SCAF’s Constitutional Declaration – Uncertainty and Hope for Egypt’s Bicameral Legislature.

February 11 marked the one year anniversary of the official fall of Hosni Mubarak from power.  What started with street demonstrations and the Supreme Council of the Armed Forces (SCAF) overthrowing the President and dissolving the Parliament, was followed by a referendum to amend the existing constitution and fresh Parliamentary election.  On February 22, the voting process which began in November of 2011 was completion with the second and final round of voting for the Shura Council.

These Parliamentary elections in the post-Mubarak Egypt, conducted under a new legal regime that allowed previously banned political parties, promised to usher in a new era of democracy and political pluralism for Egypt.  However, as we enter this period of transition, where a democratically elected legislature will operate under a military government while presidential elections are being organized, Egypt’s political establishment will have to balance the legislative needs of the country (which are many) with the preparation for a ‘mini constitutional convention.’  In this period of transition, Egypt’s legislative branch will stand in the middle of this immensely complicated balancing act; and its success of failure will define the countries fortune and the fate of the Arab Spring.

The SCAF’s Constitutional Declaration

Ever since the SCAF took over, the path to a new Egypt has been shrouded in ambiguity and complications.  The governing document at the time of Mubarak’s overthrow was the Constitution of 1971 (as amended in 1980, 2005, and 2007), a document which captures very eloquently the supremacy of the rule of law and other democratic principles.  Unfortunately, the problem with the 1971 constitution was not its inability to name freedoms but its weak provisions in enforcing them.

Therefore, the SCAF organized a referendum to amend the 1971 Constitution, which took place on March 19, 2011.  The referendum, approved overwhelmingly by 77% of the electorate, amended eight articles of the Constitution, the focus being on provisions which would allow for the transition from the present system to a new system of governance.  The plan was for immediate parliamentary election, followed by presidential elections, followed by a constitutional committee to write a new document.

Unfortunately, at some point before the referendum, the SCAF decided that the 1971 Constitution (even as amended) could not adequately provide for the details of the transition period, nor that it was suitable for the transition period.  Therefore, two weeks after the referendum, the SCAF unilaterally (and with great surprise of all) rejected the 1971 Constitution as amended by the referendum, and instead issued (on facebook of all places) a Constitutional Declaration!

Although it does not endanger Egypt’s transition from authoritarian rule to democracy, the constitutional declaration is a complicated and problematic document.  The Declaration is composed of 63 articles, mostly selected from the 1971 document, which also includes those clauses now amended by the referendum.  While the 1971 Constitution (as amended) had 211 articles and covered all aspects of governance, the Constitutional declaration only describes how Egypt would be governed during the provisional period as citizens wait for a new President to be elected and a new constitution to be written.

However, the timing is imminent.  Egypt’s legislative branch is currently composed of two chambers, the People’s Assembly and the Shura Council.  While both chambers will contain members to be appointed by the president, this will not stop the legislature from commencing operations as soon as the final results of the Shura elections are reported.  In the case of the People’s Assembly, the declaration provides that the SCAF will act as the president in making the appointments.  For the Shura Council, the declaration does not delegate this task to the SCAF but rather states that the two-thirds of its members who are elected are sufficient to constitute the body, without waiting for the one-third that the president will appoint after presidential elections take place.

Therefore, the legislature can start operations without having to wait for the election of the President (due later in the spring).  In particular, Article 60 of the Constitutional Declaration instructs the SCAF to convene a joint assembly of the elected (and not the appointed) members of both chambers within six months of their election.  This joint assembly will then elect (not “select,” as the referendum stated) a 100-member committee to prepare a new constitution for Egypt, a process it should complete within six months.  The draft constitution will then go to voters in a referendum.

Who Will Legislate During the Transition?

The question then becomes, what is the Parliament (both chambers) to do until the new constitution is put on a referendum, and what document governs its rights and obligations during this transition period?  In theory, what governs Egypt right now is the SCAF Constitutional Declaration, which includes many provisions from the 1971 constitution while excluding others.  Theoretically, because the Declaration provides only the bare essentials for the government to operate, it should follow that the transitional legislature is only authorized to draft a new constitution.

The Declaration drops virtually all details of parliamentary oversight of the cabinet as well as those articles governing the legislative role of parliament.  While a few general provisions of the 1971 constitution concerning parliament remain it is simply not clear what would happen if the new parliament decided to question the actions of a minister, let alone start legislating.  Some analysts have argued that the new Parliament, emboldened by a popular and fairly democratic election, will try to assert itself and actually govern/legislate during the transition period.

It is not at all inconceivable, that the new Parliament will behave like any other parliament, and draft legislation, exercise oversight of the government, while at the same time conduct hearings and advance discussions on constitutional issues.  In order to do that, the new parliamentarians will have to look somewhere for some guiding principles, and there is no better place than the 1971 Constitution, in operation all those years but never allowed to be fully implemented.

Bicameral Legislature for Egypt

Egypt’s legislative branch is currently composed of two chambers, the People’s Assembly and the Shura Council.  In essence, the Egyptian legislative branch is a classic Westminster construct, with the People’s Assembly exhibiting all the hallmarks of a traditional parliament, and the Shura Council in place of the House of Lords, full of appointed members that represent all aspects of society and endowed with secondary legislative powers.

In an interesting twist of constitutional maneuvering, the Declaration actually keeps the Shura Council, which was created in 1980 by Mubarak with few functions other than to serve as a check on the lower People’s Assembly.  This seemingly harmless legislative chamber could now hold the key to political and constitutional developments in Egypt.  However, the SCAF Constitutional Declaration does not include the list of legislative areas that require the Shura Council’s approval before the People’s Assembly can act, suggesting the Council has no binding power vis-à-vis the People’s Assembly.

In particular, under Article 37 of the Constitutional Declaration, “the Shura Council will consider (by way of studying and recommending), 1) The project of general planning for economic and social development, 2) Draft laws referred by the president of the republic, 3) Whatever the president of the republic refer to the Council on subjects related to the state’s public policy or policies related to the Arab and foreign affairs.

Due to this structure of Egypt’s legislative branch, election participation has been rather lopsided.  According to the Election Commission, participation of eligible voters in the election of the People’s Assembly was 62% (the highest in the post WWII era), while participation in the election of the Shura Council was between 12% and 14% of eligible voters.  With the Muslim Brotherhood in firm control of both the chambers, it’s hard to see the Shura Council asserting its self in this ‘constitutionally ambiguous’ environment.

However, what happens if the President is not from the Muslim Brotherhood, but is rather a more secular unifying figure?  The Muslim Brotherhood has hinted that it intends to stay out of the presidential race.  A president independent of the Muslim Brotherhood might try to provide some balance and act as a check to the People’s Assembly (dominated by the Muslim Brotherhood).

Out of a total 270 seats in the Shura Council, 180 seats are up for grabs by direct election and 90 seats (33% of the total) will be appointed after the presidential election, by the president-elect.  Currently, the Freedom and Justice Party of the Muslim Brotherhood is receiving 59% of the elected seats.  Once a president is elected and appoints the other 90 members, majority in the Shura Council will not be guaranteed for the Muslim Brotherhood.  A Shura Council that is not under the control of the Muslim Brotherhood, along with an independent President, could rise as an alternate source of legislative power within Egypt’s new system of governance.

Resurrecting the 1971 Constitution

If the Parliament were to start legislating, it could resurrect the 1971 Constitution, by following those provisions that relate to parliamentary functions and legislative processes.  Under the 1971 Constitution, the Shura Council could easily assert itself and become a permanent part of the legislative process.  Don’t forget that the U.S. Senate was also intended to be confined to government appointments and foreign treaties, but in practice it has become an equal to the House of Representatives.

In particular, under Article 194 of the 1971 Constitution, the Shura Council will have to approve 1) Proposals for amendment of one or more Articles of the Constitution, 2) Draft laws designed to implement certain constitutional provisions, and 3) Peace and Alliance treaties and all treaties which affect the territorial integrity of the State or concern its sovereign rights.  In case of disagreement between the two chambers, legislation’s (amendments or treaties) are to be harmonized by a joint conference committee and but for vote on both chambers again.

Furthermore, under Article 195, the Shura Council shall be consulted on 1) Draft of the general plan for social and economic development, 2) Draft laws referred to the Assembly by the President of the Republic, and 3) Whatever matters are referred to the Assembly by the President of the Republic relating to the general policy of the State or its policy regarding Arab or foreign affairs.  Under this broad category of ‘general plan for social and economic development’ one could argue that almost any draft legislation falls under the jurisdiction of the Shura Council.

Conclusion

In this period of transition, where the Constitutional Declaration has inadequately defined the powers and responsibilities of the legislative branch, anything can happen.  A Peoples Assembly dominated by one party, an independent President, and a Shura Council armed with the powers granted to it by the 1971 Constitution, could lead to the kind of ‘political competition’ that has proven so successful in many western countries and has been absent from authoritarian Arab politics.

Of all the flaws associated with Egypt’s constitutional transition, an assertive Shura Council and a functional bicameral legislature could prove to be a pleasant surprise.

Sources

Egypt Constitutional Declarationhttp://www.cabinet.gov.eg/AboutEgypt/ConstitutionalDeclaration_e.pdf

Egypt Constitution of 1971 (as amended in 2007)http://www.constitutionnet.org/files/Egypt%20Constitution.pdf

The Carnegie Endowment – A Haphazard Constitutional Compromise

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About Nasos Mihalakas

I am an Assistant Professor of International Business and Government policy, and a former U.S. Government policy analyst. I have over nine years of experience with the U.S. government as a trade policy analyst, and U.S.-China trade relations. I have worked for both a Congressional Commission advising Congress on the impact of trade with China and for the U.S. Department of Commerce investigating unfair trade practices. However, my education has been on constitutional and comparative law, with an LLM from University College London, and a JD from the University of Pittsburgh. Currently I am writing a book on the evolution of Federalism in the U.S., and the application of Federalism as a form of governance around the world. You can contact me at: nasos.mihalakas@gmail.com
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