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The new constitution is a political, not a legal, document

The people of Egypt will be called upon to vote on a new constitution over the next few days. The strange thing about this is that during its final session, the Constitution Committee amended some of the articles applying to state institutions to be established after the referendum. The amendments didn't change the content; they left some blank spaces. The system of governance is unspecified, emptying the constitution of meaning; leaving it also "blank".


As such, anyone participating in the referendum on the constitution will not know when and how the House of Representatives and the Presidency of the Republic will be formed, which means that they will not know when and how the legislative branch and executive branch will be formed, or what terms and methods will be used to form the legislative authority for the first session post-constitution issue. Moreover, they won't know if the president will be elected and take office before the formation of the House of Representatives or after; or if the House of Representatives will be elected individually or under a partisan or group list. They won't know what percentage will be allocated for the workers, peasants, the youth, Copts and the disabled.

It was said in terms of the constitution (after its amendment at the last meeting of the Committee) that laws will be issued after the referendum that will determine all of these issues, meaning that the Egyptian people are expected to vote yes or no on the constitution without knowing anything about the initial shape of the two governing institutions. These institutions will work for five consecutive years in the case of the House of Representatives, and for four consecutive years in the case of the president.

Doesn't this display complete disregard for the will of the people? How can you ask the people for their "binding" opinion without bothering yourself to determine for them what foundations, fundamentals and provisions you will be imposing on them that will determine the first steps in the implementation of this Constitution and the building of its first institutions?

Another question in this regard is this: will the people's vote represent their legitimate and true wishes if it is approval of institutions that have not yet been determined, and rejection on the basis of not knowing what the first formation of these institutions will look like? Based on legal logic, the approval of something that has not been determined yet is made without due diligence, which renders the approval legally void. For example, a marriage cannot be legal when one side is not born yet; you cannot buy something that hasn't been made yet; nor can you hire someone for a job that doesn't exist yet.

On the other hand, these provisions, which have not been determined by the draft constitution, will be referred to when laws are issued in their regard; of course, these laws will be issued before the new constitutional institutions are formed, meaning that the current political authority existing before the referendum on the constitution will issue these laws. This authority is made up of the interim president, who was appointed by the Minister of Defence, as the Commander in Chief of the Armed Forces on July 3. I am sincere in my appreciation of the interim president, as a man of law and a former close colleague, but now I am speaking about the political functions and tasks and legal positions of those who are currently in authority, disregarding the individuals themselves.

Legislation will be issued by the head of state, which the army council decided, on its own, to appoint on July 3rd, and therefore, its political authority is passed down from the source. This means that it reflects the political will of the governing body which was decided by the leaders of the July 3rd military coup, and therefore, it will control the first formation of the political institutions of the state resulting from this constitution; for the first five years, the military council will have all the power to determine the political composition of the state The public will "blindly" sign-off on this constitution and this authority will announce that it received "public consent" in advance of how it decides to build the state. In all reality, these articles allow the July 3, 2013 authority to continue to rule as it wills for the next five years if this constitution sees the light of day.

I have said this publically before, on the evening of July 3rd, and it was published the next day; what occurred was a military coup against a democratic constitution, the 2012 constitution. I would like to reconfirm that I did not participate in the drafting of that constitution; I had declined an offer to be a member of the Constituent Assembly that drafted it, in its first and second form. I had written my opinions on a number of its provisions, and they are all published in newspapers and in the book I published. Whatever its shortcomings may be, the 2012 constitution is a democratic constitution and was established through free and fair elections.

In the context of examining the proposed draft constitution, I would like to begin by saying that the 2012 constitution is still valid, and that the amendment to this constitution is in accordance with articles 217 and 218. Moreover, an amendment must be done with an order from the president or one-fifth of the House of Representatives before it is discussed by the House of Representatives and Shura Council within 30 days; it is not approved unless the majority of the members approve. Once this requirement is met, then the two councils discuss their respective articles within 60 days, and the amendment is approved by two-thirds majority vote from both councils; it is then presented in a referendum for the people within 30 days.

This is dictated by the constitution that was put in place by the people after the January 25th Revolution and its legitimacy was established by the free and fair will of the people. With this constitution, Egypt was considered a democratic and constitutional system in which the governments are changed by means of elections, and not military coups. Afterwards, Egypt's motto became, in line with the meaning of the January 25th Revolution, "change through elections not coups".

Hence, all that is happening now is not constitutionally or politically legitimate because the January 25 Revolution resulted in a constitutional governing system achieved by the 2012 constitution, which has been valid since December 25, 2012. Therefore, we are subject neither to the details of the provisions of the proposed draft constitution, nor to any amendments to the 2012 Constitution without taking such measures as noted above. A legislative system requires us to adhere to the provisions of the present system and procedures, and not pay attention to what results from the current system.

This article is not considered to be a contribution to the ongoing discussion regarding this alleged constitution or the discussion about amending its provisions, because I will not participate in a matter that is illegitimate. I have contributed with my silence over the discussions in the Committee of Ten and the Committee of Fifty, but now I will address some aspects of the structural matters as it is a current political event, and requires commentary for two reasons: first, to examine its credibility and its reflection of the disregard of the people's will; and secondly, to examine its effects on the formation of the current governing system and its ruling institutions in the manner desired after July 3.

I have noticed, for example, that the powers of the president in the proposed draft constitution are greater than that provided for in the 2012 Constitution. This proposed draft dropped Article 141 of the 2012 Constitution, which stipulates that "the President of the Republic wields his powers through the person of the Prime Minister, his deputies and the ministers. This does not apply to the areas of defence, national security and foreign policy, and for the powers set forth in articles 139, 145, 146, 147, 148, 149 of this Constitution." These articles are related to the same matters listed in the article. There are provisions in this Constitution which restrict the president's powers in matters he cannot decide on unilaterally in which he includes councils made up of senior statesmen, but there are too many to list in this article. These restrictions of the powers of the president force him to involve the ministries in his decisions, not only to help the ministry be involved, but also so that his actions are subject to the monitoring authority of the House of Representatives in the context of the ministry's responsibility to the parliament and the right of the parliament to hold ministers accountable.

The text of Article 141 balanced the president's other powers provided for in the 2012 Constitution, such as that provided for in Article 146 regarding his power to dissolve the House of Representatives in case of a dispute regarding the appointment of the Prime Minister on two consecutive occasions, and his contribution to choosing sovereign ministers, such as the Ministers of Defence and Interior.

In order not to bore the reader with too many details, I will sum up by saying that any expert lawyer is able, by comparing the 2012 Constitution and the proposed draft, to recognise the large increase in the president's powers, and that means that the ministers' responsibility has decreased while the president's has increased. Therefore, the House of Representatives' effective monitoring over the work of the executive authority will decrease because only ministers are subject to this monitoring.

There still remains something more dangerous than all of this with regards to the arrangement of the state institution, as, in this new draft constitution, the Armed Forces have gained almost complete independence from other state institutions.

If we compare our constitutions throughout our modern history, especially the last three constitutions, namely the 1971 Constitution, the 2012 Constitution, and the current proposed draft constitution, we notice that the 1971Constitution referred to the Armed Forces in terms of the special tasks related to their duties, but the constitutions preceding it considered it a part of the State and its many institutions; an integral part that cannot be separate from the complete structure of the State. The 2012 Constitution put the Armed Forces in a privileged position in terms of their organisational, financial and institutional independence. Now, we have the most recent draft constitution that put them in a position of complete independence from all state agencies and its institutions, which is a first for Egypt.

After Article 200 provided for the traditional repeated governance to be owned by the people and tasked with preserving their security, and prohibiting the establishment of any military formations for any individual, group or committee, Article 201 provided for the Minister of Defence, who is the Commander in Chief of the Armed Forces, to be appointed by the army officers, and for the National Defence Committee to include six civilian members (including the president) and eight military members. This committee discusses the budget and its opinion must be taken regarding drafting laws relating to the army. I am not opposing a specific provision; I am trying to show the general picture of this committee and its relations with the state institutions and committees. The extent of independence is reflected in the appointment of leadership positions, financial independence and judicial independence.

Articles 402 and 204 contain the following: Article 402 established special judicial committees for Armed Forces officers and soldiers only to settle all of their administrative disputes, which is a new constitutional article. The second, Article 204, categorises the military court as an independent judicial party tasked with dealing with all crimes involving the Armed Forces, its officers and members, and the members of the intelligence agencies committed during or as a result of their service. It then subjected civilians to military courts in crimes involving direct assault of military establishments, camps, border areas, equipment, vehicles, weapons, ammunition, confidential documents, public funds, war factories, and recruitment, as well as crimes that pose a direct attack on military officers and personnel due to the execution of their duties; meaning civilians are subject to military courts in all matters concerning the Armed Forces.

As for transitional provisions, Article 234 states, "The Minister of Defence is appointed after the approval of the Supreme Council of the Armed Forces. The provisions of this article are valid for two complete presidential terms as of the date the constitution is in effect."

This article confirms that the event occurring on July 3, 2013 was a military coup, because the Minister of Defence referred to by the article and the head of Supreme Council of the Armed Forces are the same individual. That person appointed the interim president on July 3, 2013, and gave him the authority to issue a constitutional statement to take the place of the 2012 Constitution, which he suspended, and the individual remained in the position of Minister of Defence in the ministry appointed by the interim president.

We will have to see what happens in the near future, in the next few months, after the draft constitution is put up for referendum and approved, as we do not know who will be appointed as president, officials or ministers in the executive authority, nor do we know which members will make up what legislative authority. Everything is unknown, variable and thus possible, except for the Minister of Defence and Commander in Chief of the Armed Forces; the constitution stipulates that he remains the constant and unchanging pole. Therefore, his political status is higher than all the state institutions and its members; or, in other words, his status is equal to the highest of them all, because he is not concerned with the future president, the head of the executive authority; nor is he concerned with the House of Representatives, which makes up the legislative authority; nor with the juridical authority, which concerns no one.

In addition to all of this, he is in a position of administrational, organisational and financial independence, making him more stable than the president, who is elected by the people for only four years. And we know that one element of might is not only the power allowing one to make dominant decisions, but also the time given for an individual in that position; the longer the period, the more the individual in the position of power is capable and influential, and less vulnerable to opposition. The minister is a member of the ministry, and his service ends when the work of the ministry is over and this is true for everyone, except for the individual given immunity by the aforementioned Article 234 for at least eight years.

The greatest indication of its significance is apparent when we review our knowledge of political science with regards to the state. One of the most important characteristic of the state is the community institution which "monopolises legitimate means of violence", and such a description puts it in a position of authority in the community over the national group. This description consists of two elements, the element of material violence, which it monopolises, uses and gains power and influence over the citizens, as they cannot disobey; and the second element is the classification of legitimacy, that is, the acceptance by the masses of being subject to this violence.

However, the problem is that if the means and ability for violence are paired with legitimacy and put into one hand, then the opportunity for oppression and tyranny is created for those controlling both of these elements without any popular resistance or the potential for resistance. Therefore, in order to prevent oppression and tyranny resulting from the monopoly of violence and legitimacy, states have wisely established the state institutions on the basis of distributing work amongst them, so institutions established and given the means of violence are controlled in a disciplined manner, along with the tools of oppression, arms and the ability to generate money for such actions. However, these institutions are stripped totally of the legitimacy and authority to issue institutional decisions for the community and the state.

On the other hand, other institutions are established and given authority to issue decisions to use violence, and such institutions possess "legitimacy" but have no access to weapons or physical means of violence, and are kept away from the means to raise funds.

The first type of institution which possesses the means of violence has been called the executive authority, while the second type which does not possess these means, but possesses legitimacy and can order the use of violence is called the legislative authority, which is charged with issuing laws, planning policies, and holding the leaders of the executive authority accountable for their actions. In addition, there is the judicial authority, which specialises in judging the legitimacy and legality of any action committed by the executive authority, and sets things right, the way being determined by the legislative authority.

The legislative authority does not possess any tools other than a committee in which its members meet to discuss, deliberate and issue resolutions; the judiciary does not possess any material means other than pens and paper used to record the verdicts they issue. The independence of these two authorities alone will not lead to tyranny because neither of them possesses the means to execute their orders; rather, such independence is necessary in order for the authority possessing the means of violence not to control them.

Such distribution and division of authority is exactly what makes us trust the state and its members, and it is what we call in legal terms "restricted power". All governing systems aim to ensure that power remains restricted because if the restrictions are broken, then the situation becomes dangerous. As such, we must ensure that violence and legitimacy are not paired in one hand, one institution, or one committee.

If the army is the central power in possession of the means of physical violence, and its independence from all other institutions is provided for in the draft constitution, in organisational terms, the formation of the leadership, financial sources and judicial independence, then the separation needed for violence to be isolated from the other institutions that possess the power of legitimacy and monitoring is achieved. Moreover, legitimacy will become helpless and stripped of the protection and prestige guaranteed to it by the executive authorities when used for promoting the truth. This means that the state will have suffered organisational schizophrenia, or the two functions will have merged, increasing the possibility of tyranny, and we have experienced this for decades.

May God protect Egypt and inspire its leaders and people with wisdom.

Tariq El-Bishri is an Egyptian thinker and Judge. This is a translation of the Arabic text published by Shorouk newspaper on 18 December, 2013

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.

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