After all of the legal and electoral wrangling, Egypt has produced its first democratically-elected president. On June 25, Mohammed Mursi, the Muslim Brotherhood’s candidate, moved into the office that Hosni Mubarak previously occupied, where he will serve as the transitioning country’s head of state.
One of the major worries of analysts and scholars alike throughout the electoral process was the lack of a defined role for the president. Based on the barebones format of the Supreme Council of the Armed Forces' (SCAF) Constitutional Declaration of March 2011, it was difficult to know what an Egyptian president would actually be able to do. In response to this concern, on June 17, 2012, SCAF issued an addendum to the original constitutional declaration that did a great deal to clarify the powers of the office of president.
While it was important for the progress of the burgeoning democracy that these powers are spelled out, the particular clarifications that were offered have been met with extraordinary criticism. Some have labelled it the centerpiece of the SCAF’s “Military Coup by Law”, and similar categorisations have been offered by senior members of Mohammed Mursi’s Freedom and Justice Party. Others have gone further, such as former presidential candidate Abdel Moneim Abouel Fotouh, and demanded that the SCAF rescind the supplementary declaration.
Given the extraordinary reaction to the supplementary declaration, along with the vitriolic back and forth between the ruling SCAF and the country’s newly elected leaders, it is necessary to examine exactly what powers have been taken away from the republican government by the newest declaration.
The story begins one day prior to the publication of the second constitutional declaration. On June 16, the Egyptian Constitutional Court determined that the previous parliamentary elections had been conducted illegally and SCAF ordered the dissolution of the legislature. This event would heavily influence the importance of the following day’s constitutional declaration.
Firstly, under Article 56(B) of the secondary declaration, SCAF is tasked with legislation until the election of a new parliament. Thus, by dissolving parliament and issuing the addendum, SCAF gave itself supreme legislative power over Egypt.
The second issue is more complex. One of the major alterations in the supplementary declaration was the removal of administration of the armed forces and certain national security issues from the purview of the president.
Under Article 151 of the 1971 Egyptian Constitution, the president was supreme commander of the armed forces. He was also responsible for declarations of war, subject to the approval of the legislature. This was changed by the June addendum. Under Article 53 of the latest document, the president can only declare war after the approval of SCAF. Additionally, the declaration locks in the current membership of SCAF and designates the current head as the commander-in-chief of the armed forces “until a new constitution is drafted”. Given that parliament had been tasked with the creation of the body (known as the Constituent Assembly) that would draft an Egyptian constitution, and that such a body is not forthcoming, it appears there will not be a new constitution for some time. The latest constitutional declaration leads one to believe that the current head of SCAF will control the armed forces as commander-in-chief for the foreseeable future.
SCAF has managed to take legislative power away from a democratically-elected legislature and ensure that the new president will have considerably less oversight over the council and the armed forces than any Egyptian president in history.
SCAF has claimed two additional powers: one that could serve to enumerate the body’s powers within the constitution, and another that could serve to delay the transition to civilian rule after the constitution has finally been drafted.
Under Article 60(B), SCAF is responsible for the appointment of a new constituent assembly should the assembly “encounte[r] an obstacle that would prevent it from completing its work”. In the time since the election of parliament, there has been a deep divide between factions over who to include in the constituent assembly to draft the constitution itself. And based upon these rifts, there is little doubt that the drafting process will be similarly laden with pitfalls. Should the deadlock reach an impasse, SCAF has the ability to appoint its own body to draft a constitution.
Secondly, under Article 60(B)(1) of the secondary declaration, the leader of SCAF has been included on the list of leadership positions that could object to any draft document on grounds that it “conflict[s] with the revolution's goals and its main principles or which conflict with any principle agreed upon in all of Egypt's former constitutions”. Should this take place, the Constituent Assembly is forced to either adjust the challenged provision within 15 days or pursue the matter through the constitutional court, which would have seven days to determine a resolution. Not only does this give SCAF a week's leeway should the Constituent Assembly manage to draft a constitution, it also gives the body an undue influence by forcing any issues to be taken up in front of a panel of Mubarak-era judges that has been seen by the masses as an ally of SCAF.
Taken together, the broad sweeping powers granted by SCAF’s second constitutional declaration are a tremendous power grab. Under previous law, upon being sworn in, President Mursi would have become the commander-in-chief of the armed forces and thus had control of SCAF. Not only has the military rejected any semblance of civilian rule and frozen out Mursi, SCAF has taken steps to ensure this will remain the case as long as the country is embroiled in difficult, transitional politics. Additionally, due to a ruling by a panel of judges seen as pro-military, SCAF has taken over legislative duties for the country.
As Nathan Brown writes, “there is probably no area of constitutional design that is more dependent on actual practice and resistant to precise textual definition than [executive powers]”. This has no doubt proven true throughout various countries’ transitions to democracy. However, if SCAF continues taking steps to strip President Mursi of vital powers and resist civilian oversight while acting as the country’s legislative authority and influencing the constitutional drafting process, it will be difficult for civilians to wrest power from the military and, whether called a coup or not, many gains of the revolution will have been lost.
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