, a new Egyptian constitution was issued, which was replaced by the Unity Constitution in 1958 following the establishment of the United Arab Republic between Egypt and Syria. Three years later, after the collapse of the union, a new interim constitution was issued. A final constitution was adopted in 1971.
But even this constitution was not without substantial modifications. In 1980, President Anwar Sadat proposed a number of amendments which were all approved by parliament. The highlight of these was the amendment made to Article 77 which fixed the number of presidential terms to two.
In 2006, Article 76 of the constitution was amended to invalidate the system of referendum and adopt the method of direct secret ballot among several candidates for the presidential elections. This modification led eventually to the re-election of President Hosni Mubarak’s. In 2007, Egypt witnessed the further amendment of 34 articles of the constitution – in one day.
After the success of the Egyptian revolution last year, a Constitutional Declaration was issued in March 2011. Shortly before the presidential elections the SCAF issued an appendix to it.
This last amendment gave the SCAF powers to make critical decisions and restrict the powers of the elected president. Moreover, it allowed the military to withhold legislative authority for itself in addition to the adoption of a new “emergency law”. All this confirms that the decision-makers in the Arab world are the ones who are not ready to accept democracy, and not their people, as they claim.
It is ironic that although every president who takes power in Egypt makes constitutional amendments according to his wishes, no presidential term is without serious violations of the constitution, which they swear to protect the day they become president.
Constitutional dilemma or political crisis?
After the SCAF incorporated what it calls the Complementary Constitution in a manner incompatible with the most basic principles of democracy, the question remains: is the crisis really constitutional, or political?
The unquestionable reality is that the SCAF seized power without any constitutional right, and that the legitimacy which the military council enjoys was given to it by the people. They agreed that the council should exercise authority after the revolution in order to prepare for free and fair legislative and presidential elections. This trust was granted after the military junta publicly pledged to hand over power to an elected civilian government.
Accordingly, the legislative power acquired by the military junta ended after the convening of the parliament. Likewise, its executive powers expired after the election of the new president. No one can therefore claim that the junta’s rule is above the rule of the elected president or parliament.
The ruling of the Constitutional Court to dissolve parliament is clearly a political and not a legal one. Despite the power afforded by provisions of the Constitutional Court, its jurisdiction is limited to determining the constitutionality of particular articles, and does not exceed that.
It is well known that the ruling of the Constitutional Court did not only repeal provisions relating to one third of successful individual MPs, but also invalidated the remaining two thirds using the same reasoning. Since this matter lacked any constitutional basis, it should now be re-evaluated from a legal point of view through the relevant state channels. This would avoid any confiscation of the people’s right to choose their representatives.
Additionally, the decision to dissolve parliament cannot be taken by the President or the Military Council because Article 136 of the 1971 Constitution stipulates that “no head of state may dissolve parliament unless it is necessary and after a referendum”.
By arrogating to itself legislative powers, claiming that parliament has been dissolved, the SCAF is in clear breach of Article 108 of the 1971 constitution, which authorizes the head of state in times of necessity and in exceptional circumstances to assume legislative powers temporarily.
Another ridiculous measure carried out by the SCAF in the Complementary Constitution was to ring-fence the right to declare war for itself. This is also unacceptable since all constitutions recognize the president, whether civilian or military, as the chief of the armed forces, and that they bear full responsibility for it.
One last question that has emerged is: to whom will the new president swear the constitutional oath given the absence of the parliament?
Article 79 provides for the president to swear the constitutional oath before the parliament, but until the issue of the parliament is resolved judicially, there is no reason why the new president cannot swear the oath before the Constitutional Court, which would imply the validation of its decision to dissolve parliament.
This reality confirms that the current crisis is not constitutional, but rather political, albeit in order to maintain the junta’s political domination. Those who reflect on the timing of the amendments will find all the answers as to whether the crisis is constitutional or political.
Needless to say, the Egyptian people have reached a level of political awareness such that they will not be dissuaded from pursuing full democracy. They will ensure that elected public officials are allowed to perform their duties in spite of any efforts by the military junta to prevent this.
Accordingly, the West in generally and the US in particular, which have long preached about freedom and rules of democracy, must now distance themselves from the junta and its efforts to bury the newly born democracy. They must not repeat the error committed in Algeria and Palestine.
Although the Complementary Constitution contradicts the Egyptian Constitution itself, it ties in with the dishonest history of Arab nations having their constitutions amended from the top and not the bottom. It also reflects the depth of the constitutional crisis in the legal understanding of Arabs. This, unfortunately, is not confined to Egypt alone; many Arab countries have witnessed the amendment of their constitutions in many similar ways.
In 2006, after the expiry of Palestinian president Mahmoud Abbas’ term in office, he dissolved the Palestinian National Council and suspended certain articles of the Constitution. This allowed him, without election, to remain president for an indefinite term!
In 2000, the Syrian Constitution was amended in a few hours by the Syrian parliament to accommodate the age of the new president (Bashar Al Assad). This was done, purportedly, to prove that the Arab world has constitutional flexibility, which the West lacks. Similarly, in Algeria, the current president managed to get an amendment to the Algerian constitution in 2008 allowing him to remain in office for a third term.
In conclusion, one can say that in the past, it may have been acceptable for dictators to fool their people and hold all constitutional and non-constitutional powers, but it is not acceptable or reasonable to keep fooling the people during the era of the Arab revolutions. The people are determined to seize power from those who usurped it. They will not relinquish their right to be the source of legitimacy and authority in their new democracies.
The author is a professor of international law at King Faisal University in Saudi Arabia. This article is a translation from the Arabic version published by Al Jazeera on 21 June 2012